title: Case T-286/02: Action brought on 23 September 2002 by Oriental Kitchen SARL against Office for the Harmonisation of the Internal Market (trade marks and designs) (OHIM)

text:
23.11.2002             EN                      Official Journal of the European Communities                                      C 289/31
Action brought on 20 September 2002 by Eva Vega                           Action brought on 23 September 2002 by Oriental
Rodríguez against Commission of the European Com-                         Kitchen SARL against Office for the Harmonisation of
                             munities                                        the Internal Market (trade marks and designs) (OHIM)
                                                                                (Case T-286/02)
                         (Case T-285/02)
                                                                                (2002/C 289/58)
                         (2002/C 289/57)
                                                                                (Language of the case: French)
                   (Language of the case: French)
                                                                          An action against Office for Harmonisation in the Internal
                                                                          Market (trade marks and designs (OHIM) was brought before
                                                                          the Court of First Instance of the European Communities on
An action against the Commission of the European Communi-                 23 September 2002 by Oriental Kitchen SARL, whose regis-
ties was brought before the Court of First Instance of the                tered office is in Choisy-le-Roi (France), represented by Jean-
European Communities on 20 September 2002 by Eva Vega                     Jacques Sebag, lawyer. Mou Dybfros A/S, Esbjerg (Denmark)
Rodríguez, residing in Brussels, represented by Juan Ramón                was also an intervener in the proceedings before the Board of
Iturriagagoitia Bassas, lawyer.                                           Appeal.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                          —     annul the appeal decision of 28 June 2002 of the Office
—     annul the decision of the Commission of 25 June 2002;                     for the Harmonisation of the Internal Market;
                                                                          —     vary the decision of the Office for the Harmonisation of
—     order that she be paid compensation to make good the                      the Internal Market of 11 December 2000;
      damage suffered by her in the amount of EUR 72 292,36,
      subject to all manner of reservations, together with
      default interest at the statutory rate;                             —     reject the opposition made by Mou Dybfros A/S;
                                                                          —     uphold the registration of the trade mark KIAP MOU
—     order the defendant to pay the costs.                                     sought by Oriental Kitchen;
                                                                          —     order Mou Dybfros A/S to pay all the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
The applicant in the present case, who applied to take part               Applicant for the Com-        the applicant
in Competition COM/A/10/01, challenges the removal of                     munity trade mark:
question 25 from Test A of the selection procedure, following
the discovery of an alleged error in it. That decision prevented          The Community trade           the word mark ‘KIAP MOU’ regis-
her from obtaining the minimum requisite number of marks                  mark concerned:               tered for goods in Classes 29 and
and led to her failing that part of the test.                                                           30 (including meat and prepared
                                                                                dishes) — application No 950667
                                                                          Proprietor of the right to    Mou Dybfros A/S
In support of her arguments, and with regard to the content               the trade mark or sign
of the abovementioned question, the applicant claims that the             asserted by way of oppo-
Protocol incorporating the Schengen acquis into the European              sition in the opposition
Union is indeed the Second Protocol attached to the Treaty of
                                                                          proceedings:
Amsterdam and not, as the Commission claims, Decision
1999/436/EC.
                                                                          Trade mark or sign            the national trade mark ‘MOU’,
                                                                          asserted by way of oppo-      registered for goods in Classes 29
                                                                          sition in the opposition      and 30
                                                                          proceedings:
 ---pagebreak--- C 289/32               EN                      Official Journal of the European Communities                                  23.11.2002
Decision of the Oppo-          rejection of the application for           principle of sound administration in that it did not ascertain
sition Division:               registration                               the powers of the director of the ‘Center Energy-Environment
                                                                          Research and Development’, which is merely a department of
Decision of the Board of       rejection of the applicant’s appeal        the applicant with no legal personality.
Appeal:
Grounds of claim:              —    since the word ‘mou’ in Lao-
                                    tian and Thai means ‘porc’,
                                    the trade mark ‘MOU’ is
                                    merely descriptive and thus
                                    may not be protected;
                                                                          Action brought on 23 September 2002 by Asian Institute
                               —    registration of the trade             of Technology against Commission of the European
                                    mark ‘MOU’ would in fact                                        Communities
                                    prevent the use of a word
                                    with meaning which must be
                                    used in order to describe the                                 (Case T-288/02)
                                    nature of the product to be
                                    sold.                                                         (2002/C 289/60)
                                                                                (Language of the case: French)
Action brought on 23 September 2002 by Asian Institute                    An action against the Commission of the European Communi-
of Technology against Commission of the European                          ties was brought before the Court of First Instance of the
                          Communities                                     European Communities on 23 September 2002 by the Asian
                                                                          Institute of Technology, whose registered office is at Klong
                        (Case T-287/02)                                   Luang (Thailand), represented by Henri Teissier du Cros,
                                                                          lawyer, with an address for service in Luxembourg.
                        (2002/C 289/59)
                                                                          The applicant claims that the Court should:
                   (Language of the case: French)
                                                                          —     annul the decision of the European Commission of
                                                                                22 February 2002 to conclude a research contract with
An action against the Commission of the European Communi-                       the alleged director of the ‘Center Energy-Environment
ties was brought before the Court of First Instance of the                      Research and Development’ (CEERD) of the Asian Insti-
European Communities on 23 September 2002 by the Asian                          tute of Technology.
Institute of Technology, whose registered office is at Klong
Luang (Thailand), represented by Henri Teissier du Cros,
lawyer, with an address for service in Luxembourg.
                                                                          Pleas in law and main arguments
The applicant claims that the Court should:
                                                                          The Commission, by the contested decision, entered into a
—      annul the decision of the European Commission of 4 July            research contract with the ‘Center Energy-Environment
       2000 to conclude a research contract with the director of          Research and Development’, allegedly represented by its direc-
       the ‘Center Energy-Environment Research and Develop-               tor. That centre is a department of the applicant with no legal
       ment’ (CEERD) of the Asian Institute of Technology.                personality. The applicant further states that the person
                                                                          who signed the contract as director of the ‘Center Energy-
                                                                          Environment Research and Development’ left the department
Pleas in law and main arguments                                           on 31 December 2001. The contract was a follow-up contract
                                                                          to that at issue in Case T-287/02.
The Commission, by the contested decision, entered into a
research contract with the ‘Center Energy-Environment                     According to the applicant, the alleged director of the ‘Center
Research and Development’, represented by its director. That              Energy-Environment Research and Development’ had no man-
centre is a department of the applicant with no legal person-             date to conclude such a contract. The Commission thus
ality.                                                                    infringed the principle of sound administration in that it did
                                                                          not ascertain the powers of the director nor whether the
According to the applicant, the director of the ‘Center Energy-           person concerned was in fact a director.
Environment Research and Development’ had no mandate to
conclude such a contract. The Commission thus infringed the


title: Case T-6/03: Action brought on 9 January 2003 by R. J. Reynolds Tobacco Holdings, Inc., R. J. Reynolds Tobacco Company, R. J. Reynolds Tobacco International, Inc. and RJR Acquisition Corp. against the Commission of the European Communities

