title: Case T-116/99: Action brought on 10 May 1999 by the Ilmailulaitos against the Commission of the European Communities

text:
C 226/36              EN                     Official Journal of the European Communities                                     7.8.1999
The applicant claims that the Court should:                             European Communities on 10 May 1999 by the Ilmailulaitos,
                                                                        established in Vantaa, Finland, represented by Tuomas Saraste,
— annul the decision of the Commission of 8 March 1999                  lawyer, and Jouni Alanen, oikeustieteen lisensiaatti, with an
    (SG - 99 D/1697);                                                   address for service at Asianajotoimisto Asianajotalo ANPR Oy,
                                                                        Stenbäckinkatu 26, FIN-00250 Helsinki.
— order the Commission to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         — Annul the Commission’s decision finding that the system
                                                                             of landing charges applied by the Ilmailulaitos infringes
The applicant company contests the decision rejecting both                   Article 86 of the EC Treaty, and
the complaint lodged against Renault France, Renault Nether-
lands and Renault Autocenter concerning the barriers to                 — Order the Commission to pay the Ilmailulaitos’s costs
parallel imports by agents as well as a request for withdrawal               together with any interest for fate payment.
of the exemption by category under Regulation (EC) No
1475/95 for Renault’s distribution contracts.
                                                                        Pleas in law and main arguments
In support of its claims the applicant makes the following
submissions:
                                                                        The Commission in its decision infringed essential procedural
                                                                        requirements contained in Community law, in particular in
— The defendant misapplied the principle of Community
                                                                        Article 19(1) of Regulation No 17 of the Council of 6 February
    interest.
                                                                        1962 and Article 4 of Regulation 99/63, by basing its decision
                                                                        on an infringement which was not in the statement of
— The Commission purportedly did not examine thoroughly                 objections it made to the Ilmailulaitos in the case.
    all the matters of fact and law brought to its attention.
    More specifically, the defendant cannot rely on the mere
    fact that the practices which are claimed to he contrary to         In assessing the Commission’s error, regard must be had to the
    the Treaty ceased in order to decide not to take any further        purpose of the statement of objections of providing an
    action, in the absence of any Community interest, on a              undertaking suspected of infringing the rules on competition
    complaint denouncing such practices.                                with all the information which it needs in order to be able to
                                                                        defend itself effectively before the adoption of the Com-
— The applicant claims that in the present case there has               mission’s final decision in the matter. An effective right of
    been misuse of powers. It states in this respect that the           defence, which is a fundamental principle of Community law,
    institutions are bound to observe competition law without           also requires that the Commission formulate its statement of
    taking into account political exigencies.                           objections clearly and unambiguously.
As for delivery deadlines, which according to the Commission            The Commission also infringed essential procedural require-
are technically justified because of the popularity of the              ments by basing — with respect to airports other than
Renault Scenic, the applicant claims that 45 % of the orders it         Helsinki-Vantaa — the assessment of the trace criterion in its
handles are for models other than the Scenic. In any event, the         decision on different facts from those on which it had based
defendant failed to ascertain whether the deadlines in question         its assessment in its statement of objections. The Ilmailulaitos
are discriminatory. There is a rebuttable presumption that              thus had no adequate opportunity to defend itself in this
there is compartmentalisation of the market by the systematic           respect either.
use of deadline extensions as a deterrent against parallel
imports.
                                                                        Action brought on 17 May 1999 by Beatrice Bonaiti
                                                                        Brighina against the Commission of the European Com-
Action brought on 10 May 1999 by the Ilmailulaitos
                                                                                munities
  against the Commission of the European Communities
                        (Case T-116/99)                                                         (Case T-118/99)
                        (1999/C 226/64)                                                         (1999/C 226/65)
                  (Language of the case: Finnish)                                          (Language of the case: Italian)
An action against the Commission of the European Communi-               An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              ties was brought before the Court of First Instance of the


               3.9.2005

               EN

               Official Journal of the European Union

               C 217/31

         Removal from the register of Case C-225/03 (1)

   (2005/C 217/62)

      (Language of the case: French)

   By order of 7 July 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-225/03: Commission of the European Communities v French Republic.

      (1)  OJ C 171 of 19.07.2003.


title: Case C-489/06: Judgment of the Court (Fourth Chamber) of 19 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 93/36/EEC and 93/42/EEC — Public contracts — Procedures for the award of public supply contracts — Hospital supplies)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/3

         Judgment of the Court (Fourth Chamber) of 19 March 2009 — Commission of the European Communities v Hellenic Republic
   (Case C-489/06) (1)

   (Failure of a Member State to fulfil obligations - Directives 93/36/EEC and 93/42/EEC - Public contracts - Procedures for the award of public supply contracts - Hospital supplies)
   2009/C 113/04
   Language of the case: Greek

      Parties

      Applicant: Commission of the European Communities (represented by: M. Patakia and X. Lewis, acting as Agents)

      Defendant: Hellenic Republic (represented by: D. Tsagkaraki and S. Chala, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 8(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and of Articles 17 and 18 of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1) — Rejection of medical devices, in the context of calls for tenders for supplies to public hospitals in Greece, on grounds relating to the ‘general sufficiency and safety of use’ of the devices, notwithstanding their certification with the CE marking, and without, in any event, the procedure provided for in Directive 93/42/EEC being followed

      Operative part of the judgment

   The Court:

               1.

               Declares that, by rejecting tenders in respect of medical devices bearing the CE certification marking, without the competent contracting authorities of Greek hospitals having complied with the procedure provided for in Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, the Hellenic Republic has failed to fulfil its obligations under Article 8(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, and Articles 17 and 18 of Directive 93/42, as amended by Regulation No 1882/2003;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 326, 30.12.2006.


title: Case T-436/05: Action brought on  12 December 2005  — Ajinomoto/OHIM

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/22

         Action brought on 12 December 2005 — Ajinomoto/OHIM
   (Case T-436/05)
   (2006/C 74/43)
   Language in which the application was lodged: English
   Parties

      Applicant: Ajinomoto Co., Inc. (Tokyo, Japan) [represented by: G. Würtenberger and R. Kunze, lawyers]

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

      Other party/parties to the proceedings before the Board of Appeal: Kaminomoto Co. Ltd. (Hyogo-Ken, Japan)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of OHIM dated 15 September 2005 in case R 1143/2004-1;

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘AJINOMOTO’ for goods in classes 1, 5, 29, 30 and 31 — application No 1 307 024

      Proprietor of the mark or sign cited in the opposition proceedings: Kaminomoto Co. Ltd.

      Mark or sign cited: The national word mark ‘KAMINOMOTO’ for goods in class 3

      Decision of the Opposition Division: Rejection of the opposition in its entirety

      Decision of the Board of Appeal: Annulment of the Opposition Division's decision

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 since the Board of Appeal according to the applicant held that the opponent in the opposition proceedings only had to prove the existence of an earlier right at the time of the filing of the opposition. According to the applicant it is the time of the decision of the Opposition Division, or alternatively when the time-limit for providing further evidence expires, by which an earlier right has to be proven to be in force.


title: Case F-50/15: Judgment of the Civil Service Tribunal (3rd Chamber) of 12 May 2016 — FS v EESC (Civil service — Temporary staff — Article 2(c) of the CEOS — Member of the temporary staff employed in order to carry out the duties of head of unit ‘for a group of the European Economic and Social Committee’ — Second paragraph of Article 44 of the Staff Regulations — Advancement in step granted retroactively at the end of a nine-month probationary period — Application by analogy to members of the temporary staff not provided for ratione temporis in the CEOS — Sui generis probationary period decided upon by contract outside the situations referred to in the CEOS — Extension of the contractual probationary period — Performance as head of unit held to be unsatisfactory — Reassignment to a non-management post — Entitlement to the advancement in step provided for in the second paragraph of Article 44 of the Staff Regulations)

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/36

         Judgment of the Civil Service Tribunal (3rd Chamber) of 12 May 2016 — FS v EESC
   (Case F-50/15) (1)

