title: Reference for a preliminary ruling from the Pretura Circondariale, Pinerolo (Italy), by order of that court of 3 September 1998 in the case of Renato Collino and Luisella Chiappero against Telecom Italia SpA (Case C-343/98)

text:
C 358/6               EN                  Official Journal of the European Communities                                     21.11.98
C. Gulmann, H. Ragnemalm, M. Wathelet and R.                         Circondariale, Pinerolo (District Magistrate's Court,
Schintgen, Presidents of Chambers, G. F. Mancini, J. C.              Pinerolo), of 3 September 1998, received at the Court on
Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray,                 21 September 1998, for a preliminary ruling in the case of
D. A. O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann, L.            Renato Collino and Luisella Chiappero against Telecom
Sevón (Rapporteur) and K. M. Ioannou, Judges; J.                     Italia SpA on the following questions:
Mischo, Advocate-General; R. Grass, Registrar, has made
an order on 23 September 1998, the operative part of
which is as follows:                                                 (A)    Does Article 1 of Directive 77/187/EEC (1) apply to
                                                                            the transfer for value, authorised by law
                                                                            promulgated by the State and implemented by
Consideration of the question referred has not disclosed                    ministerial decree, of an undertaking managed by a
any factor of such a kind as to affect the validity of                      public entity which is a direct emanation of the
Article 5 of Commission Regulation (EC) No 3477/93 of                       State to a private company formed by another
17 December 1993 concerning the agricultural conversion                     public entity which holds all its shares, where the
rates to be applied in the tobacco sector.                                  activity transferred is assigned to the private
                                                                            company under the administrative licence system?
(1) OJ C 354, 23.11.1996.
                                                                     and if so
                                                                     (B1) Does Article 3(1) of Directive 77/187/EEC require it
                                                                            to be held that the continuation of the employment
Reference for a preliminary ruling by the Finanzgericht                     relationship with the transferor is mandatory, with
Düsseldorf by order of that court of 14 September 1998 in                   the result that the worker's length of service
  the case of Peacock AG against Hauptzollamt Paderborn                     continues to be computed as from the date on which
                                                                            he was taken on by the transferor and he continues
                       (Case C-339/98)
                                                                            to be entitled to payment of a lump sum by way of
                         (98/C 358/12)                                      severance pay which treats as a single unit the time
                                                                            spent by him in the transferor and transferee's
                                                                            employment?
Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht
Düsseldorf (Finance Court, Düsseldorf) of 14 September               (B2) On a proper construction of Article 3(1), do the
1998, received at the Court Registry on 17 September                        worker's rights' transferred to the transferee in any
1998, for a preliminary ruling in the case of Peacock AG                    event include the advantages acquired by him while
against Hauptzollamt Paderborn on the following                             employed by the transferor, such as length of service
question:                                                                   if, under the system of collective bargaining
                                                                            applicable in the transferee's business, length of
                                                                            service entails the acquisition of rights of a financial
Is Note 5B to Chapter 84 of the combined nomenclature                       nature?
in the version which was in force from 1990 to 1995 to be
interpreted as meaning that the transmission of data using
                                                                     (1) OJ L 61, 5.3.1977, p. 26.
the network cards (1) described in more detail in the
grounds of this order is not to be regarded as a specific
function but as data processing, so that the network cards
are to be classified under heading 8473?
(1) In particular Microdyne Corporation's NE2000 and NE5500
    Ethernet Network Adapter Cards.                                  Reference for a preliminary ruling by the Tribunal da
                                                                     Comarca SetuÂbal, Third Civil Chamber, by order of that
                                                                     court of 15 July 1998 in the case of Vitor Manuel Mendes
                                                                     Ferreira and Maria Clara Delgado Correia Ferreira, his
                                                                     spouse, against Companhia de Seguros Mundial ConfiancËa
                                                                                S.A.
Reference for a preliminary ruling from the Pretura                                          (Case C-348/98)
Circondariale, Pinerolo (Italy), by order of that court of
3 September 1998 in the case of Renato Collino and                                            (98/C 358/14)
        Luisella Chiappero against Telecom Italia SpA
                       (Case C-343/98)
                                                                     Reference has been made to the Court of Justice of the
                         (98/C 358/13)                               European Communities by order of the Tribunal da
                                                                     Comarca (District Court), SetuÂbal, Third Civil Chamber,
                                                                     of 15 July 1998, received at the Court Registry on
Reference has been made to the Court of Justice of                   24 September 1998, for a preliminary ruling in the case of
the European Communities by order of the Pretura                     Vitor Manuel Mendes Ferreira and Maria Clara Delgado


title: Case C-410/14: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 29 August 2014  — Dr. Falk Pharma GmbH v DAK-Gesundheit

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/29

         Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 29 August 2014 — Dr. Falk Pharma GmbH v DAK-Gesundheit
   (Case C-410/14)
   2014/C 409/41
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Dr. Falk Pharma GmbH

      Defendant: DAK-Gesundheit

      Questions referred

   The following questions are referred to the Court of Justice of the European Union under Article 267 TFEU for a preliminary ruling on the interpretation of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts … (1):

               1.

               Does the concept of a ‘public contract’ under Article 1(2)(a) of Directive 2004/18/EC no longer apply if a contracting authority carries out an authorisation procedure in which it awards the contract without selecting one or more economic operators (‘openhouse model’)?

               2.

               If the answer to question 1 is that the selection of one or more economic operators is a characteristic of a public contract, the following question arises: is the characteristic of the selection of economic operators within the meaning of Article 1(2)(a) of Directive 2004/18/EC to be interpreted, in the light of Article 2 of that directive, as meaning that contracting authorities may refrain from selecting one or more economic operators by way of an authorisation procedure only if the following conditions are satisfied:

                           —

                           the carrying out of an authorisation procedure is published at European level,

                           —

                           clear rules concerning the conclusion of the contract and acceding to the contract are set,

                           —

                           the terms of the contract are set in advance in such a way that no economic operator is able to influence the content of the contract,

                           —

                           economic operators are granted the right to accede to the contract at any time;

                           —

                           the contracts concluded are published at European level?

