title: Action brought on 16 April 1997 by Richardus Ritterbeeks against the Commission of the European Communities (Case T-118/97)

text:
26 . 7 . 97           EN                  Official Journal of the European Communities                                  No C 228/ 15
     ORDER OF THE COURT OF FIRST INSTANCE                            Garcia-Valdecasas, President, J. Azizi and M. Jaeger,
                       of 28 May 1997                                Judges; H. Jung, Registrar, has made an order on 3 June
                                                                     1997, the operative part of which is as follows:
in Case T-145/95 : Proderec — Formação e Desenvolvi
mento de Recursos Humanos, ACE v. Commission of the                  1 . There is no need to give a decision.
                  European Communities (')
(Action for annulment — Contested measure withdrawn                  2. The defendant shall pay the costs.
in the course of proceedings — No need to give a
                             decision)                               H OJ No C 197, 6 . 7. 1996 .
                           97/C 228/31 )
              (Language of the case: Portuguese)
In Case T-145/95 : Proderec — Forma^ao e Desenvolvi                 Action brought on 16 April 1997 by Jill Valerie Hanna
mento de Recursos Humanos, ACE, whose registered                           against the Commission of the European Communities
office is in Almada ( Portugal ), represented by Manuel                                           ( Case T-117/97)
Rodrigues, of the Lisbon Bar, against Commission of the                                              ( 97/C 228/33 )
European Communities ( Agents : initially Ana Maria Alves
Vieira and Giinter Wilms, subsequently Maria Teresa                                     (Language of the case: French)
Figueira and Knut Simonsson ) — application for the
annulment, under Article 173 of the EC Treaty, of a                  An action against the Commission of the European
 Commission decision notified to the applicant by a letter           Communities was brought before the Court of First
of 11 May 1995 amending and reducing the amount                      Instance of the European Communities on 16 April 1997
initially approved and granted by an earlier decision                by Jill Valerie Hanna, residing at Kraainem ( Belgium ),
 approving File Nos 881311 PI and 880249 P3 — the                    represented by Nicolas Lhoest, of the Brussels Bar, with an
 Court of First Instance ( Fourth Chamber), composed of K.           address for service in Luxembourg at the offices of Fidu
 Lenaerts, President, P. Lindh and J. D. Cooke, Judges; H.           ciaire Myson Sari, 30, Rue de Cessange .
Jung, Registrar, made an order on 28 May 1997, the
 operative part of which is as follows :                             The applicant claims that the Court should:
 1 . There is no need to give a decision.                            — annul the Commission's decision of 12 June 1996
                                                                             rejecting the applicant's request that it give
                                                                             consideration to the possible application of
 2 . The Commission shall pay the costs.                                     Article 31 ( 2 ) of the Staff Regulations,
 O OJ No C 268 , 14 . 10 . 1995 .                                    — annul, in so far as may be necessary, the Commission's
                                                                             decision adopted on 27 December 1996 expressly
                                                                             rejecting the applicant's complaint,
                                                                      — order the defendant to pay all the costs .
     ORDER OF THE COURT OF FIRST INSTANCE                             Pleas in law and main arguments adduced in support:
                         of 3 June 1997
                                                                      The pleas in law and main arguments are the same as in
 in Case T-58/96: Partex — Companhia Portuguesa de Ser               Case T-16/97 ( ! ).
  viços SA v. Commission of the European Communities (')
               (Case not proceeding to judgment)                      ( 5 ) OJ No C 74, 8 . 3 . 1997, p . 27.
                          ( 97/C 228/32
               (Language of the case: Portuguese)
 In Case T-58/96: Partex — Companhia Portuguesa de Ser               Action brought on 16 April 1997 by Richardus
 vi^os SA, having its registered office in Lisbon, represented        Ritterbeeks against the Commission of the European
                                                                                Communities
 by Rui Chancerelle de Machete, Pedro Machete and
 Miguel Pena Machete, of the Lisbon Bar, with an address                                           ( Case T-l 18/97 )
 for service in Luxemburg at the Chambers of Louis                                                     97/C 228/34 )
 Schiltz, 2 Rue du Fort Rheinsheim, against Commission of
 the European Communities (Agents: Francisco de Sousa                                    (Language of the case: French)
 Fialho and Knut Simonsson ) — application for the
 annulment of the decision by which the Commission                    An action against the Commission of the European
 approved the request for payment of the balance relating              Communities was brought before the Court of First
 to File 88 0412 P3 of the European Social Fund — the                  Instance of the European Communities on 16 April 1997
 Court of First Instance ( Fifth Chamber), composed of: R.             by Richardus Ritterbeeks, residing at Landgraaf
 ---pagebreak--- No C 228/ 16            EN                  Official Journal of the European Communities                                 26 . 7 . 97
(Netherlands ), represented by Nicolas Lhoest, of the                  Action brought on 16 April 1997 by Philippe Lammens
Brussels Bar, with an address for service in Luxembourg at                against the Commission of the European Communities
the offices of Fiduciaire Myson Sari, 30, Rue de Cessange.                                       ( Case T-120/97)
                                                                                ( 97/C 228/36 )
The applicant claims that the Court should:
                                                                                (Language of the case: French)
— annul the Commission's decision of 20 June 1996
    rejecting the applicant's request that it give                     An action against the Commission of the European
    consideration to the possible application of                       Communities was brought before the Court of First
    Article 31 ( 2 ) of the Staff Regulations,                         Instance of the European Communities on 16 April 1997
                                                                       by Philippe Lammens, residing at Heme ( Belgium ),
— annul, in so far as may be necessary, the Commission's               represented by Nicolas Lhoest, of the Brussels Bar, with an
    decision adopted on 27 December 1996 expressly                     address for service in Luxembourg at the offices of Fidu
    rejecting the applicant's complaint,                               ciaire Myson Sari, 30, Rue de Cessange.
— order the defendant to pay all the costs .                           The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:                    — annul the Commission's decision of 18 June 1996
                                                                            rejecting the applicant's request that it give
The pleas in law and main arguments are the same as in                      consideration to the possible application of
Case T-16/97 ( M.                                                           Article 31 ( 2 ) of the Staff Regulations,
(') OJ No C 74, 8 . 3 . 1997, p . 27.                                  — annul, in so far as may be necessary, the Commission's
                                                                            decision adopted on 27 December 1996 expressly
                                                                            rejecting the applicant's complaint,
                                                                       — order the defendant to pay all the costs.
Action brought on 16 April 1997 by Gerhard Keinhorst                   Pleas in law and main arguments adduced in support:
   against the Commission of the European Communities
                         ( Case T-l 19/97 )                            The pleas in law and main arguments are the same as in
                           ( 97/C 228/35 )                             Case T-16/97 ( l ).
                (Language of the case: French)                         (') OJ No C 74 , 8 . 3 . 1997, p. 27.
An action against the Commission of the European
 Communities was brought before the Court of First
Instance of the European Communities on 16 April 1997
 by Gerhard Keinhorst, residing at Tervuren ( Belgium ),
represented by Nicolas Lhoest, of the Brussels Bar, with an            Action brought on 22 April 1997 by Angela Pollitzer
 address for service in Luxembourg at the offices of Fidu                against the Commission of the European Communities
ciaire Myson Sari, 30, Rue de Cessange .                                                          (Case T-129/97 )
                                                                                ( 97/C 228/37)
The applicant claims that the Court should:
                                                                                (Language of the case: French)
— annul the Commission's decision of 18 June 1996
     rejecting the applicant's request that it give                    An action against the Commission of the European
     consideration to the possible application of                      Communities was brought before the Court of First
     Article 31 (2 ) of the Staff Regulations,                         Instance of the European Communities on 22 April 1997
                                                                        by Angela Pollitzer, residing at Kraainem ( Belgium ),
— annul , in so far as may be necessary, the Commission's              represented by Nicolas Lhoest, of the Brussels Bar, with an
     decision adopted on 27 December 1996 expressly                    address for service in Luxembourg at the offices of Fidu
     rejecting the applicant's complaint,                              ciaire Myson Sari, 30, Rue de Cessange.
 — order the defendant to pay all the costs.                           The applicant claims that the Court should:
 Pleas in law and main arguments adduced in support:                   — annul the Commission's decision of 20 June 1996
                                                                            rejecting the applicant's request that it give
 The pleas in law and main arguments are the same as in                     consideration to the possible application of
 Case T-l 6/9 7 ( ] ).                                                      Article 31 ( 2 ) of the Staff Regulations,
 H OJ No C 74, 8 . 3 . 1997, p . 27.                                   — annul, in so far as may be necessary, the Commission's
                                                                            decision adopted on 27 December 1996 expressly
                                                                            rejecting the applicant's complaint,


title: Case T-397/12: Action brought on 6 September 2012 — Diputación Foral de Bizkaia v Commission

text:
               20.10.2012

               EN

               Official Journal of the European Union

               C 319/15

         Action brought on 6 September 2012 — Diputación Foral de Bizkaia v Commission
   (Case T-397/12)
   2012/C 319/29
   Language of the case: Spanish