   ((Civil service - Temporary staff - Article 2(c) of the CEOS - Member of the temporary staff employed in order to carry out the duties of head of unit ‘for a group of the European Economic and Social Committee’ - Second paragraph of Article 44 of the Staff Regulations - Advancement in step granted retroactively at the end of a nine-month probationary period - Application by analogy to members of the temporary staff not provided for ratione temporis in the CEOS - Sui generis probationary period decided upon by contract outside the situations referred to in the CEOS - Extension of the contractual probationary period - Performance as head of unit held to be unsatisfactory - Reassignment to a non-management post - Entitlement to the advancement in step provided for in the second paragraph of Article 44 of the Staff Regulations))
   (2016/C 222/46)
   Language of the case: French

      Parties

      Applicant: FS (represented by: L. Levi and A. Tymen, lawyers)

      Defendant: European Economic and Social Committee (represented by: K. Gambino, X. Chamodraka, M. Pascua Mateo, A. Carvajal and L. Camarena Januzec, Agents, and B. Wägenbaur, lawyer)

      Re:

   Application for annulment of the decision not to confirm the applicant in his post at Head of Unit and an application for damages in respect of the material and non-material harm allegedly suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the President of the European Economic and Social Committee dated 25 May 2014, as supplemented by Addendum No. 2 to FS’s employment contract, by which the authority empowered to conclude contracts of employment of the European Economic and Social Committee did not confirm her in her position as head of unit and reassigned her, with effect from 9 April 2014, to a non-management post;

               2.

               Orders the European Economic and Social Committee to pay FS a sum of EUR 2 000 by way of compensation for the non-material harm she has suffered;

               3.

               Dismisses the claims for damages as to the remainder;

               4.

               Declares that the European Economic and Social Committee is to bear its own costs and orders it to pay the costs incurred by FS.

      (1)  OJ C 190, 8/6/2015, p. 37.


title: Case T-199/13: Judgment of the General Court of 10 September 2014  — DTM Ricambi v OHIM — STAR (STAR) (Community trade mark — Opposition proceedings — Application for Community figurative mark STAR — Earlier international figurative mark STAR LODI — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               20.10.2014

               EN

               Official Journal of the European Union

               C 372/16

         Judgment of the General Court of 10 September 2014 — DTM Ricambi v OHIM — STAR (STAR)
   (Case T-199/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark STAR - Earlier international figurative mark STAR LODI - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   2014/C 372/21
   Language of the case: Italian

      Parties

      Applicant: DTM Ricambi Srl (Bologna, Italy) (represented by: V. Catelli and A. Loffredo, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: L. Rampini and P. Bullock, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Società trasporti automobilistici regionali SpA (STAR) (Lodi, Italy) (represented by: F. Caricato, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 24 January 2013 (Case R 0124/2012-1) concerning opposition proceedings between Società trasporti automobilistici regionali SpA (STAR) and DTM Ricambi Srl.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders DTM Ricambi Srl to pay the costs.

      (1)  OJ C 156, 1.6.2013.


title: Action brought on 14 August 1996 by Giorgio Lebedef against the Commission of the European Communities (Case T-128/96)

text:
26 . 10 . 96          EN                  Official Journal of the European Communities                                No C 318/ 17
Action brought on 14 August 1996 by Giorgio Lebedef                  which cannot supersede the Staff Regulations or the general
  against the Commission of the European Communities                 principles governing the right of association, one of the
                       ( Case T-128/ 96 )                            fundamental expressions of which is the free circulation of
                                                                     information and dissemination of written material .
                         ( 96/C 318/32 )
                                                                     It is also alleged that the Commission acted contrary to the
                (Language of the case: French)                       principle of the equal treatment of trade unions .
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 14 August 1996
by Giorgio Lebedef, residing at Senningerberg
( Luxembourg ), represented by Gilles Bounéou, of the
Luxembourg Bar, with an address for service in
                                                                     Action brought on 15 August 1996 by Preussag Stahl AG
Luxembourg at the latter's Chambers, 15 avenue du
Bois .
                                                                       against the Commission of the European Communities
                                                                                ( Case T-129/96 )
                                                                                ( 96/C 318/33 )
The applicant claims that the Court should :
— annul the Commission 's decision of 26 October                                     (Language of the case: German)
     1995 ,
— annul in consequence the decision of 10 May 1996 ,                 An action against the Commission of the European
     which was notified on 14 May 1996 ,                             Communities was brought before the Court of First
                                                                     Instance of the European Communities on 15 August 1996
— order the Commission to pay the applicant the sum of               by Preussag Stahl AG, Salzgitter ( Federal Republic of
     Bfrs 200 000 by way of compensation, that being the             Germany ),        represented     by      Jochim    Sedemund ,
     amount which, in the applicant's estimation, is                 Rechtsanwalt, Berlin, with an address for service in
     equivalent to the damage suffered, or any other amount          Luxembourg at the Chambers of Aloyse May, 31 Grand '
                                                                     rue .
     to be decided by the Court,
— order the Commission to pay all costs and expenses                 The applicant claims that the Court should :
     incurred in the proceedings .
                                                                     — annul the Commission 's decision of 29 Mai 1996
Pleas in law and main arguments adduced in support                        concerning State aid to the Walzwerk Ilsenburg GmbH
                                                                           ( COM(96 ) 1642 final ),
The applicant, who is Secretary-General of the independent
trade union Action et Defense — Luxembourg ( A&D—L ),                — order the Commission to pay the costs .
challenges the Commission's refusal to allow the
distribution by its internal mail service of a leaflet common
to the four trade unions, the FFPE, the FPE, the SFIE and the         Pleas in law and main arguments adduced in support
A&D—L. That refusal is based on Article 21 of the
 framework agreement, under which only the signatory                 The action concerns aid which was granted in 1994 to
 organizations may use the Commission 's distribution                 Walzwerk Ilsenburg GmbH, which was at that time a legally
 systems . The A&D—L is not a party to that agreement.                independent subsidiary of the applicant company, Preussag
                                                                      Stahl AG. In 1995 it merged with its parent company. The
 The applicant alleges first that the Commission infringed the        applicant company is therefore the successor in title of the
 European civil servants' right of association, which is              undertaking which received aid .
 recognized by Article 24a of the Staff Regulations . On that
 point the applicant specifies that the very concept of               According to the applicant company, it was clear from the
 freedom of association entails, not only the right of officials      outset that the aid for the Grobblechstraße plant of
 or other servants freely to establish associations of their          Walzwerk Ilsenburg GmbH constituted 'regional
 choosing, but also the right of such associations to take part       investment aid' for the purposes of Article 5 of the fifth Steel
 in all legitime activities in defense of the professional            Aid Code, provision for which was made by general rules
 interests of their members . Consequently, the Community             approved by the Commission on 16 November 1994 and
 institutions should accept that trade unions and staff               that the aid benefited an undertaking operating in the
 associations must fulfil the role entrusted to them ,                territory of the former German Democratic Republic . It is
 particularly by acting to keep officials and other servants          also indisputable that the requirement of a ' reduction in the
 informed on all subjects of interest to staff.                       overall production capacity of that territory', within the
                                                                      meaning of the third subparagraph of Article 5 of the Code,
 In that connection the applicant adds that the agreement             had been satisfied, a fact of which the Commission was
 mentioned above constitutes an internal administrative act           already aware in December 1994 .


title: Case C-581/08: Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 December 2008 — EMI Group Ltd v The Commissioners for Her Majesty's Revenue & Customs

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/17

         Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 December 2008 — EMI Group Ltd v The Commissioners for Her Majesty's Revenue & Customs
   (Case C-581/08)
   (2009/C 55/28)
   Language of the case: English
   Referring court
   VAT and Duties Tribunal, London
   Parties to the main proceedings

      Applicant: EMI Group Ltd

      Defendant: The Commissioners for Her Majesty's Revenue & Customs
   Questions referred

               (a)

               How is the last sentence of Article 5.6 of the Sixth Directive (1) to be interpreted in the context of the circumstances of the present case?

               (b)

               In particular, what are the essential characteristics of a ‘sample’ within the meaning of the last sentence of Article 5.6 of the Sixth Directive?

