title: Action brought on 12 June 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-220/97)

text:
16 . 8 . 97             EN                   Official Journal of the European Communities                                No C 252/ 15
     customs authority in the context of an appeal against              2 . order the Federal Republic of Germany to pay the
     a decision by which that authority rejected the                           costs .
     application for suspension of operation brought by the
     person concerned .                                                 Pleas in law and main arguments adduced in support:
3 . In the light of the first sentence of the third paragraph
     of Article 244 of the CCC, must it be considered that              The pleas in law and main arguments are apparent from
     suspension of operation is subject only to the existence           the heads of claim . As regards the complaint made
     or lodging of a security or must the conditions laid               in the third indent in paragraph 1 above, the
     down in the preceding paragraph also be fulfilled ?                Commission maintains that to equate, in conceptual
                                                                        terms, 'preliminary investigation proceedings' with
                                                                        ' administrative proceedings' would be tantamount to
(') Common Customs Code ( OJ No L 302 , 19 . 10 . 1992 , p . 1 ).
                                                                        excluding a wholly material range of environmental
                                                                        information, such as, for example, experts' reports on the
                                                                        state of water or soil or the position adopted by a public
                                                                        authority in the context of proceedings for the grant of
                                                                        planning approval .
Action brought on 9 June 1997 by the Commission of the
European Communities against the Federal Republic of                    ( ] ) OJ No L 158 , 23 . 6 . 1990, p . 56 .
                              Germany
                          ( Case C-217/97 )
                             97/C 252/29
An action against the Federal Republic of Germany was                   Action brought on 12 June 1997 by the Commission of
brought before the Court of Justice of the European                     the European Communities against the Federal Republic
Communities on 9 June 1997 by the Commission of the                                                     of Germany
European Communities, represented by Gotz zur Hausen,                                               ( Case C-220/97)
Legal Adviser, acting as Agent, with an address for service
in Luxembourg at the office of Carlos Gomez de la Cruz,                                               ( 97/C 252/30
of its Legal Service, Wagner Centre C 254 , Kirchberg.
                                                                        An action against the Federal Republic of Germany was
The applicant claims that the Court should :                            brought before the Court of Justice of the European
                                                                        Communities on 12 June 1997 by the Commission of the
1 . declare that,
                                                                        European Communities , represented by Gotz zur Hausen,
     — by excluding courts, criminal prosecution                        Legal Adviser, acting as Agent, with an address for service
          authorities and disciplinary authorities from the             in Luxembourg at the office of Carlos Gomez de la Cruz,
          scope of the German legislation, contrary to                  of its Legal Service, Wagner Centre C 254, Kirchberg.
          Article 2 ( b ) of Council Directive 90/313/EEC of
          7 June 1990 (') on the freedom of access to                   The applicant claims that the Court should:
          information on the environment, even where they
          are not acting in the context of their judicial               1 . declare that, by failing within the prescribed period to
          activities,                                                          adopt all the laws, regulations and administrative
                                                                               measures necessary in order to comply with Council
     — by failing, contrary to the second subparagraph of                      Directive 92/3/Euratom of 3 February 1992 (') on the
          Article 3 ( 2 ) of the Directive, to provide for
                                                                               supervision and control of shipments of radioactive
          information to be supplied in part where it is                       waste between Member States and into and out of the
          possible to separate out information concerning                      Community, the Federal Republic of Germany has
          the reserved matters listed in Article 3 (2 ),
                                                                               failed to fulfil its obligations under the Euratom
     — by failing, contrary to the third indent of                             Treaty;
          Article 3 ( 2 ), to provide for access to be given,
          during the course of administrative proceedings, to           2 . order the Federal Republic of Germany to pay the
          information received by the authorities by reason                    costs .
          of those proceedings,
                                                                        Pleas in law and main arguments adduced in support:
     — by providing, contrary to Article 5 , for charges to
          be made not merely for the supply of the
          information and by not limiting those charges to a            The mandatory nature of the provisions of the third
          reasonable sum,                                               paragraph of Article 161 and the first paragraph of
                                                                        Article 192 of the Euratom Treaty is such as to oblige
     — the Federal Republic of Germany has failed to                    Member States to whom directives             are addressed to
          fulfil its obligations under the abovementioned               achieve the objectives laid down therein within the time
          directive, in particular Article 2 ( b ), the third           limit prescribed, that is to say, to transpose the provisions
          indent of Article 3 ( 2 ), the second subparagraph of         of the directive in question into national law in such a
          Article 3 (2 ) and Article 5 thereof;                         way as to give full practical effect to its provisions before
