title: Case T-375/10: Action brought on 8 September 2010 — Hansa Metallwerke and Others v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/38

         Action brought on 8 September 2010 — Hansa Metallwerke and Others v Commission
   (Case T-375/10)
   ()
   2010/C 301/63
   Language of the case: German

      Parties

      Applicants: Hansa Metallwerke AG (Stuttgart, Germany), Hansa Nederland BV (Nijkerk, Netherlands), Hansa Italiana Srl (Castelnuovo del Garda, Italy), Hansa Belgium Sprl (Asse, Belgium), Hansa Austria GmbH (Salzburg, Austria) (represented by: H.-J. Hellmann, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               annul the Commission’s decision of 23 June 2010, notified to the applicants on 30 June 2010, relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 — Bathroom fixtures and fittings) in so far as it concerns the applicants;

               —

               in the alternative, reduce the applicants’ fine;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicants contest Commission Decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom fittings and fixtures. In the contested decision, fines were imposed on the applicants and on other undertakings on account of infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a continuing agreement or concerted practice in the bathroom fittings and fixtures sector in Belgium, Germany, France, Italy, the Netherlands and Austria.
   In support of their action, the applicants claim, first, that the fine imposed on them unlawfully exceeds the maximum amount permitted under the second sentence of Article 23(2) of Regulation (EC) No 1/2003, (1) since the Commission incorrectly based its decision on Hansa Metallwerke AG’s total worldwide turnover.
   Second, the applicants allege breach of the principle of the protection of legitimate expectations. The applicants submit that the Commission committed serious procedural errors in the course of the administrative procedure and thereby placed the applicants at a disadvantage in relation to the other parties to the procedure. The Commission failed to take account of that circumstance in the contested decision, as it had promised to do during the procedure.
   Third, the applicants claim that the Commission infringed Article 23(2) of Regulation No 1/2003 on account of miscalculation of the fine in the light of the Leniency Notice. (2) They complain that, although they cooperated, they were not granted a reduction in the fine imposed on them.
   Fourth, the applicants claim that the application of the Guidelines on setting fines (3) to situations which ended long before publication of those guidelines infringes the principle of non-retroactivity.
   The applicants also assert that the Commission’s fine-setting practice is not covered by the enabling provision of Article 23(2) of Regulation No 1/2003. The applicants allege in this connection that the contested decision infringes the principle of equal treatment and the principle of proportionality. Furthermore, Article 23(2) of Regulation No 1/2003, as applied by the Commission in its fine-setting practice pursuant to the Guidelines on the method of setting fines, infringes the principle of the lawfulness of penalties, laid down in Article 7 ECHR and Article 49 of the Charter of Fundamental Rights of the European Union.
   Lastly, the applicants complain that Article 23(2) of Regulation No 1/2003 and the Guidelines on setting fines have been misapplied on account of numerous errors of application and assessment to the applicants’ detriment. They claim in particular that the adduction and assessment of the evidence by the Commission is incorrect in relation to the individual facts of the case as regards the applicants.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

      (2)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

      (3)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).


title: Judgment of the Court (Fifth Chamber) of 29 April 2004 in Case C-222/01 (reference for a preliminary ruling from the Bundesfinanzhof): British American Tobacco Manufacturing BV v Hauptzollamt Krefeld (Free movement of goods — External Community transit — Temporary removal of transit and transport documents — Breaking of seals and partial unloading of goods — Removal of goods from customs supervision — Incurring of a customs debt on importation — Unsuspected presence of undercover customs agents — Special circumstances justifying remission or repayment of import duties — Liability of the principal in the case of deception or obvious negligence on the part of persons engaged by him)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/10

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 29 April 2004
   in Case C-222/01 (reference for a preliminary ruling from the Bundesfinanzhof): British American Tobacco Manufacturing BV v Hauptzollamt Krefeld (1)

   (Free movement of goods - External Community transit - Temporary removal of transit and transport documents - Breaking of seals and partial unloading of goods - Removal of goods from customs supervision - Incurring of a customs debt on importation - Unsuspected presence of undercover customs agents - Special circumstances justifying remission or repayment of import duties - Liability of the principal in the case of deception or obvious negligence on the part of persons engaged by him)
   (2004/C 118/18)
   Language of the case: German
   In Case C-222/01: reference to the Court under Article 234 EC from the Bundesfinanzhof (Federal Finance Court) (Germany) for a preliminary ruling in the proceedings pending before that court between British American Tobacco Manufacturing BV and Hauptzollamt Krefeld — on the interpretation of the Community rules concerning the incurring, remission and repayment of a customs debt — the Court (Fifth Chamber), composed of: C.W.A. Timmermans (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it has ruled:

               1)

               In so far as the temporary removal of the T 1 transit document from the goods to which it relates prevents the presentation of that document at any possible requisition by the customs service, such a removal constitutes a removal of those goods from customs supervision within the meaning of Article 2(1)(c) of Council Regulation (EEC) No 2144/87 of 13 July 1987 on customs debt even if the customs authorities have not demanded presentation of that document or established that it could not have been presented to them without considerable delay.

               2)

               The fact that infringements of the Community transit system originate in the conduct of an undercover agent belonging to the customs services constitutes a special situation within the meaning of Article 13(1) of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986, which may, in appropriate cases, justify the remission or repayment of duties paid by the principal, on condition that no deception or obvious negligence may be attributed to him.

               3)

               Deception or obvious negligence on the part of persons whom the principal has engaged to carry out obligations contracted under the Community external transit system does not, in itself, exclude repayment to the principal of duties incurred as a result of the removal of goods placed under that system from customs supervision, on condition that no deception or obvious negligence is attributable to the principal.

      (1)  OJ C 245, 1.9.2001.


title: Order of the President of the Court of First Instance of 5 September 2001 in Case T-74/00 R: Artegodan GmbH v Commission of the European Communities (Proceedings for interim relief — Article 108 of the Rules of Procedure — Change in circumstances — No change)