text:
22.3.2003                EN                         Official Journal of the European Union                                          C 70/25
The applicants further claim that ‘feta’ does not fulfil the                The applicant claims that the Court should:
conditions for registration pursuant to Council Regulation
No 2081/92. ‘Feta’ is a generic term which cannot be protected
under that regulation. ‘Feta’ is a generally used term of reference         —     declare the present application admissible;
for a given dairy product. The evolution in the Greek legislation
shows that ‘feta’ has been construed as a generic term in
Greece as well, just as the Council and the Commission in                   —     annul the Commission Decision resulting in the filing of
their formulations have treated feta as a generic product.                        the third complaint ( 1) on 30 October 2002 before the
Furthermore, Greek feta is not one uniform type of product,                       New York District Court against the applicants, as
leading to the conclusion that the aim is in reality the                          publicly announced by the Commission in its Press
protection of Greek cheese per se.                                                Release IP/05/1592 of 31 October 2002;
                                                                            —     order the Commission to pay the costs of the present
Lastly, the applicants submit that the registration of the term                   proceedings, including the costs of the applicants and
‘feta’ is contrary to the principle laid down in Article 7(4) of                  any intervening parties.
Council Regulation No 2081/92, fundamental principles of EC
law and therefore the Treaty, including Article 12 EC and
Article 34(3) EC, and also the principle of the protection of
legitimate expectations and the proportionality principle.
                                                                            Pleas in law and main arguments
( 1) Commission Regulation (EC) No 1829/2002 of 14 October 2002
     amending the Annex to Regulation (EC) No 1107/96 with regard
     to the name ‘Feta’ (OJ 2002 L 277, p 10).
( 2) OJ 1992 L 208, p. 1.
( 3) OJ 1996 L 148, p. 1.
                                                                            The applicants are the defendants in legal proceedings brought
( 4) Joined Cases C-289/96, C-293/96 and C-299/96 Denmark and               by the Commission on behalf of the European Community
     Others v Commission [1999] ECR I-1541.                                 and a number of Member States before a United States court
                                                                            seeking treble and punitive damages, equitable relief and
                                                                            various types of injunctive relief for the applicants’ alleged
                                                                            participation in money laundering schemes.
                                                                            The applicants submit that the European Community, rep-
                                                                            resented by the Commission, lacks the competence to adopt
                                                                            the contested act and to bring action on its own behalf and on
Action brought on 9 January 2003 by R. J. Reynolds                          behalf of Member States for the following reasons:
Tobacco Holdings, Inc., R. J. Reynolds Tobacco Company,
R. J. Reynolds Tobacco International, Inc. and RJR Acqui-
sition Corp. against the Commission of the European                         —     Article 2 EC does not confer any specific and autonomous
                             Communities                                          powers upon the institutions;
                             (Case T-6/03)                                  —     Article 281 EC merely states that the EC enjoys legal
                                                                                personality, without addressing any issue of competence;
                            (2003/C 70/41)
                                                                            —     Article 282 EC does not confer any competence on the
                                                                                EC, represented by the Commission to bring an action
                    (Language of the case: English)                               before the court of a non-Member State;
                                                                            —     Article 280 EC does not grant the EC, represented by the
                                                                                Commission, any competence to bring legal action for
An action against the Commission of the European Communi-                         the protection of the Community’s financial interests.
ties was brought before the Court of First Instance of the                        Article 280 only grants limited competence on the
European Communities on 9 January 2003 by R. J. Reynolds                          Community to ensure that Member States introduce
Tobacco Holdings, Inc., Winston-Salem, United States of                           measures that are effective to protect the Community’s
America, R. J. Reynolds Tobacco Company, Winston-Salem,                           financial interest and to assist the Member States in this
United States of America R. J. Reynolds Tobacco International,                    task;
Inc., Winston-Salem, United States of America and RJR
Acquisition Corp, Wilmington, United States of America,
represented by Mr Eric Morgan de Rivery and Ms Francesca                    —     even if one assumes that Article 280 EC grants such
Marchini Camia, Lawyers.                                                          competence on the EC, the contested act does not fulfil
 ---pagebreak--- C 70/26                  EN                         Official Journal of the European Union                                       22.3.2003
       the requirements of Article 280(1) EC, i.e. it does not aim          The applicant claims that the Court should:
       at countering fraud which affects the financial interests of
       the Community, it does not follow the procedure of
       Article 280(4) EC combined with Article 251 EC, and it               —     annul the decision of the Fourth Board of Appeal of the
       does not comply with the express exclusion of criminal                     Office for Harmonization in the Internal Market (OHIM)
       law and the administration of justice in Article 280(4)                    of 3 October 2002 in Joined Cases R 700/2000-4 and
       EC;                                                                        R 746/2000-4;
—      the contested act circumvents existing Community legis-
       lation on money laundering;                                          —     refuse to register Community trade mark No 203570;
—      the EC, represented by the Commission, has assumed
       the self-appointed role of ‘European Public Prosecutor’,             —     order the defendant to pay the costs.
       contrary to the Treaty and to the will of the Member
       States.
The applicants allege that the EC, represented by the Com-
mission, has engaged in forum shopping aimed at bypassing                   Pleas in law and main arguments
the shortcomings of the Members States and the EC, and that
it is not constitutionally competent to act on behalf of the
Member States.
                                                                            Applicant for the Com-       EMILIO PUCCI S.R.L.
                                                                            munity trade mark:
Furthermore, the applicants submit that the contested act
violates the appropriate means of settling disputes concerning
the interpretation and application of the Treaty pursuant to                The Community trade          ‘Emilio Pucci’, in manuscript
Article 292 EC. It also violates the obligation to state reasons            mark concerned:              handwriting — Application
and the following general principles and fundamental rights:                                             No 203570 for goods in Class-
the principle of proportionality, the principles of legitimate                                           es 3, 18, 24 and 25
expectations and of legal certainty as well as the rights of
defence and due process. Finally, the applicant maintains that
                                                                            Proprietor of the right to   The applicant
the defendant has misused its powers by adopting the contested
                                                                            the trade mark or sign
act.
                                                                            asserted by way of oppo-
                                                                            sition in the opposition
( 1) The decision to commence the first proceedings was contested by        proceedings:
     the applicants in Case T-379/00 (JO C 79 of 10.3.2001, p. 24).
     The decision to commence the second proceedings was challenged
     by the applicants in Case T-260/01 (JO C 3 of 5.1.2002 p. 39).         Trade mark or sign           EMIDIO TUCCI (in manuscript
                                                                            asserted by way of oppo-     handwriting No 1908876 for
                                                                            sition in the opposition     goods in Class 3, and No 855782
                                                                            proceedings:                 for goods in Class 25)
                                                                            Decision of the Oppo-        Registration refused for goods in
                                                                            sition Division:             Classes 3, 18 and 25 and appli-
Action brought on 10 January 2003 by El Corte Inglés                                                     cation for registration upheld for
against Office for Harmonisation in the Internal Market                                                  goods in Class 25 and for certain
                (trade marks and designs) (OHIM)                                                         goods in Class 18
                            (Case T-8/03)                                   Decision of the Board of     Appeal brought by the opponent
                                                                            Appeal:                      dismissed and action brought by
                           (2003/C 70/42)                                                                the applicant upheld in respect of
                                                                                the goods refused in Class 18
                    (Language of the case: Spanish)
                                                                            Grounds of claim:            Misapplication of Article 8(1)(b)
                                                                                of Regulation (EC) No 40/94 (like-
                                                                                lihood of confusion) and of
An action against Office for Harmonisation in the Internal                                               Article 8(5) thereof
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
10 January 2003 by El Corte Inglés, whose registered office is
in Madrid, represented by Juan Luis Rivas Zurdo.


title: Case C-275/10: Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Residex Capital IV CV v Gemeente Rotterdam (Article 88(3) EC — State aid — Aid granted in the form of a guarantee to a lender for the purpose of enabling the latter to grant a loan to a borrower — Infringement of procedural rules — Obligation to recover — Nullity — Powers of the national court)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/8

         Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Residex Capital IV CV v Gemeente Rotterdam
   (Case C-275/10) (1)

   (Article 88(3) EC - State aid - Aid granted in the form of a guarantee to a lender for the purpose of enabling the latter to grant a loan to a borrower - Infringement of procedural rules - Obligation to recover - Nullity - Powers of the national court)
   2012/C 32/13
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Residex Capital IV CV

      Defendant: Gemeente Rotterdam

      Re:

   Reference for a preliminary ruling — Hoge Raad der Nederlanden — State aid — Interpretation of Art. 108(3) TFEU — Aid granted in the form of a guarantee to a lender, enabling it to grant a loan to a borrower — Infringement of procedural rules — Jurisdiction of the national courts

      Operative part of the judgment

   The last sentence of Article 88(3) EC must be interpreted as meaning that the national courts have jurisdiction to cancel a guarantee in a situation such as that in the main proceedings, in which unlawful aid was implemented by means of a guarantee provided by a public authority in order to cover a loan granted by a finance company to an undertaking which would not have been able to secure such financing under normal market conditions. When exercising that jurisdiction, those courts are required to ensure that the aid is recovered and, to that end, they can cancel the guarantee, in particular where, in the absence of less onerous procedural measures, that cancellation is such as to lead to or facilitate the restoration of the competitive situation which existed before that guarantee was provided.