      (1)  OJ 2004 L 134, p. 114.


title: Case C-319/02: Reference for a preliminary ruling by the korkein Hallinto-oikeus by order of that Court of 10 September 2002 in the appeal brought by Petri Mikael Manninen

text:
C 274/18               EN                   Official Journal of the European Communities                                      9.11.2002
Appeal brought on 10 September 2002 by Hijos de                             HAMSA had no opportunity, during either the adminis-
Andrés Molina S.A. against the judgment delivered by the                    trative or the judicial procedure, to put forward its
Fifth Chamber (Extended Composition) of the Court of                        arguments concerning that new formulation by the Court
First Instance of the European Communities on 10 July                       of First Instance of the matter at issue, which amounted
2002 in Case T-152/99 between Hijos de Andrés Molina                        to breach of HAMSA’s right to a fair hearing. In its
 S.A. and the Commission of the European Communities                        submission, that fact constitutes a breach of procedure
                                                                            which adversely affects its interests within the meaning
                                                                            of Article 51 of the EEC Statute of the Court of Justice.
                        (Case C-316/02 P)
                                                                            Secondly, the appellant alleges that the Court of First
                                                                            Instance failed to analyse the aid granted to HAMSA in
                         (2002/C 274/29)                                    1994 in accordance with scheme N 462/94 which it
                                                                            regards as applicable.
                                                                       (b)  The rescue and restructuring aid granted on the basis of a
An appeal against the judgment delivered by the Fifth Chamber               restructuring plan was compatible with the common
(Extended Composition) of the Court of First Instance of the                market:
European Communities on 11 July 2002 in Case T-152/99
between Hijos de Andrés Molina S.A. and the Commission of                   In its decision of 3 February 1999 the Commission stated
the European Communities was brought before the Court of                    that it had not received the HAMSA restructuring plan
Justice of the European Communities on 10 September 2002                    until 4 July 1997. None the less, in response to questions
by Hijos de Andrés Molina S.A. (HAMSA), represented by Luis                 asked by the Court of First Instance a few days before the
Manuel Olivencia Brugger and José Luis Ballester García-                    hearing, the Commission acknowledged that it had
Izquierdo, with an address for service in Luxembourg.                       received the restructuring plan before the Spanish auth-
                                                                            orities notified it of the aid on 1 July 1996. In actual fact,
                                                                            the restructuring plan was delivered by a Spanish official
                                                                            to a Community official in DG Agriculture in January
The appellant claims that the Court should:
                                                                            1996, but the Commission did not decide to initiate the
                                                                            procedure under Article 93(3) of the Treaty or to adopt
—     set aside in part the judgment of 11 July 2002, and rule              measures of any kind with regard to the plan and the aid
                                                                            granted in implementing it in accordance with the
                                                                            provisions of the directives relating to the rescuing and
      (a)   that the aid granted to HAMSA in 1994 was                       restructuring of undertakings in crisis. Later, on 29 April
            compatible with Community law, being compatible                 1997, that is to say, 14 months after the restructuring
            with the general aid scheme applicable;                         plan was notified, the Commission gave notice of the
                                                                            opening of the procedure, considering that the aid had
      (b) that the aid granted pursuant to the HAMSA restruc-               not been notified, when, following the Lorenz case-law,
            turing plan in December 1995 was compatible with                it ought to have been regarded as existing aid.
            Community law;
      (c)   uphold the remainder of the contested judgment of
            11 July 2002 which is not challenged in this appeal.
Pleas in law and main arguments                                        Reference for a preliminary ruling by the korkein Hallin-
                                                                       to-oikeus by order of that Court of 10 September 2002 in
(a)   The aid received by HAMSA in 1994 on the basis of a                     the appeal brought by Petri Mikael Manninen
      general aid scheme previously approved by the Com-
      mission was compatible with Community law:
                                                                                (Case C-319/02)
      In its judgment the Court of First Instance introduced a
      new matter, extraneous to the proceedings and to the                                      (2002/C 274/30)
      dispute brought before it. Whereas the parties, HAMSA
      and the Commission, took the view that the aid granted
      in 1993 and 1994 was regulated by general aid schemes
      N 624792 and N 428/93, respectively, the Court of First
      Instance considered that schemes N 428/93 and N 462/             Reference has been made to the Court of Justice of the
      94 applied to the aid granted in 1993 and 1994,                  European Communities by order of the korkein Hallinto-
      respectively.                                                    oikeus (Supreme Administrative Court) of 10 September 2002,
 ---pagebreak--- 9.11.2002             EN                   Official Journal of the European Communities                                       C 274/19
received at the Court Registry on 12 September 2002, for a            Action brought on 16 September 2002 by the Com-
preliminary ruling in the appeal brought by Petri Mikael              mission of the European Communities against the
Manninen on the following questions:                                                         Kingdom of Spain
1.   Is Article 56 of the Treaty establishing the European                                     (Case C-324/02)
     Community to be interpreted as precluding a corporation
     tax credit system like the Finnish one described above, in
     which the recipient of a dividend who is generally liable                                 (2002/C 274/32)
     to tax in Finland is granted a corporation tax credit in
     respect of a dividend paid by a domestic share company,
     but not in respect of dividend income he receives from a         An action against the Kingdom of Spain was brought before
     share company registered in Sweden?                              the Court of Justice of the European Communities on 16 Sep-
                                                                      tember 2002 by the Commission of the European Communi-
2.   If the answer to the above question is in the affirmative,       ties, represented by Gregorio Valero Jordana, of its Legal
     may Article 58 EC be interpreted as meaning that the             Service, with an address for service in Luxembourg.
     provisions of Article 56 are without prejudice to Finland’s
     right to apply the relevant provisions of the Law on
     Corporation Tax Credits, since it is a condition for             The applicant claims that the Court of Justice should:
     obtaining a corporation tax credit in Finland that the
     company distributing the dividend has paid the corre-            —     declare that, by failing to adopt the laws, regulations
     sponding tax or supplementary tax in Finland, which                    and administrative provisions necessary to comply with
     does not take place with respect to a dividend paid from               Council Directive 1999/30/EC (1) of 22 April 1999
     abroad, in which case taxation is not even carried out                 relating to limit values for sulphur dioxide, nitrogen
     once?                                                                  dioxide and oxides of nitrogen, particulate matter and
                                                                            lead in ambient air or, in any event, by failing to
                                                                            communicate such provisions to the Commission, the
                                                                            Kingdom of Spain has failed to fulfil its obligations under
                                                                            that directive;
                                                                      —     order the Kingdom of Spain to pay the costs.
Reference for a preliminary ruling by the Regeringsrätten
(Sweden) by order of that Court of 10 September 2002 in               Pleas in law and main arguments
the case of Förvaltnings AB Stenholmen against Riksskat-
                            teverket
                                                                      The binding nature of the third paragraph of Article 249 EC
                                                                      and the first paragraph of Article 10 EC requires the Member
                        (Case C-320/02)                               States to adopt the measures necessary to implement the
                                                                      directives addressed to them before the expiry of the period
                                                                      prescribed for that purpose. The period in question expired on
                        (2002/C 274/31)
                                                                      19 July 2001 without Spain’s having introduced the necessary
                                                                      measures.
Reference has been made to the Court of Justice of the                (1 ) OJ L 163, 29.6.1999, p. 41.
European Communities by order of the Regeringsrätten
(Supreme Administrative Court) (Sweden) of 10 September
2002, received at the Court Registry on 13 September 2002,
for a preliminary ruling in the case of Förvaltnings AB
Stenholmen against Riksskatteverket (National Tax Board) on
the following questions:
                                                                      Action brought on 17 September 2002 by the Com-
1.   Can an animal be considered to be second-hand goods?             mission of the European Communities against the
                                                                                Kingdom of Spain
     If that question is answered in the affirmative, the Court
     is asked to answer the following question.
                                                                                (Case C-326/02)
2.   Is an animal which is purchased from a private individual
     (rather than a breeder) and which is sold, after training,                                (2002/C 274/33)
     for a specific purpose to be considered to be second-hand
     goods?
                                                                      An action against the Kingdom of Spain was brought before
                                                                      the Court of Justice of the European Communities on 17 Sep-


title: Case T-195/08 R: Order of the President of the Court of First Instance of 15 July 2008 — Antwerpse Bouwwerken v Commission (Application for interim measures — Public procurement — Community tendering procedure — Rejection of tender — Application for suspension of operation and interim measures — Admissibility — Interest in bringing proceedings — Loss of an opportunity — Absence of serious and irreparable damage — No urgency)