 ---pagebreak---   No C 252/16           I EN 1                Official Journal of the European Communities                                      16 . 8 . 97
  the time-limit for transposition expires . The time-limit in                 of limited liability, which the Court of Justice has
  question expired on 1 January 1994 but the Federal                           developed in relation to the Community's liability for
- Republic of Germany has not adopted the necessary                            legal acts, to the Commission decisions in question,
  measures .                                                                   which, in the applicants' and appellants' view, do not
                                                                               constitute legislative acts. In applying the principles of
  (•) OJ No L 35 , 12 . 2 . 1992, p . 24 .                                     liability for administrative action the Court of First
                                                                               Instance should have held the defendant 's measures to
                                                                               be unlawful so that the applicants' and appellants'
                                                                               claim in damages was well founded . A further
                                                                               infringement of Community law incurred in that, in
                                                                               examining whether the fundamental right to property
                                                                               and the fundamental right to carry on a business or
  Appeal brought on 13 June 1997 by Aloys Schroder, Jan                        trade had been infringed, the Court took no account
  Thamann and Karl-Julius Thamann, acting in the capacity
                                                                               of the individual's interest in fundamental rights which
  of partners in Zuchtschweine Epe GbR, against the
                                                                               is guaranteed in the Community legal order. In
  judgment delivered on 15 April 1997 by the Fifth                             adopting the contested decisions the Commission did
  Chamber of the Court of First Instance of the European
  Communities in Case T-3 90/94 between Aloys Schroder
                                                                               not in fact adopt generally applicable rules in relation
                                                                               to which it could claim scope for prognosis; they were
  and Others against Commission of the European
                               Communities                                     specific measures whose effects were not only
                                                                               foreseeable but also specifically intended.
                           ( Case C-221/97 P)
                              ( 97/C 252/31 )                            (') OJN0CI8I , 14 . 6 . 1997, p . 11 .
                                                                         (2 ) OJ No C 392, 31 . 12 . 1994 , p . 12 .
  An appeal against the judgment delivered on 15 April
  1997 by the Fifth Chamber of the Court of First Instance
  of the European Communities in Case T-3 90/94 ( J )
  between Aloys Schroder and Others and the Commission
  of the European Communities was brought before the
  Court of Justice of the European Communities on 13 June
  1997 by Aloys Schroder, Jan Thamann and Karl-Julius                    Action brought on 17 June 1997 by the Commission of
  Thamann, acting in the capacity of partners in                            the European Communities against the French Republic
  Zuchtschweine Epe GbR, Neuenkirchen, represented                                                  ( Case C-225/97)
  by Rudolf Brenken, of Rentzmann und Brenken,
  Quakenbriick, with an address for service in Luxembourg                                             ( 97/C 252/32 )
  at the Chambers of Michel Molitor, Pierre Feltgen and
  Andre Harpas, 14a Rue des Bains, Luxembourg.
                                                                         An action against the French Republic was brought before
  The appellants maintain the claims submitted in the                    the Court of Justice of the European Communities on
  proceedings before the Court of First Instance of the                  17 June 1997 by the Commission of the European
  European Communities (2 ) and claim that the Court of                  Communities, represented by Hendrik van Lier, Legal
  Justice should:                                                        Adviser, acting as Agent, with an address for service in
                                                                         Luxembourg at the office of Carlos Gomez de la Cruz,
  — order the respondent to pay DM 173 174,45 as                         Wagner Centre, Kirchberg.
      compensation for the damage arising from the
      contested decisions,
                                                                         The Commission of the European Communities claims
                                                                         that the Court should :
  — order the respondents to pay the costs.
  Pleas in law and main arguments adduced in support:                    — declare that, by adopting Law No 93/1416 of
                                                                              29 December 1993 as a measure for the transposition
  — Infringement of the right to a fair hearing: the Court                    into national law of the provisions of Council
      of First Instance did not take account of significant                   Directive 92/13/EEC of 25 February 1992
      arguments of the applicants and at any rate did not                     coordinating the laws, regulations and administrative
      refer to them, or referred to them incorrectly, in the                  provisions relating to the application of Community
      contested judgment. This applies in particular to the                   rules on the procurement procedures of entities
      argument that the definition, according to                              operating in the water, energy, transport and
      administrative borders, of the areas to be covered by                   telecommunications sectors ( ! ), the French Republic
      the bans was inappropriate and that only the criterion                  has failed to fulfil its obligations under Articles 1 (2 ),
      of distance away from the infected herds was the                        2 ( 1 ) (c ) and 2 ( 5 ) and Chapters 2 and 4 of Directive
      appropriate means of fighting the disease.                              92/ 13/EEC,
  — Infringement of Community law: an infringement of
      Community law resides in particular in the application             — order the French Republic to pay the costs.