      (1)  OJ C 246, 11.9.2010.


title: Case C-5/10 P: Appeal brought on 6 January 2010 by Giampietro Torresan against the judgment of the Court of First Instance (Second Chamber) delivered on 19 November 2009 in Case T-234/06 Torresan v Office for Harmonisation in the Internal Market (Trade marks and Designs) (OHIM) and Klosterbrauerei Weissenohe GmbH & Co. KG

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/36

         Appeal brought on 6 January 2010 by Giampietro Torresan against the judgment of the Court of First Instance (Second Chamber) delivered on 19 November 2009 in Case T-234/06 Torresan v Office for Harmonisation in the Internal Market (Trade marks and Designs) (OHIM) and Klosterbrauerei Weissenohe GmbH & Co. KG
   (Case C-5/10 P)
   2010/C 63/57
   Language of the case: Italian

      Parties

      Appellant: Giampietro Torresan (represented by: G. Recher and R. Munarini, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Klosterbrauerei Weissenohe GmbH & Co. KG

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment in Case T-234/06, Reg. No 414968, notified by fax on 19 November 2009;

               —

               uphold in their entirety the forms of order sought by Mr Torresan before the Court of First Instance (now ‘the General Court’) in Case T-234/06;

               —

               in any event, order OHIM to pay the costs of the proceedings in their entirety, including the costs incurred before OHIM and in the proceedings before the General Court.

      Pleas in law and main arguments

               (i)

               Infringement and/or misapplication of the Community legislation concerning agriculture and foodstuffs;

               (ii)

               Infringement and/or misapplication of the legislation on consumer protection, with regard to the notion of the average consumer;

               (iii)

               Infringement of the language rules for proceedings;

               (iv)

               Distortion of the facts or the evidence, all factors designed to confirm, as the sole and ultimate inference, the absolutely distinctive and non-descriptive character of the mark Cannabis, with a view to establishing the infringement or misapplication of Article 7(1)(c) of the Trade Mark Regulation (1) and the contradictory nature of the reasoning followed by the General Court in support of the finding that the mark Cannabis is descriptive. In consequence, it will be appropriate to declare that the judgment in Case T-234/06 — the judgment under appeal — is set aside in its entirety.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case T-189/08: Action brought on 22 May 2008 — Forum 187 v Commission

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/26

         Action brought on 22 May 2008 — Forum 187 v Commission
   (Case T-189/08)
   (2008/C 183/50)
   Language of the case: English
   Parties

      Applicant: Forum 187 ASBL (Brussels, Belgium) (represented by: A. Sutton, G. Forwood, Barristers)

      Defendant: Commission of the European communities
   Form of order sought

               —

               annul the contested decision insofar as it does not provide reasonable prospective transitional periods for the coordination centres covered by the judgment of the Court of Justice of 22 June 2006;

               —

               order the Commission to pay costs of this case and

               —

               take such other or further steps as justice may require.

         Pleas in law and main arguments
   In the present case, the applicant seeks the annulment of the Commission Decision 2008/283/EC of 13 November 2007 on the aid scheme implemented by Belgium for coordination centres established in Belgium, amending Decision 2003/757/EC (1) following the partial annulment of that first decision by the Court of Justice (2). In that ruling, the ECJ held that the 2003 decision did not provide transitional measures for those coordination centres with an application for renewal of their authorisation pending on the date on which the contested decision was notified, or with an authorisation which expired at the same time as or shortly after the notification of that decision.
   The contested decision creates transitional periods for the category of centres covered by the Court's ruling.
   The applicant states in support of its contentions that the contested decision:

               —

               is incompatible with Community law on existing aids, as consistently interpreted by the European Courts;

               —

               denies the centres their legitimate expectations to benefit from a reasonable period after the Commission's final decision closing the existing aid procedure (notified to the applicant on 17 March 2008), to re-arrange their business and fiscal affairs;

               —

               infringes Article 254(3) EC;

               —

               by providing for the retroactive levying and payment taxes in an existing aid case, in effect orders the recovery of the aid as if it was illegal aid and this fails to respect the principle that existing aids schemes should only be changed prospectively, at a date after the final Commission decision closing the existing aid procedure;

               —

               fails to respect the legitimate expectations of coordination centres which relied on the order of the President of the Court of Justice of 26 June 2003 (3) as a legal basis upon which they could obtain the renewal of authorisations;

               —

               infringes the principles of equal treatment and non-discrimination by providing different treatment without objective justification for different groups of centres.

      (1)  OJ 2008 L 90, p. 7.

      (2)  Joined Cases C-182/03 and C-217/03, Belgium and Forum 187 v Commission, [2006] ECR I-5479].

      (3)  Joined Cases C-182/03 R and C-217/03 R, Belgium and Forum 187 v Commission, [2003] ECR I-6887].


title: Case T-156/99: Action brought on 28 June 1999 by Nordisk Færgefart A/S against the Council of the European Union