      Parties

      Applicant: Diputación Foral de Bizkaia (Spain) (represented by: I. Sáenz-Cortabarría Fernández, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Article 2 of the contested decision, in so far as it declares unlawful the aid provided for in the agreements notified on 15 April 2009 or, in the alternative, in so far as it declares unlawful the aid provided for in the notified agreement on land;

               —

               annul Articles 5 and 6 of the contested decision, in so far as the Commission based its examination of the compatibility with the Treaty, provided for in Article 108(2) TFEU, on the premiss that the aid was unlawful;

               —

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

      Pleas in law and main arguments

   The contested decision (1) qualifies as unlawful aid compatible and incompatible with the internal market, respectively, the ‘land’ agreement (Convenio sobre suelo) and the ‘housing’ agreement (Convenio sobre viviendas) entered into on 15 December 2006 between Bizkailur S.A. (public company, wholly owned by the Diputación (Regional Council)), on the one hand, and Habidite Technologies Pais Vasgo S.A., the Grupo Empresarial Afer S.L. and the Grupo Habidite, on the other, relating to the construction of a Habidite factory in Alonsótegui.
   In supports of its action, the applicant raises four pleas in law.

               1.

               By its first plea in law, it alleges an error of law in that the decision classifies the aid granted in the 2006 agreements as unlawful, in finding that, on that date, a legally binding and unconditional agreement to grant aid to Habidite existed. The Commission takes no account of the legal consequences resulting from an interpretation of the contracts in accordance with the provisions of domestic law which govern them (in particular, Article 1258 of the Spanish Civil Code).

               2.

               The second plea in law, which is subsidiary to the first one, is based on an error of law in the contested decision in that it declares as unlawful the aid included in the so-called ‘land agreement’, in so far as it fails to take account of the fact that the said agreement explicitly establishes that its implementation is dependent on its being lawful (‘if lawful its possible’), thereby infringing — by a misinterpretation and a misapplication — Article 108(3) TFEU and Article 1(f) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (2)

               3.

               By its third plea, the applicant alleges an infringement of Article 6(1) of Regulation No 659/1999 and of the general principle of good administration and, in particular, of the Diputación’s procedural rights and guarantees as an interested party in the procedure laid down in Article 108(2) TFEU, in de facto having unduly made difficult or limited its ability to participate adequately in the administrative procedure carried out by the Commission and to express, in an effective and useful manner, its point of view on the issue that the aid concerned is lawful, in any event.

               4.

               The fourth plea is based on a lack of, or invalid, grounds, since the Commission carried out its examination of compatibility, as established in Article 108(2) TFEU, on the premiss that unlawful aid was at issue, not notified aid.

      (1)  Decision of the European Commission of 27 June 2012 on State aid No SA.28356 (C 37/2009) (ex N 226/2009), Habidite Alonsotegui [COM (2012) 4194 final].

      (2)  OJ 1999 L 83, p. 1


title: Reference for a preliminary ruling by order of the Supremo Tribunal Administrativo (Second Division - Taxation matters) of 28 February 1996 in the proceedings pending before that court between Fazenda Pública and Solisnor - Estaleiros Naveis SA (Case C-130/96)