title: Case T-519/15: Judgment of the General Court of 13 July 2017 — myToys.de v EUIPO — Laboratorios Indas (myBaby) (EU trade mark — Opposition proceedings — Application for EU figurative mark myBaby — Earlier EU word, and EU figurative and national word marks MAYBABY, May BaBy and MAY BABY — Ancillary appeal — Article 8(3) of Regulation (EC) No 216/96 — Merely confirmatory decision — Inadmissibility)

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/29

         Judgment of the General Court of 13 July 2017 — myToys.de v EUIPO — Laboratorios Indas (myBaby)
   (Case T-519/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark myBaby - Earlier EU word, and EU figurative and national word marks MAYBABY, May BaBy and MAY BABY - Ancillary appeal - Article 8(3) of Regulation (EC) No 216/96 - Merely confirmatory decision - Inadmissibility))
   (2017/C 300/36)
   Language of the case: English

      Parties

      Applicant: myToys.de GmbH (Berlin, Germany) (represented by: C. Hauss-Löhde and M. Mette, lawyers)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Laboratorios Indas, SA (Pozuelo de Alarcon, Spain) (represented by: M. de Justo Bailey, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 17 June 2015 (Case R 1002/2014-2), relating to opposition proceedings between Laboratorios Indas and myToys.de.

      Operative part of the judgment

   The Court:

               1.

               The action is dismissed;

               2.

               myToys.de GmbH shall bear its own costs and pay those incurred by Laboratorios Indas, SA;

               3.

               European Union Intellectual Property Office (EUIPO) shall bear its own costs.

      (1)  OJ C 363, 3.11.2015.


title: Case T-306/07: Action brought on 9 August 2007 — Offshore Legends v OHIM — Acteon (OFFSHORE LEGENDS (in blue, black, green))

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/49

         Action brought on 9 August 2007 — Offshore Legends v OHIM — Acteon (OFFSHORE LEGENDS (in blue, black, green))
   (Case T-306/07)
   (2007/C 269/88)
   Language in which the application was lodged: French
   Parties

      Applicant: Offshore Legends NV (Nevele, Belgium) (represented by: P. Mayaert and N. Clarembeaux, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Acteon SARL (Saint-Tropez, France)
   Form of order sought

               —

               Annul, in part, the decision of the Second Board of Appeal of 29 May 2007 (Case R 1038/2006-2);

               —

               Order OHMI to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Offshore Legends

      Community trade mark concerned: The figurative mark ‘Offshore Legends’ in blue, black and green, for goods in classes 3, 9, 14, 18, 20, 24, 25, 28 and 35 — Application No 2 997 021

      Proprietor of the mark or sign cited in the opposition proceedings: Acteon SARL

      Mark or sign cited in opposition: National and international figurative mark ‘Offshore One’ for goods in classes 16, 18 and 25

      Decision of the Opposition Division: The opposition is rejected in respect of the entirety of the contested goods

      Decision of the Board of Appeal: Partial annulment of the decision of the opposition division, to the extent that it rejected the opposition in respect of the goods in classes 18 and 25