               (c)

               Is a Member State permitted to limit the interpretation of ‘sample’ in the last sentence of Article 5.6 of the Sixth Directive to-

                           (i)

                           an industrial sample in a form not ordinarily available for sale to the public given to an actual or potential customer of the business (until 1993),

                           (ii)

                           only one, or only the first of a number of samples given by the same person to the same recipient where those samples are identical or do not differ in any material respect from each other (from 1993)?

               (d)

               Is a Member State permitted to limit the interpretation of ‘gifts of small value’ in the last sentence of Article 5.6 of the Sixth Directive in such a way as to exclude-

                           (i)

                           a gift of goods forming part of a series or succession of gifts made to the same person from time to time (to October 2003),

                           (ii)

                           any business gifts made to the same person in any 12-month period where the total cost exceeds £50 (October 2003 onwards)?

               (e)

               If the answer to question (c)(ii) above or any part of question (d) above is ‘yes’, where a taxable person gives a similar or identical gift of recorded music to two or more different individuals because of their personal qualities in being able to influence the level of exposure the artist in question receives, is the Member Stale permitted to treat those items as given to the same person solely because those individuals are employed by the same person?

               (f)

               Would the answers to questions (a) to (e) above be affected by the recipient being, or being employed by, a fully taxable person, who would be (or would have been) able to deduct any input tax payable on the provision of the goods consisting of the sample?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1).


title: Case T-496/15 P: Appeal brought on 28 August 2015 by CX against the judgment of the Civil Service Tribunal of 18 June 2015 in Case F-27/13, CX v Commission

text:
               9.11.2015

               EN

               Official Journal of the European Union

               C 371/27

         Appeal brought on 28 August 2015 by CX against the judgment of the Civil Service Tribunal of 18 June 2015 in Case F-27/13, CX v Commission
   (Case T-496/15 P)
   (2015/C 371/30)
   Language of the case: French

      Parties

      Appellant: CX (Enghien, Belgium) (represented by: É. Boigelot, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               declare its appeal to be admissible and well-founded;

               —

               consequently, set aside the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 18 June 2015, served on the same day as delivery, in Case F-27/13; and

               —

               give judgment itself and uphold the appellant’s initial requests and, therefore, the form of order sought at first instance, excluding any new form of order;

               —

               in any event, order the defendant to pay the entirety of the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringements of the rights of the defence and a failure by the Civil Service Tribunal to take those rights into consideration, a lack of substance to the alleged facts, a refusal on the part of both the Commission and the Civil Service Tribunal to carry out assessments essential to the establishment of the truth, and manifest errors of assessment.

               2.

               Second plea in law, alleging an infringement of Articles 4 and 6 of the Staff Regulations of Officials of the European Union (‘the regulations’) and of Article 9 of Annex IX to the regulations, in so far as the Civil Service Tribunal acknowledges that the competent appointing authority does not have the power to penalise the official concerned by directly determining his ‘classification’ in a particular grade, but it has solely the power to downgrade him, without however properly deducing the consequences thereof.

               3.

               Third plea in law, alleging an infringement of the principle of proportionality and manifest errors of assessment.


title: Case T-371/15: Judgment of the General Court of 14 July 2016 — Preferisco Foods v EUIPO — Piccardo & Savore’ (PREFERISCO) (EU trade mark — Opposition proceedings — Application for EU figurative mark PREFERISCO — Earlier EU word mark I PREFERITI — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/36

         Judgment of the General Court of 14 July 2016 — Preferisco Foods v EUIPO — Piccardo & Savore’ (PREFERISCO)
   (Case T-371/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark PREFERISCO - Earlier EU word mark I PREFERITI - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 392/46)
   Language of the case: English

      Parties

      Applicant: Preferisco Foods Ltd (Vancouver, British Columbia, Canada) (represented by: G. Macías Bonilla, P. López Ronda, G. Marín Raigal and E. Armero, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: K. Sidat Humphreys and J.-F. Crespo Carrillo, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO: Piccardo & Savore’ Srl (Chiusavecchia, Italy)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 15 April 2015 (Case R 2598/2013-2), relating to opposition proceedings between Piccardo & Savore’ and Preferisco Foods.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Preferisco Foods Ltd to pay the costs.

      (1)  OJ C 311, 21.9.2015.


title: Case C-425/15: Action brought on 31 July 2015 — Udo Voigt v President of the European Parliament, European Parliament

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/8

         Action brought on 31 July 2015 — Udo Voigt v President of the European Parliament, European Parliament
   (Case C-425/15)
   (2016/C 048/13)
   Language of the case: German

      Parties

      Applicant: Udo Voigt (represented by: P. R. Richter, Rechtsanwalt)

      Defendants: President of the European Parliament, European Parliament
   By Order of 29 October 2015, the Court of Justice of the European Union (First Chamber) held that it clearly does not have jurisdiction to decide on the action for annulment brought by Mr Udo Voigt on 31 July 2015 and referred the case to the General Court of the European Union. It reserved the decision on costs.


title: Case C-558/14: Judgment of the Court (Fourth Chamber) of 21 April 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Mimoun Khachab v Subdelegación del Gobierno en Álava (Reference for a preliminary ruling — Directive 2003/86/EC — Article 7(1)(c) — Family reunification — Requirements for the exercise of the right to family reunification — Stable and regular resources which are sufficient — National legislation permitting a prospective assessment of the likelihood that the sponsor will retain his resources — Compatibility)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/16

      Judgment of the Court (Fourth Chamber) of 21 April 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Mimoun Khachab v Subdelegación del Gobierno en Álava
      (Case C-558/14) (1)

      ((Reference for a preliminary ruling - Directive 2003/86/EC - Article 7(1)(c) - Family reunification - Requirements for the exercise of the right to family reunification - Stable and regular resources which are sufficient - National legislation permitting a prospective assessment of the likelihood that the sponsor will retain his resources - Compatibility))
      (2016/C 211/19)
      Language of the case: Spanish

         Referring court

      Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

         Parties to the main proceedings

         Appellant: Mimoun Khachab

         Respondent: Subdelegación del Gobierno en Álava

         Operative part of the judgment

      Article 7(1)(c) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as allowing the competent authorities of a Member State to refuse an application for family reunification on the basis of a prospective assessment of the likelihood of the sponsor retaining, or failing to retain, the necessary stable and regular resources which are sufficient to maintain himself and the members of his family, without recourse to the social assistance system of that Member State, in the year following the date of submission of that application, that assessment being based on the pattern of the sponsor’s income in the six months preceding that date.

         (1)  OJ C 46, 9.2.2015.


title: Case T-103/13 P: Appeal brought on 19 February 2013 by European Commission against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-122/10, Cocchi and Falcione v Commission

text:
               4.5.2013

               EN

               Official Journal of the European Union

               C 129/21

         Appeal brought on 19 February 2013 by European Commission against the judgment of the Civil Service Tribunal of 11 December 2012 in Case F-122/10, Cocchi and Falcione v Commission
   (Case T-103/13 P)
   2013/C 129/44
   Language of the case: French

      Parties

      Appellant: European Commission (represented by G. Gattinara and D. Martin, acting as Agents)

      Other parties to the proceedings: Giorgio Cocchi (Wezembeek-Oppem, Belgium) and Nicola Falcione (Brussels, Belgium)

      Form of order sought by the appellant

               —

               Set aside the judgment of the Civil Service Tribunal of 13 December 2012 in Case F-122/10 Cocchi and Falcione v Commission;

               —

               Dismiss the action brought by Messrs Cocchi and Falcione in Case F-122/10 as inadmissible or, in any event, as unfounded;

               —

               Rule that each party is to bear its own costs of the present instance;

               —

               Order Messrs Cocchi and Falcione to pay the costs of the action brought before the Civil Service Tribunal.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging distortion of the notion of ‘act adversely affecting an official’ in that the CST held that the action at first instance was admissible by classifying as an act adversely affecting an official the proposal made by the Commission to the persons concerned as regards the number of annuities to be credited in the transfer of their pension rights under Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union.

               2.