text:
C 17/12               EN                    Official Journal of the European Communities                                         19.1.2002
                                                       COURT OF FIRST INSTANCE
   JUDGMENT OF THE COURT OF FIRST INSTANCE                             statement of formation of the ‘Groupe technique des députés
                                                                       indépendants (TDI) — Groupe mixte’, — the Court of First
                                                                       Instance (Third Chamber, Extended Composition), composed
                      of 2 October 2001                                of J. Azizi, President, K. Lenaerts, R.M. Moura Ramos, M. Jaeger
                                                                       and M. Vilaras, Judges; J. Palacio González, Administrator, for
                                                                       the Registrar, has given a judgment on 2 October 2001, in
in Joined Cases T-222/99, T-327/99 and T-329/99: Jean-                 which it:
  Claude Martinez and Others v European Parliament (1)
                                                                       1.    Ordered the joinder of Cases T-222/99, T-327/99 and
                                                                             T-329/99 for the purposes of the judgment;
(Actions for annulment — Act of the European Parliament
concerning a provision of its Rules of Procedure — Statement
                                                                       2.    Dismissed the actions;
of formation of a group under Rule 29 of the Rules of
Procedure of the European Parliament — Admissibility —
Objection of illegality — Equal treatment — Observance                 3.    Ordered the applicants in each case to bear their own costs and
of fundamental rights — Principles of democracy and                          those incurred by the Parliament including, as regards Case
proportionality — Freedom of association — Protection of                     T-222/99, the costs relating to the application for interim
legitimate expectations — Parliamentary traditions of the                    measures.
Member States — Breach of essential procedural require-
                ments — Misuse of procedure)
                                                                       (1) OJ C 366 of 18.12.1999, C 47 of 19.2.2000 and C 63 of
                                                                           4.3.2000.
                        (2002/C 17/20)
            (Language of the case: French and Italian)
                                                                       ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
In Joined Cases T-222/99: Jean-Claude Martinez, Member of
the European Parliament, residing in Montpellier (France),
Charles de Gaulle, Member of the European Parliament,                                         of 5 September 2001
residing in Paris (France), represented by F. Wagner, lawyer,
applicants in Case T-327/99, Front national, established in
Saint-Cloud (France), represented by A. Nivière, lawyer, and           in Case T-74/00 R: Artegodan GmbH v Commission of
T-329/99, Emma Bonino, Member of the European Parliament,                                 the European Communities
residing in Rome (Italy), Marco Pannella, Member of the
European Parliament, residing in Rome, Marco Cappato,                  (Proceedings for interim relief — Article 108 of the Rules of
Member of the European Parliament, residing in Vedano al                   Procedure — Change in circumstances — No change)
Lambro (Italy), Gianfranco Dell’Alba, Member of the European
Parliament, residing in Leghorn (Italy), Benedetto Della Vedova,
Member of the European Parliament, residing in Tirano (Italy),                                   (2002/C 17/21)
Olivier Dupuis, Member of the European Parliament, residing
in Rome, Maurizio Turco, Member of the European Parliament,
residing in Pulsano (Italy), Lista Emma Bonino, established in                             (Language of the case: German)
Rome, represented initially by A. Tizzano and G. M. Roberti,
lawyers, and subsequently by G. M. Roberti, against European
Parliament (Agents: G. Garzón Clariana, J. Schoo, H. Krück
and A. Caiola) — application for the annulment in Case                 In Case T-74/00 R: Artegodan GmbH, established in Lüchow
T-222/99 of the European Parliament’s decision of 14 Septem-           (Germany), represented by U. Doepner, lawyer, with an
ber 1999 on the interpretation of Rule 29(1) of the Rules of           address for service in Luxembourg, against Commission of the
Procedure of the European Parliament; in Case T-327/99 of              European Communities (Agents: H. Støvlbæk and B. Wägen-
the European Parliament’s decision of 14 September 1999                baur) — application by the defendant under Article 108 of the
dissolving with retroactive effect the ‘Groupe technique des           Rules of Procedure of the Court of First Instance for cancel-
députés indépendants (TDI) — Groupe mixte’; and in Case                lation of the order of the President of Court of First Instance
T-329/99 of the European Parliament’s decision of 14 Septem-           of 28 June 2000 in Case T-74/00 R Artegodan v Commission
ber 1999 in which it adopted the view taken by the Committee           [2000] ECR II-2583 — the President of the Court of First
on Constitutional Affairs on the conformity with Rule 29 of            Instance made an order on 5 September 2001, the operative
the Rules of Procedure of the European Parliament of the               part of which is as follows:
 ---pagebreak--- 19.1.2002               EN                     Official Journal of the European Communities                                         C 17/13
1.    The Commission’s application is dismissed.                          Murphy, Solicitor, against the Commission of the European
                                                                          Communities (Agents: P. Oliver) — application for interim
2.    Costs are reserved.                                                 measures in connection with an action under Article 230 EC
                                                                          for annulment of the Commission’s decision of 12 January
                                                                          2001 rejecting the applicant’s complaint concerning the
                                                                          alleged infringement of Articles 81 and 82 EC by the General
                                                                          Council of the Bar of England and Wales, the President of the
                                                                          Court of First Instance made an order on 29 March 2001, the
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              operative part of which is as follows:
                              INSTANCE
                                                                          1.    The application for interim measures is dismissed.
                          of 29 March 2001
in Case T-302/00 R: Anthony Goldstein v Commission of                     2.    The costs are reserved.
                   the European Communities
 (Action for interim measures — Admissibility — Urgency)
                           (2002/C 17/22)
                    (Language of the case: English)
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
In Case T-302/00 R: Anthony Goldstein, residing at Harrow,                                         of 3 October 2001
Middlesex (United Kingdom), represented by R. St. John
Murphy, Solicitor, against the Commission of the European
Communities (Agents: P. Oliver and R. Lyal) — application                 in Case T-60/01: Marie-Josée Bollendorff v European
for interim measures in connection with an action under                                               Parliament (1)
Article 230 EC for annulment of the Commission’s decision of
7 July 2000 rejecting the applicant’s complaint concerning the            (Action for annulment — Withdrawal of the contested
alleged infringement of Articles 81 and 82 EC by the General                             measure — No need to adjudicate)
Medical Council — the President of the Court of First Instance
made an order on 29 March 2001, the operative part of which
is as follows:                                                                                (2002/C 17/24)
1.    The application for interim measures is dismissed.
                                                                                (Language of the case: French)
2.    The costs are reserved.
                                                                          In Case T-60/01: Marie-Josée Bollendorff, residing in Luxem-
                                                                          bourg, represented by L. Mosar, lawyer, with an address for
                                                                          service in Luxembourg, against European Parliament (Agents:
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              Y. Pantalis and D. Moore) — application for annulment of the
                              INSTANCE                                    decision of the Parliament to regard as irregular the absence of
                                                                          the applicant from 21 March 2000 to 30 April 2000 and to
                                                                          deduct that absence from her annual leave entitlement —
                          of 29 March 2001                                the Court of First Instance (First Chamber), composed of
                                                                          B. Vesterdorf, President, N.J. Forwood and H. Legal, Judges;
in Case T-18/01 R: Anthony Goldstein v Commission of                      H. Jung, Registrar, made an order on 3 October 2001, the
                   the European Communities                               operative part of which is as follows:
(Application for interim measures — Admissibility —
                               Urgency)                                   1.    There is no need to adjudicate in the present case.
                           (2002/C 17/23)                                 2.    The Parliament shall bear the entire costs.
                    (Language of the case: English)
                                                                          (1) OJ 2001 C 173.
In Case T-18/01 R: Anthony Goldstein, residing at Harrow,
Middlesex (United Kingdom), represented by R. St. John


title: Case T-367/08: Action brought on 5 September 2008 — Abouchar v Commission

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/49

         Action brought on 5 September 2008 — Abouchar v Commission
   (Case T-367/08)
   (2008/C 285/89)
   Language of the case: French
   Parties

      Applicant: Michel Abouchar (Dakar, Senegal) (represented by: B. Dubreuil Basire and J-J. Lorang, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare that officials of the Commission/EDF committed intentional torts in the performance of their tasks;

               —

               declare that the Commission/EDF infringed Article 155 EC and Article 311 of the Fourth Lomé Convention and the general principles of sound administration, duty of care and the protection of legitimate interests;

               —

               declare that those torts directly gave rise to harm to the applicant and order the Commission/EDF to pay him jointly and severally, for all the damage he suffered, the sum of EUR 4 500 000 by way of damages and interest;

               —

               order the Commission/EDF to pay the applicant the sum of EUR 100 000 as irrecoverable expenditure which the applicant had to incur;

               —

               order the Commission to pay the entire costs of the proceedings.

         Pleas in law and main arguments
   By means of his action for non-contractual liability, the applicant is seeking to obtain a declaration that the Commission infringed the financial implementing rules of the Sixth and Seventh European Development Fund (‘the EDF’) and of the so-called ‘Lomé III’ and ‘Lomé IV’ (1) Conventions linking the Community with the African, Caribbean and Pacific States (‘ACP’), in the context of managing resources of the EDF concerning a project to finance Small and Medium Enterprises in the region of Saint-Louis of Senegal.
   In this case, the applicant, the beneficiary of a loan for a vegetable farm project in the eligible region, takes the view that management errors and misappropriation of funds allegedly imputed to Commission officials had the effect of immediately paralysing his farming project set up under the European Development Fund.
   The applicant essentially relies on two Commission failures, capable of giving rise to non-contractual liability on the part of the Commission. More precisely, the applicant alleges, first, errors committed by officials when carrying out their duties, and, secondly, a failure to monitor funding awarded by the Commission, breach of Articles 155 EC and Article 311 of the Fourth Lomé Convention, and of the general principles of sound administration, duty of care and protection of legitimate expectations.

      (1)  Since 23 June 2000, the Lomé Convention has been replaced by the Cotonou Agreement (OJ 2000 L 317, p. 3). The applicant still refers in his application, however, to the Lomé III and IV Conventions.


title: Case C-309/10: Judgment of the Court (Eighth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Sugar — Temporary scheme for the restructuring of the sugar industry in the European Community — Regulation (EC) No 320/2006 — Article 11 — Revenue surplus in the restructuring fund — Assignment to the EAGF — Principle of conferral and principle of proportionality — Obligation to state reasons — Unjust enrichment)

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/9

         Judgment of the Court (Eighth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft
   (Case C-309/10) (1)

   (Sugar - Temporary scheme for the restructuring of the sugar industry in the European Community - Regulation (EC) No 320/2006 - Article 11 - Revenue surplus in the restructuring fund - Assignment to the EAGF - Principle of conferral and principle of proportionality - Obligation to state reasons - Unjust enrichment)
   2011/C 298/15
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Agrana Zucker GmbH

      Defendant: Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

      Re:

   Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 11 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42) — Levying of a temporary restructuring amount in a situation in which the temporary restructuring fund shows a considerable surplus and there appears to be no prospect of an increase in financing requirements — Equivalent to introduction of a general tax — Infringement of the principle of conferred powers

      Operative part of the judgment

               1.