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), to the extent that the Board of Appeal erred in its assessment of the risk of confusion and, in particular, erred with regard to the assessment of the similarity of the trade marks in question.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case C-18/07: Reference for a preliminary ruling from the Kammarrätten i Jönköping (Sweden) lodged on 22 January 2007 — Mattias Jalkhed v Jordbruksverket

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/23

         Reference for a preliminary ruling from the Kammarrätten i Jönköping (Sweden) lodged on 22 January 2007 — Mattias Jalkhed v Jordbruksverket
   (Case C-18/07)
   (2007/C 56/42)
   Language of the case: Swedish
   Referring court
   Kammarrätten i Jönköping
   Parties to the main proceedings

      Applicant: Mattias Jalkhed

      Defendant: Jordbruksverket
   Questions referred

               1.

               Does a national provision prohibiting the holding of wild birds as domestic animals or in the pursuit of a hobby constitute a quantitative restriction on imports or a measure having equivalent effect within the meaning of Article 28 of the EC Treaty, if the provision in question means that it is not permitted to import such a bird into the Member State in question from another Member State?

               2.

               If the answer to the first question is in the affirmative: Can the national provision in question be regarded, despite that, as being compatible with Community law, with reference to the fact that the reason for the provision, according to the competent national authority, is the difficulty of accommodating the wild birds' natural behaviour in captivity (that is to say, the birds' social behaviour, hunting behaviour and need for freedom of movement) and their lack of domestication, which causes fear and undesirable stress in handling?

                           (a)

                           What is the potential significance of the fact that the national provision in question has been notified to the Commission as a draft technical regulation pursuant to Directive 98/34/EC (1) (amended by Directive 98/48/EC) and has not been the subject of any objection from the Commission (on a comparison with, primarily, the second paragraph of Article 8(5) of that directive)?

                           (b)

                           What is the potential significance of the fact that there is no harmonisation at a Community level with regard to the import and holding of, inter alia, wild birds such as those in question in the case (contrary to the situation under the rules which was at issue in the judgment of the Court of Justice in Case C 162/97 Nilsson [and Others])?

      (1)  OJ L 204, 21.7.1998, p. 37.


title: Case T-522/15: Action brought on 10 September 2015 — CCPL and Others v Commission

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/52

         Action brought on 10 September 2015 — CCPL and Others v Commission
   (Case T-522/15)
   (2015/C 354/63)
   Language of the case: Italian

      Parties

      Applicants: CCPL — Consorzio Cooperative di Produzione e Lavoro SC (Reggio Emilia, Italy), Coopbox group SpA (Reggio Emilia, Italy), Poliemme Srl (Reggio Emilia, Italy), Coopbox Hispania, SL (Lorca, Spain), Coopbox Eastern s.r.o. (Nové Mesto nad Váhom, Slovakia) (represented by: S. Bariatti and E. Cucchiara, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the fine imposed on the applicants; or

               —

               in the alternative, reduce the amount of that fine; and, in any event

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action is brought against Commission Decision No C(2015) 4336 final of 24 June 2015 in Case AT.39563 — Retail food packaging, concerning the infringement of Article 101 of the Treaty on the Functioning of the European Union.
   In support of that action, the applicants rely on five pleas in law.

               1.

               First plea in law, alleging misuse of powers on the grounds of failure to investigate adequately and to state reasons concerning the effects of the infringement.

                           —

                           The applicants claim in that respect that the conduct at issue has not taken place in practice, as is clear from the documents relating to the investigation and as even the Commission acknowledged in the contested decision. That situation should have been duly taken into consideration in the overall assessment of the severity of the infringements and, accordingly, when determining the applicable fines. However, that aspect is not taken into consideration in the contested decision. Nor are any reasons given in that regard.

               2.

               Second plea in law, alleging infringement of the principles of proportionality and adequacy in determining the basic amount of the penalty.

                           —

                           The applicants maintain in that respect that, for the purposes of calculating the basic amount of the fine, the value of the sales made in the last year of participation in the infringement was taken into consideration in the contested decision, even though that value did not actually represent the true market strength of the applicants and the other parties to the proceedings.

               3.

               Third plea in law, alleging infringement of Article 23(2) of Regulation (EC) No 1/2003.