text:
22 . 6 . 96           | EN                  Official Journal of the European Communities                                  No C 180/21
      (v )  matters of which the defenders were aware but              Reference for a preliminary ruling by the Conseil d'Etat du
            which they did not have opportunity to raise               Royaume de Belgique by judgment of that court of
            before the issuing court ?                                 29 March 1996 in the case of Inter-Environnement
                                                                                Wallonie ASBL against Région Wallonne
Powers ancillary to the exercise of Article 38 (1 ) power to                                     ( Case C- 1 29/96 )
sist or stay                                                                                ( 96/C 180/44 )
7. Whether the Article 37 ( 1 ) appellate court has power to
      make an order for a stay or sist of the enforcement              Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Conseil d'Etat
      proceedings conditional upon the judgment debtor                 Section d'Administration ( Council of "State, Administrative
      providing security or guarantee sufficient to protect the        Section ) of 29 March 1996 , which was received at the Court
      interests of the judgment creditor in the event that the
                                                                       Registry on 23 April 1996, for a preliminary ruling in the
      judgment debtor is unsuccessful in its appeal against the
      judgment in the issuing State .
                                                                       case of Inter-Environnement Wallonie ASBL against Région
                                                                       Wallone on the following questions :
0 ) Article 38 ( 1 ) of the Convention of 27 September 1968 on
     Jurisdiction and the Enforcement of Judgments in Civil and        1 . Do Articles 5 and 189 of the EC Treaty preclude
     Commercial Matters ( OJ No L 299 , 1972 , p . 32 ) as amended by        Member States from adopting a provision contrary to
     the Convention of 9 October 1978 on the Accession of the                Directive 75/442/EEC of 15 July 1975 on waste (*), as
     Kingdom of Denmark, Ireland and the United Kingdom of                   amended by Directive 91 /156/EEC of 18 March
     Great Britain and Northern Ireland ( OJ No L 304, 1978 , p . 1          1991 ( 2 ), before the period for transposing the latter has
     and — as amended — p . 77 ).                                            expired ?
                                                                             Do those same Treaty Articles preclude Member States
                                                                             from adopting and bringing into force legislation which
                                                                             purports to transpose the abovementioned Directive but
                                                                             whose provisions appear to be contrary to the
Reference for a preliminary ruling by Sala de lo Social,                     requirements of that Directive ?
Tribunal Superior de Justicia, Murcia, by order of that court
of 22 February 1996 in the case of Francisco Hernández                 2 . Is a substance referred to in Annex I to Council Directive
Vidal, SA and Prudencia Gómez Pérez, María Gómez Pérez,                      91 /156/EEC of 18 March 1991 amending Directive
                  and Contratas y Limpiezas, SL                              75/442/EEC on waste and which directly or indirectly
                           Case C-127/96 )                                   forms an integral part of an industrial production
                           ( 96/C 180/43 )
                                                                             process to be considered 'waste' within the meaning of
                                                                             Article 1 ( a ) of that Directive ?
Reference has been made to the Court of Justice of the
                                                                       (') OJ No L 194 , 1975 , p . 39 .
European Communities by an order of the Sala de lo Social              ( 2 ) OJ No L 78 , 1991 , p . 32 .
( Chamber for Social Matters ), Tribunal Superior de Justicia
( High Court of Justice ), Murcia, of 22 February 19 96 ,
which was received at the Court Registry on 22 April 1996 ,
for a preliminary ruling in the case of Francisco Hernandez
Vidal, SA and Prudencia Gomez Pérez, Maria Gômez Pérez,
and Contratas y Limpiezas, SL on the following
questions :
                                                                       Reference for a preliminary ruling by order of the Supremo
( a ) whether the work of cleaning the premises of an                  Tribunal Administrative ( Second Division — Taxation
       undertaking whose main business is not cleaning, being          matters ) of 28 February 1996 in the proceedings pending
       in this case the production of chewing gum and sweets,          before that court between Fazenda Publica and Solisnor —
       but having a permanent need for that secondary                                          Estaleiros Naveis SA
       activity, is a 'part of a business'.
                                                                                ( Case C- 1 3 0/96 )
( b ) and whether the term ' legal transfer' may cover the                                            96/C 180/45 )
       termination of a mercantile contract for the provision
       of cleaning services, after three years, with annual
                                                                       Reference has been made to the Court of Justice of the
       renewals, at the end of the third year, by decision of the
       undertaking hiring the services; and whether, if that is        European Communities by an order of the Supremo
                                                                       Tribunal Administrative ( Supreme Administrative Court)
       the case, it may depend on whether the undertaking
       hiring the services carries out the cleaning using its own
                                                                       ( Second Division — Taxation matters ) of 28 February 1996 ,
       workers or using workers under a new contractual                which was received at the Court Registry on 24 April 1996 ,
                                                                       for a preliminary ruling in the proceedings pending before
       arrangement .
                                                                       that court between Fazenda Publica ( National Revenue
                                                                       Authority ) and Solisnor — Estaleiros Naveis SA, on the
                                                                       following question :
 ---pagebreak--- No C 180/22             EN                     Official Journal of the European Communities                                       22 . 6 . 96
Is the stamp tax having the characteristics mentioned above                Istituto Nazionale della Previdenza Sociale ( INPS ) on the
to be regarded as a turnover tax in the terms of Article 33 of             interprétation of Artide 46 ( 2 ) ( a ) of Régulation ( EEC ) No
the said Sixth Directive ( ! ), subject to a possible derogation           1408/71 (') in order to ascertain :
under Article 378 of the Act annexed to the Treaty of
Accession ( 2 ) or any other Community legal provision ?                  whether, in order to determine the amount of an Italian pro
                                                                          rata pension , the INPS ( national social security institution )
C ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the              must base its calculations on the ' notional ' or theoretical
      harmonization of the laws of the Member States relating to          pension alone or on the ' notional ' or theoretical pension
      turnover taxes — Common system of value-added tax : uniform          supplemented to meet the statutory minimun .
      basis of assessment ( OJ No L 145 , 13 . 6 . 1977, p . 1 ).
( 2 ) Documents concerning the accession of the Portuguese                 (') OJ, English Special Edition 1971 ( II ), p . 416 .
      Republic to the European Communities , OJ No L 302 , 15 . 11 .
      1985 .
                                                                          Reference for a preliminary ruling by the Corte di Appello,
                                                                          Ancona, by order of that court of 11 April 1996 in the case
Reference for a preliminary ruling from the                                      of Finanze dello Stato against Foods Import SRL
Bundessozialgericht by order of that court of 8 February                                            ( Case C-133 /96 )
 1996      in   the   case     of    Carlos   Mora      Romero    v.
                                                                                ( 96/C 180/48 )
             Landesversicherungsanstalt Rheinprovinz
                          ( Case C-131 /96 )                              Reference has been made to the Court of Justice of the
                            ( 96/C 180/46 )                               European Communities by order of the Corte di Appello
                                                                           ( Court of Appeal ) Ancona , of 11 April 19 96 , which was
Reference has been made to the Court of Justice of the                    received at the Court Registry on 24 April 1996 , for a
European Communities by an order of the                                   preliminary ruling in the Case of Finanze dello Stato against
Bundessozialgericht ( Federal Social Court ) of 8 February                Foods Import SRL on the following questions :
 1996 , which was received at the Court Registry on 24 April
 1996 , for a preliminary ruling in the case of Carlos Maria               1 . Is the list given in Council Regulation ( EEC ) No
Romero v . Landesversicherungsanstalt Rheinprovinz on the                       3796/81 of 29 December 1981 ( 1 ) ( and repeated in
following question :                                                            Council Regulation ( EEC ) No 3333/83 of 4 November
                                                                                1983 ( 2 )), Annex VI to which reproduces Chapter 3 of
                                                                                the Common Customs Tariff in which cod appears
Are Articles 6 , 48 and 51 of the Treaty establishing the                       under heading 03.02 A. I and fillets of cod under
European Community and Article 7 of Council Regulation                          heading 03.02 . A. II, supplemented by the mention
( EEC ) No 1612/68 on freedom of movement for workers                           Gadus morrhua, Boreogadus saida, Gadus ogac,
within the Community ( 1 ) to be interpreted as permitting the                  exhaustive or illustrative and, accordingly, is the dried
legislature of a Member State to extend the period for                          cod scientifically classified as Molva molva covered by
drawing orphan's benefit beyond the age of 25 years only in                     that list ?
respect of those persons whose education and training has
been prolonged beyond the age of 25 years through
fulfilment of the duty of military service in accordance with             2 . Does Article 20 of Council Regulation ( EEC ) No
the laws of the State ?                                                         3796/81 , suspending certain Common Customs Tariff
                                                                                duties , apply only to the three sub-species of cod referred
                                                                                to in Question 1 ( Gadus morrhua, Boreogadus saida,
C ) OJ , English Special Edition 1968 ( II ), p . 475 .                         Gadus ogac) to the exclusion of other sub-species such
                                                                                as Molva ?
                                                                          3 . In any event, since the Court of Justice established by its
                                                                                judgment of 22 October 1987 in Case 314/85 that,
                                                                                where the three requirements specified in Article 5 ( 2 ) of
Reference for a preliminary ruling by the Pretura, Rome, by                     Council Regulation ( EEC ) No 1697/79 ( 3 ) are satisfied ,
order of that court of 4 April 1996 in the case of Antonio                      debtors are entitled to non-recovery of duties not
Stinco against Istituto Nazionale délia Previdenza Sociale                      collected, in what circumstances is that provision to be
                                 ( INPS )                                       applied, that is to say, what conduct on the part of the
                         ( Case C-132/96 )                                      creditor and the debtor is to be regarded as decisive with
                                                                                respect to the right to non-recovery of duties not
                            ( 96/C 180/47 )                                     collected ?
Reference has been made to the Court of Justice of the                    (') OJ No L 379 , 31 . 12 . 1981 , p . 1 .
European Communities by order of the Pretura                              ( 2 ) OJ No L 313 , 14 . 11 . 1983 , p . 1 .
( Magistrate's Court ) Rome, of 4 April 1 996 , which was                 (■') OJ No L 197, 3 . 8 . 1979 , p . 1 .
received at the Court Registry on 24 April 1996 , for a
preliminary ruling in the case of Antonio Stinco against


title: Judgment of the Court (Fifth Chamber) of 21 September 2000 in Case C-462/98 P: Mediocurso — Estabelecimento de Ensino Particular Ld.a Commission of the European Communities (Appeal — European Social Fund — Training programmes — Reduction of financial assistance — Rights of defence — Right to be heard)