               Article 11 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy is to be interpreted as meaning that the temporary amount must be raised in full, even if there were to be a revenue surplus in the temporary restructuring fund.

               2.

               The examination of the second question referred for a preliminary ruling has not revealed anything which might affect the validity of Article 11 of Regulation No 320/2006.

      (1)  OJ C 260, 25.9.2010.


title: Case F-74/07 RENV: Order of the Civil Service Tribunal (First Chamber) of 25 May 2011 — Stefan Meierhofer v European Commission (Civil service — Recruitment — Open competition — Failure of a candidate in the oral test — Obligation to state reasons — Rules governing the work of the selection board)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/41

         Order of the Civil Service Tribunal (First Chamber) of 25 May 2011 — Stefan Meierhofer v European Commission
   (Case F-74/07 RENV) (1)

   (Civil service - Recruitment - Open competition - Failure of a candidate in the oral test - Obligation to state reasons - Rules governing the work of the selection board)
   2011/C 232/74
   Language of the case: German

      Parties

      Applicant: Stefan Meierhofer (Munich, Germany) (represented by: H.-G. Schiessl, lawyer)

      Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents)

      Re:

   Action for annulment of the decision of the selection board in competition EPSO AD/26/05 of 10 May 2007 not to include the applicant on the reserve list of that competition on the ground of his insufficient mark in the oral test.

      Operative part of the order

               1.

               There is no need to adjudicate on Mr Meierhofer's action in so far as it disputes the insufficient statement of reasons for the decision of 19 June 2007.

               2.

               The remainder of Mr Meierhofer's action is dismissed, in part as manifestly unfounded, and in part as manifestly inadmissible.

               3.

               The European Commission shall bear two thirds of the costs incurred by the applicant in the first set of proceedings before the Tribunal and its own costs relating to the first set of proceedings before the Tribunal, the proceedings before the General Court of the European Union and the present proceedings.

               4.

               The applicant shall bear one-third of his own costs relating to the first set of proceedings before the Tribunal and all his own costs relating to the proceedings before the General Court of the European Union and the present proceedings.

      (1)  OJ C 223, 22.9.2007, p. 21.


title: Case C-136/07: Action brought on 7 March 2007 — Commission of the European Communities v Kingdom of Spain

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/13

         Action brought on 7 March 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-136/07)
   (2007/C 117/20)
   Language of the case: Spanish
   Parties

      Applicant(s): Commission of the European Communities (represented by: H. Støvlbæk and R. Vidal Puig, agents)

      Defendant(s): Kingdom of Spain
   Form of order sought

               —

               Declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 89/48/EEC (1) of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, and under Council Directive 92/51/EEC (2) of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC, in relation to the taking up of the profession of air traffic controller.

               —

               order Kingdom of Spain to pay the costs.

         Pleas in law and main arguments

               (1)

               Directive 89/48/EEC is applicable to the taking up and pursuit of the profession of air traffic controller in Spain given that

                           —

                           the set of diplomas, licences and ratings necessary to the pursuit of the profession of ‘air traffic controller ’in Spain is a ‘diploma ’within the meaning of Directive 89/48/EEC;

                           —

                           the profession of air traffic controller is a ‘regulated profession ’in Spain within the meaning of Directive 89/48/EEC.

               (2)

               Notwithstanding the above, the Kingdom of Spain has not adopted the measures necessary to implement Directive 89/48/EEC in relation to the profession of air traffic controller.

               (3)

               The Commission considers that the Kingdom of Spain has also failed to fulfil its obligations under Directive 92/51/EEC in that

                           —

                           Directive 92/51/EEC is applicable to the profession of air traffic controller; and

                           —

                           The Kingdom of Spain has not adopted the measures necessary to implement Directive 92/51/EEC in relation to the profession of air traffic controller.

               (4)

               Directive 2006/23/EC (3) of the European Parliament and of the Council of 5 April 2006 on a Community air traffic controller licence establishes a system of mutual recognition of air traffic controller licences issued in accordance with that directive. However, the specified period within which Member States must comply with that directive does not expire until 17 May 2008. Consequently, until that date Directives 89/48/EEC and 92/51/EEC continue to apply in relation to the taking up and pursuit of the profession of air traffic controller in Spain.

      (1)  OJ 1989 L 19, p. 16.

      (2)  OJ 1992 L 209, p. 25.

      (3)  OJ 2006 L 114, p. 22.


title: Case C-53/08: Action brought on 12 February 2008 — Commission of the European Communities v Republic of Austria

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/15

         Action brought on 12 February 2008 — Commission of the European Communities v Republic of Austria
   (Case C-53/08)
   (2008/C 107/23)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: G. Braun und H. Støvlbæk, Agents)

      Defendant: Republic of Austria
   Form of order sought

               —

               declare that, by making access to the profession of notary conditional on possession of Austrian nationality, in Paragraph 6(1) of the Notariatsordnung (Code on notaries), the Republic of Austria has infringed Articles 43 and 45 EC;

               —

               declare that, by failing to transpose Directive 89/48/EC (or Directive 2005/36/EC) in respect of the profession of notary, the Republic of Austria has infringed that directive and Articles 43 and 45 EC;

               —

               order the Republic of Austria to pay the costs.

         Pleas in law and main arguments
   Article 43 EC prohibits any discrimination based on nationality which results from legislation in the form of restrictions on freedom of establishment. Pursuant to the first paragraph of Article 45 EC, the chapter on the right of establishment does not apply to activities which in a Member State are connected, even occasionally, with the exercise of official authority.
   Pursuant to the Notariatsordnung only Austrian nationals may be appointed notaries in Austria. The provision in question therefore discriminates on the basis of nationality and infringes the freedom of establishment of nationals of other Member States, by preventing them from exercising the profession of notary.
   The Commission takes the view that the activities of notaries do not fall within the exception of Article 45 EC so that freedom of establishment is applicable to that profession.
   In order to reply to the question of what ‘official authority’ means for the purposes of Article 45 EC, reference should be made, first, to the interpretation at national level. Activities which, in one Member State, do not fall within the sphere of official authority cannot be relied upon for the purposes of the exception, even if the same activities fall within the sphere of official authority in other Member States. Second, for the interpretation within the meaning of Article 45 EC, the concept and scope of official authority must be determined from the point of view of Community law and its meaning must be interpreted by the Court in an independent and uniform manner. The fact that the Austrian legislature and the Austrian courts regard activities of notaries in principle as participation in national official authority does not mean that those activities may therefore be excluded from freedom of establishment according to the stricter Community law assessment. As an exception to a fundamental freedom, the first paragraph of Article 45 EC must be interpreted restrictively.
   In the current state of integration, it is extremely difficult to find a substantive justification for the nationality condition in relation to the activities of notaries. None of those activities, even if they are of a sovereign nature, requires the relationship of a particular connection with the State, as in the case of nationality. In addition, none of those activities risks, through the exercise of sovereign authority and the deployment of State powers, creating conflicts with nationals.
   The activities put forward by the Republic of Austria for the justification of the nationality requirement — authentication of legal transactions and agreements, the insertion of an enforcement clause, legal advice and the activity of the ‘Gerichtskommissar’ (notary appointed by the court to carry out certain procedural acts) — are not sufficient to justify the application of Article 45 EC. In so far as those activities actually participate in the exercise of official authority, they do so only in an indirect manner. The exercise of official authority should moreover not be confused with activities in the public interest. Public benefit does not necessarily form part of official authority; activities which seek to promote the general interest and not the interest of individuals do not necessarily presuppose the transfer of official authority. Whilst the actual exercise of official authority may continue to be reserved for a Member State's own nationals, the exercise of a given activity in the general interest which, for example, is the case in respect of the administration of justice for preventive purposes may also be guaranteed by making access to the profession and the professional duties subject to specific rules and control.
   The Commission therefore takes the view that none of the activities, considered separately or altogether, with which notaries in Austria are concerned, constitutes direct and specific participation in the exercise of official authority within the meaning of the case-law.


title: Case T-451/08: Judgment of the General Court of 12 April 2013 — Stim v Commission (Competition — Agreements, decisions and concerted practices — Copyright relating to public performance of musical works via the internet, satellite and cable retransmission — Decision finding an infringement of Article 81 EC — Sharing of the geographic market — Bilateral agreements between national collecting societies — Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences — Article 151(4) EC — Cultural diversity)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/37

         Judgment of the General Court of 12 April 2013 — Stim v Commission
   (Case T-451/08) (1)

   (Competition - Agreements, decisions and concerted practices - Copyright relating to public performance of musical works via the internet, satellite and cable retransmission - Decision finding an infringement of Article 81 EC - Sharing of the geographic market - Bilateral agreements between national collecting societies - Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences - Article 151(4) EC - Cultural diversity)
   2013/C 156/65
   Language of the case: English

      Parties

      Applicant: Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim) (Stockholm, Sweden) (represented by: C. Thomas, Solicitor, and N. Pourbaix, lawyer)

      Defendant: European Commission (represented by: F. Castillo de la Torre and V. Bottka, acting as Agents)

      Re:

   Application for annulment in part of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim) to pay the costs.