               Second plea in law, alleging infringement of the principle of legitimate expectations, since the CST admitted the action, in part, while erring in law as to the interpretation of that principle. The Commission submits that the persons concerned could not claim any legitimate expectations as regards its proposals given that, firstly, those proposals also took account of the periods of service following the entry into service of the persons concerned and, secondly, those proposals did not refer to the amount actually transferred but to the amount transferable, contrary to the clear wording of Article 11(2) of Annex VIII to the Staff Regulations of Officials.


title: Joined Cases C-226/14 and C-228/14: Judgment of the Court (First Chamber) of 2 June 2016 (requests for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Eurogate Distribution GmbH v Hauptzollamt Hamburg-Stadt (C-226/14), DHL Hub Leipzig GmbH v Hauptzollamt Braunschweig (C-228/14) (References for a preliminary ruling — Value added tax — Customs warehousing — External transit procedure — Incurrence of a customs debt as a result of non-fulfilment of an obligation — Chargeability of value added tax)

text:
               8.8.2016

               EN

               Official Journal of the European Union

               C 287/2

         Judgment of the Court (First Chamber) of 2 June 2016 (requests for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Eurogate Distribution GmbH v Hauptzollamt Hamburg-Stadt (C-226/14), DHL Hub Leipzig GmbH v Hauptzollamt Braunschweig (C-228/14)
   (Joined Cases C-226/14 and C-228/14) (1)

   ((References for a preliminary ruling - Value added tax - Customs warehousing - External transit procedure - Incurrence of a customs debt as a result of non-fulfilment of an obligation - Chargeability of value added tax))
   (2016/C 287/03)
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicants: Eurogate Distribution GmbH (C-226/14), DHL Hub Leipzig GmbH (C-228/14)

      Defendants: Hauptzollamt Hamburg-Stadt (C-226/14), Hauptzollamt Braunschweig (C-228/14)

      Operative part of the judgment

               1.

               Article 7(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2004/66/EC of 26 April 2004, must be interpreted as meaning that value added tax on goods which have been re-exported as non-Community goods is not due where those goods have not been removed from the customs arrangement provided for in that provision at the date of their re-exportation but were removed from that arrangement as a result of their re-exportation, and that is the case even where a customs debt is incurred exclusively on the basis of Article 204 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005.

               2.

               Article 236(1) of Regulation No 2913/92, as amended by Regulation No 648/2005, read in conjunction with the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, since value added tax on goods which have been re-exported as non-Community goods is not due where those goods have not been removed from the customs arrangement provided for in Article 61 of that directive, and that is the case even where a customs debt is incurred exclusively on the basis of Article 204 of Regulation No 2913/92, as amended by Regulation No 648/2005, nobody is liable for payment of the value added tax. Article 236 of Regulation No 2913/92 must be interpreted as not being applicable in situations relating to the repayment of value added tax.

      (1)  OJ C 303, 8.9.2014.


title: Case C-504/17: Action brought on 21 August 2017 — European Commission v Ireland

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/22

         Action brought on 21 August 2017 — European Commission v Ireland
   (Case C-504/17)
   (2017/C 347/29)
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: F. Tomat, J. Tomkin, Agents)

      Defendant: Ireland

      The applicant claims that the Court should:

               —

               declare that by not ensuring the application of the minimum levels of taxation for motor fuels prescribed by Council Directive 2003/96/EC (1) of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, Ireland has failed to fulfil its obligations under Articles 4 and 7 of that Directive;

               —

               declare that by allowing the use of marked fuel for the purposes of propelling private pleasure craft, even where such fuel has not been subject to any exemption or reduction of excise duty, Ireland has failed to fulfil its obligations under Directive 95/60/EC (2) of 27 November 1995 on fiscal marking of gas oils and kerosene;

               —

               order Ireland to pay the costs.

      Pleas in law and main arguments

   The Commission considers that the system by which Ireland imposes and collects excise duties on fuel used to propel private pleasure craft is incompatible with its obligations under Council Directive 2003/96/EC (the ‘Energy Taxation Directive’) and Directive 95/60/EC (the ‘Fiscal Marking Directive’).
   Concerning the payment of excise duties, it is apparent that only a very small minority of owners of pleasure-craft actually submit returns to pay the full rate of tax duty. The Commission further considers that permitting the sale of marked fuel for uses that are subject to a full rate of excise duty is fundamentally incompatible with the Fiscal Marking Directive. The obligation to mark fuel that has been subject to a reduced rate of excise duty is intended specifically to ensure that those fuels are readily distinguishable from fuel in respect of which full duty has been paid. However, the effect of the national measure is that where marked fuel is found in a tank of a private pleasure craft that has been refuelled in Ireland, it is not possible to determine by reference to the marking, whether or not the fuel used was subject to a full or discounted rate of excise duty.

      (1)  OJ 2003, L 283, p. 51.

      (2)  OJ 1995, L 291, p. 46.


title: Case T-222/14: Action brought on 10 April 2014 — Deluxe Laboratories v OHIM (deluxe)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/51

         Action brought on 10 April 2014 — Deluxe Laboratories v OHIM (deluxe)
   (Case T-222/14)
   2014/C 175/70
   Language of the case: Spanish

      Parties

      Applicant: Deluxe Laboratories, Inc (Burbank, United States) (represented by: S. Serrat Viñas, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2014 in Case R 1250/2013-2;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Figurative mark with word element ‘deluxe’ for goods and services in Classes 9, 35, 37, 39, 40, 41, 42 and 45 — Community trade mark application No 11 253 044

      Decision of the Examiner: Registration refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               —

               Infringement of Article 75 of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(c) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 7(3) of Regulation No 207/2009;

               —

               Infringement of the principles of then protection of legitimate expectations, acquired rights and the lawfulness of Community measures


title: Case T-289/01: Action brought on 27 November 2001 by Der Grüne Punkt — Duales System Deutschland Aktiengesellschaft against the Commission of the European Communities