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/12

         Order of the President of the Court of First Instance of 15 July 2008 — Antwerpse Bouwwerken v Commission
   (Case T-195/08 R)
   (Application for interim measures - Public procurement - Community tendering procedure - Rejection of tender - Application for suspension of operation and interim measures - Admissibility - Interest in bringing proceedings - Loss of an opportunity - Absence of serious and irreparable damage - No urgency)
   (2008/C 247/23)
   Language of the case: Dutch
   Parties

      Applicant: Antwerpse Bouwwerken NV (Antwerp, Belgium) (represented by: J. Verbist and D. de Keuster, lawyers)

      Defendant: Commission of the European Communities (represented by: E. Manhaeve, Agent, assisted by M. Gelders)
   Re:
   Application for interim measures in the context of the tendering procedure launched by the Commission for the construction of a building.
   Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case T-475/08 P: Appeal brought on 29 October 2008 by Radu Duta against the judgment of the Civil Service Tribunal delivered on 4 September 2008 in Case F-103/07 Duta v Court of Justice

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/40

         Appeal brought on 29 October 2008 by Radu Duta against the judgment of the Civil Service Tribunal delivered on 4 September 2008 in Case F-103/07 Duta v Court of Justice
   (Case T-475/08 P)
   (2009/C 69/93)
   Language of the case: French
   Parties

      Appellant: Radu Duta (Luxembourg, Luxembourg) (represented by F. Krieg, lawyer)

      Other party to the proceedings: Court of Justice of the European Communities
   Form of order sought by the appellant

               —

               Admit the present appeal;

               —

               declare it well founded;

               —

               accordingly, by amendment of the judgment of the European Union Civil Service Tribunal of 4 September 2008, declare the appellant's appeal admissible and well founded;

               —

               accordingly, on the basis of the claims set out above, annul the contested decisions;

               —

               so far as necessary, return the matter to the competent authority for a ruling in accordance with the judgment in the appeal;

               —

               order the respondent to pay the sum of EUR 1 100 000 (one million one hundred thousand Euros) in respect of damages and interest;

               —

               so far as necessary, order an expert to give a report on the extent of the financial loss suffered by the appellant;

               —

               order the respondent to pay all the costs and expenses of the case;

               —

               authorise the appellant expressly to refer to his pleadings at first instance which are annexed to the present appeal and form an integral part thereof;

               —

               as to the remainder, authorise the appellant expressly to reserve all his rights of actions and remedies and in particular the right to bring an action before the European Court of Human Rights.

         Pleas in law and main arguments
   By the present appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal (CST) of 4 September 2008, delivered in Case F-103/07 Duta v Court of Justice, dismissing as inadmissible the action by which the appellant sought, on the one hand, annulment of the memorandum informing him that he would not be offered a post as a Legal Secretary and, on the other, damages in compensation for the loss allegedly suffered.
   The appellant states that his appeal is lodged as a protective measure in order to maintain his rights before the European Court of Human Rights. He does not give precise details of the contested points in the judgment of which he seeks annulment, or the legal arguments made in specific support of that claim.


title: Case C-682/16: Request for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 30 December 2016 — BEI ApS v Skatteministeriet

text:
               6.3.2017

               EN

               Official Journal of the European Union

               C 70/12

         Request for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 30 December 2016 — BEI ApS v Skatteministeriet
   (Case C-682/16)
   (2017/C 070/19)
   Language of the case: Danish

      Referring court

   Vestre Landsret

      Parties to the main proceedings

      Applicant: BEI ApS

      Defendant: Skatteministeriet

      Questions referred

               1.

               Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?

                           1.1.

                           Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention?

                           1.2.

                           If Question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)?

                           1.3.

                           If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?

                                       1.3.1.

                                       Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has paid tax on the interest received to the State where the interest payer is resident, if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, and if the interest recipient has had a contractual or legal obligation to pass the interest to another person?

                           1.4.

                           What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

               2.

               Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or of Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?

                           2.1.

                           If Question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive?

               3.

               Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with the OECD Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive?

               4.

               Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company, bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner?

      (1)  Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ 2003 L 157, p. 49).


title: Case T-109/08: Action brought on 28 February 2008 — Freixenet SA v OHIM (Shape of a frosted white bottle)

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/25

         Action brought on 28 February 2008 — Freixenet SA v OHIM (Shape of a frosted white bottle)
   (Case T-109/08)
   (2008/C 116/45)
   Language in which the application was lodged: French
   Parties

      Applicant: Freixenet SA (Sant Sadurní d'Anoia, Spain) (represented by F. de Visscher, E. Cornu and D. Moreau, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 532 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark;

               —

               In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 30 October 2007;

               —

               In any case, order the Office for Harmonisation in the Internal Market to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Three-dimensional trade mark in the shape of a frosted white bottle for goods in class 33 (application No 32 532)

      Decision of the Examiner: Rejection of the application

      Decision of the Board of Appeal: Dismissal of the appeal; decision taken following the judgment of the Court of First Instance in Case T-190/04 Freixenet v OHIM (shape of a frosted white bottle)

      Pleas in law: Infringement of Article 7(1) and (3) and Article 73 of Regulation No 40/94 and of the obligation to state reasons, to the extent that:

               —

               The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment;

               —

               The Board of Appeal failed to specify the documents on which it bases its decision;

               —

               The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996; and

               —

               In any case, the trade mark in question has acquired a distinctive character in the Community by usage.


title: Case C-40/08: Judgment of the Court (First Chamber) of 6 October 2009 (Reference for a preliminary ruling from the Juzgado de Primera Instancia No 4 de Bilbao — Spain) — Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira (Directive 93/13/EEC — Consumer contracts — Unfair arbitration clause — Measure void — Arbitration award which has become final — Enforcement — Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void — Principles of equivalence and effectiveness)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/7

         Judgment of the Court (First Chamber) of 6 October 2009 (Reference for a preliminary ruling from the Juzgado de Primera Instancia No 4 de Bilbao — Spain) — Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira
   (Case C-40/08) (1)

   (Directive 93/13/EEC - Consumer contracts - Unfair arbitration clause - Measure void - Arbitration award which has become final - Enforcement - Whether the national court responsible for enforcement can consider of its own motion whether the unfair arbitration clause is null and void - Principles of equivalence and effectiveness)
   2009/C 282/12
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia No 4 de Bilbao

      Parties to the main proceedings

      Applicant: Asturcom Telecomunicaciones SL

      Defendant: Cristina Rodríguez Nogueira

      Re:

   Reference for a preliminary ruling — Juzgado de Primera Instancia No 4 de Bilbao — Interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Adequate and effective means to prevent the continued use of unfair terms — Application for the enforcement of a final arbitration award made in default on the basis of an unfair arbitration clause

      Operative part of the judgment

   Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.

