title: Reference for a preliminary ruling by order of the Tribunale di Salerno of 12 October 1995 in the proceedings brought before that court by Somalfruit SpA and Camar SpA against the Ministero delle Finanze and Ministero del Commercio con l'Estero (Case C-369/95)

text:
No C 31 / 10            EN                    Official Journal of the European Communities                                    3 . 2 . 96
The appellant claims that the Court should:                              1995 by the Commission of the European Communities,
                                                                         represented by Francisco Enrique Gonzalez-Diaz and
1 . set aside the judgment of the Court of First Instance of             Richard Lyal, members of the Legal Service, acting as agents,
      13 September 1995 in Joined Cases T-244/93 and                     with an address for service in Luxembourg at the office of
     T-486/93 TWD Textilwerke Deggendorf GmbH v.                         Carlos Gomez de la Cruz, Centre Wagner, Kirchberg.
     Commission ( ! );
                                                                         The appellant claims that the Court should :
2.   declare     void   Article    2  of   Commission       Decision
     91/391 /EEC of 26 March 1991 on aid granted by the                  — quash the judgment of the Court of First Instance ( First
     German Government to TWD Textilwerke Deggendorf                          Chamber, extended composition ) of 18 September 1995
     GmbH ( OJ 1991 No L 215 , p. 16 ) and Article 2 of                       in Case T-548/93 , Ladbroke Racing Limited v.
     Commission Decision 92/330/EEC of 18 December                            Commission of the European Communities in so far
      1991 on aid by Germany to that undertaking ( OJ 1992                    as it annuls the Commission's decision contained in the
     No L 183 , p. 36 );                                                      letter dated 29 July 1993 rejecting the Ladbroke
                                                                              Racing Limited complaint of 24 November 1989
3 . order the Commission to pay the costs .                                   ( IV/33.374 ),
                                                                         — dismiss       the   application      under Article 173     as
Pleas in law and main arguments adduced in support:                           unfounded,
Infringement of Community law: the appellant repeats the                 — order the applicant to pay the costs in both levels of
pleas advanced by it in the proceedings at first instance (2 )                jurisdiction.
and further complains that the Court of First Instance
reinterpreted the contested decisions in an inadmissible
manner as meaning that the Commission had declared the                   Pleas in law and main arguments adduced in support:
new aid incompatible with the common market until such
time as the old aid was repaid . The Court of First Instance             The Commission submits that the judgment of the Court of
                                                                         First Instance is vitiated by errors of law and should be set
should in that regard have disregarded the wording and
scheme of the Commission decisions, and was entitled to                  aside . First, the judgment erred in law in formulating a
rely only on the considerations set out in the Commission's              general principle according to which the Commission must
statement of reasons; however, such considerations are                   examine the compatibility with the Treaty of legislation
                                                                         imposing obligations previously included in private
subordinate to the operative part of a decision . Moreover,
the reinterpretation applied to Article 1 of the decisions is in
                                                                         agreements before examining the applicability of Articles 85
                                                                         and 86 to these agreements . Second, the judgment ignores
any event inadmissible since it is only Article 2 thereof which
is being contested.                                                      the fact that, irrespective of the compatibility of French
                                                                         legislation with the Treaty, the Commission found that
                                                                         there were no infringements of Articles 85 and 86 of the
(') OJ No C 286 , 28 . 10 . 1995 , p . 8 .                               Treaty. That is to say, the Commission had sufficient
(2 ) As to those advanced in Case T-244/93 ( previously Case             grounds to reject the Applicant's complaint relating to the
     C-161 /91 ), see OJ No C 212 , 14 . 8 . 1991 , p. 10; as to those   alleged infringement of Articles 85 and 86 by the
     advanced in Case T-486/93 ( previously Case C-220/92 ), see
     OJ No C 167, 4 . 7 . 1992 , p. 8 .
                                                                         undertakings without having to determine whether or not
                                                                         the French legislation was incompatible with the Treaty.
                                                                         Third, the judgment is not adequately reasoned .
                                                                         (') OJ No C 286 , 28 . 10 . 1995 , p . 12 .
Appeal brought on 22 November 1995 by the Commission
of the European Communities against the judgment
delivered on 18 September 1995 by the First Chamber
( extended composition ) of the Court of First Instance of the           Reference for a preliminary ruling by order of the Tribunale
European Communities in Case T-548/93 ( J ) between                      di Salerno of 12 October 1995 in the proceedings brought
Ladbroke Racing Ltd and the Commission of the European                   before that court by Somalfruit SpA and Camar SpA against
       Communities, supported by the French Republic                     the Ministero delle Finanze and Ministero del Commercio
                         ( Case C-359/95 P)                                                         con l'Estero
                             ( 96/C 31/19 )                                                      ( Case C-369/95 )
                                                                                96/C 31 /20 )
An appeal against the judgment delivered on 18 September
 1995 by the First Chamber ( extended composition ) of the                Reference has been made to the Court of Justice of the
 Court of First Instance of the European Communities in                   European Communities by order of the Tribunale di Salerno
 Case T-548/93 between Ladbroke Racing Ltd and the                        ( Regional Court, Salerno ) of 12 October 1995 , which was
 Commission of the European Communities, supported by                     received at the Court Registry on 28 November 1995 , for a
the French Republic, was brought before the Court of                      preliminary ruling in the proceedings brought before that
Justice of the European Communities on 22 November                        court by Somalfruit SpA and Camar SpA against the
 ---pagebreak--- 3 . 2 . 96                  EN |                 Official Journal of the European Communities                                  No C 31 / 11
Ministero delle Finanze ( Ministry of Finance ) and the                     Reference for a preliminary ruling by the Industrial
Ministero del Commercio con l'Estero ( Ministry of Foreign                  Tribunal, Southampton ( United Kingdom ), by order of that
Trade ) on the following questions :                                        court of 23 November 1995 , in the case of James Paul
                                                                                Barker against Service Children's Schools
                                                                                ( Case C-3 74/95
1 . Should that part of Council Regulation ( EEC ) No                                                   ( 96/C 31 /21 )
       404/93 (') which limits the right to import Somali
       bananas — the so-called right of access, as recognized by
       the Lome Convention of 15 December 1989 , Protocol 5                 Reference has been made to the Court of Justice of the
       thereto and the Joint Declaration contained in                       European Communities by an order of the Industrial
       Annex LXXIV to the Convention — be considered                        Tribunal,        Southampton          ( United Kingdom ),    of
       valid , in particular inasmuch as it:                                23 November 1995 , which was received at the Court
                                                                            Registry on 30 November 1995 , for a preliminary ruling in
                                                                            the case of James Paul Barker against Service Children 's
       ( a ) establishes different import arrangements for                  Schools, on the following questions :
              traditional bananas, non-traditional bananas and
              bananas in excess of the quota set for that purpose           1 . Do the provisions of Council Directive 76/207/EEC of
              and thus imposes quantitative restrictions;                        9 February 1976 on the implementation of the principle
                                                                                of equal treatment for men and women as regards access
       ( b ) imposes the requirement to obtain an import                         to employment, vocational training and promotion, and
              document and to lodge a security for that purpose                  working conditions ( l ) permit a Member State to
              — a document which is not purely for statistical                   exclude from the measures required by Article 3 of the
              purposes and is subject to conditions that are                     said Directive, equal treatment ( as regards access to
              onerous and difficult to satisfy;                                  employment ) where the employment in question is to be
                                                                                at an establishment outside the territory of the Member
                                                                                State ?
       ( c ) imposes a customs duty of ECU 750 per tonne for
              bananas in excess of the tariff quota ?                       2 . If so, does that permit such exclusion where the
                                                                                prospective employer is the Member State itself?
2 . Should those parts of Commission Regulations ( EEC )                    3 . Also, if so, does that permit such exclusion where the
       Nos 1442/93 ( 2 ) and 1443/93 ( 3 ), as amended and                       prospective employment is in another Member State ?
       supplemented by later regulations, which limit, reduce
       or restrict unnecessarily and in a disproportionate                  (') OJ No L 39 , 14 . 2 . 1976 , p . 40 .
       manner in relation to the objective pursued the right of
       access of Somali bananas, as guaranteed by the
       Convention referred to in Question 1 and by Council
       Regulation ( EEC ) No 404/93 , be considered valid, in
       particular inasmuch as they :
                                                                            Action brought on 30 November 1995 by the Commission
                                                                            of the European Communities against the Hellenic
        ( a ) set the final date for the submission of applications                                         Republic
              for import licences up to three months and three                                         Case C-375/95 )
              weeks before the transaction and limit the period
              for submitting applications to one ( full ) week on                                        ( 96/C 31 /22
              only four occasions a year;
                                                                            An action against the Hellenic Republic was brought before
                                                                            the Court of Justice on 30 November 1995 by the
        ( b ) provide, in the event of non-compliance with the              Commission of the European Communities, represented by
              deadline , for forfeiture , in all cases, of the right to     Dimitrios Gouloussis, Legal Adviser to the Commission,
              import for an entire quarter, without laying down             with an address for service in Luxembourg at the office of
               specific rules or derogations for situations of force         Carlo Gomez de la Cruz, of the Commission's Legal Service,
              majeure, unforeseeable circumstances and similar              Wagner Centre .
               situations ;
                                                                            The applicant claims that the Court should:
        ( c ) make the issue of the licence subject to the prior
               deposit of a security ?                                       1 . declare that, by introducing and maintaining in force in
                                                                                connection with the taxation of imported second-hand
                                                                                cars
0 ) OJ No L 47, 25 . 2 . 1993 , p . 1 .
( 2 ) OJ No L 142 , 12 . 6 . 1993 , p . 6 .                                       ( a ) Article 1 of Law No 363/1976 ( as amended by Law
 ( 3 ) OJ No L 142 , 12 . 6 . 1993 , t5 . 16 .                                          No 1676/1986 ) on the calculation, in connection
                                                                                with the special consumption tax, of the taxable
                                                                                value, with a deduction of only 5 % for each year of
                                                                                use, up to a maximum of 20% , from the selling
                                                                                price of equivalent new vehicles; and