text:
C 335/8                   EN                     Official Journal of the European Communities                                        25.11.2000
                   JUDGMENT OF THE COURT                                          to other persons and to prevent him from adducing evidence in
                                                                                order to refute any allegation that the charges have been passed
                                                                                on.
                            (Fifth Chamber)
                       of 21 September 2000                                 (1) OJ C 33 of 6.2.1999.
in Joined Cases C-441/98 and C-442/98 (reference for a
preliminary ruling from the Diikitiko Protodikio, Thessa-
loniki): Kapniki Mikhailidis AE v Idrima Kinonikon
                         Asphaliseon (IKA) (1)
(Charges having equivalent effect — Tobacco exports —
         Levy imposed for the benefit of a social fund)
                                                                                JUDGMENT OF THE COURT
                            (2000/C 335/14)
                                                                                (Fifth Chamber)
                      (Language of the case: Greek)                                                of 21 September 2000
(Provisional translation; the definitive translation will be published      in Case C-462/98 P: Mediocurso — Estabelecimento de
                     in the European Court Reports)                         Ensino Particular Ld.a Commission of the European Com-
                                                                                munities (1)
In Joined Cases C-441/98 and C-442/98: reference to the
Court under Article 177 of the EC Treaty (now Article 234                   (Appeal — European Social Fund — Training programmes
EC) from the Diikitiko Protodikio (Administrative Court of                  — Reduction of financial assistance — Rights of defence —
First Instance), Thessaloniki, Greece, for a preliminary ruling                                       Right to be heard)
in the proceedings pending before that court between Kapniki
Mikhailidis AE and Idrima Kinonikon Asphaliseon (IKA) — on                                             (2000/C 335/15)
the interpretation of Articles 9 and 12 of the EC Treaty (now,
after amendment, Articles 23 EC and 25 EC) and Article 16 of
the EC Treaty (repealed by the Treaty of Amsterdam) in respect
of charges having equivalent effect to customs duties and the                                 (Language of the case: Portuguese)
conditions in which a charge collected in breach of Community
law may be refunded — the Court (Fifth Chamber), composed
of: D.A.O. Edward, President of the Chamber, P.J.G. Kapteyn                 (Provisional translation; the definitive translation will be published
(Rapporteur), P. Jann, H. Ragnemalm and M. Wathelet, Judges;                                    in the European Court Reports)
N. Fennelly, Advocate General; L. Hewlett, Administrator, for
the Registrar, has given a judgment on 21 September 2000, in
which it has ruled:                                                         In Case C-462/98 P: Mediocurso — Estabelecimento de Ensino
                                                                            Particular Ld.a established in Lisbon (Portugal), represented by
1.    An ad valorem charge on exported tobacco products, which is           C. Botelho Moniz, of the Lisbon Bar, with an address for
      not levied either on the same tobacco products when they are          service in Luxembourg at the Chambers of A. May, 398 Route
      sold on the domestic market or on those imported from another         d’Esch — appeal against the judgment of the Court of First
      Member State, cannot escape, by reason of its social objective,       Instance of the European Communities (Third Chamber) in
      classification as a charge having equivalent effect to a customs      Joined Cases T-180/96 and T-181/96 Mediocurso v Com-
      duty on exports that is incompatible with Articles 9 and 12 of        mission [1998] ECR II-3477, seeking to have that judgment
      the EC Treaty (now, after amendment, Articles 23 EC and 25            set aside, the other party to be proceedings being: Commission
      EC) and Article 16 of the EC Treaty (repealed by the Treaty of        of the European Communities, (Agent: M.T. Figueira and
      Amsterdam), unless the allegedly comparable charge levied on          K. Simonsson) — the Court (Fifth Chamber), composed of:
      domestic products is applied at the same rate, at the same            D.A.O. Edward, President of the Chamber, L. Sevón, P. Jann,
      marketing stage and on the basis of a chargeable event which is       H. Ragnemalm (Rapporteur) and M. Wathelet, Judges;
      identical to that giving rise to a charge on exports of the kind      J. Mischo, Advocate General; R. Grass, for the Registrar, has
      introduced by Greek Law No 2348/1953.                                 given a judgment on 21 September 2000, in which it:
2.    Although Community law does not preclude a Member State               1.    Sets aside the judgment of the Court of First Instance of the
      from refusing repayment of charges levied in breach of its                  European Communities of 15 September 1998 in Joined Cases
      provisions where it is established that repayment would entail              T-180/96 and T-181/96 Mediocurso v Commission with the
      unjust enrichment, it does preclude any presumption or rule of              exception of paragraph 2 of the operative part which partially
      evidence intended to shift to the trader concerned the burden of            upheld the action by Mediocurso — Estabelecimento de Ensino
      proving that the charges unduly paid have not been passed on                Particular Ld.a in Case T-180/96;
 ---pagebreak--- 25.11.2000               EN                      Official Journal of the European Communities                                             C 335/9
2.    Annuls Commission Decision C (96) 1185 of 14 August                         attested acts recording a transaction covered by the directive,
      1996 reducing the assistance granted in Decision C (89) 0570                under a system where notaries are employed by the State and
      of 22 March 1989 and Commission Decision C (96) 1186 of                     the charges in question are paid in part to that State for the
      14 August 1996 reducing the assistance granted in Decision                  financing of its official business.
      C (89) 0570 of 22 March 1989;
                                                                            2.    A charge payable for drawing up a notarially attested act
3.    Orders the Commission to pay the costs of the proceedings                   recording an increase in the share capital or an amendment to
      before both the Court of First Instance and the Court of Justice.           the statutes of a capital company is, where it amounts to a tax
                                                                                for the purposes of Directive 69/335, as amended by Directive
                                                                                85/303, in principle prohibited under Article 10(c) thereof.
(1) OJ C 71 of 13.3.1999.
                                                                            3.    ‘Fees or dues’ within the meaning of Article 12(1)(e) of Directive
                                                                                69/335, as amended by Directive 85/303, do not cover a
                                                                                charge collected for drawing up a notarially attested act
                                                                                recording an increase in the share capital or an amendment to
                                                                                the statutes of a capital company, such as the charge at issue in
                                                                                the main proceedings, the amount of which increases in direct
                                                                                proportion to the share capital raised and in respect of which
                  JUDGMENT OF THE COURT                                           there is no upper limit.
                                                                            4.    Article 10 of Directive 69/335, as amended by Directive
                         (Fourth Chamber)                                         85/303, creates rights on which individuals may rely in
                                                                                proceedings before the national courts.
                      of 21 September 2000
                                                                            (1) OJ C 86 of 27.3.1999.
in Case C-19/99 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Modelo Continen-
                te SGPS SA v Fazenda Pública (1)
(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Charge for drawing up a notarially attested act                                     JUDGMENT OF THE COURT
recording an increase in the share capital of a capital
          company and an amendment to its statutes)                                                   (Fourth Chamber)
                                                                                of 21 September 2000
                           (2000/C 335/16)
                                                                            in Case C-124/99 (reference for a preliminary ruling from
                                                                            the Sozialgericht, Münster): Carl Borawitz v Landesver-
                  (Language of the case: Portuguese)                                         sicherungsanstalt Westfalen (1)
                                                                            (Social security for migrant workers — Equal treatment —
(Provisional translation; the definitive translation will be published      National legislation fixing, in connection with the transfer
                    in the European Court Reports)                          abroad of retroactive pension payments, a higher minimum
                                                                                amount than that paid within the country)
In Case C-19/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Supremo Tribunal                                            (2000/C 335/17)
Administrativo, Portugal, for a preliminary ruling in the
proceedings pending before that court between Modelo Conti-
                                                                                (Language of the case: German)
nente SGPS SA and Fazenda Pública, in the presence of
Ministério Público — on the interpretation of Articles 4(3), 10
and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969                (Provisional translation; the definitive translation will be published
concerning indirect taxes on the raising of capital (OJ, English                                 in the European Court Reports)
Special Edition 1969 (II), p. 412), as amended by Council
Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23)                 In Case C-124/99: reference to the Court under Article 177 of
— the Court (Fourth Chamber), composed of: D.A.O. Edward,                   the EC Treaty (now Article 234 EC) from the Sozialgericht,
President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm                   Münster, Germany, for a preliminary ruling in the proceedings
(Rapporteur), Judges; G. Cosmas, Advocate General; R. Grass,                pending before that court between Carl Borawitz and Landes-
Registrar, has given a judgment on 21 September 2000, in                    versicherungsanstalt Westfalen, joined party: Bundesrepublik
which it has ruled:                                                         Deutschland — on the interpretation of Community law in
                                                                            matters of social security, in particular the principle of equal
1.    Council Directive 69/335/EEC of 17 July 1969 concerning               treatment — the Court (Fourth Chamber), composed of:
      indirect taxes on the raising of capital, as amended by Council       D.A.O. Edward (Rapporteur), President of the Chamber, P.J.G.
      Directive 85/303/EEC of 10 June 1985, must be interpreted             Kapteyn and A. La Pergola, Judges; P. Léger, Advocate General;
      as meaning that charges constitute taxes for the purposes of the      R. Grass, Registrar, has given a judgment on 21 September
      directive where they are collected for drawing up notarially          2000, in which it has ruled:


title: Reference for a preliminary ruling by the Commissione Tributaria Provinciale di Livorno by order of that court of 20 March 1997 in the case of CAR - Centro Acciai Rivestiti SRL against Direzione Regionale delle Entrate per la Toscana - Sezione di Livorno (Case C-133/97)