      (1)  OJ C 92, 12.4.2008.


title: Case C-562/14 P: Appeal brought on 5 December 2014 by Kingdom of Sweden against the judgment delivered on 25 September 2014 in Case T-306/12 Darius Nicolai Spirlea and Mihaela Spirlea v European Commission

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/31

         Appeal brought on 5 December 2014 by Kingdom of Sweden against the judgment delivered on 25 September 2014 in Case T-306/12 Darius Nicolai Spirlea and Mihaela Spirlea v European Commission
   (Case C-562/14 P)
   (2015/C 046/37)
   Language of the case: German

      Parties

      Appellant: Kingdom of Sweden (represented by: C. Meyer-Seitz)

      Other parties to the proceedings: European Commission, Darius Nicolai Spirlea and Mihaela Spirlea, Kingdom of Denmark, Republic of Finland, Czech Republic and Kingdom of Spain

      Form of order sought

               —

               Set aside the judgment of the General Court of the European Union of 25 September 2014 in Case T-306/12,

               —

               Declare invalid the decision of the European Commission of 21 June 2012 to deny Mr and Mrs Spirlea access to the requested documents, and

               —

               Order the European Commission to pay the costs of the Kingdom of Sweden.

      Pleas in law and main arguments

   The appellant relies on three grounds of appeal.
   By the first ground of appeal, it is argued that the General Court misinterpreted the third indent of Article 4(2) of Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (‘the openness regulation’) by taking the view that the Commission, when it relies on the exception for investigations, may base its decision on a general presumption that access should be denied in an EU pilot procedure insofar as it constitutes a step which precedes the possible initiation of Treaty infringement proceedings, and that the Commission did not err in law in interpreting the above provision of the openness regulation as meaning that it could refuse a request for access to the requested documents in an EU pilot matter without examining the documents specifically and individually.
   By the second ground of appeal, it is argued that the General Court misinterpreted the third indent of Article 4(2) of the openness regulation by ruling that the Commission’s assessment that there was no overriding public interest within the meaning of the final part of Article 4(2) of the openness regulation was not vitiated by any error.
   By the third ground of appeal, it is argued that the General Court misapplied EU law by taking the view that when considering purpose under the openness regulation the lawfulness of the legal acts at issue in an action for annulment under Article 263 TFEU should also be assessed in relation to the facts and law obtaining at the time when the legal acts were adopted.

      (1)  OJ 2001 L 145, p. 43.


title: Case C-61/99: Reference for a preliminary ruling by the Landgericht Mainz by order of that court of 22 January 1999 in the case of Deutsche Post AG against Landal Green Parks GmbH

text:
1.5.1999              EN                     Official Journal of the European Communities                                         C 121/11
Reference for a preliminary ruling by the Supreme Court,                Reference for a preliminary ruling by the Landgericht
Dublin, by order of that court of 15 July 1998, in the case             Mainz by order of that court of 22 January 1999 in the
           of Carmen Proetta against Andrew Neil                        case of Deutsche Post AG against Landal Green Parks
                                                                                GmbH
                         (Case C-60/99)                                                            (Case C-61/99)
                        (1999/C 121/20)                                                           (1999/C 121/21)
                                                                        Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                  European Communities by order of the Landgericht Mainz
European Communities by an order of the Supreme Court,                  (Regional Court, Mainz) of 22 January 1999, received at the
Dublin, of 15 July 1998, which was received at the Court                Court Registry on 22 February 1999, for a preliminary ruling
Registry on 22 February 1999, for a preliminary ruling in the           in the case of Deutsche Post AG against Landal Green Parks
case of Carmen Proetta against Andrew Neil, on the following            GmbH on the following questions:
questions:
                                                                        1. Are Articles 59 et seq., 52 et seq. and 30 et seq. of the EC
1. Is the right of a citizen of the European Community to his               Treaty to be interpreted as allowing an undertaking within
    or her good name a fundamental right guaranteed by                      the European Union to conduct advertising centrally from
    Community law?                                                          the parent company in Member State A for a subsidiary in
                                                                            Member State B, where the parent company organises the
                                                                            advertising, pays for it and, using the postal administration
                                                                            of Member State A to despatch the advertising material,
2. Is an action for alleged libel taken by a national of one                sends it to the consumer being approached, so that the
    Member State against a national of a second Member State                exercise of the power of the postal administration of
    in the courts of a third Member State, where the alleged                Member state B to demand internal charges for the delivery
    libel was alleged to have been published, a matter within               of the letters — at any rate if the advertising mail, as
    the scope of application of the EC Treaty and, in particular,           indicated by its content and the fact that it refers almost
    of Article 6 thereof?                                                   entirely only to the subsidiary in Member State B, is sent
                                                                            on behalf of that subsidiary, which the advertising is also
                                                                            intended to benefit directly — amounts to a penalty or
3. Is the right of a national of a member State to sue a                    discrimination and thus infringes the freedom to provide
    national of another Member State in a third Member State                services, the free movement of goods (if the moveable
    for a tort, in this instance the tort of libel, pursuant to             property element of the service is predominant) and
    Article 5(3) of the Brussels Convention, a Community law                freedom of establishment?
    right?
                                                                            Does that also hold true if the reason for that practice of
                                                                            the undertaking is solely or partly to make savings on
                                                                            postal charges inasmuch as the rates of charge in Member
4. Where a civil action is brought before the courts of a                   State A, in which the parent company has its registered
    member State pursuant to the provisions of the Brussels                 office and from where it conducts all the undertaking’s
    Convention, does Article 6 of the EC Treaty preclude the                advertising, are slightly or significantly lower than those of
    courts of that Member State from requiring a national of                Member State B, in which the subsidiary primarily intended
    another Member State resident outside the jurisdiction of               to benefit financially from the advertising operates?
    the courts of the Member State in question to lodge
    security for the costs of the proceedings when no such
    requirement could be imposed upon an individual resident            2. Is Article 90 (1) of the EC Treaty to be interpreted as
    within the jurisdiction of the said Member State?                       meaning that a law ratifying the Universal Postal Union
                                                                            Convention of 14 December 1989 infringes the prohib-
                                                                            ition of abuse in subparagraphs (a) and (c) of the second
5. Where a civil action, not otherwise connected with a                     paragraph of Article 86 of the EC Treaty, as a measure by
    Community law right, is brought the courts of a Member                  a Member state falling outside Article 90 (2) of that Treaty,
    State pursuant to the previsions of the Brussels Convention,            in so far as it confers on the postal administration of
    does Article 6 of the EC Treaty preclude the courts of that             Member State B the right to impose internal postal charges,
    Member State from requiring a national of another Member                giving credit for the postal charges already paid in Member
    State resident outside the jurisdiction of the courts of the            State A, in respect of the delivery of letter-post items which
    Member State in question to lodge security for the costs of             were posted in Member State A, when the originator of the
    the proceedings when no such requirement could be                       letters, intellectually and substantively, is an undertaking in
    imposed upon an individual resident within the jurisdiction             Member State A but their content and the overall
    of the said Member State.                                               impression of the advertising mail together indicate to the
                                                                            recipient that they are sent solely by the undertaking in
                                                                            Member State B which is being advertised?