text:
C 44/18                EN                     Official Journal of the European Communities                                      16.2.2002
—     order any other measure which the Court may deem                   —     in the alternative, declare the decision in question void in
      appropriate requiring the Commission to fulfil its obli-                 its entirety;
      gations under Article 233 EC and, more specifically,
      requiring the Commission to reexamine the situation;
                                                                         —     annul the applicant’s commitment as set out in para-
—     order the Commission of the European Communities to                      graph 72 of the decision;
      pay all the costs.
                                                                         —     order the defendant to pay the costs.
Pleas in law and main arguments
The applicant, a Spanish organisation of producers of frozen
tunny which has previously challenged before the Court of                Pleas in law and main arguments
First Instance a number of Commission regulations providing
for compensatory allowances granted to producer organis-
ations for the tuna supplied to the Community processing
industry in the quarters between 1 July 1999 and 30 September            Since 1991 the applicant has operated what is currently the
2000 (2), challenges in the present case the regulation relating         only system covering the whole of Germany for the collection
to the period between 1 October and 31 December 2000.                    and recovery of used sales packaging bearing its trade mark
                                                                         ‘Der Grüne Punkt’ (‘Green Dot’). The applicant organises
                                                                         regular collections of packaging from nearly all private house-
The pleas in law and main arguments are similar to those                 holds in Germany. The applicant grants domestic and foreign
advanced in Case T-142/01 (3).                                           manufacturers and/or distributors the right to mark sales
                                                                         packaging covered by the applicant’s exemption system under
(1) OJ 2001 L 224, p. 4.
                                                                         the terms of a uniform agreement on use of the mark.
(2) Case T-142/01.
(3) OJ C 245, p. 28.
                                                                         In September 1992 the applicant notified the Commission of
                                                                         its statutes and a sample of the agreements underlying the
                                                                         system. In January 1996, at the request of the defendant, the
                                                                         applicant gave the commitment on joint use set out in
                                                                         paragraph 71 of the contested decision and subject to various
                                                                         restrictions. In March 1997 the Commission announced its
Action brought on 27 November 2001 by Der Grüne                          intention to take a favourable view of all the agreements
Punkt — Duales System Deutschland Aktiengesellschaft                     notified pursuant to Article 19(3) of Regulation No 17 (1).
  against the Commission of the European Communities
                         (Case T-289/01)
                                                                         By decision of 20 April 2001 the Commission required the
                                                                         applicant also to allow the use of the ‘Green Dot’ mark for
                          (2002/C 44/35)                                 packaging which is not part of the applicant’s system but part
                                                                         of that of a competitor and is intended for disposal by that
                   (Language of the case: German)                        competitor. The applicant brought an action against that
                                                                         decision before the Court of First Instance (2).
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               In June 2001 the defendant informed the applicant that it
European Communities on 27 November 2001 by Der Grüne                    intended to attach conditions to the the decision on exemption.
Punkt — Duales System Deutschland Aktiengesellschaft, Co-                According to the applicant those conditions go far beyond the
logne (Germany), represented by W. Deselaers, B. Meyring and             commitment given by the applicant. On 17 September 2001
E. Wagner, with an address for service in Luxembourg.                    the defendant finally issued the contested decision on exemp-
                                                                         tion subject to two such conditions.
The applicant claims that the Court should:
—     declare Article 3(a) and (b) of the Decision of the                The applicant seeks the annulment of Article 3(a) and (b) of
      defendant of 17 September 2001 (C(2001) 2672 final)                that decision and submits that the conditions imposed in it
      relating to a proceeding under Article 81 of the EC Treaty         prejudice its legal position as it is forced to accept the use of
      and Article 53 of the EEA Agreement void;                          its collection and sorting facilities by competitors.
 ---pagebreak--- 16.2.2002               EN                    Official Journal of the European Communities                                             C 44/19
The applicant argues that, by imposing the condition in                  Pleas in law and main arguments
Article 3(a) of the decision, the defendant has applied
Article 81(3) EC incorrectly inter alia in that the condition is
not objectively necessary as the use of the collection and               The applicant is challenging a demand for repayment of
sorting facilities is in no way indispensable for the activities of      Community grants totalling EUR 464 329,22 made by the
competitors. Moreover, the condition, which is dispro-                   Commission in the contested debit note.
portionate, entails an encroachment on the specific subject
matter of the applicant’s trade mark and distortion of compe-            The applicant and the Community concluded, within the
tition to the detriment of the applicant.                                framework of the LIFE project (1), a contract relating to the
                                                                         planned ‘Ecological revitalisation of the Brandenburgische
                                                                         Elbtalaue’: preparatory planning and Gnevsdorfer Werder sub-
The applicant argues, further, that, by imposing the condition           project’. The Commission undertook to participate by making
in Article 3(a), the defendant has applied Article 86(2) EC              a contribution of 50 % of the actual cost, but not exceeding
incorrectly, since the applicant, which is entrusted with a              ECU 1,5 million. The project thus promoted, which was
service of general interest, can no longer operate its country-          designed to prepare the reinstatement of the embankment
wide system under economically viable conditions and make                between the municipalities of Lenzen and Wustrow, was
the necessary adjustments between profitable and less profit-            finished in 1998. Shortly before the end of the project, it
able sectors.                                                            became apparent that it would not be possible to reinstate the
                                                                         embankment as extensively as had been planned.
Moreover, by imposing the condition in Article 3(b) the
defendant has applied Article 86(2) EC incorrectly. Finally, the         In February 2001 the Commission gave notice that, in its view,
defendant, by seeking the commitment of 25 September 1998                the applicant, in carrying out the project, had partly deviated
(recital 72), has breached the fundamental right to freedom of           from the contract and that, since the applicant had reduced
access to justice.                                                       the surface area of the project, the Commission was only able
                                                                         to co-finance the work done in the reduced area. By the
                                                                         contested decision, the Commission called upon the applicant
(1) OJ C 100, p. 4.                                                      to repay to it EUR 464 329,33.
(2) Case T-151/01 Der Grüne Punkt — Duales System Deutschland
    AG v Commission OJ 2001 C 289, p. 6.
                                                                         The applicant asserts that the Community is not entitled to
                                                                         demand the repayment at issue by means of a Commission
                                                                         decision; instead, it is obliged to have recourse to law
                                                                         before the national courts. In addition, it maintains that the
                                                                         Commission has failed to comply with its obligation to provide
                                                                         a statement of reasons and has violated the applicant’s rights
                                                                         of defence. Finally, the Commission has infringed the principle
Action brought on 28 November 2001 by the Land                           of proportionality.
Brandenburg against the Commission of the European
                            Communities
                                                                         (1) Council Regulation (EEC) No 1973/92 of 21 May 1992 estab-
                                                                             lishing a financial instrument for the environment (LIFE) (OJ 1992
                          (Case T-290/01)                                    L 206, p. 1), as amended by Regulation (EC) No 1404/96 of
                                                                             15.7.1996 (OJ 1996 L 181, p. 1).
                           (2002/C 44/36)
                   (Language of the case: German)
                                                                         Action brought on 30 November 2001 by Dessauer
An action against the Commission of the European Communi-                Versorgungs- und Verkehrsgesellschaft mbH — DVV —
ties was brought before the Court of First Instance of the               Stadtwerke and four other undertakings against the
European Communities on 28 November 2001 by the Land                               Commission of the European Communities
Brandenburg (Germany), represented by G. Schohe and T. Mas-
ing, lawyers, with an address for service in Luxembourg.                                             (Case T-291/01)
                                                                                (2002/C 44/37)
The applicant claims that the Court should:
—     annul the decision contained in the Commission’s debit                                 (Language of the case: German)
      note No 3240305411 of 13.9.2001 addressed to the
      applicant, relating to project No LIFE94/D/
      A211/00029/BND re Contract No B4-3200/94/730;                      An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
—     order the defendant to pay the costs.                              European Communities on 30 November 2001 by Dessauer


title: Case F-3/12: Action brought on 4 January 2012 — ZZ v Commission

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/27

         Action brought on 4 January 2012 — ZZ v Commission
   (Case F-3/12)
   2012/C 65/54
   Language of the case: Italian

      Parties

      Applicant: ZZ (represented by: G. Cipressa, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Application for an order that the Commission pay compensation for the damage which the applicant claims to have sustained as a result of the excessive duration of the procedure for recognising the serious nature of the illness from which he suffered.

      Form of order sought

               —

               Annul the decision by which the Commission rejected the request of 23 November 2010 sent by the applicant to the appointing authority;

               —

               Annul Note HR.D.2/MB/ls/Ares(2011) 74616 of 24 January 2011, received by the applicant in person on 3 March 2011 and by his legal representative on a date not before 25 February 2011;

               —

               In so far as necessary, annul the measure, whatever the form in which it was adopted, by which the Commission rejected the complaint of 20 May 2011 against the decision rejecting the request of 23 November 2010, annul that decision, grant the request of 23 November 2010 and uphold the complaint of 20 May 2011 sent by the applicant to the appointing authority;

               —

               In so far as necessary, confirm that the procedure for settlement of the claim of 25 November 2002 sent by the applicant to the EC continued for more than five years;

               —

               In so far as necessary, declare that, already by the date of the request of 23 November 2010, the duration of the procedure in question had exceeded what could be deemed reasonable and, on that ground alone, was excessive and unlawful;

               —

               Accordingly, order the Commission to make reparation for the material and non-material damage unjustly suffered by the applicant up to the date of the request of 23 November 2010, on account of the unreasonable, excessive and unlawful duration of the procedure in question, by paying to him the sum of EUR 10 000, or such greater or lesser sum as the Tribunal may deem to be just and fair;

               —

               Order the Commission to pay to the applicant, from the day following that on which the request of 23 November 2010 was received by the Commission until actual payment of the sum of EUR 10 000, interest on that sum, with annual capitalisation, at the rate of 10 % per annum, or at the rate which the Tribunal may deem to be just and fair;

               —

               Order the Commission to pay the costs.


title: Case T-532/14: Action brought on 17 July 2014  — Alsharghawi v Council

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/55

         Action brought on 17 July 2014 — Alsharghawi v Council
   (Case T-532/14)
   2014/C 303/65
   Language of the case: French

      Parties

      Applicant: Bashir Saleh Bashir Alsharghawi (Johannesburg, South Africa) (represented by: É. Moutet, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Decision 2011/137/CFSP and Decision 2011/178/CFSP;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Council had no power to include the applicant on the list of persons subject to restrictive measures, since the applicant’s name is not mentioned in the United Nations Security Council resolutions 1970 (2011) and 1973 (2011).