text:
14 . 6 . 97             EN                   Official Journal of the European Communities                                No C 181 /3
Reference for a preliminary ruling by the Pretura Circon               which has, in practice, a financial effect equivalent to an
dariale di Roma, Sezione Distaccata di Tivoli, by orders of             increase in the rate of capital duty beyond the ceiling of
that court of 19 and 5 February 1997 in the criminal                    1 % of contributed capital ?
proceedings against ( 1 ) Italia Testa and ( 2 ) Mario Modesti
                ( Cases C-128/97 and C-137/97)                          (') OJ No L 249 , 3 . 10 . 1969 , p . 25 .
                           ( 97/C 181 /04 )
Reference has been made to the Court of Justice of the
European Communities by orders of the Pretura Circonda
riale di Roma, Sezione Distaccata di Tivoli ( District                  Reference for a preliminary ruling by the Tribunale di Ge
Magistrate's Court, Rome, Tivoli Division ) of 19 and                   nova ( Sixth Civil Division ) by order of that court of
5 February 1997, which were received at the Court                       21 March 1997 in the case of Vincenzo Farina v. Credito
Registry on 28 March 1997 and 14 April 1997,                                             Italiano SpA, of Genoa, Italy
respectively, for a preliminary ruling in the criminal                                            ( Case C-138/97 )
proceedings against ( 1 ) Italia Testa ( C-l 28/97 ) and ( 2 )
Mario Modesti ( C-l 37/97) on the following questions :                                             ( 97/C 181 /06
1 . May the national legislation conferring on the SIAE (')             Reference has been made to the Court of Justice of the
     the exclusive right to manage copyright impede or                  European Communities by an order of the Sixth Civil
     prevent the import or export of sound recordings                   Division of the Tribunale di Genova ( District Court,
     which have been lawfully marketed in another State ?               Genoa ), which was received at the Court Registry on
                                                                        14 April 1997, for a preliminary ruling in the case of
                                                                        Vincenzo Farina v. Credito Italiano SpA, on the following
2 . In the context of the Single Market, characterized by               questions :
     the free movement of goods and freedom to provide
     services, may the SIAE require payments in all cases
     and circumstances on behalf of authors, relying on                 1 . Whether the Norme Bancarie Uniforme ( Uniform
     recourse to criminal proceedings in order to give effect                Bank Rules ) laid down by the ABI (') for its members
     to that power and enforce its claims ?                                  in relation to contracts for the opening of current
                                                                             account credit facilities — since they are laid down
                                                                             and applied in a uniform and binding manner by the
(') Italian Society of Authors and Publishers .                              banks belonging to the ABI — are compatible with
                                                                             Article 85 of the Treaty, where they make the credit
                                                                             facility subject to conditions for determination of an
                                                                             interest rate which is not previously determined and is
                                                                             not determinable by the customer, and they are liable
                                                                             adversely to affect trade between the Member States
                                                                             and have as their object and effect the prevention,
Reference for a preliminary ruling by the Commissione                        restriction or distortion of competition within the
Tributaria Provinciale di Livorno by order of that court of                  Common Market ?
20 March 1997 in the case of CAR — Centro Acciai Rive
stiti SRL against Direzione Regionale delle Entrate per la
                  Toscana — Sezione di Livorno
                                                                        2 . What effects any finding of incompatibility in
                                                                             accordance with Question 1 may have on the
                         ( Case C-133/97 )                                   corresponding clauses of the contracts for the opening
                            ( 97/C 181 /05 )                                 of a current account credit facility, concluded
                                                                             ' downstream ' by member banks with individual
                                                                             customers, since, as a group, the banks belonging to
                                                                             the ABI may be regarded, within the meaning and for
Reference has been made to the Court of Justice of the                       the purposes of Article 86 of the Treaty, as holding a
European Communities by order of the Commissione Tri                        joint dominant position in the national credit market,
butaria ( Provincial Tax Court, Leghorn ) of 20 March                        whose specific application of the rules in question ( in
 1997, which was received at the Court Registry on 3 April                   connection with determination of the interest payable
 1997, for a preliminary ruling in the case of CAR — Cen                    on the loan ) is regarded as an abuse ?
tro Acciai Rivestiti SRL against Direzione Regionale delle
Entrate per la Toscana — Sezione di Livorno on the
following question:                                                     3 . Whether the NBU laid down by the ABI for its
                                                                             members in relation to the ' all-embracing' guarantee
                                                                             covering the credit facility — since they are applied in
Does        Directive     69/335/EEC (')        and    subsequent            a uniform and binding manner by the member banks
amendments thereto prohibit not only the application of                      — are, taken as a whole, compatible with Article 85
the tax in question when capital is contributed in excess of                 of the Treaty, in relation to the individual clauses
 1 % of the capital contributed, but also prohibit the                       discussed in the grounds of this order, in that they are
establishment of additional taxes on contributed capital                     liable adversely to affect trade between the Member


title: Case C-272/10: Reference for a preliminary ruling from the Diikitiko Efetio Thessalonikis (Greece) lodged on 31 May 2010 — Suzanna Verkizi-Nikolakaki v Anotato Simvoulio Epilogis Prosopikou (ASEP) and Aristotelian University of Thessaloniki

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/25

         Reference for a preliminary ruling from the Diikitiko Efetio Thessalonikis (Greece) lodged on 31 May 2010 — Suzanna Verkizi-Nikolakaki v Anotato Simvoulio Epilogis Prosopikou (ASEP) and Aristotelian University of Thessaloniki
   (Case C-272/10)
   ()
   2010/C 221/40
   Language of the case: Greek

      Referring court

   Diikitiko Efetio Thessalonikis

      Parties to the main proceedings

      Applicant: Suzanna Verkizi-Nikolakaki

      Defendant: Anotato Simvoulio Epilogis Prosopikou (ASEP) and Aristotelian University of Thessaloniki

      Questions referred

               1.

               Is Article 11(2) of Presidential Decree 164/2004, which provides that, in order to establish that the preconditions for conversion of fixed-term contracts to contracts of indefinite duration are met, the employee must submit an application to the relevant body, containing information establishing satisfaction of the said preconditions, within two months of the entry into force thereof, in keeping with the purpose of Article 139(2) EC and the effectiveness, in accordance with the third paragraph of Article 249 EC, of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work, in view of the fact that the cut-off deadline causes employees to lose their right to convert their contracts if an application is not submitted by the two-month deadline?

               2.

               In view of the purpose of Council Directive 1999/70/EC of 28 June 1999 pursuant to Article 139(2) EC, does it suffice that the two-month deadline set for dealing with the number of employees subject to the provisions of Article 11 of Presidential Decree 164/2004, in order to put the objectives of the said directive into practical effect, in accordance with the third paragraph of Article 249 EC, was publicised simply by publication of the provisions of Article 11 of Presidential Decree 164/2004 in the Government Gazette?

               3.

               Does the failure to extend the two-month deadline, compared with extensions to similar deadlines set in similar legislative measures which predate Presidential Decree 164/2004, reduce the general level of protection of employees, in breach of clause 8.3 of [the annex to] Council Directive 1999/70/EC of 28 June 1999?


title: Case C-39/11: Judgment of the Court (Third Chamber) of 7 June 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — VBV — Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA) (Free movement of capital — Articles 63 TFEU and 65 TFEU — Severance funds — Investment of assets — Investment funds established in another Member State — Investment in such funds permitted only when they are authorised to market their units within the national territory)

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/4

         Judgment of the Court (Third Chamber) of 7 June 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — VBV — Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA)
   (Case C-39/11) (1)

   (Free movement of capital - Articles 63 TFEU and 65 TFEU - Severance funds - Investment of assets - Investment funds established in another Member State - Investment in such funds permitted only when they are authorised to market their units within the national territory)
   2012/C 217/06
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: VBV — Vorsorgekasse AG

      Defendant: Finanzmarktaufsichtsbehörde (FMA)

      Re:

   Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 63 et seq. TFEU — Free movement of capital — Severance funds investing mandatory contributions in respect of employed and self-employed persons aimed to finance severance sums — Legislation of a Member State restricting those investments to funds which have been authorised to be sold in that national territory

      Operative part of the judgment

   Article 63(1) TFEU must be interpreted as precluding national legislation which does not permit a severance fund, or the undertaking for collective investment created by that severance fund to manage its assets, to invest those assets in units of an investment fund established in another Member State unless that investment fund has been authorised to market its units within the national territory.