      (1)  OJ C 313, 6.12.2008.


title: Case C-12/10: Judgment of the Court (Seventh Chamber) of 22 December 2010 (reference for a preliminary ruling from the Finanzgericht Düsseldorf, Germany) — Lecson Elektromobile GmbH v Hauptzollamt Dortmund (Common Customs Tariff — Tariff classification — Combined Nomenclature — Section XVII — Transport equipment — Chapter 87 — ‘Vehicles other than railway or tramway rolling stock, and parts and accessories thereof’ — Headings 8703 and 8713 — Three or four-wheeled electric vehicles designed for the transport of one person, reaching a maximum speed of 6 to 15 km/h and having a separate, adjustable steering column, known as ‘electric mobility scooters’ )

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/11

         Judgment of the Court (Seventh Chamber) of 22 December 2010 (reference for a preliminary ruling from the Finanzgericht Düsseldorf, Germany) — Lecson Elektromobile GmbH v Hauptzollamt Dortmund
   (Case C-12/10) (1)

   (Common Customs Tariff - Tariff classification - Combined Nomenclature - Section XVII - Transport equipment - Chapter 87 - ‘Vehicles other than railway or tramway rolling stock, and parts and accessories thereof’ - Headings 8703 and 8713 - Three or four-wheeled electric vehicles designed for the transport of one person, reaching a maximum speed of 6 to 15 km/h and having a separate, adjustable steering column, known as ‘electric mobility scooters’)
   2011/C 63/19
   Language of the case: German

      Referring court

   Finanzgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Lecson Elektromobile GmbH

      Defendant: Hauptzollamt Dortmund

      Re:

   Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Annex 1 to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) — Three or four-wheeled electric vehicles designed for the transport of one person and reaching a maximum speed of 6 to 15 km/h — Classification under heading 8713 or heading 8703 of the Combined Nomenclature?

      Operative part of the judgment

   Heading 8703 of the Combined Nomenclature in Annex 1 to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 must be interpreted as covering three or four-wheeled vehicles designed for the transport of one person who is not necessarily a disabled person, powered by a battery-operated electric motor, reaching a maximum speed of 6 to 15 km/h and equipped with a separate, adjustable steering column, known as electric ‘mobility scooters’, such as those at issue in the main proceedings.

      (1)  OJ C 80, 27.03.2010.


title: Case T-384/04: Action brought on 22 September 2004 by RB Square Holdings Spain S.L. against the Office for Harmonisation in the Internal Market

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/47

         Action brought on 22 September 2004 by RB Square Holdings Spain S.L. against the Office for Harmonisation in the Internal Market
   (Case T-384/04)
   (2004/C 300/91)
   Language in which the application was drafted: French
   An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 22 September 2004 by RB Square Holdings Spain S.L., established in Barcelona (Spain), represented by K. Manhaeve, lawyer, with an address for service in Luxembourg.
   Unelko N.V. was also a party to the proceedings before the Fourth Board of Appeal.
   The applicant claims that the Court should:

               —

               annul Decision R 652/2002-4 of the Fourth Board of Appeal of the Office

               —

               order the Office to pay all the costs.

         Pleas in law and main arguments:

               Applicant for the Community trade mark:

               Unelko N.V.

               Community trade mark concerned:

               figurative mark ‘clean x’ — Application No 222 471, filed for goods in Class 3 (bleaching preparations, etc.)

               Proprietor of the mark or sign asserted by way of opposition in the opposition proceedings:

               the applicant

               Trade mark or sign asserted by way of opposition:

               national word and figurative mark ‘CLEN’

               Decision of the Opposition Division:

               rejection of notice of opposition

               Decision of the Board of the Appeal:

               dismissal of the appeal

               Pleas in law:

               incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 (1)

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark – OJ L 11, 14.01.1994, pp. 1-36


title: Case C-691/15 P: Appeal brought on 17 December 2015 by European Commission against the judgment of the General Court (Fifth Chamber) delivered on 7 October 2015 in Case T-689/13: Bilbaína de Alquitranes e.a. v Commission

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/20

         Appeal brought on 17 December 2015 by European Commission against the judgment of the General Court (Fifth Chamber) delivered on 7 October 2015 in Case T-689/13: Bilbaína de Alquitranes e.a. v Commission
   (Case C-691/15 P)
   (2016/C 106/21)
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: P.J. Loewenthal, K. Talabér-Ritz, agents)

      Other parties to the proceedings: Bilbaína de Alquitranes, SA, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Koppers Netherlands BV, Rütgers basic aromatics GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o., Bawtry Carbon International Ltd, Grupo Ferroatlántica, SA, SGL Carbon GmbH, SGL Carbon GmbH, SGL Carbon, SGL Carbon, SA, SGL Carbon Polska S.A., ThyssenKrupp Steel Europe AG, Tokai erftcarbon GmbH, European Chemicals Agency (ECHA), GrafTech Iberica, SL

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Fifth Chamber) of 7 October 2015 in Case T-689/13 Bilbaína de Alquitranes e.a. v Commission EU:T:2015:767;

               —

               refer the case back to the General Court for consideration; and

               —

               reserve the costs of the present proceedings.

      Pleas in law and main arguments

   In the contested judgment, the General Court partially annulled Commission Regulation (EU) No 944/2013 (1) of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures.
   The Commission puts forward three grounds in support of its appeal of the contested judgment.
   First, the Commission alleges the General Court to have failed to fulfil its duty to state reasons under Article 36 and 53, paragraph 1, of the Statute of the Court of Justice. In the contested judgment, the General Court considers the Commission to have committed a manifest error of assessment in that, by classifying the substance pitch, coal tar, high-temp (CTPHT) on the basis of its constituents for hazard classification purposes using the summation method, it failed to comply with its obligation to take into consideration all the relevant factors and circumstances so as to take due account of the proportion in which those constituents are present in CTPHT and their chemical effects, in particular the low solubility of CTPHT as a whole. It is not clear from the contested judgment, however, whether the General Court partially annulled the regulation at issue for this reason because the Commission was wrong to apply the summation method for classification purposes, and should have applied another classification method, or because the Commission wrongly applied the summation method.
   Second, the Commission alleges the General Court to have infringed the CLP Regulation in concluding that the Commission had committed a manifest error of assessment by adopting the contested classification without considering the solubility of the substance as a whole. The first branch of this ground of appeal is based on the assumption that the General Court partially annulled the regulation at issue because it considered that the Commission was wrong to apply the summation method to classify CTPHT as hazardous to the aquatic environment, in which case the General Court infringed the CLP Regulation since the test data available on CTPHT was deemed inappropriate to classify the substance directly under the CLP Regulation. This, followed by the fact that bridging principles could not be applied, bound the Commission to use the summation method in the present case. The second branch of this ground of appeal is based on the assumption that the General Court partially annulled the regulation at issue because it considered the Commission to have misapplied the summation method, in which case the General Court infringed the CLP Regulation since that regulation does not require the solubility of the substance as a whole to be considered when applying that method.
   Third, the Commission considers the General Court to have infringed Union law by exceeding the limits of its review of the legality of the contested regulation and to have distorted the evidence upon which the regulation at issue was adopted.