               2.

               Second plea in law, alleging infringement of the duty to state reasons, in so far as the Council merely relies on the abovementioned resolutions, without considering the applicant’s personal situation.

               3.

               Third plea in law, alleging infringement of the applicant’s rights of defence and of the principle of the presumption of innocence as a result of the lack of an inter partes procedure.

               4.

               Fourth plea in law, alleging infringement of fundamental rights, in so far as, by imposing restrictive measures on the applicant, the Council unlawfully restricted his freedom of movement and his right to property.


title: Case C-41/03 P: Appeal brought on 4 February 2003 by Rica Foods (Free Zone) NV against the judgment delivered on 14 November 2002 by the Court of First Instance (Third Chamber) in Joined Cases T-94/00, T-110/00 and T-159/00 Rica Foods (Free Zone) NV, Free Trade Foods NV and Suproco NV, supported by the Kingdom of the Netherlands, v Commission of the European Communities, supported by the Kingdom of Spain and the French Republic

text:
5.4.2003                EN                        Official Journal of the European Union                                           C 83/7
Reference for a preliminary ruling by the High Court                      Appeal brought on 4 February 2003 by Rica Foods (Free
of Justice (England & Wales), Queen’s Bench Division                      Zone) NV against the judgment delivered on 14 Novem-
(Administrative Court) by order of that court dated                       ber 2002 by the Court of First Instance (Third Chamber)
23 December 2002, in the case of The Queen on the                         in Joined Cases T-94/00, T-110/00 and T-159/00 Rica
application of Approved Prescription Services Ltd against                 Foods (Free Zone) NV, Free Trade Foods NV and Suproco
the Licensing Authority (acting by the Medicines Control                  NV, supported by the Kingdom of the Netherlands, v
         Agency), Interested party: Eli Lilly & Co. Ltd                   Commission of the European Communities, supported by
                                                                                the Kingdom of Spain and the French Republic
                           (Case C-36/03)
                                                                                (Case C-41/03 P)
                          (2003/C 83/12)                                                            (2003/C 83/13)
                                                                          An appeal has been brought before the Court of Justice of the
Reference has been made to the Court of Justice of the                    European Communities on 4 February 2003 by Rica Foods
European Communities by an order of the High Court of                     (Free Zone) NV, represented by G. van der Wal, advocaat
Justice (England & Wales), Queen’s Bench Division (Adminis-               before the Hoge Raad der Nederlanden, against the judgment
trative Court) dated 23 December 2002, which was received                 delivered on 14 November 2002 by the Court of First Instance
at the Court Registry on 3 February 2003, for a preliminary               (Third Chamber) in Joined Cases T-94/00, T-110/00 and
ruling in the case of The Queen on the application of Approved            T-159/00 Rica Foods (Free Zone) NV, Free Trade Foods NV and
Prescription Services Ltd against the Licensing Authority                 Suproco NV, supported by the Kingdom of the Netherlands, v
(acting by the Medicines Control Agency), Interested party: Eli           Commission of the European Communities, supported by the
Lilly & Co. Ltd, on the following questions:                              Kingdom of Spain.
Can an application for a marketing authorisation for a                    The appellant claims that the Court should:
medicinal Product C validly be made under the first paragraph
of Article 10.1(a)(iii) of Directive 2001/83/EC (1), where the            (1) declare admissible the appeal lodged by the appellant
application seeks to demonstrate that Product C is essentially                 against the judgment delivered on 14 November 2002 by
similar to another product, Product B, in circumstances where:                 the Court of First Instance of the European Communities
                                                                               in Joined Cases T-94/00, T-110/00 and T-159/00;
(1) Product B is related to an original medicinal Product A,
       in that Product B has been authorised as a ‘line extension’        (2) set aside the judgment delivered on 14 November 2002
       of Product A, but has a different pharmaceutical form                   by the Court of First Instance of the European Communi-
       from Product A or is otherwise not ‘essentially similar’ to             ties in Joined Cases T-94/00, T-110/00 and T-159/00
       Product A within the meaning of Article 10.1(a)(iii); and               and, ruling afresh pursuant to the application at first
                                                                               instance lodged by the present appellant on 18 April
                                                                               2000:
(2) Product A has been authorised for marketing in the
       Community for more than the six/ten year period stipu-
       lated in Article 10.1(a)(iii); and                                      —     annul Regulation No 465/2000/EC (1);
                                                                               —     declare that the Community is liable for the damage
(3) Product B has been authorised for marketing for less than                        suffered by the appellant by reason of the fact that
       the six/ten year period stipulated in Article 10.1(a)(iii).                   imports of the products referred to in Regulation
                                                                                (EC) No 465/2000 have, since 1 March 2000, been
                                                                                prevented or restricted as a consequence of that
                                                                                regulation, and order the parties to reach agreement
( 1) Directive 2001/83/EC of the European Parliament and of the                      on the extent of the damage suffered by the appel-
     Council of 6 November 2001 on the Community code relating to                    lant, and, if no agreement is reached on that matter,
     medicinal products for human use (OJ L 311, 28.11.2001, p. 67).                 order that proceedings be continued within a period
                                                                                to be laid down by the Court of Justice for the
                                                                                purpose of determining the extent of the damage, or
                                                                                at any rate order the Community to pay compen-
                                                                                sation for the provisionally estimated damage and
 ---pagebreak--- C 83/8                  EN                          Official Journal of the European Union                                             5.4.2003
            that still to be assessed; in the further alternative,          —      Infringement of the preferential status of the OCT: the
            order the Community to pay compensation to be                          Court of First Instance erred in its determination of the
            determined on an equitable basis by the Court of                       relevant facts to such an extent that its appraisal in the
            Justice, plus annual interest of 8 % from the date of                  grounds of its judgment here referred to is, in the light of
            the application at first instance to the date of full                  the procedural documents, incomprehensible.
            and final payment;
                                                                            (1 ) Commission Regulation (EC) No 465/2000 of 29 February 2000
                                                                                introducing safeguard measures for imports from the overseas
(3) order the respondent to pay the costs of both sets of                        countries and territories of sugar sector products with EC/OCT
      proceedings, in accordance with Article 69(2) of the Rules                 cumulation of origin (OJ 2000 L 56, p. 39).
      of Procedure.                                                         (2 ) — Council Decision 91/482/EEC of 25 July 1991 on the
                                                                                association of the overseas countries and territories with the
                                                                                European Economic Community (OJ 1991 L 263, p. 1).
Pleas in law and main arguments
                                                                            Reference for a preliminary ruling by the Tribunale di
—     Breach of Article 109(1) of the OCT Decision ( 2): the                Catania — Prima Sezione Civile, by order of that Court of
      Court of First Instance failed to take into account the fact          19 January 2003 in the case of Catania Commissary
      that Article 109(1) of the OCT Decision constitutes a                         General of Police against Oxana Dem’Yanenko
      derogation from the prohibition in Article 101 of the
      OCT Decision of import duties and measures having
      equivalent effect. As in the case of every derogation which                                       (Case C-45/03)
      departs from the principal rule, and in this case from the
      objective of the successive OCT Decisions, this derogation
      must be narrowly construed and applied. The ‘wide                                                (2003/C 83/14)
      discretion’ of the Commission and the limited appraisal
      of the Community judicature on which the Court of
      First Instance based itself are incompatible with such a
      possibility of applying Article 109(1) of the OCT Decision            Reference has been made to the Court of Justice of the
      that is limited to exceptional cases (Article 109(1) of the           European Communities by order of the Tribunale di Catania
      OCT Decision as an ‘emergency brake’);                                — Prima Sezione Civile (Catania District Court, First Civil
                                                                            Chamber) of 19 January 2003, received at the Court Registry
                                                                            on 7 February 2003, for a preliminary ruling in the case
—     Failure to provide reasons: it was wrong in law and also, in          of Catania Commissary General of Police against Oxana
      light of the documents on the case-file, incomprehensible             Dem’Yanenko on the following questions:
      and/or indicative of inadequate reasoning that the Court
      of First Instance should hold (i) that any additional                 1.     Are the Community rules set out above — Articles 7, 8
      imports of OCT sugar under the EC/OCT cumulation of                          and 9 of Council Directive 64/221/EEC ( 1) of 25 February
      origin regime would increase the amount of surplus sugar                     1964 and Articles 2, 5, 6, 13 and 14 of the Convention
      on the Community market, and (ii) that ‘additional                           for the Protection of Human Rights and Fundamental
      imports’ within the meaning of (i) impose an extra burden                    Freedoms, signed in Rome on 4 November 1950 — and
      on the Community budget;                                                     the general, fundamental principles of Community law to
                                                                                be interpreted as meaning that any foreigner deported
                                                                                from a Member State of the European Community is
                                                                                entitled to have his deportation order reviewed before it
—     Breach of Article 109(1) of the OCT Decision: the Court                      is enforced by an impartial authority different from that
      of First Instance erred in law in its construction of the                    which adopted the order?
      terms ‘difficulties’ and ‘deterioration’ and consequently
      erred in law in its application of those terms. The
      appellant refers to its application at first instance;                2.     Are the Community rules set out above — Articles 7, 8
                                                                                and 9 of Council Directive 64/221/EEC of 25 February
                                                                                1964 and Articles 2, 5, 6, 13 and 14 of the Convention
                                                                                for the Protection of Human Rights and Fundamental
—     Breach of Article 109(2) of the OCT Decision: there is no                    Freedoms, signed in Rome on 4 November 1950 — and
      quantitative correlation between the quota in Regulation                     the general, fundamental principles of Community law to
      No 465/2000 and ‘difficulties’ and/or ‘deterioration’. In                    be interpreted as meaning that it is unacceptable and
      the light of the historical quantities, the measure is also                  unlawful for the police of a Member State of the European
      entirely arbitrary and inequitable;                                          Community, without prior review by any other authority,