title: Case T-398/08: Action brought on 22 September 2008 — Stowarzyszenie Autorów ZAiKS v Commission

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/53

         Action brought on 22 September 2008 — Stowarzyszenie Autorów ‘ZAiKS’ v Commission
   (Case T-398/08)
   (2008/C 285/94)
   Language of the case: Polish
   Parties

      Applicant: Stowarzyszenie Autorów ‘ZAiKS’ (Warsaw, Poland) (represented by: B. Borkowska and M. Błeszyński, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Article 3 and Article 4(2) and (3) (to the extent to which those provisions refer to Article 3) of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC);

               —

               order the Commission to pay the applicant's costs.

         Pleas in law and main arguments
   In this case the applicant is seeking the partial annulment of the Commission decision of [16] July 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC) to the extent to which it concerns concerted practices with regard to the conditions governing the administration of rights to the public performance of musical works and the granting of corresponding licences by collecting societies and which take the form of restrictions on membership applied in the reciprocal representation agreements as envisaged in the CISAC model contract (model contract of the Conféderation Internationale des Sociétés d'Auteurs et Compositeurs — International Confederation of Societies of Authors and Composers — CISAC) or as applied in practice.
   The applicant bases its action on the following pleas:

               —

               absence of a balanced appraisal of all the conditions essential for the correct interpretation of the concept of ‘concerted practices’ as a result of an incomplete regard for the facts of the case and a lack of regard for all of the inseparably linked elements constituting the collective administration of copyright;

               —

               defective appraisal of the grounds on which the principle of territoriality chosen in the reciprocal representation agreements is based;

               —

               defective indication and assessment of the consequences of a potential alteration of the system obtaining hitherto for the collective administration of copyright;

               —

               lack of appraisal of the totality of evidence in the case as a result of the failure to take account of the facts put forward by the applicant with regard to the particular features of the activity of the authors' association ZAiKS and the provisions of Polish law in the area of the collective administration of copyright.


title: Case C-543/15: Order of the President of the Court of 12 April 2016 (request for a preliminary ruling from the Conseil d'État — France) — Association nationale des opérateurs détaillants en énergie (ANODE) v Premier ministre, Ministre de l’Écologie, du Développement durable et de l'Énergie

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/25

         Order of the President of the Court of 12 April 2016 (request for a preliminary ruling from the Conseil d'État — France) — Association nationale des opérateurs détaillants en énergie (ANODE) v Premier ministre, Ministre de l’Écologie, du Développement durable et de l'Énergie
   (Case C-543/15) (1)

   (2016/C 279/36)
   Language of the case: French
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 16, 18.1.2016.


title: Case C-242/13: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 29 April 2013 — Commerz Nederland NV; other party: Havenbedrijf Rotterdam NV

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/24

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 29 April 2013 — Commerz Nederland NV; other party: Havenbedrijf Rotterdam NV
   (Case C-242/13)
   2013/C 207/38
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Commerz Nederland NV

      Other party: Havenbedrijf Rotterdam NV

      Questions referred

               1.

               Is the imputability — required for purposes of classification as State aid within the meaning of Articles 107 TFEU and 108 TFEU — to the public authorities of a guarantee provided by a public undertaking necessarily precluded by the fact that that guarantee, as in the present case, was provided by the (sole) director of the public undertaking who, while he had the power to do so under civil law, acted on his own authority, deliberately kept the provision of the guarantee secret and ignored the requirements under the articles of association of the public undertaking by failing to seek the approval of the Raad van Commissarissen (Council of Commissioners), and where, furthermore, it must be assumed that the public body concerned (in this case, the Gemeente (Municipality)) did not want the guarantee to be provided?

               2.

               If the circumstances described do not necessarily preclude imputability to the public authorities, are those circumstances then irrelevant for the purpose of answering the question as to whether the provision of the guarantee may be imputed to the public authorities, or should the court consider the matter in the light of the other indicators which argue for or against imputability to the public authorities?


title: Case T-141/14 R: Order of the President of the General Court of 23 May 2014  — SolarWorld and Others v Council (Application for interim measures — Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells) originating or consigned from China — Definitive anti-dumping duty — Application for suspension of operation of a measure — No urgency)

text:
               21.7.2014

               EN

               Official Journal of the European Union

               C 235/18

         Order of the President of the General Court of 23 May 2014 — SolarWorld and Others v Council
   (Case T-141/14 R)
   ((Application for interim measures - Dumping - Imports of crystalline silicon photovoltaic modules and key components (cells) originating or consigned from China - Definitive anti-dumping duty - Application for suspension of operation of a measure - No urgency))
   2014/C 235/23
   Language of the case: English

      Parties

      Applicants: SolarWorld AG (Bonn, Germany); Brandoni solare SpA, (Castelfidardo, Italy); and Solaria Energia y Medio Ambiente, SA (Madrid, Spain) (represented by: L. Ruessmann, lawyer, and J. Beck, Solicitor)

      Defendant: Council of the European Union (represented by: B. Driessen, Agent)

      Re:

   Application for suspension of operation of Article 3 of Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1)

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Judgment of the Court of First Instance of 14 October 2004 in Case T-54/02: Vereins- und Westbank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/13

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 14 October 2004
   in Case T-54/02: Vereins- und Westbank AG v Commission of the European Communities (1)

   (Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)
   (2004/C 314/34)
   Language of the case: German
   In Case T-54/02: Vereins- und Westbank AG, established in Hamburg (Germany), represented by J. Schulte, M Ewen and A. Neus, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, for the Registrar, has given a judgment on 14 October 2004, in which it:

               1.

               Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 97 of 20.4.2002.


title: Case T-744/15: Judgment of the General Court of 13 December 2016 — Puro Italian Style v EUIPO (smartline) (EU trade mark — Application for EU figurative mark smartline — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/46

         Judgment of the General Court of 13 December 2016 — Puro Italian Style v EUIPO (smartline)
   (Case T-744/15) (1)

   ((EU trade mark - Application for EU figurative mark smartline - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 030/51)
   Language of the case: Italian

      Parties

      Applicant: Puro Italian Style SpA (Modena, Italy) (represented by: F. Terrano, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: L. Rampini, acting as Agent)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 7 October 2015 (Case R 2258/2014-1), concerning an application for registration of the figurative sign smartline as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Puro Italian Style SpA to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).