title: Case C-151/01 P: Appeal brought on 9 April 2001 by S.C.E.A. La Conqueste against the order made on 30 January 2001 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-215/00 between S.C.E.A. La Conqueste and the Commission of the European Communities

text:
16.6.2001               EN                     Official Journal of the European Communities                                            C 173/29
      harmonised at Community level may be subject to                     The appellant claims that the Court should:
      provisions justified in the general interest such as rules
      concerning organisation of the profession, qualification            —     set aside the order of the Court of First Instance of the
      and professional conduct, the Commission considers that                   European Communities of 30 January 2001;
      the French legislation lays down disproportionate and
      excessively restrictive conditions for the exercise in France       —     order the European Commission to pay all the costs, with
      of the profession in question by intellectual property                    all the legal consequences which that entails.
      advisers lawfully established in another Member State and
      supplying services in France on an isolated occasion.
      Other measures — less restrictive than mandatory entry              Pleas in law and main arguments
      on a register preceded by an examination — could be
      envisaged, for example:                                             —     Error of law: given the structure of the appellant com-
                                                                                pany’s production chain, which is unique in the south-
      1.    a requirement to practice under the home-country                    west, the Court of First Instance should have specifically
            title;                                                              examined whether, as at the date of its adoption, the
                                                                                contested regulation particularly affected the appellant.
      2.    a requirement that the person practising the pro-
            fession produces his qualification;                           —     Distortion of the appellant’s claims.
                                                                          —     Absence of a sufficient statement of reasons for the ruling
      3.    a declaration system (such as that provided for in                  on the plea alleging disregard of the right to seek effective
            Article 22 of Council Directive 85/384/EEC on the                   relief by bringing proceedings: the contested order does
            mutual recognition of architects’ qualifications) (2).              not deal with the appellant’s argument that the Com-
                                                                                mission’s interpretation of Article 7 of Regulation
—     Infringement of Article 49 EC by imposing residence or                    No 2081/92 (1), to the effect that that article restricts the
      a place of business in France as a condition for the supply               right to object to the procedure at Member State level,
      of services there on an isolated occasion.                                disregards the right to seek effective relief by bringing
                                                                                proceedings.
                                                                          —     Misinterpretation of Article 7 of Regulation No 2081/92:
(1) OJ L 19, 24.1.1989, p. 16.                                                  disregard by the Community legal order of the guaranteed
(2) Council Directive 85/384/EEC on the mutual recognition of                   right to seek effective relief by bringing proceedings,
    diplomas, certificates and other evidence of formal qualifications          which constitutes a general legal principle: the effect of a
    in architecture, including measures to facilitate the effective             failure to act on the part of a Member State must be such
    exercise of the right of establishment and freedom to provide               as to permit an undertaking which otherwise fulfils the
    services (OJ No L 223, 21.8.1985, p. 15).
                                                                                admissibility requirements laid down by Article 7(4) to
                                                                                raise an objection with the Commission.
                                                                          (1) Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of
                                                                              geographical indications and designations of origin for agricultural
                                                                              products and foodstuffs (OJ L 208 of 24.7.1992, p. 1).
Appeal brought on 9 April 2001 by S.C.E.A. La Conqueste
against the order made on 30 January 2001 by the Fifth
Chamber of the Court of First Instance of the European
Communities in Case T-215/00 between S.C.E.A. La Con-
queste and the Commission of the European Communities
                                                                          Reference for a preliminary ruling by the Sozialgericht
                                                                          Leipzig by order of that court of 30 March 2001 in the
                         (Case C-151/01 P)                                    case of Karen Mau against Bundesanstalt für Arbeit
                          (2001/C 173/49)                                                           (Case C-160/01)
An appeal against the order made on 30 January 2001 by the                                          (2001/C 173/50)
Fifth Chamber of the Court of First Instance of the European
Communities in Case T-215/00 between S.C.E.A. La Conqueste                Reference has been made to the Court of Justice of the
and the Commission of the European Communities was                        European Communities by order of the Sozialgericht Leipzig
brought before the Court of Justice of the European Communi-              (Social Court, Leipzig) of 30 March 2001, received at the Court
ties on 9 April 2001 by S.C.E.A. La Conqueste, represented by             Registry on 12 April 2001, for a preliminary ruling in the case
A. Lyon-Caen, F. Fabiani and F. Thiriez, avocats, with an                 of Karen Mau against the Bundesanstalt für Arbeit (Federal
address for service in Paris.                                             Labour Office) on the following questions:


title: Case C-225/10: Judgment of the Court (Second Chamber) of 20 October 2011 (reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany)) — Juan Perez Garcia, Jose Arias Neira, Fernando Barrera Castro, Dolores Verdún Espinosa successor in title to José Bernal Fernández v Familienkasse Nürnberg (Social security — Regulation (EEC) No 1408/71 — Articles 77 and 78 — Pensioners entitled under the legislation of several Member States — Handicapped children — Family benefits for dependent children — Right to benefits in the former Member State of employment — Existence of a right to benefits in the Member State of residence — Failure to make a request — Choice of payment of an invalidity benefit incompatible with benefits for dependent children — Concept of ‘benefit for dependent children’ — Maintenance of rights acquired in the former Member State of employment)

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/8

         Judgment of the Court (Second Chamber) of 20 October 2011 (reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany)) — Juan Perez Garcia, Jose Arias Neira, Fernando Barrera Castro, Dolores Verdún Espinosa successor in title to José Bernal Fernández v Familienkasse Nürnberg
   (Case C-225/10) (1)

   (Social security - Regulation (EEC) No 1408/71 - Articles 77 and 78 - Pensioners entitled under the legislation of several Member States - Handicapped children - Family benefits for dependent children - Right to benefits in the former Member State of employment - Existence of a right to benefits in the Member State of residence - Failure to make a request - Choice of payment of an invalidity benefit incompatible with benefits for dependent children - Concept of ‘benefit for dependent children’ - Maintenance of rights acquired in the former Member State of employment)
   2011/C 362/11
   Language of the case: German

      Referring court

   Sozialgericht Nürnberg

      Parties to the main proceedings

      Applicants: Juan Perez Garcia, Jose Arias Neira, Fernando Barrera Castro, Dolores Verdún Espinosa successor in title to José Bernal Fernández

      Defendant: Familienkasse Nürnberg

      Re:

   Reference for a preliminary ruling — Sozialgericht Nürnberg — Interpretation of Articles 77 and 78 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1997 L 149, p. 2) — Benefits for dependant handicapped children of pensioners which are due under the legislation of several Member States and benefits for orphans which are subject to the legislation of several Member States — Right to a supplement paid by the State of employment where allowances for children in the State of residence are higher but not compatible with a non-contributory pension for invalidity which the party concerned has opted for

      Operative part of the judgment

               1.