                           —

                           The applicants maintain in that respect that the value taken into consideration by the Commission for the purposes of calculating the 10 % limit laid down by Article 23(2) of Regulation (CE) No 1/2003 is clearly wrong, since that figure:

                                       —

                                       includes the total turnover of the CCPL group, even though the Commission has by no means proved the parental liability of the group’s parent company;

                                       —

                                       includes the turnover generated by an entity that was no longer part of the CCPL group at the time of the decision;

                                       —

                                       does not take any account of any specific circumstances concerning the breakdown of the turnover attributed to the CCPL group.

               4.

               Fourth plea in law, alleging infringement of the principles of proportionality and equal treatment in determining the size of the penalty.

                           —

                           The applicants claim in that regard that the serious crisis facing the packaging sector was not taken into account in the least in the contested decision and that the fine imposed on the applicants is clearly and unjustifiably disproportionate compared with that imposed on the other parties.

               5.

               Fifth plea in law, alleging infringment by the European Commission of the obligation to state reasons under Article 296 TFEU, on the ground that it took into account only partially the evidence concerning inability to pay adduced by the CCPL group.

                           —

                           The contested decision, although recognising the very serious crisis faced by the applicants, did not take that sufficiently into account in setting the level of the penalty.


title: Case T-208/11: Action brought on 11 April 2011 — LTTE v Council

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/17

         Action brought on 11 April 2011 — LTTE v Council
   (Case T-208/11)
   2011/C 179/30
   Language of the case: English

      Parties

      Applicant: Liberation Tigers of Tamil Eelam (LTTE) (Herning, Denmark) (represented by: V. Koppe, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul Council Implementing Regulation (EU) No 83/2011 (1) in as far as it concerns the applicant;

               —

               determine that the Council Regulation (EC) No 2580/2001 (2) is not applicable to the applicant;

               —

               award the costs and interests to the applicant.

      Pleas in law and main arguments

   In the present case the applicant seeks the partial annulment of Council Implementing Regulation (EU) No 83/2011 in so far as the name of the applicant is maintained on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision.
   In support of the action, the applicant relies on six pleas in law.

               1.

               First plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant and/or the Council Regulation (EC) No 2580/2001 is inapplicable due to a failure to take regard of the law of armed conflict.

               2.

               Second plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant since the applicant cannot be qualified as a terrorist organisation as defined in Article 1(3) of Council Common Position 2001/931/CFSP (3). In this regard the applicant submits that its activities do not amount to offences under international humanitarian law and national criminal law, which does not apply to situations of armed conflict.

               3.

               Third plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant because no decision by a competent authority, as required by Article 1(4) of Council Common Position 2001/931/CFSP, has been taken.

               4.

               Fourth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant since the Council did not conduct any review as required by Article 1(6) of Council Common Position 2001/931/CFSP. The applicant contends that, as it no longer uses military means to achieve its goals and is no longer directly active in Sri Lanka, such a review would have led to the conclusion that it must be removed from the list.

               5.

               Fifth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant as it does not comply with the obligation to state reasons in violation of Article 296 TFUE.

               6.

               Sixth plea in law, alleging that the Council Implementing Regulation (EU) No 83/2011 is void in as far as it concerns the applicant because it infringes upon the applicant’s right of defence, the applicant’s right to effective judicial protection.

      (1)  Council Implementing Regulation (EU) No 83/2011 of 31 January 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 610/2010. (OJ 2011, L 28, p. 14).

      (2)  Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. (OJ 2001, L 344, p. 70).

      (3)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism. (OJ 2001, L 344, p. 93).


               5.3.2005

               EN

               Official Journal of the European Union

               C 57/24

         Removal from the register of Case C-307/04 P (1)

   (2005/C 57/41)

      (Language of the case: English)

   By order of 25 November 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-307/04 P: SEC Corporation v Commission of the European Communities.