      (1)  OJ C 130, 30.4.2011.


title: Joined Cases C-317/08 to C-320/08: Judgment of the Court (Fourth Chamber) of 18 March 2010 (references for a preliminary ruling from the Giudice di Pace di Ischia — Italy) — Rosalba Alassini (C-317/08) and Filomena Califano v Wind SpA (C-318/08) and Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08) (Reference for a preliminary ruling — Principle of effective judicial protection — Electronic communications networks and services — Directive 2002/22/EC — Universal Service — Disputes between end users and providers — Mandatory to attempt an out-of-court settlement)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/3

         Judgment of the Court (Fourth Chamber) of 18 March 2010 (references for a preliminary ruling from the Giudice di Pace di Ischia — Italy) — Rosalba Alassini (C-317/08) and Filomena Califano v Wind SpA (C-318/08) and Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08)
   (Joined Cases C-317/08 to C-320/08) (1)

   (Reference for a preliminary ruling - Principle of effective judicial protection - Electronic communications networks and services - Directive 2002/22/EC - Universal Service - Disputes between end users and providers - Mandatory to attempt an out-of-court settlement)
   2010/C 134/04
   Language of the case: Italian

      Referring court

   Giudice di Pace di Ischia

      Parties to the main proceedings

      Applicants: Rosalba Alassini(C-317/08), Filomena Califano (C-318/08), Lucia Anna Giorgia Iacono (C-319/08) and Multiservice Srl (C-320/08)

      Defendants: Telecom Italia SpA (C-317/08), Wind SpA (C-318/08), Telecom Italia SpA (C-319/08), Telecom Italia SpA (C-320/08)

      Re:

   Reference for a preliminary ruling — Giudice di Pace di Ischia — Interpretation of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12) and Article 6 of the European Convention on Human Rights — Disputes between end users and operators concerning electronic communications, in which compensation is sought for damage suffered on account of the alleged non-performance of a contract for the supply of telephone services by the operator — National rules under which it is mandatory to attempt settlement before bringing judicial proceedings — Whether it is possible to bring judicial proceedings without first attempting settlement

      Operative part of the judgment

               —

               Article 34 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on Universal Service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding legislation of a Member State under which the admissibility before the courts of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by that directive, is conditional upon an attempt to settle the dispute out of court.

               —

               Nor do the principles of equivalence and effectiveness or the principle of effective judicial protection preclude national legislation which imposes, in respect of such disputes, prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs — or gives rise to very low costs — for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.

      (1)  OJ C 236, 13.9.2008.


title: Case T-414/10 R: Order of the President of the General Court of 10 June 2011 — Companhia Previdente v Commission (Interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application to suspend the operation of a measure — Financial loss — Lack of exceptional circumstances — Lack of urgency)

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/17

         Order of the President of the General Court of 10 June 2011 — Companhia Previdente v Commission
   (Case T-414/10 R)
   (Interim measures - Competition - Commission decision imposing a fine - Bank guarantee - Application to suspend the operation of a measure - Financial loss - Lack of exceptional circumstances - Lack of urgency)
   2011/C 219/25
   Language of the case: Portuguese

      Parties

      Applicant: Companhia Previdente — Sociedade de Controle de Participações Financeiras S.A. (Lisbon, Portugal) (represented by: D. Proença de Carvalho and J. Caimoto Duarte, lawyers)

      Defendant: European Commission (represented by: F. Castillo de la Torre. V. Bottka and P. Costa de Olivera, Agents, assisted by M. J. Marques Mendes, lawyer)

      Re:

   Application to suspend the operation of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Pre-stressing steel) and to dispense the applicant from the obligation to establish a bank guarantee so as to avoid immediate recovery of the fine imposed under Article 2 of that decision.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Case T-300/00: Action brought on 18 September 2000 by SIC — Sociedade Independente de Comunicação S.A. against Commission of the European Communities