title: Case C-651/11: Judgment of the Court (Ninth Chamber) of 30 May 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v X BV (VAT — Sixth Directive 77/388/EEC — Article 5(8) — Concept of ‘transfer of a totality of assets or part thereof’ — Disposal of 30 % of the shares in a company to which the transferor supplies services that are subject to VAT)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/18

         Judgment of the Court (Ninth Chamber) of 30 May 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v X BV
   (Case C-651/11) (1)

   (VAT - Sixth Directive 77/388/EEC - Article 5(8) - Concept of ‘transfer of a totality of assets or part thereof’ - Disposal of 30 % of the shares in a company to which the transferor supplies services that are subject to VAT)
   2013/C 225/30
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Staatssecretaris van Financiën

      Defendant: X BV

      Re:

   Request for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 5(8) and 6(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Taxable transactions — Transfer of a totality of assets and/or of services (or part thereof) — Disposal of 30 % of the shares in a company by a shareholder who, until the date of disposal, supplied services subject to VAT to that company

      Operative part of the judgment

   Articles 5(8) and/or 6(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the disposal of 30 % of the shares in a company to which the transferor supplies services that are subject to VAT does not amount to the transfer of a totality of assets or services or part thereof within the meaning of those provisions, irrespective of the fact that the other shareholders transfer all the other shares in that company to the same person at practically the same time and that that disposal is closely linked to management activities carried out for that company.

      (1)  OJ C 73, 10.3.2012.


title: Case T-488/15: Action brought on 26 August 2015 — LG Electronics v OHIM — Cyrus Wellness Consulting (VIEWTY SMART)

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/42

         Action brought on 26 August 2015 — LG Electronics v OHIM — Cyrus Wellness Consulting (VIEWTY SMART)
   (Case T-488/15)
   (2015/C 337/47)
   Language in which the application was lodged: English

      Parties

      Applicant: LG Electronics, Inc. (Seoul, Republic of Korea) (represented by: M. Graf, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Cyrus Wellness Consulting (Berlin, Germany)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: Community word mark ‘VIEWTY SMART’ — Application for Registration No 8 431 091

      Procedure before OHIM:Opposition proceedings

      Contested decision:Decision of the Second Board of Appeal of OHIM of 11 June 2015 in Case R 1734/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case T-328/09: Judgment of the General Court of 27 September 2012 — Producteurs de légumes de France v Commission (State aid — Fruit and vegetable sector — ‘Contingency plans’ aimed at supporting the fruit and vegetable market in France — Decision declaring the aid to be incompatible with the common market — Legitimate expectation — Material error in the calculation of the amounts to be recovered)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/21

         Judgment of the General Court of 27 September 2012 — Producteurs de légumes de France v Commission
   (Case T-328/09) (1)

   (State aid - Fruit and vegetable sector - ‘Contingency plans’ aimed at supporting the fruit and vegetable market in France - Decision declaring the aid to be incompatible with the common market - Legitimate expectation - Material error in the calculation of the amounts to be recovered)
   2012/C 355/43
   Language of the case: French

      Parties

      Applicant: Producteurs de légumes de France (Paris, France) (represented: by initially O. Fachin, and subsequently O. Redon, lawyers)

      Defendant: European Commission (represented by: B. Stromsky, acting as Agent)

      Re:

   Application for annulment of Commission Decision C(2009) 203 final of 28 January 2009 on the ‘contingency plans’ in the fruit and vegetable sector implemented by the French Republic.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Producteurs de légumes de France to pay the costs.

      (1)  OJ C 267, 7.11.2009.


title: Case T-141/08: Judgment of the General Court of 15 December 2010 — E.ON Energie v Commission (Competition — Administrative procedure — Decision finding that seals had been broken — Article 23(1)(e) of Regulation (EC) No 1/2003 — Burden of proof — Presumption of innocence — Proportionality — Duty to state reasons)

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/10

         Judgment of the General Court of 15 December 2010 — E.ON Energie v Commission
   (Case T-141/08) (1)

   (Competition - Administrative procedure - Decision finding that seals had been broken - Article 23(1)(e) of Regulation (EC) No 1/2003 - Burden of proof - Presumption of innocence - Proportionality - Duty to state reasons)
   2011/C 38/14
   Language of the case: German

      Parties

      Applicant: E.ON Energie AG (Munich, Germany) (represented by: initially A. Röhling, C. Krohs, F. Dietrich and R. Pfromm, then A. Röhling, F. Dietrich and R. Pfromm, lawyers)

      Defendant: European Commission (represented by: A. Bouquet, V. Bottka and R. Sauer, acting as Agents)

      Re:

   Annulment of Commission Decision C(2008) 377 final of 30 January 2008 imposing a fine under Article 23(1)(e) of Council Regulation (EC) No 1/2003 for breaking seals affixed by the Commission during an inspection (Case COMP/B-1/39.326 — E.ON Energie AG)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders E.ON Energie AG to pay the costs.

      (1)  OJ C 158, 21.6.2008.


title: Case T-63/17: Action brought on 1 February 2017 — Grupo Orenes v EUIPO — Akamon Entertainment Millenium (Bingo VIVA! Slots)

text:
               27.3.2017

               EN

               Official Journal of the European Union

               C 95/23

         Action brought on 1 February 2017 — Grupo Orenes v EUIPO — Akamon Entertainment Millenium (Bingo VIVA! Slots)
   (Case T-63/17)
   (2017/C 095/31)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Grupo Orenes, SL (Murcia, Spain) (represented by: M. Sanmartín Sanmartín, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Akamon Entertainment Millenium, SL (Barcelona, Spain)

      Details of the proceedings before EUIPO

      Applicant for the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: European Union figurative mark containing the word elements ‘Bingo VIVA! Slots’ — Application for registration No 13 468 251

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 7 November 2016 in Case R 453/2016-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to bear its own costs and pay the applicant’s costs.

      Pleas in law

               —

               Infringement of Articles 64, 75, 76 of Regulation No 207/2009 read in conjunction, where appropriate, with Article 8(1)(b) of that regulation and Rules 50 and 52 of Regulation 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark and also the case-law of the Court of Justice interpreting all those provisions.