      (1)  OJ C 78, 29.2.2016.


title: Case T-747/15: Action brought on 22 December 2015 — EDF v Commission

text:
               29.2.2016

               EN

               Official Journal of the European Union

               C 78/24

         Action brought on 22 December 2015 — EDF v Commission
   (Case T-747/15)
   (2016/C 078/35)
   Language of the case: French

      Parties

      Applicant: Électricité de France (EDF) (Paris, France) (represented by: M. Debroux, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               principally, annul Articles 1, 2, 3, 4 and 5 of the contested decision for infringement of essential procedural requirements, errors of law and errors of fact;

               —

               in the alternative, annul Articles 1, 2 and 3 of the contested decision, in that the amount that EDF was required to reimburse was very significantly overestimated, and

               —

               in any event, order the Commission to pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea, alleging infringement of Article 266 TFEU.

               2.

               Second plea, alleging infringement of Article 107 TFEU. That plea is composed of two branches:

                           —

                           First branch, concerning the applicability of the private investor test, which is divided into five parts.

                                       —

                                       First part, according to which the Commission, without justification or stating reasons, did not take into account numerous documents and pieces of evidence which were duly submitted to it by France and EDF;

                                       —

                                       Second part, according to which the Commission systematically confused the elements concerning respectively the applicability and the application of the private investor test.

                                       —

                                       Third part, according to which the Commission wrongly ruled out the applicability of the prudent private investor criterion, solely because, in examining the measure, France had taken into account inter alia considerations relating to its status as a public authority, alongside considerations relating to its status as a shareholder.

                                       —

                                       Fourth part, according to which the Commission wrongly individuated an obligation on the part of EDF to have a formal business plan in order to justify the applicability of the prudent private investor criterion.

                                       —

                                       Fifth part, according to which the Commission disregarded the nature and purpose of that measure, its context, the objective it pursued and the rules to which it was subject.

                           —

                           Second branch, concerning the application of the private investor test, which is divided into three parts.

                                       —

                                       First part, according to which the Commission wrongly concluded that the Oxera Report was not admissible as evidence.

                                       —

                                       Second part, according to which the Commission’s methodology is vitiated by clear failings. First, the Commission took into account neither the context of the period in question, nor the criteria that investors at that time would have used. Secondly, the Commission’s ‘tax gift’ hypothesis not only constitutes an error of law, but also gave rise to errors in the evaluation of the adequacy of the investment. In the third place, the Commission committed multiple methodological errors, each of which suffices to demonstrate clearly that the private investor criterion was not applied.

                                       —

                                       Third part, concerning the consequences of the methodological errors committed by the Commission.

               3.

               Third plea, alleging a failure to state reasons for the contested decision.

         In support of the action, the applicant also raises two pleas in law in the alternative.

               1.

               First plea raised in the alternative, alleging that recovery of the majority of the aid is time barred. That plea in divided into two branches:

                           —

                           First branch, according to which the aid in question was mainly existing aid stemming from a measure implemented before the European electricity market was opened to competition.

                           —

                           Second branch, according to which a significant portion of the alleged aid stems from a measure implemented more than ten years before the first formal action taken in the investigation.

               2.

               Second plea raised in the alternative, alleging errors of calculation committed by the Commission in determining the alleged aid. That plea in divided into three branches:

                           —

                           First branch, according to which the Commission erred in relation to the total amount of the reserves.

                           —

                           Second branch, according to which the Commission erred in relation to the applicable tax rate.

                           —

                           Third branch, according to which the amount of the alleged aid should be reviewed on the basis of the correct information.


title: Case C-468/13 P: Appeal brought on 28 August 2013 by MOL Magyar Olaj- és Gázipari Nyrt. against the judgment of the General Court (Seventh Chamber) delivered on 27 June 2013 in Case T-367/12: MOL Magyar Olaj- és Gázipari Nyrt. v Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/45

         Appeal brought on 28 August 2013 by MOL Magyar Olaj- és Gázipari Nyrt. against the judgment of the General Court (Seventh Chamber) delivered on 27 June 2013 in Case T-367/12: MOL Magyar Olaj- és Gázipari Nyrt. v Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-468/13 P)
   2013/C 344/77
   Language of the case: English

      Parties

      Appellant: MOL Magyar Olaj- és Gázipari Nyrt. (represented by: K. Szamosi, avocat)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Banco Bilbao Vizcaya Argentaria, SA

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the judgment of the General Court of the European Union of 27 June 2013 in Case T-367/12 and annul the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market No. R 2532/2011-2 of 30 May 2012 insofar as the appeal of the Intervener is dismissed and the rejection of the Intervener’s opposition is upheld; or alternatively

               —

               refer the case back to the General Court for final judgment; and

               —

               order the Defendant to pay the costs of the proceedings of the first instance and appeal.

      Pleas in law and main arguments

   The appellant claims that

               —

               The General Court’s findings regarding the inadmissibility of the Appellant’s arguments submitted before OHIM are on the one hand irrelevant, and, on the other hand, unjustified and incorrect; therefore the General Court infringed Article 44 of the Rules of Procedure and Article 21 of the Statute of the Court of Justice.

               —

               There was no need and no legal grounds for disregarding the evidence submitted by the Appellant in the proceedings before the General Court, and, therefore, the General Court infringed Article 65(2) of the Community Trade Mark Regulation (1) and Article 135 (4) of the Rules of Procedure when it considered the Appellant’s evidence to be inadmissible.

               —

               The General Court infringed the Community Trade Mark Regulation when establishing the relevant public and its relevance in assessing the likelihood of confusion.

               —

               The General Court infringed the Community Trade Mark Regulation and settled case-law when it found that the services in question are considered to be identical.

               —

               The General Court did not make a clear and separate assessment of the aspects of visual, aural (phonetic) and conceptual similarity, and did not examine the relevant circumstances of the case in the light of this assessment, and therefore, the General Court infringed the Community Trade Mark Regulation.

               —

               The General Court infringed the law when it found that the Board of Appeal was correct in finding that there was a likelihood of confusion between the Intervener’s earlier trademarks and the Appellant’s Community trade mark application.

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


title: Case T-314/11: Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/32

         Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)
   (Case T-314/11)
   2011/C 238/55
   Language in which the application was lodged: English

      Parties

      Applicant: Fortress Participations BV (Rotterdam, Netherlands) (represented by: M.L.J. van de Braak, lawyer, B. Ladas, Solicitor, and S. Malynicz, Barrister)

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

      Other parties to the proceedings before the Board of Appeal: Fortress Investment Group LLC (New York, USA) and Fortress Investment Group (UK) Ltd (London, United Kingdom)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 April 2011 in case R 354/2009-2; and

               —

               Order the defendant and the other parties to the proceedings to pay their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘FORTRESS’, claiming the colours red, black and white, for services in classes 35, 36 and 42 — Community trade mark registration No 3398451

      Proprietor of the Community trade mark: The applicant

      Applicant for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

      Grounds for the application for a declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009. It was also based on United Kingdom non registered trade marks ‘FORTRESS’, ‘FORTRESS INVESTMENTS’, and ‘FORTRESS INVESTMENT GROUP’, used in the course of trade.

      Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

      Decision of the Board of Appeal: Annulled the contested decision

      Pleas in law: Infringement of Article 8(4) of Council Regulation (EC) No 207/2009, as the Board of Appeal failed properly to analyse the question of goodwill under the UK law of passing off and failed properly to assess the risk of misrepresentation and consequent damage.


title: Case T-94/08: Judgment of the General Court of 18 March 2010 — Centre de coordination Carrefour v Commission (Actions for annulment — State aid — Aid scheme for coordination centres established in Belgium — New decision of the Commission adopted following partial annulment by the Court — No interest in bringing proceedings — Inadmissibility)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/41

         Judgment of the General Court of 18 March 2010 — Centre de coordination Carrefour v Commission
   (Case T-94/08) (1)

   (Actions for annulment - State aid - Aid scheme for coordination centres established in Belgium - New decision of the Commission adopted following partial annulment by the Court - No interest in bringing proceedings - Inadmissibility)
   2010/C 113/65
   Language of the case: French

      Parties

      Applicant: Centre de coordination Carrefour SNC (Brussels, Belgium) (represented by: X. Clarebout and K. Platteau, Lawyers)

      Defendant: European Commission (represented by: J.-P. Keppenne, Agent)

      Re:

   Action for the annulment of Commission Decision 2008/283/EC of 13 November 2007 amending Decision 2003/757/EC on the aid scheme implemented by Belgium for coordination centres established in Belgium (OJ 2008 L 90, p. 7), in so far as it does not provide an adequate transitional period.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders Centre de coordination Carrefour SNC to pay the costs.