text:
C 246/44                 EN                    Official Journal of the European Communities                                      28.8.1999
Action brought on 22 June 1999 by Luciano Simonella                       Action brought on 28 June 1999 by Nordisk Færgefart
  against the Commission of the European Communities                             A/S against the Council of the European Union
                          (Case T-153/99)                                                            (Case T-156/99)
                          (1999/C 246/86)
                                                                                (1999/C 246/87)
                    (Language of the case: French)
                                                                                (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 June 1999 by Luciano Simonel-                  An action against the Council of the European Union was
la, residing at Howald, Luxembourg, represented by Rosario                brought before the Court of First Instance of the European
Grasso, of the Luxembourg Bar, with an address for service in             Communities on 28 June 1999 by Nordisk Færgefart A/S,
Luxembourg at the latter’s Chambers, 35 Rue Notre-Dame.                   Faaborg (Denmark), represented by Ulrich Schrömbges, Klaus
                                                                          Landry and Lothar Harings, of Graf von Westphalen, Fritze &
The applicant claims that the Court should:                               Modest, Hamburg, with an address for service in Luxembourg
                                                                          at the Chambers of Arendt & Medernach, 8-10 Rue Mathias
— annul the decision impliedly rejecting the applicant’s                  Hardt.
     complaint registered on 25 November 1998 under No
     682/98;                                                              The applicant claims that the Court should:
— order the Commission to pay the applicant the sum of BF                 1. Set aside Council Directive 92/12/EEC of 25 February
     2 000 000 by way of compensation for material and                        1992 on the general arrangements for products subject to
     non-material damage suffered;                                            excise duty and on the holding, movement and monitoring
— order the Commission to pay all expenses and costs                          of such products (OJ 1992 L 76, p. 1), as amended by
     claimed by the applicant in the addendum of 11 September                 Council Directive 92/108/EEC (OJ 1992 L 390, p. 124),
     1998 which is deemed to supplement his complaint No                      Council Directive 94/74/EC (OJ 1994 L 365, p. 46), and
     586/98 of 6 August 1998, being an integral part of                       Council Directive 96/99/EC (OJ 1997 L 8, p. 12),
     the present complaint, those expenses and costs being
     quantified at LIT 150 000 000;                                           (a) in so far as it limits the arrangement in Article 28 [of
                                                                                the directive] to 30 June 1999,
— order the Commission to pay all expenses and costs
     incurred in these proceedings.                                                 or, in the alternative,
Pleas in law and main arguments                                               (b) in so far as it results in trace barriers, contrary to the
                                                                                Treaty, in intra-Community sea-crossings as defined in
                                                                                Article 28;
The applicant contests the refusal of the appointing authority
to promote him to grade B 1 for the year 1996, or 1997 at
the latest.                                                               2. Order the defendant to pay the costs of the proceedings.
In support of his claims he primarily argues that the Com-
mission has infringed:                                                    Pleas in law and main arguments
— Article 26 of the Staff Regulations in so far as his personnel          The applicant operates two ferry routes between Germany and
     file was not complete at the time when the appointing                Denmark which carry passengers and vehicles and offer on
     authority had to assess his merits. Moreover, the proposal           board tax-free goods for sale. A subsidiary also operates a
     that he be promoted had not been placed in the file.                 supermarket, in which ferry passengers can purchase domestic
                                                                          German products and in which bookings are made for holiday
— Article 43 of the Staff Regulations, in that he had not                 homes and short holiday breaks. The applicant announced
     received the 1990-93, 1993-95 or 1995-97 staff reports
                                                                          that both routes would cease to operate on 1 July 1999 and
     in good time, and had thus been denied an opportunity to
                                                                          that all employees would be dismissed, on the ground that a
     submit observations which he might have considered                   positive economic result could be achieved only through
     useful for the purposes of being promoted. He also stases            inclusion of the special arrangement (sale of tax-free goods on
     that since 15 June 1998 (the applicant reserves the right            board) in force until 30 June 1999.
     to specify the exact date) the 1995-97 staff report appears
     still to be pending for no valid reason.
                                                                          So far as the admissibility of its action is concerned, the
— Article 45 of the Staff Regulations, in that the comparative            applicant submits that, after lengthy discussions between the
     examination of the merits of the candidates for promotion            Member States, it was not until the ‘Cologne Summit’ on 3
     (provided for thereunder) was not carried out in the present         and 4 June 1999 that it became clear that the ‘tax-free
     case. The applicant maintains that it was decided at the             arrangement’ would not be extended. It was only then that
     inter-departmental meeting of 27 October 1994 that he                the directive became challengeable by the applicant, which,
     should be promoted during the 1996 promotions exercise,              moreover, considers itself to be directly and individually
     or, at the latest, during 1997.                                      concerned thereby. For that reason, the period for bringing an
                                                                          action ought to have begun to run on 5 June 1999 at the
                                                                          earliest.
 ---pagebreak--- 28.8.1999             EN                     Official Journal of the European Communities                                   C 246/45
In the applicant’s view, Directive 92/12/EEC is contrary to:                   Removal from the register of Case T-538/93 (1)
— the Community principle of the rule of law, inasmuch as
    it contains contradictory and unclear rules;                                               (1999/C 246/90)
— the Treaty objectives in the establishment of the internal
    market under Article 14 EC (ex Article 7a);                                           (Language of the case: English)
— the prohibition under Article 25 EC (ex Article 12) of
    customs duties and charges having equivalent effect;                By order of 30 March 1999 the President of the Fourth
                                                                        Chamber, Extended Composition of the Court of First Instance
— the prohibitions under Article 28 EC (ex Article 30) and              of the European Communities has ordered the removal from
    Article 29 EC (ex Article 34);                                      the register of Case T-538/93: Joh Harris v Council of the
                                                                        European Union and Commission of the European Communi-
— Article 93 EC (ex Article 99), authorising harmonisation              ties.
    of indirect taxation;
— the principle of proportionality, inasmuch as it is not
                                                                        (1) OJ C 319 of 26.11.1993.
    suited to the internal market;
— the principle of protection of legitimate expectations;
— a series of fundamental rights and freedoms, such as
    freedom to exercise a profession, right of ownership, and
    commercial and economic freedom.
                                                                               Removal from the register of Case T-548/93 (1)
                                                                                (1999/C 246/91)
       Removal from the register of Case T-278/93 (1)
                        (1999/C 246/88)                                                   (Language of the case: English)
                  (Language of the case: English)                       By order of 1 March 1999 the President of the First Chamber,
                                                                        Extended Composition of the Court of First Instance of the
By order of 10 March 1999 the President of the Fourth                   European Communities has ordered the removal from the
Chamber, Extended Composition of the Court of First Instance            register of Case T-548/93: Ladbroke Racing Ltd v Council of
of the European Communities has ordered the removal from                the European Communities.
the register of Case T-278/93: David Alwyn Jones and
Mary Bridget Jones v Council of the European Union and
Commission of the European Communities.                                 (1) OJ C 319 of 26.11.1993.
(1) OJ C 165 of 2.7.1992.
Partial removal from the register of Joined Cases                              Removal from the register of Case T-72/95 (1)
            T-294/934, T-392/93 and T-413/93 (1)
                                                                                (1999/C 246/92)
                        (1999/C 246/89)
                  (Language of the case: English)                                         (Language of the case: English)
By order of 30 March 1999 the President of the Fourth
Chamber, Extended Composition of the Court of First Instance            By order of 17 May 1999 the President of the Fifth Chamber
of the European Communities has ordered the removal from                of the Court of First Instance of the European Communities
the register of Cases T-294/93: Sean Coughlan v Council                 has ordered the removal from the register of Case T-72/95:
of the European Union and Commission of the European                    Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. v
Communities and T-413/93: Patrick Heffernan v Council of                Commission of the European Communities.
the European Communities.
                                                                        (1) OJ C 268 of 14.10.1995.
(1) OJ C 158 of 10.6.1993 and C 197 of 21.7.1993.


title: Case T-378/10: Action brought on 7 September 2010 — Masco and Others v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/40

         Action brought on 7 September 2010 — Masco and Others v Commission
   (Case T-378/10)
   ()
   2010/C 301/65
   Language of the case: English

      Parties

      Applicants: Masco Corp. (Taylor, United Stated of America), Hansgrohe AG (Schiltach, Germany), Hansgrohe Deutschland Vertriebs GmbH (Schiltach, Germany), Hansgrohe Handelsgesellschaft m.b.H. (Wiener Neudorf, Austria), Hansgrohe SA/NV (Anderlecht, Belgium), Hansgrohe B.V. (Westknollendam, the Netherlands), Hansgrohe SARL (Antony, France), Hansgrohe Srl (Villanova d’Asti, Italy), Hüppe GmbH (Bad Zwischenahn, Germany), Hüppe Gesellschaft m.b.H. (Laxenburg, Austria), Hüppe Belgium SA/NV (Zaventem, Belgium) and Hüppe B.V. (Alblasserdam, the Netherlands) (represented by: D. Schroeder, lawyer and J. Temple Lang, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               annul Article 1 of the Commission decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom Fittings and Fixtures, insofar as it finds that the applicants have participated in a continuing agreement or concerted practice ‘in the bathroom fittings and fixtures sector’, and

               —

               order the Commission to pay the applicants’ legal and other costs and expenses in relation to this matter.