               —

               Failure to make a proper overall comparison of the signs.


title: Case T-494/17: Action brought on 28 July 2017 — Iccrea Banca v Commission and SRB

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/22

         Action brought on 28 July 2017 — Iccrea Banca v Commission and SRB
   (Case T-494/17)
   (2017/C 318/29)
   Language of the case: Italian

      Parties

      Applicant: Iccrea Banca SpA Istituto Centrale del Credito Cooperativo (Rome, Italy) (represented by: P. Messina, F. Isgrò and A. Dentoni Litta, lawyers)

      Defendants: European Commission and Single Resolution Board

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Single Resolution Board Decision No SRB/ES/SRF/2016/06 of 15 April 2016, as well as all subsequent decisions of that Board on the basis of which the Banca d’Italia adopted the following measures: No 1547337/16 of 29 December 2016; No 0333162/17 of 14 March 2017; No 0334520/17 of 14 March 2017; No 1249264/15 of 24 November 2015; No 1262091/15 of 26 November 2015;

               —

               order the payment of compensation to ICCREA Banca for the damage caused to it by the Single Resolution Board when determining the contributions owed by the applicant in the form of higher rates paid by ICCREA Banca;

               —

               in the alternative, and in the event that the above claims are rejected, declare Article 5(1)(a) and (f) (or, as the case may be, the Regulation in its entirety) invalid, as being contrary to the basic principles of equality, non-discrimination and proportionality;

               —

               in any event, order the Single Resolution Board to pay the costs occasioned by the present proceedings.

      Pleas in law and main arguments

   The present action is brought against Single Resolution Board Decision No SRB/ES/SRF/2016/06 of 15 April 2016 and against all subsequent decisions of that Board which constituted the basis for the measures of the Banca d’Italia seeking contributions to the Single Resolution Fund.
   In support of its action, the applicant relies on six pleas in law.

               1.

               First plea in law, alleging (i) failure to communicate the measures, (ii) infringement of the principle of transparency, (iii) infringement and misapplication of Article 15 TFEU, and (iv) infringement of the principle of the protection of legitimate expectations.

                           —

                           The applicant claims in this regard that it was at no time placed in a position to be aware of the decisions of the Single Resolution Board, or to understand the merely material role of the Banca d’Italia in the enforcement of those decisions.

               2.

               Second plea in law, alleging (i) failure to carry out a proper enquiry, (ii) error of assessment of the facts, (iii) infringement and misapplication of Article 5[(1)](a) of Regulation 2015/63, and (iv) infringement of the principles of non-discrimination and sound administration.

                           —

                           The applicant claims in this regard that the Single Resolution Board erred in its application of Article 5[(1)](a) of Regulation 2015/63 (1) when determining the amount of the contributions owed by the applicant by not having taken intragroup liabilities into consideration.

               3.

               Third plea in law, alleging (i) failure to carry out a proper enquiry, (ii) error of assessment of the facts, (iii) infringement and misapplication of Article 5[(1)](a) of Regulation 2015/63, and (iv) infringement of the principles of non-discrimination and sound administration.

                           —

                           The applicant claims in this regard that the Single Resolution Board erred in its application of Article 5[(1)](f) of Regulation 2015/63, thereby resulting in double counting.

               4.

               Fourth plea in law, alleging unlawful conduct of an EU body and claiming non-contractual liability under Article 268 TFEU.

                           —

                           The applicant claims in this regard that the conduct of the Single Resolution Board meets all the relevant conditions for non-contractual liability under EU case-law, namely unlawfulness of the alleged conduct of the institutions, the actual existence of damage, and the presence of a causal link between the adopted conduct and the alleged damage.

               5.

               Fifth plea in law, in the alternative and incidentally, alleging that Regulation 2015/63 is in breach of the principles of effectiveness, equivalence and equal treatment and is consequently inapplicable.

                           —

                           The applicant claims in this regard that a possible contradiction between Regulation 2015/63 and the situation of the applicant would be in breach of the aforementioned principles to the extent that persons in the same factual situation as ICCREA would be subject to reductions of contributions, with a resulting unlawful deterioration of the applicant’s situation, with the consequence that similar situations would be treated differently.

               6.

               Sixth plea in law, alleging infringement of Article 15 TFEU, impossibility for the applicant to have knowledge of the decisions of the Single Resolution Board, and requesting an order for the production of those documents.

                           —

                           The applicant claims in this regard that it has still not been placed in a position to have knowledge of the decisions for 2015, 2016 and 2017 relating to its position, conduct which is patently at variance with Article 15 TFEU and with the right to access documents of EU institutions, bodies, offices and agencies, whatever their medium.

      (1)  Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).


title: Case T-745/15: Judgment of the General Court of 14 December 2016 — Scorpio Poland v EUIPO — Eckes-Granini Group (YO!) (European Union trade mark — Opposition proceedings — Application for EU figurative mark YO! — Prior national work mark YO — Relative ground for refusal — Likelihood of confusion — Article 81)(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 14 December 2016 — Scorpio Poland v EUIPO — Eckes-Granini Group (YO!)
   (Case T-745/15) (1)

   ((European Union trade mark - Opposition proceedings - Application for EU figurative mark YO! - Prior national work mark YO - Relative ground for refusal - Likelihood of confusion - Article 81)(b) of Regulation (EC) No 207/2009))
   (2017/C 030/52)
   Language of the case: Polish

      Parties

      Applicant: Scorpio Poland, formerly FH Scorpio (Łódź, Poland) (represented by: R. Rumpel, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Schifko and E. Śliwińska, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Eckes-Granini Group GmbH (Nieder-Olm, Germany) (represented by: W. Berlit, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 2 October 2015 (Case R 1546/2014-2) concerning opposition proceedings between Eckes-Granini Group and FH Scorpio.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Scorpio Poland to pay the costs.

      (1)  OJ C 59, 15.2.2016.


title: Case T-562/10: Action brought on 16 December 2010 — HTTS Hanseatic Trade Trust & Shipping v Council

text:
               12.2.2011

               EN

               Official Journal of the European Union

               C 46/14

         Action brought on 16 December 2010 — HTTS Hanseatic Trade Trust & Shipping v Council
   (Case T-562/10)
   2011/C 46/28
   Language of the case: German

      Parties

      Applicant: HTTS Hanseatic Trade Trust & Shipping GmbH (Hamburg, Germany) (represented by: J. Kienzle and M. Schlingmann, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 in so far as it concerns the applicant;

               —

               order the Council to pay the costs of the proceedings, in particular those incurred by the applicant.

      Pleas in law and main arguments

   The applicant raises two pleas in law in support of its action.

               1.

               First plea: infringement of the applicant's rights of defence.

                           —

                           The applicant claims in this regard that the Council infringed its right to effective legal protection and in particular the requirement to state reasons, in that it did not provide sufficient reasons for including it in Annex VIII to the contested regulation.

                           —

                           Next, the applicant claims that the Council failed, even though asked expressly, to provide grounds or points of view and the relevant evidence to justify the applicant's inclusion in Annex VIII to the contested regulation.

                           —

                           Finally, the applicant complains in the context of its first plea that the Council infringed its right to be heard, in so far as it failed to provide the applicant with the opportunity laid down in Article 36(3) and (4) of the contested regulation to present observations on its inclusion on the list of sanctioned persons, which would then have required the Council to review the issue.

               2.

               Second plea: infringement of the applicant's fundamental right to respect for property.

                           —

                           The applicant submits in this regard that its inclusion in Annex VIII to the contested regulation constitutes an unjustified interference with its fundamental right to property, since it is not apparent from the insufficient reasoning provided by the Council why it was included on the list of persons sanctioned under Article 16(2) of the contested regulation.

                           —

                           Next, the applicant submits that its inclusion in Annex VIII to the contested regulation is based on an obvious erroneous assessment of its situation and of its activities on the part of the Council.

                           —

                           Finally, the applicant submits in the context of its second plea that its inclusion in Annex VIII to the contested regulation is incompatible with the aims pursued by the regulation and that it constitutes a disproportionate interference with its property rights.