      (1)  OJ C C 92, 12.4.2008.


title: Case C-121/12 P: Appeal brought on 5 March 2012 by Bernhard Rintisch against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2011 in Case T-109/09: Bernhard Rintisch v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/10

         Appeal brought on 5 March 2012 by Bernhard Rintisch against the judgment of the General Court (Seventh Chamber) delivered on 16 December 2011 in Case T-109/09: Bernhard Rintisch v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-121/12 P)
   2012/C 165/16
   Language of the case: English

      Parties

      Appellant: Bernhard Rintisch (represented by: A. Dreyer, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Valfleuri Pâtes alimentaires SA

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the decision of the Seventh Chamber of the General Court (Court of First Instance) of 16 December 2011 in Case T-109/09;

               —

               order OHIM to pay the costs of the proceedings.

      Pleas in law and main arguments

   The appellant submits that the contested judgment should be annulled on the ground that the General Court infringed Article 74(2) of Council Regulation (EC) No 40/94 (1) (CMTR) [now Article 76(2) of Regulation (EC) No 207/2009 (2)] and on the ground of misuse of power. According to the appellant the General Court wrongly interpreted Article 74/2) of Regulation (EC) No 40/94 by deciding that the Board of Appeal was right in not taking into account documents and evidence submitted by the appellant. The General Court wrongly decided that the Board lawfully refused to exercise discretion when refusing to take the aforementioned documents into account.

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

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


title: Case T-282/14: Order of the General Court of 9 June 2015 — Bayer MaterialScience v Commission (State aid — Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings — Decision to open the procedure under Article 108(2) TFEU — Adoption of the final decision after the action was brought — No need to adjudicate)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/66

         Order of the General Court of 9 June 2015 — Bayer MaterialScience v Commission
   (Case T-282/14) (1)

   ((State aid - Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings - Decision to open the procedure under Article 108(2) TFEU - Adoption of the final decision after the action was brought - No need to adjudicate))
   (2015/C 294/80)
   Language of the case: German

      Parties

      Applicant: Bayer MaterialScience AG (Leverkusen, Germany) (represented by: C. Arhold, L. Petersen, F.-A. Wesche, N. Wimmer and T. Woltering, lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, acting as Agents, and by C. von Donat and G. Quardt, lawyers)

      Re:

   Application to annul in part Commission decision C (2013) 4424 final of 18 December 2013 to open the procedure under Article 108(2) TFEU regarding measures implemented by the Federal Republic of Germany in favour of renewable electricity and of energy-intensive users (State aid SA.33995 (2013/C) (ex 2013/NN)).

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               There is no longer any need to adjudicate on the application for intervention submitted by the EFTA Surveillance Authority.

               3.

               Bayer MaterialScience AG shall bear its own costs and those incurred by the European Commission.

               4.

               The EFTA Surveillance Authority shall bear its own costs.

      (1)  OJ C 223, 14.7.2014.


title: Case C-403/04 P: Appeal brought on 22 September 2004 by Sumitomo Metal Industries Ltd against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/9

         Appeal brought on 22 September 2004 by Sumitomo Metal Industries Ltd against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities
   (Case C-403/04 P)
   (2004/C 284/19)
   An appeal against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 22 September 2004 by Sumitomo Metal Industries Ltd, established in Osaka, Japan, represented by C. Vajda QC and G. Sproul, Solicitor.
   The Appellant claims that the Court should:

               (i)

               allow the Appeal, in whole or in part, against the judgment in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 and set aside, in whole or in part, the said judgment;

               (ii)

               annul, in whole or in part, Articles 1 and 3 to 6 of the Decision in so far as they are addressed to SMI;

               (iii)

               order, if appropriate, the Commission to pay compensation to SMI for the breach of Article 6(1) of the ECHR a sum of not less than EUR 1,012,332, being the aggregate of EUR 217,183 (the extra cost of the bank guarante), EUR 620,249 (the extra cost of the default interest), and EUR 175,000; and

               (iv)

               order the Commission to pay SMI's costs, both before the Court and the Court of First Instance.

         Pleas in law and main arguments:
   The Appellant submits that the judgment of the Court of First Instance should be set aside on the following grounds:

               (a)

               the Court of First Instance erred in law by applying the wrong standard of proof in a case where the Appellant has demonstrated that the Commission's allegation is incompatible with the Appellant's commercial interest and therefore irrational;

               (b)

               the Court of First Instance erred in law by applying the wrong standard of proof in a case where the documentary evidence is ambiguous and the Appellant has offered a plausible alternative explanation of the conduct at issue;

               (c)

               the Court of First Instance erred in law by applying the wrong legal standard of proof as to the level of corroboration required in support of contested statements which the Commission uses as principal evidence but which are implausible, highly ambiguous and contradicted by other evidence;

               (d)

               the Court of First Instance erred in law by giving contradictory and inadequate reasons in concluding that the statement of Mr Becher (an employee of Mannesmann) of 21 April 1997 could corroborate the statements of Mr Verluca, Head of Vallourec Oil & Gas, regarding the alleged infringement in respect of project line pipe.


title: Case C-539/07: Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/17

         Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic
   (Case C-539/07)
   (2008/C 37/23)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Montaguti and A. Nijenhuis, acting as Agents)

      Defendant: Italian Republic
   Form of order sought
   The applicant claims that the Court should:

               —

               declare that, by failing, for all calls to the single European emergency call number ‘112’, to make call-tracing information available, within the limits of technical feasibility, to the authorities called upon to act in cases of emergency, the Italian Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC (1);

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposing Directive 2002/22/EC expired on 24 July 2003.

      (1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).


title: Case C-288/15: Request for a preliminary ruling from the Finanzgericht München (Germany) lodged on 15 June 2015 — Medical Imaging Systems GmbH (MIS) v Hauptzollamt München

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/32

         Request for a preliminary ruling from the Finanzgericht München (Germany) lodged on 15 June 2015 — Medical Imaging Systems GmbH (MIS) v Hauptzollamt München
   (Case C-288/15)
   (2015/C 294/39)
   Language of the case: German

      Referring court

   Finanzgericht München

      Parties to the main proceedings

      Applicant: Medical Imaging Systems GmbH (MIS)

      Defendant: Hauptzollamt München

      Question referred

   Does classification under subheading 6211 33 10 00 0 ‘Industrial and occupational clothing’ of the Combined Nomenclature (1) depend solely on external appearance or intended use, or does General Rule 3(b) require that consideration be given to those components of the goods which give them their essential character?

      (1)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012 amending Annex I (OJ 2012 L 304, p. 1).


title: Case T-294/07: Order of the Court of First Instance of 25 September 2008 — Stepek v OHIM (Community trade mark — Opposition proceedings — Application for Community figurative mark GOLF-FASHION MASTERS THE CHOICE TO WIN — Earlier national figurative mark The Masters GOLF COMPANY — Withdrawal of appeal brought before the Board of Appeal — Costs incurred before the Board of Appeal)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/39

         Order of the Court of First Instance of 25 September 2008 — Stepek v OHIM
   (Case T-294/07) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark ‘GOLF-FASHION MASTERS THE CHOICE TO WIN’ - Earlier national figurative mark ‘The Masters GOLF COMPANY’ - Withdrawal of appeal brought before the Board of Appeal - Costs incurred before the Board of Appeal)
   (2008/C 301/67)
   Language of the case: German
   Parties

      Applicant: Wilhelm Stepek (Stadl-Paura, Austria) (represented by: H. Heigl, W. Berger and G. Lehner, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: The Masters Golf Company Ltd (Weston-super-Mare, United Kingdom)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 23 May 2007 (Case R 95/2007-1) concerning opposition proceedings between The Masters Golf Company Ltd and Mr Wilhelm Stepek.
   Operative part of the order

               1.