               Articles 77(2)(b)(i) and 78(2)(b)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 must be interpreted as meaning that recipients of old age and/or invalidity pensions, or the orphan of a deceased worker, to whom the legislation of several Member States applied, but whose pension or orphan’s rights are based on the legislation of the former Member State of employment alone, are entitled to claim from the competent authorities of that State the full amount of the family allowances provided under that legislation for handicapped children, even though they have not, in the Member State of residence, applied for comparable, higher, allowances under the legislation of that latter State, because they opted to be granted another benefit for handicapped persons which is incompatible with those, since the right to family allowances in the former Member State of employment was acquired by reason of the legislation of that State alone.

               2.

               The answer to the third question is that the answer to it is the same as that to the first two questions where, under the legislation of the Member State of residence, the interested persons are unable to opt for payment of family allowances in that State.

      (1)  OJ C 221, 14.8.2010.


title: Case T-503/14: Action brought on 2 July 2014  — Euroways v Commission

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/54

         Action brought on 2 July 2014 — Euroways v Commission
   (Case T-503/14)
   2014/C 282/72
   Language of the case: Spanish

      Parties

      Applicant: Euroways, SL (Hospitalet de Llobregat, Spain) (represented by: J. De Juan Casadevall, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision;

               —

               in the alternative, if the ‘Spanish Tax Lease System’ (STLS) is held to be unlawful State aid, order recovery only until the date of publication in the Official Journal of the European Union of the decision initiating the formal investigation, namely, 21 September 2011; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The pleas in law and main arguments are those raised in Case T-500/14 Derivados del Flúor v Commission.


title: Case T-156/06: Order of the Court of First Instance of 11 December 2007 — Regione Siciliana v Commission of the European Communities (European Social Fund (ESF) — Reduction in Community assistance initially granted — Action for annulment — Regional or local entity — Lack of direct effect — Inadmissibility)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/43

         Order of the Court of First Instance of 11 December 2007 — Regione Siciliana v Commission of the European Communities
   (Case T-156/06) (1)

   (European Social Fund (ESF) - Reduction in Community assistance initially granted - Action for annulment - Regional or local entity - Lack of direct effect - Inadmissibility)
   (2008/C 51/79)
   Language of the case: Italian
   Parties

      Applicant(s): Regione Siciliana (Italy) (represented by: P. Gentile, Avvocato dello Stato)

      Defendant(s): Commission of the European Communities (represented by: L. Flynn, M. Velardo and A. Weimar, agents, assisted by G. Faedo, lawyer)
   Re:
   Action for the annulment of Commission Decision C(2006) 1171 of 23 March 2006 concerning a reduction in assistance from the European Social Fund (ESF) for an operational programme in the Region of Sicily forming part of the Community support framework for structural assistance under Objective 1 in Italy (period 1994 to 1999)
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Regione Siciliana is ordered to pay the costs.

      (1)  OJ C 178 of 29.7.2006.


C 355/18                 EN                   Official Journal of the European Communities                                      9.12.2000
The applicant claims that the Court should:                              The applicant claims that the Court should:
                                                                         —     Declare that, by failing to adopt plans for managing
—     Declare that, by failing to adopt and bring into force                   waste, including hazardous waste and packaging waste,
      within the prescribed period the laws, regulations or                    or, in the alternative, by failing to communicate any
      administrative provisions necessary to comply with Com-                  such plans to the Commission, the Grand Duchy of
      mission Directive 97/8/EC amending Council Directive                     Luxembourg has failed to fulfil its obligations under
      74/63/EEC of 17 December 1973 on the fixing of                           Articles 7, 6 and 14 of Council Directive 75/442/EEC on
      maximum permitted levels for undesirable substances                      waste (1), as amended by Directives 91/156/EEC (2), and
      and products in feedingstuffs (1), the French Republic has               Council Directive 91/689/EEC (3) on hazardous waste,
      failed to fulfil its obligations under Article 2 of Directive            and European Parliament and Council Directive 94/62/EC
      97/8/EC.                                                                 of 20 December 1994 on packaging and packaging
                                                                               waste (4); and
—     Order the French Republic to pay the costs.
                                                                         —     Order the Grand Duchy of Luxembourg to pay the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         Under Article 249 of the EC Treaty, according to which a
Under Article 249 of the EC Treaty, according to which a                 directive is to be binding, as to the result to be achieved, upon
directive is to be binding, as to the result to be achieved, upon        each Member State to which it is addressed, Member States are
each Member State to which it is addressed, Member States are            required to observe the time-limits laid down in directives for
required to observe the time-limits laid down in directives for          their transposition. That time-limit expired without the Grand
their transposition. That time-limit expired on 30 June 1998             Duchy of Luxembourg having brought into force the necessary
without the French Republic having brought into force the                provisions in order to comply with the directive referred to in
necessary provisions in order to comply with the directive               the Commission’s application.
referred to in the Commission’s application.
                                                                         ( 1) OJ 1975 L 194, p. 39.
                                                                         ( 2) OJ 1991 L 778, p. 32.
                                                                         ( 3) OJ 1991 L 377, p. 20.
(1) OJ 1997 L 48, p. 30.                                                 ( 4) OJ 1994 L 365, p. 10.
Action brought on 3 November 2000 by the Commission
of the European Communities against the Grand Duchy                              Removal from the register of Case C-271/98 (1)
                           of Luxembourg
                                                                                (2000/C 355/37)
                           (Case C-401/00)
                                                                         By order of 12 July 2000 the President of the Court of Justice
                                                                         of the European Communities has ordered the removal from
                           (2000/C 355/36)                               the register of Case C-271/98 (reference for a preliminary
                                                                         ruling from Juzgado de Primera Instancia (Court of First
                                                                         Instance) No 35 Barcelona): Salvat Editores SA v José Antonio
An action against the Grand Duchy of Luxembourg was                      Serrano Garrido.
brought before the Court of Justice of the European Communi-
ties on 3 November 2000 by the Commission of the European
Communities, represented by Roland Tricot, of its Legal                  (1) OJ C 278 of 5.9.1998.
Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg


title: Case C-290/10 P: Appeal brought on 10 June 2010 by Franssons Verkstäder AB against the order of the General Court (Eighth Chamber) delivered on 10 May 2010 in Case T-98/10: Franssons Verkstäder v OHIM and Lindner Recyclingtech (Chaff Cutters)