      Pleas in law and main arguments

   By means of their application, the applicants seek partial annulment of Article 1 of Commission decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom Fittings and Fixtures, by which the Commission found that the applicants, together with other undertakings had infringed Article 101 TFEU and Article 53 EEA by participating in a continuing agreement or concerted practice ‘in the bathroom fittings and fixtures sector’, covering the territory of Germany, Austria, Italy, France, Belgium and the Netherlands.
   The applicants put forward one plea in law in support of their application.
   The applicants challenge the Commission’s legal qualification of the conduct as a single complex infringement covering three different product groups, namely taps and fittings, shower enclosures and ceramic sanitary ware, instead of finding three separate infringements.
   The applicants do not produce ceramic sanitary ware. The applicants submit that in finding that they participated a single complex infringement across the three product groups, including ceramic sanitary ware, the Commission committed errors of assessment of the facts and errors of law. The Commission’s finding of a single complex infringement in the decision is not in line with previous Commission cases (or the jurisprudence of the Courts). Thus, the Commission infringed the principles of transparency, legal certainty and equal treatment. In particular, the facts and evidence presented in the decision do not support the Commission’s conclusion that there is a single complex infringement covering three different product groups.


title: Judgment of the Court (Fifth Chamber) of 16 December 2004 in Case C-528/03: Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil its obligations — Directive 2002/35/EC — Maritime transport — Safety of fishing vessels)

text:
               19.2.2005

               EN

               Official Journal of the European Union

               C 45/10

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 16 December 2004
   in Case C-528/03: Commission of the European Communities v Kingdom of the Netherlands (1)

   (Failure by a Member State to fulfil its obligations - Directive 2002/35/EC - Maritime transport - Safety of fishing vessels)
   (2005/C 45/20)
   Language of the case: Dutch
   In Case C-528/03: Commission of the European Communities (Agents: W. Wils and K. Simonsson) v Kingdom of the Netherlands (Agents: H.G. Sevenster and C.A.H.M. ten Dam) – action for failure to fulfil obligations under Article 226 EC, brought on 18 December 2003 – the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk and P. Kÿris (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 16 December 2004, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply fully with Commission Directive 2002/35/EC of 25 April 2002 amending Council Directive 97/70/EC setting up a harmonised safety regime for fishing vessels of 24 metres in length and over, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive.

               2.

               Orders the Kingdom of the Netherlands to pay the costs.

      (1)  OJ C 59 of 06.03.2004.


title: Case C-15/04: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of that Court of 12 January 2004 in the case of Koppensteiner GmbH against Bundesimmobiliengesellschaft m.b.H.

text:
C 85/14               EN                         Official Journal of the European Union                                            3.4.2004
9.   Is there a conflict between Community competition law                     withdraw the invitation to tender (withdrawal decision
     and/or the fundamental principles of Community law                        analogous to the award decision) amenable to review in
     (with reference in particular to Article 6(1) and Article 13              any case, since the applicant is entitled to have that
     of the European Convention on Human Rights) and a                         decision set aside if the relevant conditions are met,
     national provision which requires a consumer or a third                   notwithstanding the possibility, once withdrawal has
     party who has suffered damage as a result of an agreement                 taken place, of obtaining an award of damages?
     which is unlawful and void under Article 81 EC or an
     abuse of a dominant position unlawful under Article 82
     EC and who seeks to obtain damages to make an                       (1) OJ L 395, p. 33.
     application to a court other than the one which has
     jurisdiction ratione loci on the basis of the registered
     office (sede) of the subsidiary of the insurance company
     with which they entered into a contract or in the court
     district in which the injured party is resident, having
     regard also to the difference in legal costs which each
     approach involves?
10. Does Community law require national courts to disapply
     national rules in conflict with Community law or rather             Action brought on 26 January 2004 by the Commission of
     to interpret them so as to comply with Community law?               the European Communities against the Hellenic Republic
                                                                                (Case C-22/04)
                                                                                (2004/C 85/22)
Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of that Court of 12 January 2004                An action against the Hellenic Republic was brought before
in the case of Koppensteiner GmbH against Bundesimmo-                    the Court of Justice of the European Communities on 26 Janu-
                   biliengesellschaft m.b.H.                             ary 2004 by the Commission of the European Communities,
                                                                         represented by Thomas van Rijn and Maria Kondou-Durande,
                                                                         Legal Advisers in its Legal Service.
                         (Case C-15/04)
                        (2004/C 85/21)                                   The Commission claims that the Court should:
                                                                         —     declare that, by failing to ensure that fishing vessels which
                                                                               fly its flag and must be equipped with devices for position
Reference has been made to the Court of Justice of the                         monitoring by means of satellite were in fact equipped,
European Communities by order of the Bundesvergabeamt                          according to the type of vessel, on 30 June 1998 or
(Austria) (Federal Procurement Office) of 12 January 2004,                     1 January 2000, the Hellenic Republic has failed to fulfil
received at the Court Registry on 20 January 2004, for a                       its obligations under Article 3 of Council Regulation
preliminary ruling in the case of Koppensteiner GmbH against                   (EEC) No 2847/93 (1) of 12 October 1993;
Bundesimmobiliengesellschaft m.b.H. on the following ques-
tions:                                                                   —     order the Hellenic Republic to pay the costs.
1.   Are the provisions of Article 1 in conjunction with
     Article 2(1)(b) of Council Directive 89/665/EEC of
     21 December 1989 (1) so unconditional and sufficiently
     precise that, in the event of withdrawal of the invitation          Pleas in law and arguments
     to tender after the opening of tenders, an individual is
     entitled rely on those provisions directly before the
     national courts and to seek a review of the withdrawal?             The period for transposition of the regulation into national
                                                                         law expired on 1 January 2000.
2.   If Question 1 must be answered in the negative, are
     Article 1 in conjunction with Article 2(1)(b) of Council
     Directive 89/665/EEC of 21 December 1989 to be                      (1) OJ L 261, 20.10.1993, p. 1.
     interpreted as meaning that Member States are obliged
     to make a contracting authority’s decision, prior to
     withdrawal of the invitation to tender, that it will


title: Case T-549/15: Action brought on 22 September 2015 — Guiral Broto v OHIM — Gastro & Soul (Cafe Del Sol)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/52

         Action brought on 22 September 2015 — Guiral Broto v OHIM — Gastro & Soul (Cafe Del Sol)
   (Case T-549/15)
   (2015/C 381/63)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Ramón Guiral Broto (Marbella, Spain) (represented by: J. de Castro Hermida, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Gastro & Soul GmbH (Hildesheim, Germany)

      Details of the proceedings before OHIM

      Applicant: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community figurative mark containing the word elements ‘CAFE DEL SOL’ — Application for registration No 6 104 608

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 16 July 2015 in Case R 1888/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision and allow the opposition based on the earlier mark held by Ramón Guiral Broto, Spanish mark No 2348110, in Class 42 of the International Classification.

               —

               Rule that the opposition is upheld, confirming the decision of the Opposition Division refusing the application for the Community trade mark No 006104608 CAFE DEL SOL in respect of ‘provision of food and drink, temporary accommodation and catering’, in Class 43 of the International Classification, requested by the German commercial company Gastro & Soul GmbH, or if the Court should not have jurisdiction in that respect, to refer the matter back to a Board of Appeal of the Office for Harmonisation in the Internal Market, with the direction to uphold the opposition.

               —

               In respect of the evidence, in addition to the evidence in the administrative proceedings, the documents accompanying the present application be held to have been produced, that is documents numbers 1 to 4, as specified in the list of documents annexed to the application.

      Plea in law

   The pleas and main arguments are those relied on in Case T-548/15.


title: Case T-756/16: Action brought on 2 November 2016 — Euro Castor Green v EUIPO — Netlon France (Concealed trellis)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/43

         Action brought on 2 November 2016 — Euro Castor Green v EUIPO — Netlon France (Concealed trellis)
   (Case T-756/16)
   (2017/C 006/54)
   Language in which the application was lodged: French

      Parties

      Applicant: Euro Castor Green (Bagnolet, France) (represented by: B. Lafont, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Netlon France (Saint Saulve, France)

      Details of the proceedings before EUIPO

      Proprietor of the design at issue: Applicant

      Design at issue: European Union design No 001 197 966-0001

      Contested decision: Decision of the Third Board of Appeal of EUIPO of 11/08/2016 in Case R 754/2014-3

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the application, and its annexes, are admissible;

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1) of Regulation No 6/2002;

               —

               Infringement of Article 5 of Regulation No 6/2002;

               —

               Infringement of Article 3(1)(b) of Regulation No 6/2002;

               —

               Infringement of Article 6 of Regulation No 6/2002;

               —

               Infringement of Article 8(1) of Regulation No 6/2002.