               The action is dismissed.

               2.

               Mr Wilhelm Stepek is ordered to pay the costs.

      (1)  OJ C 235, 6.10.2007.


title: Case C-43/09 P: Order of the Court of 22 January 2010 — Hellenic Republic v European Commission (Appeal — Commission Decision reducing the financial assistance initially granted by the Cohesion Fund for the project for the project for the new Athens International Airport at Spata — Action for annulment — Principles of non-retroactivity, legal certainty and proportionality — Appeal manifestly inadmissible in part and manifestly unfounded in part)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/13

         Order of the Court of 22 January 2010 — Hellenic Republic v European Commission
   (Case C-43/09 P) (1)

   (Appeal - Commission Decision reducing the financial assistance initially granted by the Cohesion Fund for the project for the project for the new Athens International Airport at Spata - Action for annulment - Principles of non-retroactivity, legal certainty and proportionality - Appeal manifestly inadmissible in part and manifestly unfounded in part)
   2010/C 134/19
   Language of the case: Greek

      Parties

      Appellant: Hellenic Republic (represented by: C. Meïdanis and M. Tassopoulou, acting as Agents)

      Other party to the proceedings: European Commission (represented by: D. Triantafyllou and B. Conte, acting as Agents)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Eighth Chamber) in Case T-404/05 Greece v Commission, by which the Court dismissed an action seeking annulment of Commission Decision C(2005) 3243 of 1 September 2005 reducing the financial assistance initially granted by the Cohesion Fund for Project No 95/09/65/040, concerning the new Athens International airport at Spata

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               The Hellenic Republic is ordered to pay the costs.

      (1)  OJ C 69, of 21.03. 2009.


title: Case C-614/16 P: Appeal brought on 28 November 2016 by Merck KGaA against the judgment of the General Court (Ninth Chamber) delivered on 8 September 2016 in Case T-470/13: Merck KGaA v European Commission

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/40

         Appeal brought on 28 November 2016 by Merck KGaA against the judgment of the General Court (Ninth Chamber) delivered on 8 September 2016 in Case T-470/13: Merck KGaA v European Commission
   (Case C-614/16 P)
   (2017/C 030/44)
   Language of the case: English

      Parties

      Appellant: Merck KGaA (represented by: B. Bär-Bouyssière, Rechtsanwalt, S. Smith, Solicitor, R. Kreisberger, Barrister, D. Mackersie, Advocate)

      Other parties to the proceedings: European Commission, Generics (UK) Ltd

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside paragraph 1 of the operative part of the Judgment;

               —

               annul Articles 1(1), 2(1) of the Decision and Articles 3 and 4 insofar as these are addressed to Merck;

               —

               in the alternative, annul or reduce the penalty imposed on Merck;

               —

               set aside paragraph 2 of the operative part of the Judgment and order the Commission to bear their own costs and to pay the costs of Merck, relating to both the proceedings at first instance and to this appeal.

      Pleas in law and main arguments

               1.

               The Appellant’s first ground of appeal is that the General Court erred in law by finding that the patent settlement agreements (‘PSAs’), concluded between Generics (UK) (‘GUK’) and Lundbeck, were restrictions by object under Article 101(1) TFEU:

                           i.

                           By its first plea, the Appellant argues that the General Court misdirected itself as to the applicable legal standard and the correct approach to determining whether the PSAs could be characterised as restrictions by object, in particular in the light of the legal principles upheld in Case C-67/13 P Cartes Bancaires.

                           ii.

                           By its second plea, the Appellant argues that the General Court erred by failing to analyse whether the wording of the PSAs revealed a sufficient degree of harm.

                           iii.

                           By its third plea, the Appellant argues that the General Court erred by holding that the PSAs revealed a sufficient degree of harm on the basis that they were equivalent to market exclusion agreements.

                           iv.

                           By its fourth plea, the Appellant argues that the General Court erred by holding that the PSAs revealed a sufficient degree of harm by avoiding litigation whose outcome was uncertain.

                           v.

                           By its fifth plea, the Appellant argues that the General Court erred by treating the payment to GUK under the PSAs as one of the principal elements of a restriction by object.

                           vi.

                           By its sixth plea, the Appellant argues that the General Court erred by relying on factual considerations extraneous to the wording of the PSAs to support its finding of a restriction by object.

                           vii.

                           By its seventh plea, the Appellant argues that the General Court erred by finding that the PSA relating to the EEA exceeded the scope of Lundbeck's patents.

               2.

               The Appellant’s second ground of appeal is that the General Court erred in law by concluding that GUK and Lundbeck were potential competitors at the time when the PSAs were concluded:

                           viii.

                           By its eighth plea, the Appellant argues that the General Court erred by failing to consider whether the eight routes to market posited by the Commission were economically viable, or practically possible, for GUK within a sufficiently short time-frame.

                           ix.

                           By its ninth plea, the Appellant argues that the General Court erred by reversing the burden of proof in relation to potential competition.

                           x.

                           By its tenth plea, the Appellant argues that the General Court erred by finding that the fact that the parties had entered into the PSAs was relevant to the assessment of potential competition.

                           xi.

                           By its eleventh plea, the Appellant argues that the General Court erred by failing to recognise that the assessment of potential competition was not apt for consideration in the context of a ‘by object’ assessment.

               3.

               The Appellant’s third ground of appeal is that the General Court erred in law by upholding the fine imposed by the Commission on the Appellant:

                           xii.

                           By its twelfth plea, the Appellant argues that the General Court erred by finding that the Commission had jurisdiction to impose a fine on the Appellant or, alternatively, to impose a fine that was more than symbolic.


title: Case C-260/99: Reference for a preliminary ruling from the Tribunale Amministrative Regionale per la Lombardia (Lombardy Regional Administrative Court), third Section, by order of that court of 27 November 1998 in the case of Excelsior SNC di Pedrotti Bruna & C., formerly Excelsior SNC di Costa Rodolfo & C. v Ente Autonomo Fiera Internazionale di Milano and CIFTAT, a limited liability cooperative society