      (1)  OJ L 261, p. 5


title: Case T-160/14: Judgment of the General Court of 28 February 2017 — Yingli Energy (China) and Others v Council (Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells) originating in or consigned from China — Definitive anti-dumping duty — Undertakings — Action for annulment — Interest in bringing proceedings — Admissibility — Exporting country — Scope of the investigation — Sampling — Normal value — Definition of the product concerned — Time limit for the adoption of a decision on a market economy treatment claim — Temporal application of new provisions — Injury — Causal link — Rights of the defence — Calculation of the injury margin)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/23

         Judgment of the General Court of 28 February 2017 — Yingli Energy (China) and Others v Council
   (Case T-160/14) (1)

   ((Dumping - Imports of crystalline silicon photovoltaic modules and key components (cells) originating in or consigned from China - Definitive anti-dumping duty - Undertakings - Action for annulment - Interest in bringing proceedings - Admissibility - Exporting country - Scope of the investigation - Sampling - Normal value - Definition of the product concerned - Time limit for the adoption of a decision on a market economy treatment claim - Temporal application of new provisions - Injury - Causal link - Rights of the defence - Calculation of the injury margin))
   (2017/C 121/33)
   Language of the case: English

      Parties

      Applicants: Yingli Energy (China) Co. Ltd (Baoding, China) and the 14 other applicants whose names appear in the annex to the judgment (represented initially by A. Willems, S. De Knop and J. Charles, and subsequently by A. Willems and S. De Knop, lawyers)

      Defendant: Council of the European Union (represented by: B. Driessen, acting as Agent, B. O’Connor, Solicitor, and S. Gubel, lawyer)

      Intervener in support of the defendant: European Commission (represented initially by J.-F. Brakeland, T. Maxian Rusche, and A. Stobiecka-Kuik, and subsequently by J.-F. Brakeland, T. Maxian Rusche, and A. Demeneix, acting as Agents)

      Re:

   Application under Article 263 TFEU for the annulment of Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1), in so far as it applies to the applicants.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Yingli Energy (China) Co. Ltd, and the other applicants whose names appear in the annex to bear their own costs and to pay those incurred by the Council of the European Union;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 142, 12.5.2014.


title: Case T-647/13: Action brought on 2 December 2013 — Meda v OHIM — Takeda (PANTOPREM)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/25

         Action brought on 2 December 2013 — Meda v OHIM — Takeda (PANTOPREM)
   (Case T-647/13)
   2014/C 39/44
   Language in which the application was lodged: German

      Parties

      Applicant: Meda AB (Solna, Sweden) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Takeda GmbH (Constance, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of 25 September 2013 in Case R 2171/2012-4 concerning the opposition against Community trade mark application No 9403973 ‘PANTOPREM’;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the word mark ‘PANTOPREM’ for goods in Class 5 — Community trade mark application No 9403973

      Proprietor of the mark or sign cited in the opposition proceedings: Takeda GmbH

      Mark or sign cited in opposition: the Community word marks ‘PANTOPAN’, ‘PANTOMED’, ‘PANTOPRAZ’ and ‘PANTOPRO’ and the national word mark ‘PANTOP’ for goods in Class 5

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 8(1)(b); the first sentence of Article 59; Article 64(1); Article 75; 76(1), in fine; Article 77 and Article 112(1) of Regulation (EC) No 207/2009


title: Reference for a preliminary ruling from, the Corte dei Conti - Chamber responsible for verifying acts of the Government and of State Administrations - by order of 20 March and 7 April 1998 in proceedings involving the Ministry of Public Works, the Ministry of Finance, the Budget and Economic Planning, and ANAS - Azienda Nazionale Autonoma delle Strade (now Ente Nazionale per le Strade) (Case C-192/98)