      (1)  OJ C 239 of 25.09.2004.


title: Case T-438/15: Order of the General Court of 9 March 2016 — Port autonome du Centre et de l’Ouest and Others v Commission (State aid — Corporation tax — Aid in favour of Belgian ports granted by Belgium — Commission letter informing the Member State of its preliminary assessment of that aid as being incompatible with the internal market and of the likely adoption of appropriate measures — Measure not open to challenge — Inadmissibility)

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/46

         Order of the General Court of 9 March 2016 — Port autonome du Centre et de l’Ouest and Others v Commission
   (Case T-438/15) (1)

   ((State aid - Corporation tax - Aid in favour of Belgian ports granted by Belgium - Commission letter informing the Member State of its preliminary assessment of that aid as being incompatible with the internal market and of the likely adoption of appropriate measures - Measure not open to challenge - Inadmissibility))
   (2016/C 156/62)
   Language of the case: French

      Parties

      Applicants: Port autonome du Centre et de l’Ouest SCRL (La Louvière, Belgium), Port autonome de Namur (Namur, Belgium), Port autonome de Charleroi (Charleroi, Belgium), and Région wallonne (Belgium) (represented by: J. Vanden Eynde, lawyer)

      Defendant: European Commission (represented by: S. Noë and B. Stromsky, acting as Agents)

      Re:

   Application for annulment of the decision, ostensibly contained in the Commission’s letter of 1 June 2015, finding that the corporation tax exemption for Belgian ports constitutes existing State aid that is incompatible with the internal market (State aid SA.38393 (2014/CP)).

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               The Port autonome du Centre et de l’Ouest SCRL, the Port autonome de Namur, the Port autonome de Charleroi and the Région wallonne shall bear their own respective costs and pay those incurred by the European Commission.

               3.

               The Port autonome de Liège and the Société régionale du port de Bruxelles shall bear their own costs.

      (1)  OJ 2015 C 337, 12.10.2015.


title: Case T-36/13: Action brought on 21 January 2013 — Erreà Sport v OHIM — Facchinelli (ANTONIO BACIONE)

text:
               16.3.2013

               EN

               Official Journal of the European Union

               C 79/29

         Action brought on 21 January 2013 — Erreà Sport v OHIM — Facchinelli (ANTONIO BACIONE)
   (Case T-36/13)
   2013/C 79/50
   Language in which the application was lodged: Italian

      Parties

      Applicant: Erreà Sport SpA (Torrile, Italy) (represented by: D. Caneva and G. Fucci, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Antonio Facchinelli (Dalang, China)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 October 2012 in Case R 1561/2011-1 and, consequently, reject the application for registration published in Community Trade Marks Bulletin No 117/2010, lodged by Antonio Facchinelli, in respect of all the goods;

               —

               order that the costs incurred by Erreà Sport S.p.A in the present proceedings be reimbursed.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Antonio Facchinelli

      Community trade mark concerned: Figurative mark containing the word elements ‘ANTONIO BACIONE’, for goods in Classes 3, 14, 18 and 25 — Community trade mark application No 9 056 037

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

      Mark or sign cited in opposition: Figurative mark containing the word element ‘erreà’ and figurative mark containing two intersecting rhombuses, for goods in Classes 3, 9, 14, 16, 18, 25, 28, 35 and 41