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/10

         Appeal brought on 10 June 2010 by Franssons Verkstäder AB against the order of the General Court (Eighth Chamber) delivered on 10 May 2010 in Case T-98/10: Franssons Verkstäder v OHIM and Lindner Recyclingtech (Chaff Cutters)
   (Case C-290/10 P)
   ()
   2010/C 328/17
   Language of the case: English

      Parties

      Appellant: Franssons Verkstäder AB (represented by: O. Öhlén, advokat)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   By order of 09 September 2010 the Court of Justice (Eighth Chamber) held that the appeal was inadmissible.


title: Case T-681/14: Judgment of the General Court of 28 March 2017 — El-Qaddafi v Council (Common foreign and security policy — Restrictive measures taken against Libya — Freezing of funds — Restrictions on the entry into and transit through the territory of the European Union — Retention of the applicant’s name — Rights of the defence — Obligation to state reasons)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/28

         Judgment of the General Court of 28 March 2017 — El-Qaddafi v Council
   (Case T-681/14) (1)

   ((Common foreign and security policy - Restrictive measures taken against Libya - Freezing of funds - Restrictions on the entry into and transit through the territory of the European Union - Retention of the applicant’s name - Rights of the defence - Obligation to state reasons))
   (2017/C 151/34)
   Language of the case: English

      Parties

      Applicant: Aisha Muammer Mohamed El-Qaddafi (Muscat, Oman) (represented by: initially J. Jones QC, and subsequently by S. Bafadhel, Barrister)

      Defendant: Council of the European Union (represented by: S. Kyriakopoulou and A. de Elera-San Miguel Hurtado, acting as Agents)

      Re:

   Application pursuant to Article 263 TFEU for annulment, first, of Council Decision 2014/380/CFSP of 23 June 2014 amending Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya (OJ 2014 L 183, p. 52), in so far as it maintains the applicant’s name on the list in Annexes I and III to Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 53), and, secondly, of Council Implementing Regulation (EU) No 689/2014 of 23 June 2014 implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2014 L 183, p. 1), in so far as it maintains the applicant’s name on the list in Annex II to Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Decision 2014/380/CFSP of 23 June 2014 amending Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya, in so far as it maintains the name of Ms Aisha Muammer Mohamed El-Qaddafi on the list in Annexes I and III to Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya;

               2.

               Annuls Council Implementing Regulation (EU) No 689/2014 of 23 June 2014 implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya, in so far as it maintains the name of Ms El-Qaddafi on the list in Annex II to Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya;

               3.

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

      (1)  OJ C 431, 1.12.2014.


C 348/22              EN                 Official Journal of the European Communities                                8.12.2001
       Removal from the register of Case C-249/00 (1)                      Removal from the register of Case C-443/00 (1)
                       (2001/C 348/39)                                                     (2001/C 348/42)
By order of 2 August 2001 the President of the Court of Justice     By order of 13 September 2001 the President of the Court of
of the European Communities has ordered the removal from            Justice of the European Communities has ordered the removal
the register of Case C-249/00: Commission of the European           from the register of Case C-443/00: Commission of the
Communities v Hellenic Republic.                                    European Communities v Federal Republic of Germany.
(1) OJ C 247 of 26.8.2000.                                          (1) OJ C 45 of 10.2.2001.
       Removal from the register of Case C-272/00 (1)                      Removal from the register of Case C-132/01 (1)
                       (2001/C 348/40)                                                     (2001/C 348/43)
By order of 4 September 2001 the President of the Court of          By order of 8 October 2001 the President of the Court of
Justice of the European Communities has ordered the removal         Justice of the European Communities has ordered the removal
from the register of Case C-272/00: Commission of the               from the register of Case C-132/01: Commission of the
European Communities v Hellenic Republic.                           European Communities v Republic of Austria.
(1) OJ C 259 of 9.9.2000.                                           (1) OJ C 161 of 2.6.2001.
       Removal from the register of Case C-354/00 (1)                      Removal from the register of Case C-133/01 (1)
                       (2001/C 348/41)                                                     (2001/C 348/44)
By order of 4 October 2001 the President of the Court of            By order of 8 October 2001 the President of the Court of
Justice of the European Communities has ordered the removal         Justice of the European Communities has ordered the removal
from the register of Case C-354/00: Commission of the               from the register of Case C-133/01: Commission of the
European Communities v Kingdom of Spain.                            European Communities v Republic of Austria.
(1) OJ C 316 of 4.11.2000.                                          (1) OJ C 161 of 2.6.2001.


title: Case F-17/08: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Wybranowski v Commission (Civil service — Open competition — Non-inclusion on the reserve list — Evaluation of the oral test — Notice of Competition EPSO/AD/60/06 — Statement of reasons — Powers of the selection board — Assessment of candidates)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/41

         Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Wybranowski v Commission
   (Case F-17/08) (1)

   (Civil service - Open competition - Non-inclusion on the reserve list - Evaluation of the oral test - Notice of Competition EPSO/AD/60/06 - Statement of reasons - Powers of the selection board - Assessment of candidates)
   2010/C 246/70
   Language of the case: Polish

      Parties

      Applicant: Andrzej Wybranowski (Warsaw, Poland) (represented by: Z. Wybranowski, lawyer)

      Defendant: European Commission (represented by: J. Currall and K. Herrmann, Agents)

      Re:

   Amendment or annulment of the decision of the selection board in Competition EPSO/AD/60/06 AD5 not to include the applicant on the reserve list for that competition following the results of the oral test.

      Operative part of the judgment

   The Tribunal:

               1.

               dismisses the action;

               2.

               orders Mr Wybranowski to pay the costs.

      (1)  OJ C 158 of 21.06.2008, p. 25.


title: Case C-75/17 P: Appeal brought on 9 February 2017 by Fiesta Hotels & Resorts, S.L. against the judgment of the General Court (Sixth Chamber) delivered on 30 November 2016 in Case T-217/15, Fiesta Hotels & Resorts v EUIPO — Residencial Palladium (Palladium Palace Ibiza Resort & Spa)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/17

         Appeal brought on 9 February 2017 by Fiesta Hotels & Resorts, S.L. against the judgment of the General Court (Sixth Chamber) delivered on 30 November 2016 in Case T-217/15, Fiesta Hotels & Resorts v EUIPO — Residencial Palladium (Palladium Palace Ibiza Resort & Spa)
   (Case C-75/17 P)
   (2017/C 151/23)
   Language of the case: Spanish

      Parties

      Appellant: Fiesta Hotels & Resorts, S.L. (represented by: J.-B. Devaureix and J.C. Erdozain López, abogados)

      Other parties to the proceedings: European Union Intellectual Property Office (EUIPO) and Residencia Palladium S.L.