text:
9.12.2000              EN                      Official Journal of the European Communities                                    C 355/31
Action brought on 18 September 2000 by SIC — Socieda-                     The application makes the following claims:
de Independente de Comunicação S.A. against Com-
            mission of the European Communities
                                                                          A.    Breach of the obligation to provide a
                                                                                statement of reasons
                         (Case T-300/00)
                                                                                Article 253 of the Treaty lays down explicitly the duty
                         (2000/C 355/69)                                        to state the reasons on which are based binding
                                                                                measures adopted by Community institutions, in par-
                                                                                ticular by the Commission. However, according to the
                  (Language of the case: Portuguese)                            applicant, the Commission did not fulfil, in the present
                                                                                case, its obligations with regard to the statement of
An action against the Commission of the European Communi-                       reasons with respect to the EBU’s membership rules.
ties was brought before the Court of First Instance of the                      According to the applicant, the Commission committed
European Communities on 18 September 2000 by SIC                                a manifest error and was inconsistent in its description
— Sociedade Independente de Comunicação S.A., whose                            of the facts. Indeed, the Court of First Instance took as
registered office is at Carnaxide, Linda-a-Velha (Portugal),                    proven, in its judgment in Case T-542/93 Métropole
represented by Carlos Botelho Moniz, whose chambers are at                      Télévision SA and Others v Commission, that the EBU
Av. Conselheiro Fernando de Sousa, n.o 19, 18.o, Lisbon, with                   membership rules were notified by that association to
an address for service in Luxembourg at the Chambers of                         the Commission on 3 April 1989 and that the exemp-
Aloyse May, 398 Route d’Esch.                                                   tion, granted by the Commission by Decision
                                                                                93/403/EEC(1), covered the aforementioned rules.
The applicant claims that the Court should:                                     However, in the contested decision, in describing
                                                                                the notified agreements, the Commission makes no
—     annul Commission Decision 2000/400/EC of 10 May                           mention of the EBU’s rules, which include the member-
      2000 relating to a proceeding pursuant to Article 81 of                   ship rules.
      the EC Treaty, adopted in Case IV/32.150 — Eurovision,
      published in OJ 2000 L 151, p. 18,                                  B.    Infringement of Article 81(1) of the
                                                                                EC Treaty
—     order the Commission to pay the costs of these proceed-
      ings.                                                                     In the applicant’s view, the Commission committed
                                                                                manifest errors concerning the irrelevance of the defi-
Pleas in law and main arguments                                                 nition of the relevant market and the allegedly separate
                                                                                nature of the conditions for membership to the EBU
                                                                                with regard to the notified agreements.
The applicant is the holder, in Portugal, of a television
broadcasting licence to operate the third channel.
                                                                          C.    Infringement of Article 81(3) of the
Broadcasting in Portugal is carried out on a free-access basis                  EC Treaty
by three operators:
                                                                                The applicant claims that the Commission did not
—     a public-service operator, RTP — Radiotelevisão Portu-                   proceed to analyse the existence of restrictions of
      guesa, S.A., which holds a licence for the first and second               competition or to examine whether they were indis-
      channels and to whom the State awarded the public                         pensable neither so far as concern the conditions for
      service television concession;                                            membership to the EBU nor so far as concerns the
                                                                                exclusive nature of the broadcasting rights acquired by
—     two private operators, who obtained licences by tender,                   the cartel to which it granted the exemption. In its
      SIC — Sociedade Independente de Comunicação, S.A.,                       view, the fact that the Commission chose to ignore the
      which operates the third channel, and TVI — Televisão                    restrictions on competition arising from the EBU
      Independente, S.A., which operates the fourth channel.                    membership rules and not analyse whether such restric-
                                                                                tions were indispensable, within the meaning of
                                                                                Article 81(3)(a) of the EC Treaty, amounts to an
Those three operators compete in the market for television
                                                                                infringement of the conditions for implementing that
advertising, since the income from that market, including
                                                                                provision. Furthermore, the exclusive nature of the
programme sponsorship, constitutes the only income for the
                                                                                broadcasting rights restricts competition, which the
two private operators.
                                                                                Commission completely ignored. Finally, the applicant
                                                                                is of the view that the granting of an exemption
RTP, in addition to the income from advertising and pro-                        under the terms of Article 81(1) implies a finding, in
gramme sponsorship, is in receipt of income awarded by the                      accordance with Article 81(3)(b), that the agreement in
State in respect of its provision of a public service.                          question does not afford the undertakings benefitting
                                                                                from the exemption the possibility of eliminating
SIC operates a general channel on an open signal, financed                      competition in respect of a substantial part of the
exclusively by income from advertising and programme spon-                      products in question. According to the applicant, the
sorship, offering a varied programme schedule intended to                       Commission wrongly considered that that condition
reach different types of viewers.                                               was fulfilled.
 ---pagebreak--- C 355/32               EN                   Official Journal of the European Communities                                    9.12.2000
D.      Infringement of Articles 4(1) and 6(1)                         Action brought on 20 September 2000 by Groupe Fre-
        of Regulation No 17, together with                             maux and Palais Royal Inc. against the Council of the
        Article 81(3) of the EC Treaty                                 European Union and the Commission of the European
                                                                                Communities
        According to Article 4(1) of Regulation No 17, the
        exemption decisions provided for in Article 6(1) of                                    (Case T-301/00)
        that regulation may only be adopted in respect of
        agreements which have been notified. However, accord-
        ing to the applicant, the contested decision made the                                  (2000/C 355/70)
        exemption retrospective to a time prior to the last
        amendments made to the notified agreements, contrary
        to Articles 4(1) and 6(1) of Regulation No 17, together                           (Language of the case: French)
        with Article 81(3) of the EC Treaty.
                                                                       An action against the Council of the European Union and the
        It adds that the exemption was granted for an excess-
                                                                       Commission of the European Communities was brought
        ively long period and is unreasonable.
                                                                       before the Court of First Instance of the European Communities
                                                                       on 20 September 2000 by Groupe Fremaux, established in
                                                                       Paris, and Palais Royal Inc., established in Charlottesville
E.      Infringement of Article 233 of the EC                          (United States of America), represented by Claude Lazarus and
        Treat: failure to comply with the judg-                        Florent Prunet, of the Paris Bar.
        ment of the Court of First Instance of
        11 July 1996
                                                                       The applicants claim that the Court should:
        The applicant claims that the essential purpose of the         —     order the Council of the European Union and the
        Commission, following the judgment of the Court of
                                                                             Commission of the European Communities to pay Grou-
        First Instance, was to avoid the legal consequences of               pe Fremaux the sum of EUR 241 705 in respect of losses
        that judgment.                                                       sustained, or to make good those losses, on the basis of
                                                                             Article 288 of the EC Treaty;
F.      Misuse of powers                                               —     order the Council of the European Union and the
                                                                             Commission of the European Communities to pay Palais
        Faced with the requirements of Article 233 of the                    Royal Inc. the sum of EUR 446 071 in respect of losses
        Treaty, so far as concerns compliance with the judg-                 sustained, or to make good those losses, on the basis of
        ment of the Court of First Instance of 11 July 1996, the             Article 288 of the EC Treaty, and
        Commission used its powers under Regulation No 17
        not in order to ensure compliance with the judgment            —     order the Council of the European Union and the
        with regard to the assessment as to whether the                      Commission of the European Communities to pay the
        restriction of competition inherent in the EBU member-               costs.
        ship rules was indispensable but rather to circumvent
        and avoid the consequences of the judgment, by
        adopting a new exemption decision in which the matter
                                                                       Pleas in law and main arguments
        which led to the annulment of Decision 93/403/EEC is
        put to one side and deliberately ignored.
                                                                       The applicant Groupe Fremaux specialises in producing cotton
                                                                       bedlinen of which a significant proportion is exported to the
G.      Breach of the principle of the separ-                          American market through the intermediary of its distribution
        ation of powers                                                subsidiary Palais Royal. In the context of the commercial
                                                                       dispute involving bananas between the European Union and
                                                                       the African, Caribbean and Pacific States on the one hand and
        The Commission’s conduct in the present case —                 the United States and other banana producers on the other,
        inasmuch as it took it upon itself, in the contested           the American authorities decided that, from 3 March 1999
        decision, to proceed to a review of the judgment of the        onwards, European undertakings exporting certain products
        Court of First Instance — constitutes a serious breach         to American territory, including those manufactured and
        of the principle of the separation of powers in relations      distributed by the applicants, would be required to raise a bank
        between the executive branch and the judicial branch           guarantee in the sum of 100 % of the value of the products
        of the Community.                                              exported.
(1) OJ 1994 L 179, p. 23.                                              The object of the present action is to obtain compensation for
                                                                       the losses which the applicants estimate that they have incurred
                                                                       as a result of the commercial sanctions imposed by the United
                                                                       States authorities.


title: Case C-261/12 P: Appeal brought on 29 May 2012 by Annunziata Del Prete against the judgment delivered by the General Court (Second Chamber) on 27 March 2012 in Case T-420/10 Girogio Armani v OHIM

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/14

         Appeal brought on 29 May 2012 by Annunziata Del Prete against the judgment delivered by the General Court (Second Chamber) on 27 March 2012 in Case T-420/10 Girogio Armani v OHIM
   (Case C-261/12 P)
   2012/C 227/20
   Language of the case: Italian

      Parties

      Appellant: Annunziata Del Prete (represented by: R. Bocchini, avvocato)

      Other parties to the proceedings: Girogio Armani SpA, Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

               —

               Set aside in full the judgment of the General Court of the European Union of 27 March 2012 and, accordingly, uphold the decision of the Second Board of Appeal of OHIM delivered on 8 July 2010 and notified on 19 July 2010, on the ground that the latter fully complied with and applied the rules laid down in the Regulation on the Community trade mark, (1) in particular Article 8(1)(b) thereof, the only provision relied on in Opposition No B1309485.

               —

               Order the other parties to the proceedings to pay the costs.

      Pleas in law and main arguments

               1.

               It is disputed that there is graphic similarity between Community trade mark No 6314462 ‘AMICI JUNIOR’ and Italian national figurative mark Nos 912114 ‘AJ ARMANI JEANS’ and 998554 ‘ARMANI JUNIOR’, or any aural similarity.

               2.

               Article 8(5) of Regulation No 207/2009 and the princple that marks must be well known were applied in the judgment under appeal, even though Girogio Armani S.p.A. did not make any express reference to or rely on that provision or princple.

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


title: Case T-604/13: Action brought on 20 November 2013 — Levi Strauss v OHIM — L&O Hunting Group (101)

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/32

         Action brought on 20 November 2013 — Levi Strauss v OHIM — L&O Hunting Group (101)
   (Case T-604/13)
   2014/C 24/58
   Language in which the application was lodged: English

      Parties

      Applicant: Levi Strauss & Co. (San Francisco, United States) (represented by: V. von Bomhard and J. Schmitt, lawyers)

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

      Other party to the proceedings before the Board of Appeal: L&O Hunting Group GmbH (Isny im Allgäu, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2013 given in Case R 1538/2012-2;

               —

               Order that the costs of the proceedings be borne by the defendant and the intervener, in case it was to intervene.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The word mark ‘101’ for goods in Classes 13, 25 and 28 — Community trade mark application No 9 446 634

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: Community trade mark registration No 26 708 of the word mark ‘501’ for goods in Classes 16, 18 and 25

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

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 8(1)(b) and 8(5) CTMR.