text:
C 265/4                EN                   Official Journal of the European Communities                                     18.9.1999
II. Are the conditions laid down in Article 3(1)(a) and (d) of         1. Can Polish and Czech nationals rely directly on the
     the regulation satisfied if a plant protection product has           Agreements in the sense that they are entitled, vis-à-vis a
     been produced by means of a patented process as a result             Member State, to claim that they derive a right to admission
     of which it contains a lower amount of unavoidable                   and residence from the right laid down in Article 44 of the
     impurities than an existing plant protection product with            Agreement with Poland/Article 45 of the Agreement with
     the same active substance, a new authorisation has been              the Czech Republic to take up and pursue economic
     obtained for this new plant protection product, and the              activities as self-employed persons and to set up and
     patent covering the manufacturing process in question was            manage undertakings, irrespective of the policy which the
     designated as the basic patent within the meaning of                 Member State in question pursues in this regard?
     Article 3(1), opening passage and subparagraph (a)?
(1) OJ 1996 L 198, p. 30.                                              2. If the answer to that question is in the affirmative: is a
                                                                          Member State free undet Article 58 of the Agreement with
                                                                          Poland/ Article 59 of the Agreement with the Czech
                                                                          Republic to make the right to admission and residence
                                                                          subject to specific conditions such as those contained in
                                                                          the policy followed by the Netherlands, which include the
Reference for a preliminary ruling from the Tribunale                     condition that the alien must be able, by carrying on
Amministrative Regionale per la Lombardia (Lombardy                       his business, to receive adequate means of support [in
Regional Administrative Court), third Section, by order                   accordance with Chapter A4/4.2.1. of the 1994 VC, this
of that court of 27 November 1998 in the case of Excelsior                means a net income which is at least equal to the
SNC di Pedrotti Bruna & C., formerly Excelsior SNC di                     subsistence level within the meaning of the Algemene
Costa Rodolfo & C. v Ente Autonomo Fiera Internazionale                   Bijstandswet (General Law on Welfare)]?
di Milano and CIFTAT, a limited liability cooperative
                             society
                                                                       3. Does Article 44 of the Agreement with Poland/Article 45
                        (Case C-260/99)                                   of the Agreement with the Czech Republic allow prosti-
                                                                          tution to be excluded from the notion of ‘economic
                        (1999/C 265/06)                                   activities as self-employed persons’ on the ground that
                                                                          prostitution does not come within the description in
Reference has been made to the Court of Justice of the
                                                                          Article 44(4), opening words and (c), of the Agreement
European Communities by an order of the Tribunale Amminis-
                                                                          with Poland/Article 45(4), opening words and (c), of the
trative Regionale per la Lombardia (Lombardy Regional
                                                                          Agreement with the Czech Republic for reasons of a moral
Administrative Court), third Section, of 27 November 1998,
                                                                          nature, on the ground that prostitution is prohibited in (a
which was received at the Court Registry on 13 July 1999, for
                                                                          majority of) the associate countries, and on the ground
a preliminary ruling in the case of Excelsior SNC di Pedrotti
                                                                          that it gives rise to problems concerning the freedom of
Bruna & C., formerly Excelsior SNC di Costa Rodolfo & C. v
                                                                          action of prostitutes and their independence which are
Ente Autonomo Fiera Internazionale di Milano and CIFTAT, a
                                                                          difficult to monitor?
limited liability cooperative society on the following question:
May the definition of a body governed by public law contained          4. Do Article 43 (ex Article 52) of the EC Treaty and
in Article 1(b) of Council Directive 92/50/EEC (1) of 18 June             Article 44 of the Agreement with Poland/Article 45 of
1992 be deemed applicable to the Ente Autonomo Fiera                      the Agreement with the Czech Republic permit such a
Internazionale di Milano?                                                 distinction to be drawn between the notions of ‘activities
                                                                          as self-employed persons’ and ‘economic activities as
(1) OJ 1992 L 209 of 24.7.1992, p. 1.                                     self-employed persons’ featuring in those respective pro-
                                                                          visions that the activities carried out by a prostitute in a
                                                                          self-employed capacity come within the term used in
                                                                          Article 43 (ex Article 52) of the EC Treaty but not within
                                                                          that used in those articles of the Agreements?
Reference for a preliminary ruling by the Arrondisse-
mentsrechtbank ’s-Gravenhage, sitting in Amsterdam,
by decision of 15 July 1999 in the case of A.M. Jany,                  5. If the answer to the previous question is that the distinction
E. Padevetova, R. Zacalova, Z. Hrubcinova, S. Über-                      therein referred to is permissible:
lackerova, and K.A. Szepietowska v Staatssecretaris van
                             Justitie
                                                                          a) Is it compatible with Article 44 of the Agreement with
                        (Case C-268/99)                                        Poland/Article 45 of the Agreement with the Czech
                                                                               Republic and the freedom of establishment which
                        (1999/C 265/07)                                        those provisions are intended to realise to impose
                                                                               minimum conditions on the self-employed persons
Reference has been made to the Court of Justice of the                         referred to in paragraph (3) of those articles in regard
European Communities by decision of 15 July 1999 from the                      to the range of their activities and also to impose
Arrondissementsrechtbank ’s-Gravenhage (District Court, The                    restrictions such as that:
Hague), sitting in Amsterdam, which was received at the Court
Registry or 19 July 1999, for a preliminary ruling in the
case of A.M. Jany, E. Padevetova R. Zacalova, Z. Hrubcinova,                   — the operator must perform skilled work;
S. Überlackerova, and K.A. Szepietowska v Staatssecretaris van
Justitie on the following questions:                                           — a business strategy must exist;


title: Case T-72/01: Action brought on 23 March 2001 by Norman Pyres against Commission of the European Communities

text:
C 150/34               EN                      Official Journal of the European Communities                                       19.5.2001
The applicant claims that the Court should:                               —     that the Joint Committee took its decision without first
                                                                                hearing the applicant himself; and
—     annul the decision of the Registrar of the Court of Justice         —     that the defendant applied particularly strictly a provision,
      of the EC of 22 May 2000 although only to the extent                      Article 40 of the Staff Regulations, which allows the
      that by that decision the applicant was dismissed with                    appointing authority the possibility, without imposing an
      effect from 1 June 2000 but not that the applicant was                    obligation, of dismissal after two refusals of reinstate-
      not reinstated on 16 July 2000;                                           ment.
—     grant fair compensation, in an amount to be decided by
      the Court of First Instance itself on grounds of equity;
—     order the defendant to pay the costs.
                                                                          Action brought on 23 March 2001 by Norman Pyres
                                                                              against Commission of the European Communities
Pleas in law and main arguments
                                                                                (Case T-72/01)
                                                                                (2001/C 150/66)
The present action is directed against the decision of the
appointing authority to deem terminated the employment
relationship between the applicant, a lawyer-linguist at the
Court of Justice, and that institution, a decision based on the                              (Language of the case: French)
fact that the applicant did not return to work after a period of
unpaid leave on personal grounds.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 23 March 2001 by Norman Pyres
                                                                          of Brussels, represented by Georges Vandersanden and Laure
The applicant states in that respect that his unpaid leave                Levi, Avocats.
commenced on 1 June 1992. That leave was renewed on three
occasions and expired on 31 May 1995. Pursuant to Article 40
of the Staff Regulations he was offered reinstatement in the              The applicant claims that the Court should:
Court for 1 January 1999. The offer, dated 19 November
1998, did not come to the applicant’s notice until 23 Novem-
ber 1998. It therefore provided, in the applicant’s view, an              —     annul the decision of the Selection Board in competition
excessively short period in which to give a positive reply, and                 COM/TA/99 of 31 May 2000 excluding the applicant
so that offer was not accepted. However, the applicant put to                   from the oral tests in the competition;
the personnel division 16 July 1999 as a possible date for
reinstatement, provided the relevant offer was made to him
within a reasonable period (‘délai raisonnable’). His suggestion          —     annul all subsequent operations and acts in the compe-
was adopted, but by letter which did not reach him until May                    tition;
1999 and so the applicant suggested a reinstatement date of
July 2000.
                                                                          —     so far as necessary, annul the decision of the AHCC of
                                                                                15 December 2000 dismissing the applicant’s complaint;
In support of his arguments, the applicant claims:                        —     order the defendant to pay one Euro in compensation for
                                                                                the harm suffered by the applicant;
—     breach of the ‘délai raisonnable’ criterion by the defendant;       —     order the defendant to pay the costs.
 ---pagebreak--- 19.5.2001             EN                      Official Journal of the European Communities                                    C 150/35
Pleas in law and main arguments                                          regard for the welfare of officials and the principles of good
                                                                         management and sound administration which require that an
The applicant argues first of all that, given that the first written     agent with a background such as his be retained in the
test entailed dealing with a subject which falls within an area          Commission’s employ.
in which he has been working for a long time and in which he
is recognised as being highly qualified and competent, the
mark which he was awarded (21 out of 50, the minimum
required being 25) is beyond comprehension, unless the
Selection Board for the competition committed a manifest
error of appraisal. He adds that, by marking his test in a               Removal from the Register of Cases T-63/00 and
manner that is clearly incorrect, the defendant treated his test                                    T-90/00 (1)
differently as compared to the tests submitted by the other
candidates, which amounts to discrimination.                                                     (2001/C 150/67)
The applicant furthermore relies on infringement of the
obligation to provide reasons and the general principle of                                 (Language of the case: French)
transparency, in so far as the defendant did not provide him
with any adequate or useful information as regards the exact             By order of 23 January 2001, the President of the First
and detailed criteria applied by the Selection Board and as              Chamber of the Court of First Instance of the European
regards the actual application of the evaluation criteria in his         Communities has ordered the removal from the Register of
case.                                                                    Cases T-63/00 and T-90/00, Lars Bo Rasmussen v Commission
                                                                         of the European Communities.
Finally, the applicant claims that, by adopting the contested
decision, the defendant failed to fulfil its duty to have                (1) OJ C 135 of 13.5.00 and OJ C 163 of 10.6.00.