text:
25.7.98               EN                 Official Journal of the European Communities                                    C 234/15
The applicant claims that the Court should:                         Reference for a preliminary ruling from, the Corte dei
                                                                    Conti Ð Chamber responsible for verifying acts of the
                                                                    Government and of State Administrations Ð by order of
1. Declare that, by failing to adopt and bring into force           20 March and 7 April 1998 in proceedings involving the
    or, in the alternative, to communicate, within the              Ministry of Public Works, the Ministry of Finance, the
    prescribed period the laws, regulations and                     Budget and Economic Planning, and ANAS Ð Azienda
    administrative provisions necessary to comply with              Nazionale Autonoma delle Strade (now Ente Nazionale
    Council Directive 92/101/EEC (1) of 23 November                                           per le Strade)
    1992 amending Directive 77/91/EEC (2) on the
                                                                                (Case C-192/98)
    formation of public limited-liability companies and the
    maintenance and alteration of their capital, the Grand                                   (98/C 234/29)
    Duchy of Luxembourg has failed to fulfil its
    obligations under Articles 5 and 189 of the EC Treaty;          Reference has been made to the Court of Justice of the
    and                                                             European Communities by an order of the Corte dei Conti
                                                                    (Italian Court of Auditors) Ð Chamber responsible for
                                                                    verifying acts of the Government and of State
2. Order the defendant to pay the costs.                            Administrations Ð of 20 March and 7 April 1998, which
                                                                    was received at the Court Registry on 19 May 1998, for a
Pleas in law and main arguments adduced in support:                 preliminary ruling in proceedings involving the Ministry of
                                                                    Public Works, the Ministry of Finance, the Budget and
                                                                    Economic Planning, and ANAS (Azienda Nazionale
The mandatory nature of the provisions of the third                 Autonoma delle Strade Ð Autonomous National
paragraph of Article 189 and the first paragraph of                 Highways Agency) (now Ente Nazionale per le Strade), on
Article 5 of the EC Treaty requires Member States to                the following questions:
adopt the measures necessary to transpose directives
addressed to them into their domestic law before the                1. Whether the particular features of Council Directive
expiry of the period prescribed for doing so. That period                92/50/EEC (1) of 18 June 1992 relating to the
expired on 1 January 1994 without the Grand Duchy of                     coordination of procedures for the award of public
Luxembourg having brought into force the necessary                       service contracts Ð which, as is known, provides for a
provisions.                                                              transitional period for its full application (21st recital
                                                                         in its preamble), for the utilization of two series of
                                                                         provisions, depending on whether the services
(1) OJ L 347 of 28.11.1991, p. 64.
                                                                         concerned are those listed in Annex IA or in Annex IB
(2) OJ L 26 of 30.1.1977, p. 1.
                                                                         (Articles 8 and 9), and for a procedure for review
                                                                         (within three years) of the results achieved, with a
                                                                         view to making the Directive fully applicable to a
                                                                         wider range of service contracts' (27th recital and
                                                                         Article 43) Ð are such as to preclude or render more
                                                                         difficult its immediate applicability in domestic law (as
Reference for a preliminary ruling by the Oberlandes-                    from 1 July 1993) in the absence of a formal measure
gericht Linz by order of that court of 15 April 1998 in the              adopted by the Member State to transpose it;
case of Volker Graf against Filzmoser Maschinenbau
                             GmbH                                   2. Whether or not Ð if the first question is answered in
                                                                         the negative Ð the provisions of the abovementioned
                       (Case C-190/98)                                   directive (services covered by Article 8) are applicable
                        (98/C 234/28)                                    to the ANAS (Azienda Nazionale Autonoma delle
                                                                         Strade Ð Autonomous National Highways Agency) as
                                                                         regards the fulfilment or otherwise of the requirements
                                                                         of Community law for it to be regarded as a
Reference has been made to the Court of Justice of the
                                                                         contracting authority' within the meaning of
European Communities by order of the Oberlandesgericht
                                                                         Article 1(b) of the abovementioned directive;
Linz (Higher Regional Court, Linz) of 15 April 1998,
received at the Court Registry on 19 April 1998, for a
                                                                    3. Whether, if the foregoing question is answered in the
preliminary ruling in the case of Volker Graf against
                                                                         affirmative, the application of Directive 92/50/EEC Ð
Filzmoser Maschinenbau GmbH on the following
                                                                         which does not appear to be a matter of any doubt
question:
                                                                         regarding the loan agreement concluded with the
                                                                         group of Italian banks to raise the fourth and last
Does Article 48 of the EC Treaty preclude national                       tranche of the LIT 8 000 billion loan authorised by
provisions under which an employee who is a national of                  Law No 405/90 Ð must be recognised also with
a Member State is not entitled to compensation on                        respect to the agreement between ANAS and Nomura
termination of his employment relationship simply because                International Plc raising LIT 2 000 billion (third
he himself gave notice terminating that relationship in                  tranche) by means of a bond loan based on the issue
order to take up employment in another Member State?                     of variable-rate Eurobonds denominated in US dollars,
                                                                         having regard to the fact that the 13th recital in the
                                                                         preamble and Article 2(a)(viii) [sic] (2) of the
                                                                         abovementioned directive exclude from bank services
 ---pagebreak--- C 234/16                EN                   Official Journal of the European Communities                                         25.7.98
     (mentioned in category 6 of Annex IA) contracts for               Does the amount of the charge payable under Article 8(1)
     financial services in connection with the issue, sale,             of the Agreement depend solely on the number of axles
     purchase or transfer of securities or other financial              fitted to the motor vehicle or articulated vehicle
     instruments'.                                                      combination in question, regardless of the distance
                                                                        between them and irrespective of whether an axle is used
(1) OJ L 209 of 24.7.1992, p. 1.                                        or raised during the journey, or are tandem axles/raisable
(2) Translator's note: it would appear, from the words quoted,          axles to be left out of account in calculating the charge?
    that the provision referred to is actually Article 1(b)(vii), not
    Article 2(a)(viii).                                                 (1) Concerning the interpretation of Article 8(1) of the Agreement
                                                                            of 9 February 1994 on the levying of charges for the use of
                                                                            certain roads by heavy commercial vehicles (Bundesgesetzblatt
                                                                            [Federal Gazette], Part II, p. 1768).
Reference for a preliminary ruling from the Oberlandes-
gericht Köln, by order of that court of 8 May 1998 in
proceedings concerning an administrative fine imposed on
                        Alois Pfennigmann                               Reference for a preliminary ruling from the Oberster
                         (Case C-193/98)                                Gerichtshof by order of that court of 30 April 1998 in the
                                                                        case of Österreichischer Gewerkschaftsbund, Gewerkschaft
                          (98/C 234/30)
                                                                                öffentlicher Dienst v Republic of Austria
Reference has been made to the Court of Justice of the                                           (Case C-195/98)
European Communities by order of the Oberlandesgericht                                            (98/C 234/32)
Köln (Higher Regional Court, Cologne) of 8 May 1998,
received at the Court Registry on 20 May 1998, for a                    Reference has been made to the Court of Justice of the
preliminary ruling in the proceedings concerning an                     European Communities by an order of the Oberster
administrative fine imposed on Alois Pfennigmann, on the                Gerichtshof (Austrian Supreme Court) of 30 April 1998,
following question (1):                                                 which was received at the Court Registry on 20 May
                                                                        1998, for a preliminary ruling in the case of
Is the answer to the question whether a motor vehicle or
                                                                        Österreichischer        Gewerkschaftsbund,          Gewerkschaft
articulated vehicle combination within the meaning of                   öffentlicher Dienst v Republic of Austria on the following
Article 2(1) of the Agreement in conjunction with the
                                                                        questions:
fourth indent of Article 2 of Council Directive 93/89/
EEC (2) is intended exclusively for the carriage of goods by            1. May a preliminary ruling of the Court of Justice of the
road conditional on the time at which, and the manner in                     European Communities under Article 177 of the EC
which, it is used, or does the answer to that question                       Treaty be sought in proceedings in which the Oberster
depend Ð irrespective of the purpose for which such a                        Gerichtshof has to decide, as a court of first and final
vehicle or combination is used in an individual case Ð on                    instance, on the basis of a factual situation
whether the general purpose for which the use of that                        independent of particular named persons, alleged by
vehicle or combination is intended is the carriage of goods                  one party and presumed to be true, on an application
by road?                                                                     by that party for a declaration that rights or legal
                                                                             relationships in the field of employment law, which
(1) Concerning the interpretation of Article 2(1) of the Agreement           according to the submissions of that party, which are
    of 9 February 1994 on the levying of charges for the use of
                                                                             presumed to be true, are of importance for at least
    certain roads by heavy commercial vehicles (Bundesgesetzblatt
    [Federal Gazette], Part II, p. 1768).                                    three employers or employees, do or do not exist?
(2) OJ L 279 of 12.11.1993, p. 32.
                                                                             If Question 1 is answered in the affirmative,
                                                                        2. Does Article 48 of the EC Treaty or any other
                                                                             provision of Community law, in particular Article 7 of
                                                                             Council Regulation No 1612/68 (1), preclude the
Reference for a preliminary ruling from the Oberlandes-                      material date of advancement for classification in the
gericht Köln, by order of that court of 8 May 1998 in                        relevant pay scheme of contractual teachers and
proceedings concerning an administrative fine imposed on                     contractual teaching assistants employed by the
                         Eckard Pörschke                                     respondent from being determined differently, in that
                                                                             the periods completed by such persons in employment,
                         (Case C-194/98)
                                                                             to at least one half of the extent prescribed for full-
                          (98/C 234/31)                                      time employees, in the service of an Austrian local
                                                                             authority or in a teaching post at an Austrian public
Reference has been made to the Court of Justice of the                       school, university, college or academy of the visual
European Communities by order of the Oberlandesgericht                       arts or at an Austrian publicly recognised private
Köln (Higher Regional Court, Cologne) of 8 May 1998,                         school are treated as preceding in full the date on
received at the Court Registry on 20 May 1998, for a                         which those persons were engaged, whereas periods
preliminary ruling in the proceedings concerning an                          completed at comparable institutions of Member
administrative fine imposed on Eckard Pörschke, on the                       States are taken into account only with the consent of
following question (1):                                                      the Federal Minister for Financial Affairs, in full if


title: Case T-256/09: Order of the General Court of 12 April 2010 — Aecops v Commission

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/51

         Order of the General Court of 12 April 2010 — Aecops v Commission
   (Case T-256/09) (1)

   2010/C 148/88

      Language of the case: Portuguese

   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 220, 12.9.2009.


title: Action brought on 11 August 1995 by Eridania Zuccherifici Nazionali SpA and others against the Council of the European Communities (Case T-158/95)