title: Case T-136/00: Action brought on 19 May 2000 by Carmelo Morello against Commission of the European Communities

text:
C 211/24               EN                      Official Journal of the European Communities                                    22.7.2000
— Award the applicant the sum of BEF 1 million, or such                   The applicant claims that the Court of First Instance should:
     greater or lesser sum as may be determined in the course
     of the proceedings, in respect of compensation for the               — Annul the Commission decision to appoint another official
     non-material damage suffered by the applicant as a result                to post COM/070/99 IV/2 ‘Automobiles, other means of
     of the inappropriate or incomplete information compiled                  transport and related mechanical construction’, being an
     by the defendant in relation to the applicant’s individual               A5 - A4 Head of Unit post;
     file, and the state of uncertainty and anxiety in which he
     was kept regarding his professional future;                          — Annul the Commission decision not to accept the applican-
                                                                              t’s application for post COM/070/99 IV/2 ‘Automobiles,
— Award the applicant the sum of BEF 1 million, or such                       other means of transport and related mechanical construc-
     greater or lesser sum as may be determined in the course                 tion’, being an A5 - A4 Head of Unit post, and all the
     of the proceedings, in respect of compensation for his                   measures preparatory to that decision which themselves
     being rejected for that vacant post and, therefore, the loss             proved to be improper;
     of any chance of promotion;
                                                                          — Award the applicant the sum of BEF 1 million, or such
— Order the defendant to pay the costs.                                       greater or lesser sum as may be determined in the course
                                                                              of the proceedings, in respect of compensation for the
                                                                              non-material damage suffered by the applicant as a result
Contentions and principal arguments                                           of the inappropriate or incomplete information compiled
                                                                              by the defendant in relation to the applicant’s individual
                                                                              file, and the state of uncertainty and anxiety in which he
The applicant contests the rejection by the appointing auth-
                                                                              was kept regarding his professional future;
ority of his application for a post of Head of Unit, Grade A 3.
                                                                          — Award the applicant the sum of BEF 1 million, or such
In support of his claims, the applicant alleges infringement:                 greater or lesser sum as may be determined in the course
                                                                              of the proceedings, in respect of compensation for his
— of Article 25 of the Staff Regulations and of the obligation                being rejected for that vacant post and, therefore, the loss
     to state reasons;                                                        of any chance of promotion;
— of Article 45 of the Staff Regulations;                                 — Order the defendant to pay the costs.
— of the promotion procedure and of the principle of equal
     treatment;                                                           Contentions and principal arguments
— of Article 7 of the Staff Regulations.
                                                                          The contentions and principal arguments adduced in support
                                                                          are the same as those relied on in Case T-135/00 Morello v
The applicant also claims that the contested decision is vitiated         Commission.
by a manifest error of assessment and misuse of power.
Action brought on 19 May 2000 by Carmelo Morello                          Action brought on 25 May 2000 by Sylvia Haupt against
    against Commission of the European Communities                               the Commission of the European Communities
                         (Case T-136/00)                                                          (Case T-143/00)
                         (2000/C 211/50)                                                          (2000/C 211/51)
                    (Language of the case: French)                                           (Language of the case: French)
An action against the Commission of the European Communi-                 An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 19 May             ties was brought before the Court of First Instance of the
2000 by Carmelo Morello, residing in Brussels, represented by             European Communities on 25 May 2000 by Sylvia Haupt,
Jacques Sambon and Pierre Paul Van Gehuchten, of the Brussels             residing in Brussels, represented by Jean-Noël Louis and
Bar.                                                                      Véronique Peere, of the Brussels Bar.


title: Judgment of the Court (Fifth Chamber) of 16 December 1999 in Case C-198/98 (reference for a preliminary ruling from the Industrial Tribunal, Bristol): G. Everson and T.J. Barrass v Secretary of State for Trade and Industry, Bell Lines Ltd (Social policy — Protection of employees in the event of the insolvency of their employer — Directive 80/987/EEC — Employees residing and employed in a State other than that in which the employer has its principal establishment — Guarantee institution)

text:
4.3.2000                EN                      Official Journal of the European Communities                                             C 63/5
                  JUDGMENT OF THE COURT                                                     JUDGMENT OF THE COURT
                          (Fifth Chamber)                                                            (Fifth Chamber)
                      of 16 December 1999                                                         of 16 December 1999
                                                                           in Case C-239/98: Commission of the European Communi-
in Case C-198/98 (reference for a preliminary ruling                                            ties v French Republic (1)
from the Industrial Tribunal, Bristol): G. Everson and
T.J. Barrass v Secretary of State for Trade and Industry,
                          Bell Lines Ltd (1)                               (Failure to fulfil obligations — Non-transposition of Direc-
                                                                           tives 92/49/EEC and 92/96/EEC — Direct insurance other
                                                                                than life assurance and direct life assurance)
(Social policy — Protection of employees in the event of the
insolvency of their employer — Directive 80/987/EEC —
Employees residing and employed in a State other than that                                            (2000/C 63/09)
in which the employer has its principal establishment —
                       Guarantee institution)
                                                                                (Language of the case: French)
                           (2000/C 63/08)
                                                                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: English)
                                                                           In Case C-239/98: Commission of the European Communities
In Case C-198/98: reference to the Court under Article 177 of              (Agents: C. Tufvesson and B. Mongin) v French Republic
the EC Treaty (now Article 234 EC) from the Industrial                     (Agents: K. Rispal-Bellanger and C. Chavance) — application
Tribunal, Bristol, United Kingdom, for a preliminary ruling                for a declaration that, by failing to adopt (or bring into force)
in the proceedings pending before that tribunal between                    and communicate all the laws, regulations and administrative
G. Everson, T.J. Barrass and Secretary of State for Trade and              provisions necessary in order to comply fully with Council
Industry, Bell Lines Ltd (in liquidation) — on the interpretation          Directive 92/49/EEC of 18 June 1992 on the coordination of
of Article 3 of Council Directive 80/987/EEC of 20 October                 laws, regulations and administrative provisions relating to
1980 on the approximation of the laws of the Member States                 direct insurance other than life assurance and amending
relating to the protection of employees in the event of the                Directives 73/239/EEC and 88/357/EEC (third non-life
insolvency of their employer (OJ 1980 L 283, p. 23) — the                  insurance Directive) (OJ 1992 L 228, p. 1) and with Council
Court (Fifth Chamber), composed of: L. Sevón, President of the            Directive 92/96/EEC of 10 November 1992 on the coordi-
First Chamber, acting as President of the Fifth Chamber,                   nation of laws, regulations and administrative provisions
C. Gulmann, J.-P. Puissochet, P. Jann and M. Wathelet (Rappor-             relating to direct life assurance and amending Directives
teur), Judges; D. Ruiz-Jarabo Colomer, Advocate General;                   79/267/EEC and 90/619/EEC (third life assurance Directive)
H.A. Rühl, Principal Administrator, for the Registrar, has given           (OJ 1992 L 360, p. 1) and, in particular, by not transposing
a judgment on 16 December 1999, in which it has ruled:                     those directives with regard to mutual societies governed by
                                                                           the Code de la Mutualité, the French Republic has failed to
                                                                           fulfil its obligations under the EC Treaty and under those
Where the employees adversely affected by the insolvency of their          directives — the Court (Fifth Chamber), composed of:
employer were employed in a Member State by the branch established         D.A.O. Edward, President of the Chamber, J.C. Moitinho de
in that State of a company incorporated under the laws of another          Almeida (Rapporteur), L. Sevón, J.-P. Puissochet and P. Jann,
Member State, where that company has its registered office and in          Judges; S. Alber, Advocate General; H. von Holstein, Deputy
which it was placed in liquidation, the competent institution, under       Registrar, for the Registrar, has given a judgment on 16 Decem-
Article 3 of Council Directive 80/987/EEC of 20 October 1980 on            ber 1999, in which it:
the approximation of the laws of the Member States relating to the
protection of employees in the event of the insolvency of their            1. Declares that, by failing to adopt all the laws, regulations and
employer, for payment to those employees of outstanding claims is               administrative provisions necessary in order to comply fully
that of the State within whose territory they were employed.                    with Council Directive 92/49/EEC of 18 June 1992 on the
                                                                                coordination of laws, regulations and administrative provisions
                                                                                relating to direct insurance other than life assurance and
                                                                                amending Directives 73/239/EEC and 88/357/EEC (third
(1) OJ C 234 of 25.7.1998.                                                      non-life insurance Directive) and with Council Directive
                                                                                92/96/EEC of 10 November 1992 on the coordination of laws,
                                                                                regulations and administrative provisions relating to direct
                                                                                life assurance and amending Directives 79/267/EEC and
                                                                                90/619/EEC (third life assurance Directive) and, in particular,