title: Action brought on 29 May 1998 by the Commission of the European Communities against the Hellenic Republic (Case C-204/98)

text:
C 234/20               EN                 Official Journal of the European Communities                                     25.7.98
Action brought on 29 May 1998 by the Commission of                   on 29 May 1998 by the Commission of the European
 the European Communities against the Hellenic Republic              Communities, represented by Laura Pignataro, of its Legal
                        (Case C-204/98)                              Service, and Dr Andreas Buschmann, a national expert
                                                                     with its Legal Service, with an address for service in
                         (98/C 234/38)                               Luxembourg at the office of Carlos Gómez de la Cruz, of
                                                                     its Legal Service, Wagner Centre, Kirchberg.
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 29 May 1998 by the Commission of the European                     The applicant claims that the Court should:
Communities, represented by M. Patakia and B. Mongin,
both of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of
its Legal Service, Wagner Centre, Kirchberg.                         1. Declare that, by raising from 1 July 1995 and from
                                                                          1 February 1996 the tolls for the whole Brenner
The Commission claims that the Court should:                              motorway, a transit route through Austria used
                                                                          predominantly by goods vehicles of over 12 tonnes
                                                                          from other Member States, the Republic of Austria
Ð declare that, by not adopting, and by not                               has infringed Article 7(b) of Directive 93/89/EEC (1);
     communicating to the Commission, within the
     prescribed period the laws, regulations and
     administrative provisions necessary to comply with
     Commission Directive 94/38/EC of 26 June 1994                   2. Declare that the Republic of Austria has infringed
     amending Annexes C and D to Council Directive 92/                    Article 7(h) of Directive 93/89/EEC, since it has not
     51/EEC of 18 June 1992 on a second general system                    imposed the said tolls only to cover the costs of
     for the recognition of professional education and                    constructing, operating and developing the Brenner
     training (1), the Hellenic Republic has failed to fulfil its         motorway;
     obligations under the EC Treaty and that directive;
Ð order the Hellenic Republic to pay the costs.
                                                                     3. Order the Republic of Austria to pay the costs.
Pleas in law and main arguments adduced in support:
Under the third paragraph of Article 189 of the EC Treaty,           Pleas in law and main arguments adduced in support:
directives are binding, as to the result to be achieved,
upon each Member State to which they are addressed.
Under the first paragraph of Article 5 of the EC Treaty,             By judgment of 5 July 1995 in Case C-21/94 (2) the Court
Member States are to take all appropriate measures,                  of Justice annulled Directive 93/89/EEC but preserved its
whether general or particular, to ensure fulfilment of the           effects until the adoption of a new directive by the
obligations arising out of the Treaty or resulting from              Council.
action taken by the institutions of the Community. Those
provisions require the Member States to make their
legislation consistent with Community directives within
the periods which those directives lay down. The period              Ð Infringement of Article 7(b) of the directive: Raising
laid down by Article 3(1) of Directive 94/38/EC expired                   the tolls only for the whole Brenner motorway
on 1 October 1994 without the Hellenic Republic having                    (Innsbruck to the Brenner frontier) and only for goods
adopted the laws, regulations and administrative                          vehicles with more than three axles, while the rates for
provisions necessary to comply with that directive.                       the part sections and short section and for goods
                                                                          vehicles with not more than three axles have remained
(1) OJ L 217 of 23.8.1994, p. 8.                                          unchanged, constitutes an indirect difference of
                                                                          treatment on the grounds of the nationality of the
                                                                          road user. It affects primarily transit traffic, 94 % of
                                                                          which is carried out by foreign-registered goods
                                                                          vehicles and only 6 % by Austrian-registered goods
                                                                          vehicles. According to the Austrian Government, c.
Action brought on 29 May 1998 by the Commission of                        82 % of goods vehicles affected by the abolition of the
                                                                          reduced rates for the whole route on the occasion of
the European Communities against the Republic of
                             Austria                                      the first toll increase were registered in other EU
                                                                          States. For heavy goods traffic as a whole (transit and
                        (Case C-205/98)                                   bilateral traffic), the heavy goods vehicles affected by
                         (98/C 234/39)                                    the toll increases consist, according to Austrian
                                                                          information, of c. 84 % foreign vehicles. The part
                                                                          sections of the Brenner motorway and the section
An action against the Republic of Austria was brought                     from Innsbruck to Matrei and back, on the other
before the Court of Justice of the European Communities                   hand, which are not affected by the toll increases, are


title: Case C-353/09 P: Appeal brought on 2 September 2009 by Perfetti Van Melle SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 1 July 2009 in Case T-16/08: Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cloetta Fazer AB

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/45

         Appeal brought on 2 September 2009 by Perfetti Van Melle SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 1 July 2009 in Case T-16/08: Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cloetta Fazer AB
   (Case C-353/09 P)
   2009/C 267/78
   Language of the case: English

      Parties

      Appellant: Perfetti Van Melle SpA (represented by: P. Perani and P. Pozzi, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cloetta Fazer AB

      Form of order sought

   The appellant claims that the Court should:

               —

               Uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance, in Case T-16/08, in its entirety, in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure;

               —

               Give final judgment — if the state of the proceedings so permits — by annulling the Decision of the OHIM Cancellation Division, rendered on 24 November 2005, ruling on Cancellation Action No. 941 C 973065 and order the defendants to bear the costs of the proceedings before the Court of First Instance and the Court of Justice, as well as those of the OHIM invalidity proceedings.

      Pleas in law and main arguments

   1.   Legal Grounds

   By the present appeal, Perfetti Van Melle S.p.A. challenges the judgment of the Court of First Instance in case T-16108 delivered on 1 July 2009 and notified on 2 July 2009.
   In support of the appeal, the applicant considers that the judgment of the Court of First Instance under appeal in this case is vitiated by misinterpretation and misapplication of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (CTMR) (1), in conjunction with article 53(1)(a) of that regulation.
   1.1   First complaint: the applicant complains that the Court of First Instance did not examine the marks at issue on the basis of the criteria of ‘global assessment’ or ‘overall impression’.

   It is settled principle that the global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The applicant claims that the Court of First Instance failed to give effect to the principle cited above and, in particular, it found a likelihood of confusion, basing its assessment exclusively on the fact that they share the common element ‘CENTER’.
   The judgment appealed failed to examine the marks using a ‘global assessment’ and the ‘overall impression’ made by them. Instead, the judgment appealed used an analytical approach and made an examination between the mark ‘CENTER’ from one hand and the first verbal component ‘CENTER’ of the contested mark, on the other, denying any importance to the second verbal portion ‘SHOCK’. It is true that the judgment appealed did mention the criterion of the global assessment and overall impression, but it is also true that it is not sufficient to mention and repeat a judicial criterion: in order to act correctly it is important to follow it and apply it correctly to the case. That was not done in the judgment appealed. The judgment appealed limited itself to hold that the two marks under comparison are similar sharing the verbal component ‘CENTER’, without explaining why the verbal components ‘SHOCK’ is not sufficient to exclude a risk of confusion.
   For the above reasons, the applicant also submits that the judgment under appeal is vitiated by a distortion of the fact and by a violation of the duty to provide reasons.
   1.2.   Second complaint: the applicant complains that, in the judgment under appeal, the Court of First Instance failed to consider some extremely important and pertinent factors.