text:
 11.11.95            lENl                    Official Journal of the European Communities                                 No C 299/ 15
      Removal from the register of Case C-403 /93 ( 1 )                 C-403/93 ( reference for a preliminary ruling from the
                           W/C 299/25 )                                 Regional Office of the Industrial Tribunals , London South ):
                                                                        M. J. C. 1 \ ans and the Executors of Priscilla Jane Evans v.
 By order of 15 September 1995 the President of the Sixth               Metropolitan Police Authority .
 Chamber of the Court of Justice of the European
 Communities ordered the removal from the register of Case              (') ()) No C 29.5 , 29 . 10 . 1993 .
                                                      COURT OF FIRST INSTANCI
Action brought on 11 August 1995 by Eridania Zuccherifici                   Regulation ( EEC ) No 1785/81 of 30 June 1981 and
Nazionali SpA and others against the Council of the                         successive amendments thereto , at least as regards
                    European Communities                                    Article 8 thereof, where it provides that the
                        ( Case T- 15 8 /95 )                                reimbursement in question is to be the same for the
                          ( 95/C 299/26 )
                                                                            whole Community ( Whilst the unlawfulness of that
                                                                            prov ision might be mitigated by the presence at the same
                                                                            time of the principle contained in Article 46 ( 4 ), such
                ( Language of the case: Italian)                            unlawfulness is manifest where even that modest
                                                                            corrective provision is absent ),
An action against the Council of the European Communities
was brought before the Court of First Instance of the
                                                                       — make any such further ruling as may be necessary in the
European Communities on 11 August 1995 by Eridania                          circumstances ,
Zuccherifici Nazionali SpA, with its registered office in
Genoa , and Industria Saccarifera Italiana Agroindustriale
SpA , with its registered office in Padua ( the                        — award costs in favour of the applicants .
Eridania-Zuccherifici Nazionali SpA Group ); Societa
Sadam      Zuccherifici ,    a  division   of   Societa   Esercizi
Commerciali Industriali SpA, Societa Sadam Castiglionese               Pleas in law and main arguments adduced in support:
SpA and Societa Sadam Abruzzo SpA , all registered in
Bologna , and Societa Zuccherificio del Molise SpA, with its
registered office in Termoli ( the Sadam Zuccherifici Group );         A number of Italian sugar companies challenge the new
Societa Eondiaria Industriale Romagnola SpA , with its                 Community rules on compensation for sugar storage costs
registered office in Cesena , and Societa Ponteco Zuccheri             laid down by Regulations ( EC]) No 1101 /95 and ( EC )
SpA , with its registered office in Pontelagoscuro ( the SEIR          No 1534/95 , at least in so far as they fail to differentiate the
Group ), represented by Bernard O'Connor, Solicitor of the             amounts of compensatory reimbursement payable by
High Court of Ireland , and by Ivano Vigliotti and Paolo               reference to the financing costs affecting the sugar
                                                                       manufacturers of each Member State .
Crocetta , of the Genoa Bar , with and address for service
in Luxembourg at the Chambers of Arsene Kronshagen ,
12 Boulevard de la Loire .                                             It should be noted in that respect that, in order to avoid a
                                                                       manifestly unlawful result arising from the granting of the
The applicants claim that the Court should :                           same reimbursement to every Community manufacturer
                                                                       without reference to the different financing costs affecting
— annul Regulation ( EC ) No 1 101 /95 of 24 April 1995 , at           eacht of them . Regulation ( EEC ]) No 1785 / 81 contained a
    least in so far as , in amending Regulation ( EEC])                provision in Article 46 ( 4 ), always repeated in subsequent
    No 1785/81 , it does not provide for differentiation of            amendments , whereby ' the Italian Republic shall be
    the compensatory reimbursement for storage costs by               authorized , when the interest rate granted in Italy to the
    reference to the financing costs affecting the sugar               most solvent applicant is higher, by 3 % or more , than the
    manufacturers of each country ,                                    interest rate used to calculate the reimbursement ( by way of
                                                                       compensation for storage costs ), to cover the effect of this
— annul Regulation ( EC]) No 1534/95 of 29 June 1995 , or              difference on the storage costs by a national aid '. That
    in any event Article 4 thereof, which fixes the amount of          remedy , which was in itself inadequate inasmuch as it
    the reimbursement for the 1995/96 marketing year                   imposed an unjustified threshold of 3% and in any event
    referred to in Article 8 of Regulation ( EEC ]) No 1785/8 1        constituted not a guarantee of higher reimbursement but
    at a single measure without reference to the interest rates        merely the possibility that the Italian Republic might grant
    prevailing in each Member State ,                                  an aid , no longer appears in the new rules which are in
                                                                       dispute . Under the new rules , such reimbursement is fixed
— annul , so far as may be necessary, all other measures in            by reference to an interest rate of 6,75 % , with no provision
    relation to the above/mentioned , whether prior ,                  for differentiation by reference to the financing costs
    subsequent or howsoever connected , including                      affecting sugar manufacturers in each country .
 ---pagebreak--- No C 299/ 1 6         EN                  Official Journal of the European Communities                                      11 . 11 . 95
That      legislative   omission     unjustifiably    penalizes      Pleas in law and main arguments adduced in support:
manufacturers in those countries where the real rate of
financing costs is higher than 6,75% , and particularly              The pleas in law and main arguments are the same as those
Italian manufacturers, since in Italy the interest rate in           in Case T-20/ 94 .
question is 11,65% .
In the applicants' submission, the new Community rules
manifestly infringe :
                                                                     Action brought on 5 September 1995 by Eridania
                                                                     Zuccherifici Nazionali SpA and others against the Council
— Article 40 of the EEC Treaty , which excludes any                                       of the European Union
     discrimination between producers or consumers within                                     ( Case T-168/95 )
     the Community, and
                                                                                ( 95 /C 299/28 )
— Articles 30 and 34 of the EEC Treaty, since the
                                                                                (Language of the case: Italian)
     mechanism in question places unjustified obstacles to
     applying free market principles to Italian producers . The
     distortion in question increases the competitiveness of         An action against the Council of the European Union was
     foreign products on the Italian market while decreasing         brought before the Court of First Instance of the European
     that of Italian products on other Community                     Communities on 5 September 1 995 by Eridania Zuccherifici
     markets .                                                       Nazionali SpA , with its registered office in Genoa , and
                                                                     Industria Saccarifera Italiana Agroindustriale SpA , with its
                                                                     registered office in Padua ( the Eridania-Zuccherifici
                                                                     Nazionali SpA Group ); Societa Sadam Zuccherifici , a
                                                                     division of Societa Esercizi Commerciali Industriali SpA,
                                                                     Societa Sadam Castiglionese SpA and Societa Sadam
                                                                     Abruzzo SpA, all registered in Bologna , and Societa
                                                                     Zuccherifico del Molise SpA, with its registered office in
                                                                     Termoli ( the Sadam Zuccherifici Group ); Societa Fondiaria
Action brought on 22 August 1995 by Hubertus Freiherr                Industriale Romagnola SpA, with its registered office in
von Marschalck against the Council of the European Union             Gesena , and Societa Ponteco Zuccheri SpA, with its
     and the Commission of the European Communities                  registered office in Pontelagoscuro ( the SFIR Group ),
                                                                     represented by Bernard O'Connor, Solicitor of the High
                       ( Case T-162/95 )                             Court of Ireland , and by Ivano Vigliotti and Paolo Crocetta,
                         ( 95/C 299/27 )                             of the Genoa Bar, with an adress for service in Luxembourg
                                                                     at the Chambers of Arsene Kronshagen , 12 Boulevard de la
                                                                     Foire .
               (Language of the Case: German)
                                                                     The applicants claim that the Court should :
An action against the Council of the European Union and              — annul Council Regulation ( EC ) No 1534/95 of 29 June
the Commission of the European Communities was brought                    1995 fixing, for the 1 995/96 marketing year, the derived
before the Court of First Instance of the European                       intervention prices for white sugar , the intervention
Communities on 22 August 1995 by Hubertus Freiherr von                   price for raw sugar, the minimum prices for A and B
Marschalck, represented by Bernd Meisterernst, Mechtild                  beet, and the amount of compensation for storage costs
Düsing, Dietrich Manstetten, Dr Frank Schulze and                        ( OJ 1995 L 148 , p. 1 1 ); or in any event annul Article 1 ( f)
Dr Winfried Haneklaus, Rechtsanwälte , Münster, with an                  thereof, fixing the derived intervention price for white
address for service in Luxembourg at the Chambers of                     sugar for all the areas in Italy,
Dupong & Associés, 14a Rue des Bains .
                                                                     — annul       all   other     measures      in relation    to    the
                                                                         abovementioned, whether prior, subsequent or
The applicant claims that the Court should :                              howsoever connected , including Council Regulation
                                                                          ( EEC ) No 1785/81 of 30 June 1981 and successive
                                                                         amendments thereto , concerning the common
 1 . order the defendants to pay the applicant milk                      organization of the markets in the sugar sector, or in
      quota compensation ( SLOM-II ) pursuant to Council                  any event annul Articles 3 , 5 and 6 thereof and all
      Regulation No 2187/93 of 22 July 1993 for the period                implementing measures,
      from 2 April 1984 to 15 June 1991 , amounting to
      DM 75 634,65 , together with 8 % interest from 1 9 May         — award costs in favour of the applicants .
      1992 , and to pay the costs of the proceedings,
                                                                     Pleas in law and main arguments adduced in support:
2 . join the present case to Case T-77/93 Hülseberg and
      Others v. Council and Commission and likewise stay the         A number of Italian sugar-manufacturing companies, which
      proceedings .                                                  form groups within the meaning of Article 9 of Regulation


title: Case C-245/05: Reference for a preliminary ruling from the Finanzgericht Dusseldorf by order of that court of 6 June 2005 in Metro International GmbH v Hauptzollamt Dusseldorf

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/10

         Reference for a preliminary ruling from the Finanzgericht Dusseldorf by order of that court of 6 June 2005 in Metro International GmbH v Hauptzollamt Dusseldorf
   (Case C-245/05)
   (2005/C 205/18)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Dusseldorf of 6 June 2005, received at the Court Registry on 10 June 2005, for a preliminary ruling in the proceedings between Metro International GmbH and Hauptzollamt Dusseldorf on the following question:
   Is Council Regulation (EC) No 2398/97 invalid since the application of the practice of ‘zeroing’ in determining weighted average dumping margins (1) is referred to neither in the recitals to Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan nor in the recitals to the preceding measure, that is to say Commission Regulation (EC) No 1069/97 of 12 June 1997 imposing a provisional anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan?