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside, in full, the judgment of the General Court of 30 November 2016 in Case T-217/15;

               —

               uphold, in full, the claims put forward at first instance;

               —

               order the respondent and intervener to pay the costs.

      Grounds of appeal and main arguments

               1.

               The first ground of appeal is to the effect that the judgment under appeal is vitiated by an error of law in so far as it was held that, for the purposes of Article 8(4) of Council Regulation No 207/2009 (1) of 26 February 2009 on the European Union trade mark (‘the Regulation’), the requirement of ‘more than mere local’ significance is satisfied irrespective of the geographical scale on which the proprietor of the mark relied on conducts its business. That interpretation ignores the literal meaning of the word ‘local’ and the purpose underlying Article 8(4) of the Regulation. The judgment under appeal contains the error of law alleged in so far as, when determining whether the alleged unregistered trade name had merely local, or other, significance, it took into account documents which had effect outside Spanish territory.
               Moreover, the fact that the services provided by the establishment for whose designation the mark or trade name is used are provided to an international public does not lead to the inference that the use of the sign is more than local.
               The conclusion reached in the judgment under appeal concerning the ‘more than mere local’ requirement, therefore, disregards the purpose of Article 8(4) of the Regulation. Accordingly, that judgment acknowledges that that requirement applied to the trade name relied on in opposition to the application for an EU trade mark does not depend on the local significance of the establishment that uses it but on the ‘geographical dispersion of its clientele or the renown which it enjoys with the public at national, or even international, level’. By taking that view, the judgment under appeal goes beyond the restrictive purpose of Article 8(4) of the Regulation, since it allows simple proof of the break with the purely local by means of the mere use of the unregistered sign on the Internet or, in the circumstances of the present case, by the international character of the guests who stay at the establishment concerned.

               2.

               By the second ground of appeal it is contended that the General Court erred in its judgment in holding that, for the purposes of Article 8(4) of the Regulation, in conjunction with Article 9(1)(d) of Ley 17/2001 de 7 de diciembre de Marcas (Law 17/2001 of 7 December 2001 on trade marks), in force in Spain, it is not necessary that the unregistered sign relied on should be well known, whereas the predominant view in the Spanish case-law on that point is to the contrary, that is to say, it requires not only use of the sign referred to but also that that use be well known in a substantial part of the territory of Spain.

               3.

               The basis for the third ground of appeal is that the judgment under appeal is vitiated by an error in law in that the General Court found that Article 8(4)(b) of the EU trade mark Regulation is satisfied on the basis of the Laguiole judgment (paragraph 37), even though that judgment does not apply to the present case because the latter interprets Spanish, not French, law, as was the case in the Laguiole judgment, and the appellant drew the attention of the General Court to judgments of the Spanish Tribunal Supremo (Supreme Court) which clearly preclude an unregistered trade name from preventing the use of a more recent trade mark, without the defendant having relied on the Spanish law on unfair competition, which supposedly allows that possibility, a contention which the appellant disputed in a sufficiently reasoned way.

               4.

               Lastly, in the fourth ground of appeal, the appellant argues that the judgment under appeal contains an error of law in the interpretation of the concept of ‘intermediate marks’, coined in accordance with the Spanish Ley de Marcas (Law on trade marks) and, in particular, that the judgment under appeal contains an error of law relating to Article 65 of the Regulation.
               The appellant contends that the judgment under appeal is vitiated by an error of law in that the abovementioned Article 65 of the Regulation does not prevent stricto sensu the examination of the legal issue which arises in the light of the legal argument put forward by the parties. Contrary to what is stated in the judgment under appeal, the appellant does not seek to alter the factual basis that the Board of Appeal took into consideration when making its decision but merely advances a legal basis which reveals the error of law made in the decision of EUIPO, which is the subject of the application.
               The appellant relies on the principle of iura novit curia, by which the Courts, when taking a decision, must apply the legal rules which they consider appropriate and alter the legal basis of the application, on condition that the decision is in line with the issues of fact and law raised by the parties and the cause of action put forward is not altered or the issue for resolution otherwise changed. In this regard, the General Court should have assessed the appellant’s submissions because not to do so would restrict the appellant’s rights of defence and deprive it of its rights resulting from registration.

      (1)  OJ 2009 L 78, p. 1.


title: Case C-9/13: Action brought on 7 January 2013 — European Commission v Republic of Slovenia

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/15

         Action brought on 7 January 2013 — European Commission v Republic of Slovenia
   (Case C-9/13)
   2013/C 63/25
   Language of the case: Slovene

      Parties

      Applicant: European Commission (represented by D. Kukovec, P. Hetsch and O. Beynet, acting as Agents)

      Defendant: Republic of Slovenia

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that, by failing to adopt all the laws, regulations and administrative measures necessary to comply with Directive 2009/73/EC (1) of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, (2) or in any case by failing to notify the Commission of such measures, the Republic of Slovenia has failed to fulfil its obligations under Article 54(1) of that directive;

               —

               order the Republic of Slovenia, pursuant to Article 260(3) TFEU, to make a penalty payment of EUR 10 287,36 a day, from the day on which judgment shall be given in these proceedings.

      Pleas in law and main arguments

   The period allowed for transposition of the directive expired on 3 March 2011.

      (1)  OJ 2009 L 211, p. 94.

      (2)  OJ 2003 L 176, p. 57.


title: Case T-297/15 P: Appeal brought on 8 June 2015 by Ángel Coedo Suárez against the judgment of the Civil Service Tribunal of 26 March 2015 in Case F-38/14, Coedo Suárez v Council

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/44

         Appeal brought on 8 June 2015 by Ángel Coedo Suárez against the judgment of the Civil Service Tribunal of 26 March 2015 in Case F-38/14, Coedo Suárez v Council
   (Case T-297/15 P)
   (2015/C 245/53)
   Language of the case: French

      Parties

      Appellant: Ángel Coedo Suárez (Brussels, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

      Other party to the proceedings: Council of the European Union

      Form of order sought

   The appellant claims that the Court should:

               —

               declare the present appeal admissible;

               —

               set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015 in Coedo Suárez v Council (F-38/14, EU:F:2015:25);

               —

               grant the application for annulment made by the appellant at first instance;

               —

               order the Council to pay the costs of both sets of proceedings.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on two pleas in law.

               1.

               First plea in law, alleging a distortion of the facts and evidence, and an error of law, in that the Civil Service Tribunal held that the appointing authority had not committed a manifest error of assessment in finding that the appellant’s ill health did not constitute an extenuating circumstance.

               2.

               Second plea in law, alleging infringement of the duty to state reasons.