   The judgment appealed also infringed Article 8(1)(b), because it did not assess factors which were extremely relevant in order to determine the likelihood of confusion between the marks. In particular, the Court of First Instance did not take into consideration the long coexistence of the marks under comparison and the absence of actual confusion, as widely explained in the application before the Court of First Instance.
   In addition, the Court of First Instance did not correctly assess another important factor, which is the degree of attention of the relevant public. In fact, it was illogical for the Court of First Instance to hold that a reasonably well-informed and reasonably observant and circumspect consumer would fail to observe the presence of the word ‘SHOCK’ and to recognize that the marks under exam, not only have a visual and phonetic differences, but also a different meaning, being the mark ‘CENTER’, a word evoking ‘the middle point of something’ and the mark ‘CENTER SHOCK’, due to the presence of the most distinctive portion ‘SHOCK’, an expression evoking the idea of a strong sensation (shock) that the consumer will feel when chewing the centre of the gum.
   2.   Form of order sought:

               —

               uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance, in its entirety, in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure;

               —

               give final judgment if the state of the proceedings so permits by annulling the Decision of the OHIM Cancellation Division, rendered on November 24, 2005, ruling on Cancellation Action No. 941 C 973065 and order the defendants to bear the costs of the proceedings before the Court of First Instance and the Court of Justice, as well as those of the OHIM invalidity, according to article 122 of the Rules of Procedure;

               —

               alternatively, if the state of the proceedings does not so permit, refer the case back to the Court of First Instance for judgment in accordance with the binding criteria established by the Court of Justice.

      (1)  OJ L 11, p. 1


title: Case C-580/12 P: Judgment of the Court (Third Chamber) of 12 November 2014 — Guardian Industries Corp., Guardian Europe Sàrl v European Commission (Appeal — Agreements, decisions and concerted practices — Market for flat glass in the European Economic Area (EEA) — Price-fixing — Calculation of the amount of the fine — Inclusion of an undertaking’s internal sales — Reasonable time — Admissibility of documents produced with a view to the General Court hearing)

text:
               19.1.2015

               EN

               Official Journal of the European Union

               C 16/2

      Judgment of the Court (Third Chamber) of 12 November 2014 — Guardian Industries Corp., Guardian Europe Sàrl v European Commission
      (Case C-580/12 P) (1)

      (Appeal - Agreements, decisions and concerted practices - Market for flat glass in the European Economic Area (EEA) - Price-fixing - Calculation of the amount of the fine - Inclusion of an undertaking’s internal sales - Reasonable time - Admissibility of documents produced with a view to the General Court hearing)
      (2015/C 016/02)
      Language of the case: English

         Parties

         Appellants: Guardian Industries Corp., Guardian Europe Sàrl (represented by: H.-G. Kamann and S. Völcker, Rechtsanwälte, instructed by C. O’Daly, Solicitor)

         Other party to the proceedings: European Commission (represented by: A. Dawes and R. Sauer, Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union in Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), in so far as it rejected the plea in law alleging infringement of the principle of non-discrimination as regards the calculation of the amount of the fine imposed jointly and severally on Guardian Industries Corp. and Guardian Europe Sàrl and ordered them to pay the costs;

                  2.

                  Annuls Article 2 of Commission Decision C(2007) 5791 final of 28 November 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39165 — Flat glass) in so far as it sets the amount of the fine imposed jointly and severally on Guardian Industries Corp. and Guardian Europe Sàrl at EUR 148 000 000;

                  3.

                  Sets the amount of the fine imposed jointly and severally on Guardian Industries Corp. and Guardian Europe Sàrl by reason of the infringement established in Article 1 of that decision at EUR 103 600 000;

                  4.

                  Dismisses the appeal as to the remainder;

                  5.

                  Orders the European Commission, in addition to bearing its own costs in respect of both the proceedings at first instance and the appeal, to pay one half of the costs incurred by Guardian Industries Corp. and Guardian Europe Sàrl relating to those two sets of proceedings;

                  6.

                  Orders Guardian Industries Corp. and Guardian Europe Sàrl to bear one half of their own costs relating to those proceedings.

         (1)  OJ C 55, 23.2.2013.


title: Case C-5/03: Action brought on 7 January 2003 by the Hellenic Republic against the Community of the European Communities

text:
C 55/14                EN                       Official Journal of the European Union                                         8.3.2003
broadcast of un-used Eurovision rights’, when such a ground             Action brought on 7 January 2003 by the Hellenic
was not argued before it. By so doing, the Court of First               Republic against the Community of the European Com-
Instance deprived the EBU of its right, as a party to the                                           munities
proceedings, to refute the points accepted by the Court. By
thus challenging a relatively marginal but no less essential
aspect such as the sub-licensing scheme rather than the                                           (Case C-5/03)
Eurovision system itself or the substance of the sub-licensing
scheme introduced at the behest of the Commission, the Court
of First Instance in fact requires the EBU to adjust that scheme                                 (2003/C 55/24)
in order to grant access to non-members to rights which the
latter have not asked for nor, doubtless, wish to ask for.
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought on 7 January 2003 by the Hellenic Republic,
                                                                        represented by Stilianis Xharitakis and Eleni Svolopoulou,
                                                                        members of the State legal service, with an address for service
                                                                        in Luxembourg at the Greek embassy, 27 Rue Marie-Adélaïde.
Reference for a preliminary ruling by the Oberlandesge-
richt Düsseldorf by order of that Court of 5 December                   The applicant claims that the Court should:
2002 in the case of GAT, Gesellschaft für Antriebstechnik
mbH & Co. KG against LuK Lamellen und Kupplungsbau
                        Beteiligungs KG                                 —     Annul, or amend, Decision E/2002/4127 concerning
                                                                              the exclusion from Community financing of certain
                                                                              expenditure incurred by the Member States within the
                          (Case C-4/03)                                       context of the EAGGF — Guarantee section.
                         (2003/C 55/23)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                  The financial corrections called in question by the Hellenic
Düsseldorf (Higher Regional Court Düsseldorf) of 5 December             Republic concern fruit and vegetables and financing for beef
2002, received at the Court Registry on 6 January 2003, for a           cattle and goats and sheep.
preliminary ruling in the case of GAT, Gesellschaft für
Antriebstechnik mbH & Co. KG against LuK Lamellen und
Kupplungsbau Beteiligungs KG on the following question:
                                                                        As regards fruit and vegetables, the Hellenic Republic maintains
                                                                        that the 2 % correction imposed for the years 1997 to 2001
                                                                        concern non-existent or wholly isolated infringements of the
Is Article 16(4) of the Convention on Jurisdiction and the              Community rules and must be annulled for being adopted
Enforcement of Judgments in Civil and Commercial Matters                (a) on the basis of an erroneous interpretation and a misappli-
(‘the Brussels Convention’) to be interpreted as meaning that           cation of the provisions of Regulation No 729/70, as amended;
the exclusive jurisdiction conferred by that provision on the           (b) on the basis of inadequate reasoning; (c) following a
courts of the Contracting State in which the deposit or                 misappraisal of the factual circumstances; (d) on the basis of a
registration of a patent has been applied for, has taken place          manifest infringement of the limits of its margin of discretion,
or is under the terms of an international convention deemed             and (e) of the principle of proportionality.
to have taken place only applies if proceedings (with erga
omnes effect) are brought to declare the patent invalid or are
proceedings deemed to be concerned with the validity of
patents within the meaning of the aforementioned provision              As regards financing for beefcattle and goats and sheep, the
where the defendant in a patent infringement action or the              applicant maintains that the Commission did not provide
claimant in a declaratory action to establish that a patent is          adequate evidence of the degree of risk to which, in its
not infringed pleads that the patent is invalid or a nullity and        estimation, EAGGF Funds were exposed so as to ensure that
that there is also no patent infringement for that reason,              the amount of the corrections proposed was commensurate
irrespective of whether the court seised of the proceedings             with that risk. In its view the financial corrections in the
considers the plea to be substantiated or unsubstantiated and           amount of 10 % or 5 % imposed in those sectors should be set
of when the plea is raised during the course of the proceedings.        aside or else reduced to 2 %.


title: Case T-231/15: Judgment of the General Court of 22 March 2017 — Haswani v Council (Common Foreign and Security Policy — Restrictive measures taken against Syria — Freezing of funds — Modification of the application — Obligation to state reasons — Rights of the defence — Error of assessment — Proportionality — Non-contractual liability)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/35

         Judgment of the General Court of 22 March 2017 — Haswani v Council
   (Case T-231/15) (1)