13.10.2001            EN                  Official Journal of the European Communities                                  C 289/21
       Removal from the register of Case C-406/00 (1)                the register of Case C-26/01: Commission of the European
                                                                     Communities v French Republic.
                       (2001/C 289/51)
                                                                     (1) OJ C 61 of 24.2.2001.
By order of 11 July 2001 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-406/00: Commission of the European
Communities v Hellenic Republic.
(1) OJ C 372 of 23.12.2000.                                                 Removal from the register of Case C-27/01 (1)
                                                                                (2001/C 289/54)
                                                                     By order of 13 July 2001 the President of the Court of Justice
                                                                     of the European Communities has ordered the removal from
       Removal from the register of Case C-410/00 (1)                the register of Case C-27/01: Commission of the European
                                                                     Communities v Grand Duchy of Luxembourg.
                       (2001/C 289/52)
By order of 30 April 2001 the President of the Court of Justice      (1) OJ C 61 of 24.2.2001.
of the European Communities has ordered the removal from
the register of Case C-410/00: Commission of the European
Communities v Kingdom of Sweden.
(1) OJ C 28 of 27.1.2001.                                                   Removal from the register of Case C-105/01 (1)
                                                                                (2001/C 289/55)
                                                                     By order of 28 May 2001 the President of the Court of Justice
       Removal from the register of Case    C-26/01 (1)              of the European Communities has ordered the removal from
                                                                     the register of Case C-105/01: (reference for a preliminary
                       (2001/C 289/53)                               ruling from the Hoge Raad der Nederlanden): André van der
                                                                     Plas v Wouter Guis.
By order of 19 June 2001 the President of the Court of Justice
of the European Communities has ordered the removal from             (1) OJ C 118 of 21.4.2001.


title: Case C-274/12 P: Appeal brought on 1 June 2012 by Telefónica SA against the order of the General Court (Eighth Chamber) delivered on 21 March 2012 in Case T-228/10 Telefónica v Commission

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/15

         Appeal brought on 1 June 2012 by Telefónica SA against the order of the General Court (Eighth Chamber) delivered on 21 March 2012 in Case T-228/10 Telefónica v Commission
   (Case C-274/12 P)
   2012/C 227/21
   Language of the case: Spanish

      Parties

      Appellant: Telefónica SA (represented by: J. Ruiz Calzado, abogado, M. Núñez-Müller, Rechtsanwalt, and J. Domínguez Pérez, abogado)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               set aside the order under appeal;

               —

               declare the action for annulment in Case T-228/10 admissible and refer the case back to the General Court for it to give judgment on the substance of the dispute;

               —

               order the Commission to pay all the costs of the proceedings at both instances relating to admissibility.

      Grounds of appeal and main arguments

               1.

               The General Court erred in law in adopting a decision which infringes the right to an effective remedy. In considering, in a general manner, that the option of a reference for a preliminary ruling is always adequate and possible, the General Court infringed the appellant’s right at first instance to an effective remedy, such as laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and which is recognised expressly in Article 47 of the Charter of Fundamental Rights of the European Union.

               2.

               The General Court erred in law by wrongly interpreting the case-law on the admissibility of actions against decisions on State aid declaring an aid scheme unlawful and incompatible.

               3.

               The General Court erred in law in interpreting the fourth paragraph of Article 263 TFEU, in fine. The General Court erred in law in stating that decisions regarding State aid schemes, such as the contested decision, entail implementing measures within the meaning of the new Treaty provision (the fourth paragraph of Article 263 TFEU). In its order, the General Court failed to recognise that a negative decision regarding State aid has direct effect, immediately renders the aid granted unlawful, and normally implies an obligation on the part of the Member States to recover such aid.


title: Joined Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07: Judgment of the Court (Grand Chamber) of 8 September 2010 (references for a preliminary ruling from the Verwaltungsgericht Gießen Verwaltungsgericht Stuttgart (Germany)) — Markus Stoß (C-316/07), Avalon Service-Online-Dienste GmbH (C-409/07), Olaf Amadeus Wilhelm Happel (C-410/07) Kulpa Automatenservice Asperg GmbH (C-358/07), SOBO Sport & Entertainment GmbH (C-359/07), Andreas Kunert (C-360/07) v Wetteraukreis (C-316/07, C-409/07, C-410/07), Land Baden Württemberg (C-358/07, C-359/07, C-360/07) (Articles 43 EC and 49 EC — Freedom of establishment — Freedom to provide services — Organisation of bets on sporting competitions subject to a public monopoly at Land level — Objective of preventing incitement to squander money on gambling and combating gambling addiction — Proportionality — Restrictive measure to be genuinely aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner — Advertising emanating from the holder of the monopoly and encouraging participation in lotteries — Other games of chance capable of being offered by private operators — Expansion of the supply of other games of chance — Licence issued in another Member State — No mutual recognition obligation)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/7

      Judgment of the Court (Grand Chamber) of 8 September 2010 (references for a preliminary ruling from the Verwaltungsgericht Gießen Verwaltungsgericht Stuttgart (Germany)) — Markus Stoß (C-316/07), Avalon Service-Online-Dienste GmbH (C-409/07), Olaf Amadeus Wilhelm Happel (C-410/07) Kulpa Automatenservice Asperg GmbH (C-358/07), SOBO Sport & Entertainment GmbH (C-359/07), Andreas Kunert (C-360/07) v Wetteraukreis (C-316/07, C-409/07, C-410/07), Land Baden Württemberg (C-358/07, C-359/07, C-360/07)
      (Joined Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07) (1)

      (Articles 43 EC and 49 EC - Freedom of establishment - Freedom to provide services - Organisation of bets on sporting competitions subject to a public monopoly at Land level - Objective of preventing incitement to squander money on gambling and combating gambling addiction - Proportionality - Restrictive measure to be genuinely aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner - Advertising emanating from the holder of the monopoly and encouraging participation in lotteries - Other games of chance capable of being offered by private operators - Expansion of the supply of other games of chance - Licence issued in another Member State - No mutual recognition obligation)
      (2010/C 288/12)
      Language of the case: English

         Referring court

      Verwaltungsgericht Gießen, Verwaltungsgericht Stuttgart

         Parties to the main proceedings

         Applicants: Markus Stoß (C-316/07), Avalon Service-Online-Dienste GmbH (C-409/07), Olaf Amadeus Wilhelm Happel (C-410/07), Kulpa Automatenservice Asperg GmbH (C-358/07), SOBO Sport & Entertainment GmbH (C-359/07), Andreas Kunert (C-360/07)

         Defendants: Wetteraukreis (C-316/07, C-409/07, C-410/07), Land Baden Württemberg (C-358/07, C-359/07, C-360/07)

         Re:

      Reference for a preliminary ruling — Verwaltungsgericht Giessen — Interpretation of Articles 43 and 49 EC — National legislation which prohibits, on pain of criminal and administrative sanctions, the collection of bets on sporting events without authorisation from the competent authority but which renders it practically impossible, by virtue of the establishment of a State monopoly, to obtain that authorisation

         Operative part of the judgment

                  1.