      (1)  OJ 1997 L 332, p. 1.


title: Action brought on 1 July 1996 by the Commission of the European Communities against the Hellenic Republic (Case C-226/96)

text:
14 . 9 . 96        1 EN                    Official Journal of the European Communities                                    No C 269/7
Action brought on 1 July 1996 by the Commission of the                      provisions necessary to comply with Council Directive
   European Communities against the Hellenic Republic                       92/65/EEC ( 1 ) of 13 July 1992 laying down animal
                        ( Case C-226/96 )                                   health requirements governing trade in and imports into
                                                                            the Community of animals, semen , ova and embryos not
                          ( 96/C 269/ 17
                                                                            subject to animal health requirements laid down in
                                                                            specific Community rules referred to in Annex A ( I ) to
An action against the Hellenic Republic was brought before                  Directive 90/425/EEC ( 2 ), the Hellenic Republic is in
the Court of Justice of the European Communities on 1 July                  breach of its obligations under the Treaty and that
1996 by the Commission of the European Communities,                         Directive ,
represented by Maria Kontou-Durande and Carmel
O'Reilly, of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gomez de la Cruz, also             — order the Hellenic Republic to pay the costs .
of the Commission 's Legal Service, Wagner Centre,
Kirchberg.
                                                                      Pleas in law and main arguments adduced in support:
The applicant claims that the Court should :
                                                                      Under the third paragraph of Article 189 of the Treaty
— declare that, by failing to adopt, or communicate to the            establishing the European Community, a directive is to be
     Commission, within the period prescribed, the laws,              binding, as to the result to be achieved, upon each Member
    regulations or administrative provisions necessary to             State to which it is addressed . Under the first paragraph of
    comply with Council Directive 90/314/EEC of 13 June               Article 5 of the Treaty, the Member States are to take all
     1990 on package travel , package holidays and package            appropriate measures, whether general or particular, to
    tours ('), the Hellenic Republic is in breach of its              ensure fulfilment of the obligations arising out of the Treaty
    obligations under the Treaty and that Directive,                  or resulting from action taken by the institutions of the
                                                                      Community . Hitherto the Hellenic Republic has not
— order the Hellenic Republic to pay the costs .                      informed the Commission of the adoption of the laws,
                                                                      regulations or administrative provisions adapting Greek
Pleas in law and main arguments adduced in support:                   legislation to the Directive in question .
Under the third paragraph of Article 189 of the Treaty
establishing the European Community, a directive is to be             (') OJ No L 268 , 14 . 9 . 1992 , p . 54 .
binding, as to the result to be achieved , upon each Member           ( 2 ) OJ No L 224 , 18 . 8 . 1990 , p . 29 .
State to which it is addressed . Under the first paragraph of
Article 5 of the Treaty, the Member States are to take all
appropriate measures , whether general or particular , to
ensure fulfilment of the obligations arising out of the Treaty
or resulting from action taken by the institutions of the
Community. Hitherto the Hellenic Republic has not
informed the Commission of the adoption of the laws ,
regulations or administrative provisions adapting Greek               Reference for a preliminary ruling by the Ufficio del Giudice
legislation to the Directive in question .                            Conciliatore di Milano by order of that court of 25 June
                                                                      1996 in the case of Aprile SRL against Amministrazione
(') OJ No L 158 , 23 . 6 . 1990 , p . 59 .                                                         delle Finanze
                                                                                ( Case C-228/96 )
                                                                                96/C 269/ 19 )
Action brought on 1 July 1996 by the Commission of the                Reference has been made to the Court of Justice of the
   European Communities against the Hellenic Republic                 European Communities by order of Ufficio del Giudice
                          Case C-227/96                               Conciliatore di Milano ( Office of the Judge-Conciliator,
                                                                      Milan ) on the following questions :
                          ( 96/C 269/ 18 )
An action against the Hellenic Republic was brought before             1 . Do the principles of legal certainty , effective protection
the Court of Justice of the European Communities on 1 July                  of rights arising under Community law and
19 96 by the Commission of the European Communities,                        non-discrimination as regards the protection in damages
represented by Maria Kontou-Durande, of its Legal Service ,                 of the aforesaid rights ( according to which the
with an address for service in Luxembourg at the office of                  procedural conditions of domestic law must not be less
Carlos Gomez de la Cruz, also of the Commission 's Legal                    favourable and , in any event, must not make it
Service, Wagner Centre, Kirchberg .                                         excessively difficult to exercise such rights ), as
                                                                            formulated in the case-law of the Court of Justice ,
The applicant claims that the Court should :                                preclude the introduction of national rules , such as those
                                                                            laid down in the first paragraph of Article 29 of Law
— declare that, by failing to adopt within the period                       No 428 of 29 December 1990 , which , whilst it is
    prescribed , the laws, regulations or administrative                    apparently formulated as an interpretative provision


title: Case T-28/02: Action brought on 4 February 2002 by First Data Corporation, FDR Limited and First Data Merchant Services Corporation against the Commission of the European Communities

text:
C 109/54                EN                     Official Journal of the European Communities                                       4.5.2002
—     order the defendant to pay the costs, expenses and fees.            company that wishes to acquire merchants, i.e. process
                                                                          payments made with a credit card by customers at those
                                                                          merchants’ businesses, must first issue a certain number of
                                                                          credit cards to customers. The applicants specialise in acquiring
Pleas in law and main arguments                                           activities.
The applicant claims that she has suffered non-material                   According to the applicants, the contested decision violates
damage on account of a breach of the principle of sound                   the EC Treaty and the EEA Agreement.
administration and failure to act in good faith and to fulfil the
duty of cooperation as regards the drawing up of her
consecutive staff reports. In addition, according to the appli-           Firstly, the applicants state that the decision lacks adequate
cant, those faults have been repeated time and again and testify          reasoning on why the rule in question does not constitute a
to a vexatious attitude.                                                  significant barrier to trade.
                                                                          The applicants also claim that the Commission erred in law
                                                                          when substituting reasoning under Article 81(3) EC Treaty for
                                                                          reasoning under Article 81(1) EC Treaty. According to the
                                                                          applicants, the pro-competitive and anti-competitive effects of
                                                                          a restriction on competition can only be assessed under
Action brought on 4 February 2002 by First Data Corpor-                   Article 81(3) EC Treaty. In the contested Decision, however,
ation, FDR Limited and First Data Merchant Services                       the Commission seems to argue that the rule in question falls
Corporation against the Commission of the European                        outside the scope of Article 81(1) EC Treaty since its benefits
                            Communities                                   outweigh the restriction on competition. This type of reasoning
                                                                          can, according to the applicants, only be applied under
                           (Case T-28/02)                                 Article 81(3) EC Treaty.
                         (2002/C 109/104)                                 Finally, the applicants claim that the rule in question does
                                                                          restrict competition. The consequence of the rule is that, in
                    (Language of the case: English)                       order to start acquiring activities, a company must first build
                                                                          up banking activities to be able to issue cards to customers.
                                                                          This is, according to the applicants, a barrier to entry into the
                                                                          market of acquiring activities. Furthermore, the applicants
An action against the Commission of the European Communi-                 point out that the application of this rule is unclear, since the
ties was brought before the Court of First Instance of the                number of cards to be issued is dependent on undefined
European Communities on 4 February 2002 by First Data                     criteria. According to the applicants, the Commission should
Corporation, FDR Limited and First Data Merchant Services                 have conducted an investigation on whether this rule is applied
Corporation, represented by Mr Pierre Bos and Mr Morten                   in a uniform and non-discriminatory way.
Nissen of Dorsey & Whitney LLP, Brussels (Belgium).
The applicants claim that the Court should:
—     annul the Commission’s Decision dated 9 August 2001
      relating to proceedings under Article 81 of the EC
      Treaty and Article 53 of the EEA Agreement (Case                    Action brought on 13 February 2002 by Wolfgang
      No COMP/29.373 — Visa International) as regards                              Leonhardt against the European Parliament
      Article 1, fifth indent;
                                                                                (Case T-30/02)
—     order that the Commission pay the costs incurred by the
      applicants in the present proceedings.
                                                                                (2002/C 109/105)
Pleas in law and main arguments                                                              (Language of the case: French)
The applicants contest the Decision of the Commission that
the ‘no-acquiring-without-issuing rule’ of the Visa Corporation           An action against the European Parliament was brought before
is not an appreciable restriction on trade and therefore falls            the Court of First Instance of the European Communities on
outside the scope of Article 81(1) of the EC Treaty and                   13 February 2002 by Wolfgang Leonhardt, residing in La
Article 53 of the EEA Agreement. This rule requires that a                Hulpe (Belgium), represented by H. Tagaras, avocat.