   ((Common Foreign and Security Policy - Restrictive measures taken against Syria - Freezing of funds - Modification of the application - Obligation to state reasons - Rights of the defence - Error of assessment - Proportionality - Non-contractual liability))
   (2017/C 144/46)
   Language of the case: French

      Parties

      Applicant: George Haswani (Yabroud, Syria) (represented by: G. Karouni, lawyer)

      Defendant: Council of the European Union (represented initially by G. Étienne and S. Kyriakopoulou, then by S. Kyriakopoulou, Agents)

      Intervener in support of the defendant: European Commission (represented by: L. Havas and R. Tricot, Agents)

      Re:

   First, application based on Article 263 TFEU and seeking the annulment of Council Implementing Decision (PESC) 2015/383 of 6 March 2015, implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015, L 64, p. 41), of Council Implementing Regulation (EU) 2015/375 of 6 March 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015, L 64, p. 10), of Decision (CFSP) 2015/837 of 28 May 2015 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015 L 132, p. 82), of Council Implementing Regulation (EU) No 2015/828 of 28 May 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (JO 2015, L 132, p. 3), of Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2016, L 141, p. 125), and of Council Implementing Regulation (EU) No 2016/840 of 27 May 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2016, L 141, p. 30), in so far as those acts concern the applicant, and, secondly, application based on Article 268 TFEU and seeking compensation in respect of the harm allegedly suffered by the applicant on account of those acts.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action for annulment of Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria, and of Council Implementing Regulation (EU) No 2016/840 of 27 May 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, as being inadmissible.

               2.

               Annuls, in so far as they concern Mr George Haswani, Council Implementing Decision (PESC) 2015/383 of 6 March 2015, implementing Decision 2013/255/CFSP concerning restrictive measures against Syria, Council Implementing Regulation (EU) 2015/375 of 6 March 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, Decision (CFSP) 2015/837 of 28 May 2015 amending Decision 2013/255/CFSP concerning restrictive measures against Syria and Council Implementing Regulation (EU) No 2015/828 of 28 May 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria.

               3.

               Dismisses the claim for damages brought by Mr Haswani.

               4.

               Orders the Council of the European Union to pay, in addition to its own costs incurred in connection with the applications for annulment of Implementing Decision 2015/383, Implementing Regulation 2015/375, Decision 2015/837 and Implementing Regulation 2015/828 brought by Mr Haswani, one third of those costs incurred by Mr Haswani with regard to those applications.

               5.

               Orders Mr Haswani to pay, in addition to his own costs incurred in connection with the applications for annulment of Decision 2016/850 and Implementing Regulation 2016/840 and in connection with his claim for damages, two thirds of the costs incurred by the Council with regard to those applications.

               6.

               Orders the European Commission to pay its own costs.

      (1)  OJ C 213, 29.6.2015.


title: Reference for a preliminary ruling by the Bundesgerichtshof by order of that court of 29 February 1996 in the appeal on a point of law brought by Hans-Hermann Mietz against the limited-liability company Intership Yachting Sneek BV (Case C-99/96)

text:
No C 145/6                EN                 Official Journal of the European Communities                                      18 . 5 . 96
        Article 6 ( 2 ) of Decision No 1 /80 as periods of legal        If either the first or the second and third questions are
        employment ?                                                    answered in the negative :
 ( b ) Is a Turkish employee who holds work and residence               4 . Does the possibility provided for in Articles 289 to
        permits entitling him to work as a specialist chef duly              297 of the Netherlands Wetboek van Burgerlijke
        registered as belonging to the labour force of a Member              Rechtsvordering ( Code of Civil Procedure ) for
        State within the meaning of Article 6 ( 1 ) of Decision              obtaining a judgment ordering payment of contractual
        No 1 /80 even in the case where he was aware from the
                                                                             consideration through application for an immediate
         beginning of his residence in that Member State that he             interim order by way of an abbreviated procedure ('kort
        would be granted a residence permit only for a total                 geding') constitute a provisional measure within the
        period of validity of three years and only in order                  meaning of Article 24 of the Brussels Convention ?
        to carry out a specified activity with a named
        employer ?
 ( c ) If the Court of Justice should take the view that a
        person as described in question ( b ) is duly registered as
        belonging to the labour force of a Member State, does
        the power under Article 6 ( 3 ) of Decision No 1 /80
        entitle Member States to create rights of residence that        Reference for a preliminary ruling by the High Court of
        do not from the outset form part of the benefits under         Justice, Queen's Bench Division, by order of that court of
        Article 6 ( 1 ) of Decision No 1 /80 ?                          3 November 1995 , in the case of The Queen against
                                                                        Ministry of Agriculture, Fisheries and Food, ex parte:
                                                                                British Agrochemicals Association Ltd
                                                                                ( Case C-100/96 )
                                                                                ( 96/C 145/ 13 )
Reference for a preliminary ruling by the Bundesgerichtshof
by order of that court of 29 February 1996 in the appeal on a
point of law brought by Hans-Hermann Mietz against the                  Reference has been made to the Court of Justice of the
    limited-liability company Intership Yachting Sneek BY               European Communities by an order of the High Court of
                                                                       Justice , Queen's Bench Division, of 3 November 1995 ,
                           ( Case C-99/96 )                             which was received at the Court Registry on 25 March
                             ( 96/C 145/12 )                            1996 , for a preliminary ruling in the case of The Queen
                                                                       against Ministry of Agriculture, Fisheries and Food, ex
Reference has been made to the Court of Justice of                     parte: British Agrochemicals Association Ltd, on the
the European Communities by an order of the                             following questions :
Bundesgerichtshof ( Federal Court of Justice ) — Ninth Civil
Chamber — of 29 February 1 996 , which was received at the              1 . Does Council Directive 91 /414/EEC ( ! ) of 15 July 1991
Court Registry on 26 March 1 996 , for a preliminary ruling                 concerning the placing of plant protection products on
in the appeal on a point of law brought by Hans-Hermann                     the market as amended allow a Member State to permit
Mietz against the limited-liability company Intership                       the placing on the market of a plant protection product
Yachting Sneek BV on the following questions :                              imported from another EEA State or from a third
                                                                            country because the Member State considers that
1 . Is there a sale of goods on instalment credit terms within            . product to be identical to a master plant protection
       the meaning of point ( 1 ) of the first paragraph of                 product which has already been authorized by that
       Article 13 of the Brussels Convention in the case where,             Member State pursuant to Articles 4 ( 1 ) or 8 ( 2 ) of the
       in a document described by the parties as a 'contract of             Directive, when the imported product is deemed to be
       sale', one of the parties undertakes to manufacture a                identical to the master product if:
       specific type of motor yacht with nine specified
       alterations and to transfer it to the other party, and the
                                                                              ( i ) the active ingredient in the imported product is
       latter is required to pay DM 250 000 for it in five                          manufactured by the same company ( or by an
       instalments ?
                                                                                associated undertaking or under licence ) as the
If the first question is answered in the negative:                                  active ingredient of the master product and is the
                                                                                same within variations accepted by the registration
2 . Is the contract described under ( 1 ) a contract for the                        authority; and
      supply of goods within the meaning of point ( 3 ) of
      the first paragraph of Article 13 of the Brussels                     ( ii ) the formulation of the imported product is
       Convention ?                                                                 produced by the same company ( or by an
                                                                                associated undertaking or under licence ) as that of
3 . Under the second paragraph of Article 34 of the Brussels                        the master product and any differences in the
      Convention , in conjunction with the second paragraph                         nature, quality and quantity of the components are
      of Article 28 thereof, must account also be taken of new                      deemed by the registration authority to have no
      facts which, according to the debtor, establish that the                      material effect on the safety of humans, domestic
      court of the State of origin breached the provisions of                       animals, livestock, wildlife or the environment
      Section 4 of Title II of that Convention ?                                    generally, or on efficacy ?