                  On a proper interpretation of Articles 43 EC and 49 EC:

                              (a)

                              in order to justify a public monopoly on bets on sporting competitions and lotteries, such as those at issue in the cases in the main proceedings, by an objective of preventing incitement to squander money on gambling and combating addiction to the latter, the national authorities concerned do not necessarily have to be able to produce a study establishing the proportionality of the said measure which is prior to the adoption of the latter;

                              (b)

                              a Member State’s choice to use such a monopoly rather than a system authorising the business of private operators which would be permitted to carry on their business in the context of a non-exclusive legislative framework is capable of satisfying the requirement of proportionality, in so far as, as regards the objective concerning a high level of consumer protection, the establishment of the said monopoly is accompanied by a legislative framework suitable for ensuring that the holder of the said monopoly will in fact be able to pursue, in a consistent and systematic manner, such an objective by means of a supply that is quantitatively measured and qualitatively planned by reference to the said objective and subject to strict control by the public authorities;

                              (c)

                              the fact that the competent authorities of a Member State might be confronted with certain difficulties in ensuring compliance with such a monopoly by organisers of games and bets established outside that Member State, who, via the internet and in breach of the said monopoly, conclude bets with persons within the territorial area of the said authorities, is not capable, as such, of affecting the potential conformity of such a monopoly with the said provisions of the Treaty;

                              (d)

                              in a situation where a national court finds, at the same time:

                                          —

                                          that advertising measures emanating from the holder of such a monopoly and relating to other types of games of chance which it also offers are not limited to what is necessary in order to channel consumers towards the offer emanating from that holder by turning them away from other channels of unauthorised games, but are designed to encourage the propensity of consumers to gamble and to stimulate their active participation in the latter for purposes of maximising the anticipated revenue from such activities,

                                          —

                                          that other types of games of chance may be exploited by private operators holding an authorisation, and

                                          —

                                          that, in relation to other types of games of chance not covered by the said monopoly, and which, moreover, present a higher potential risk of addiction than the games subject to that monopoly, the competent authorities are conducting or tolerating policies of expanding supply, of such a kind as to develop and stimulate gaming activities, in particular with a view to maximising revenue from the latter,

                                    the said national court may legitimately be led to consider that such a monopoly is not suitable for guaranteeing achievement of the objective for which it was established, of preventing incitement to squander money on gambling and combating addiction to the latter, by contributing to reducing opportunities for gambling and limiting activities in that area in a consistent and systematic manner.

                  2.

                  On a proper interpretation of Articles 43 EC and 49 EC, in the current state of European Union law, the fact that an operator holds, in the Member State in which it is established, an authorisation permitting it to offer games of chance does not prevent another Member State, while complying with the requirements of European Union law, from making such a provider offering such services to consumers in its territory subject to the holding of an authorisation issued by its own authorities.

         (1)  OJ C 269, 10.11.2007.

         OJ C 283, 24.11.2007.


title: Case T-329/13: Order of the General Court of 16 October 2014  — Khatzithoma v Commission and ECB (Action for annulment — Cyprus stability support programme — Declaration of the Eurogroup concerning the restructuring of the banking sector in Cyprus — Erroneous identification of the defendant in the application — Inadmissibility)

text:
               15.12.2014

               EN

               Official Journal of the European Union

               C 448/23

         Order of the General Court of 16 October 2014 — Khatzithoma v Commission and ECB
   (Case T-329/13) (1)

   ((Action for annulment - Cyprus stability support programme - Declaration of the Eurogroup concerning the restructuring of the banking sector in Cyprus - Erroneous identification of the defendant in the application - Inadmissibility))
   (2014/C 448/30)
   Language of the case: Greek

      Parties

      Applicants: Petros Khatzithoma (Makedonitissa, Cyprus); and Elenitsa Khatzithoma (Makedonitissa) (represented by: E. Efstathiou, K. Efstathiou and K. Liasidou, lawyers)

      Defendants: European Commission (represented by: B. Smulders, J.-P. Keppenne and M. Konstantinidis, acting as Agents); and European Central Bank (ECB) (represented by: A. Sáinz de Vicuña Barroso, N. Lenihan and F. Athanasiou, acting as Agents, and by W. Bussian, W. Devroe and D. Arts, lawyers)

      Re:

   Application for annulment of the declaration of the Eurogroup of 25 March 2013 concerning, inter alia, the restructuring of the banking sector in Cyprus.

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Petros Khatzithoma and Elenitsa Khatzithoma are ordered to pay, in addition to their own costs, the costs incurred by the European Commission and by the European Central Bank (ECB).

      (1)  OJ C 252, 31.8.2013.


title: OPINION 3/94 OF THE COURT of 13 December 1995 (GATT - WTO - Framework Agreement on Bananas)

text:
2 . 3 . 96             EN                   Official Journal of the European Communities                                  No C 64/7
      matches in competitions which they organize, football                          OPINION 3/94 OF THE COURT
      clubs may field only a limited number of professional                               of 13 December 1995 f 1 )
      players who are nationals of other Member States;
                                                                        (GATT — WTO — Framework Agreement on Bananas)
3 . the direct effect ofArticle 48 of the EC Treaty cannot be                                      ( 96/C 64/14 )
      relied upon in support of claims relating to a fee in
      respect of transfer, training or development which has           Request made to the Court on 25 July 1994 under
      already been paid on, or is still payable under an               Article 228 ( 6 ) of the EC Treaty by the Federal Republic of
      obligation which arose before, the date ofthis judgment,         Germany for an opinion on the compatibility with the
      except by those who have brought court proceedings or            Treaty of the Framework Agreement on Bananas between
      raised an equivalent claim under the applicable national         the European Community and Colombia, Costa Rica,
      law before that date.                                            Nicaragua and Venezuela and asking:
(>) OJ No C 312, 18 . 11 . 1993 .                                      ( a ) was the Framework Agreement on Bananas which was
                                                                             signed by the Commission on 28 and 29 March 1994
                                                                             duly negotiated from the point of view of procedural
                                                                             law, that is to say,
                                                                             — on the basis of a sufficient negotiating mandate
                                                                                from the Council, and
                   ORDER OF THE COURT
                                                                             — in compliance with the relevant negotiating
                        (First Chamber )
                                                                                directives laid down by the Council ?
                     of 14 December 1995
in Case C-173/95 P: Anne Hogan v. Court of Justice of the              ( b ) is the Framework Agreement on Bananas compatible
                   European Communities ( 1 )                                with the Treaty from the point of view of the
                                                                             substantive law ?
     (Appeal clearly inadmissible and clearly unfounded)
                            ( 96/C 64/ 13 )
                                                                       The Court, composed of: G. C. Rodriguez Iglesias,
                                                                       President, C. N. Kakouris, D. A. O. Edward and G. Hirsch
                 (Language of the case: Italian)                       ( Presidents of Chambers ), G. F. Mancini, F. A, Schockweiler
                                                                       ( Rapporteur ), J. C. Moitinho de Almeida, P. J. G. Kapteyn,
                                                                       C. Gulmann, J. L. Murray, P. Jann. H. Ragnemalm and L.
(Provisional translation; the definitive translation will be           Sevón, Judges, after hearing G. Tesauro , First
           published in the European Court Reports)                    Advocate-General , C. O. Lenz, F. G. Jacobs , A. M. La
                                                                       Pergola , G. Cosmas, P. Leger, M. B. Elmer, N. Fennelly and
In Case C-173/95 P , Anne Hogan, an official of the                    D. Ruiz-Jarabo Colomer, Advocates-General, finds :
European Parliament, resident in Luxembourg, represented
by Giancarlo Lattanzi, of the Massa-Carrara Bar, with                  there is no need to respond to the request for an
address for service in Luxembourg at 33 Rue Godchaux,                  opinion.
appellant, appeals against the judgment of the Court of First
Instance of the European Communities ( Fourth Chamber )
                                                                        (') OJ No C 275 , 1 . 10 . 1994 .
of 29 March 1995 in Case T-497/93 Hogan v. Court of
Justice [ 19951 ECR-SC 11-251 , seeking to have that
judgment set aside, the other party to the proceedings being:
Court of Justice of the European Communities ( Agents :
Luigia Maggioni and Niels Lierow ). The Court ( First
 Chamber ), composed of: D. A. O. Edward, President of the
 Chamber, P. Jann ( Rapporteur ) and M. Wathelet, Judges,
Advocate-General : A. La Pergola , Registrar: R. Grass, has             Action brought on 18 December 1995 by the Federal
given a judgment on 14 December 1995 , in which it:                     Republic of Germany against the Commission of the
                                                                                European Communities
                                                                                Case C-396/95 )
 1 . dismisses the appeal;
                                                                                ( 96/C 64/ 15 )
 2 . orders the appellant to pay the costs.
                                                                        An action against the Commission of the European
                                                                        Communities was brought before the Court of Justice of the
 (') OJ No C 208 , 12 . 8 . 1995 .                                      European Communities on 18 December 1995 by the
                                                                        Federal Republic of Germany, represented by Ernst Rder,
                                                                        Ministerialrat in the Federal Ministry of Economics,
                                                                        D-53107 Bonn .