      Decision of the Opposition Division: Opposition rejected

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               —

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

               —

               Infringement of Article 8(5) of Regulation No 207/2009


C 163/36              EN                      Official Journal of the European Communities                                   10.6.2000
Removal from the register of Case T-518/97 to T-564/97 (1)                      Removal from the register of Case T-186/99 (1)
                        (2000/C 163/73)                                                           (2000/C 163/76)
                 (Language of the case: Portuguese)
                                                                                (Language of the case: English)
By order of 14 December 1999, the President of the Third
Chamber, of the Court of First Instance of the European                  By order of 21 March 2000, the President of the Second
Communities has ordered the removal from the register of                 Chamber of the Court of First Instance of the European
Case T-518/97 to T-564/97: Fernando Eugénio de Abreu and                 Communities has ordered the removal from the register of
Others v Council of the European Union and Commission of                 Case T-186/99: Saehan Media Ireland Limited v Commission
the European Communities.                                                of the European Communities.
(1) OJ C 166 of 30.5.1998.                                               (1) OJ C 281 of 2.10.1999.
Removal from the register of Case T-565/97 to T-595/97 (1)
                                                                                Removal from the register of Case T-356/99 (1)
                        (2000/C 163/74)
                                                                                (2000/C 163/77)
                 (Language of the case: Portuguese)
By order of 14 December 1999, the President of the Third                                    (Language of the case: English)
Chamber, of the Court of First Instance of the European
Communities has ordered the removal from the register of                 By order of 28 March 2000, the President of the First Chamber
Case T-565/97 to T-595/97: João Luı́s de Sousa de Abreu and             of the Court of First Instance of the European Communities
Others v Council of the European Union and Commission of                 has ordered the removal from the register of Case T-356/99:
the European Communities.                                                Sonia Marion Elder and Robert Dale Elder v Commission of
                                                                         the European Communities.
(1) OJ C 166 of 30.5.1998.
                                                                         (1) OJ C 63 of 4.3.2000.
Removal from the register of Case T-615/97 to T-618/97 (1)
                        (2000/C 163/75)                                          Removal from the register of Case T-1/00 (1)
                   (Language of the case: French)                                                 (2000/C 163/78)
By order of 16 December 1999, the President of the Third
Chamber of the Court of First Instance of the European                                      (Language of the case: German)
Communities has ordered the removal from the register of
Case T-615/97 to T-618/97: Albery Frères and Others v                    By order of 31 March 2000, the President of the First Chamber
Council of the European Union and Commission of the                      of the Court of First Instance of the European Communities
European Communities.                                                    has ordered the removal from the register of Case T-1/00:
                                                                         Gustav Hölzl and Others v Commission of the European
(1) OJ C 94 of 28.3.1998.                                                Communities.
                                                                         (1) OJ C 63 of 4.3.2000.


title: Case F-29/15: Action brought on 17 February 2015 — ZZ v Entreprise Commune ECSEL

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/50

         Action brought on 17 February 2015 — ZZ v Entreprise Commune ECSEL
   (Case F-29/15)
   (2015/C 146/69)
   Language of the case: Greek

      Parties

      Applicant: ZZ (represented by: V.A. Christianos, lawyer)

      Defendant: Entreprise Commune ECSEL

      Subject-matter and description of the proceedings

   Compensation for the non-pecuniary harm allegedly suffered by the applicant as a result of the illegalities committed by the defendant in establishing his annual staff report for 2012

      Form of order sought

               —

               Order the Entreprise Commune ECSEL to compensate the applicant for the non-pecuniary harm caused by all its unlawful conduct referred to in the application by paying the applicant the sum of forty thousand euros (EUR 40  000) together with interest from the day of delivery of the judgment and until its payment in full;

               —

               Order the Entreprise Commune ECSEL to pay the costs.


title: Case T-164/07 P: Judgment of the Court of First Instance of 18 June 2008 — Sundholm v Commission (Appeal — Staff case — Officials — Career development report — 2003 appraisal procedure — Rights of the defence — Appeal inadmissible — Appeal unfounded)

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/23

         Judgment of the Court of First Instance of 18 June 2008 — Sundholm v Commission
   (Case T-164/07 P) (1)

   (Appeal - Staff case - Officials - Career development report - 2003 appraisal procedure - Rights of the defence - Appeal inadmissible - Appeal unfounded)
   (2008/C 197/40)
   Language of the case: French
   Parties

      Appellant: Asa Sundholm (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Other party to the proceedings: Commission of the European Communities (represented by: C. Berardis-Kayser and D. Martin, Agents, assisted by B. Wägenbauer, lawyer)
   Re:
   Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) in Case F-30/05 Sundholm v Commission, not yet published in the ECR, seeking to have that judgment set aside.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Asa Sundholm to bear her own costs and those incurred by the Commission in the present proceedings.

      (1)  OJ C 155, 7.7.2007.


title: Case C-256/11: Judgment of the Court (Grand Chamber) of 15 November 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof, Austria) — Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic v Bundesministerium für Inneres (Citizenship of the Union — Right of residence of nationals of third countries who are family members of Union citizens — Refusal based on the citizen’s failure to exercise the right to freedom of movement — Possible difference in treatment compared with EU citizens who have exercised their right to freedom of movement — EEC-Turkey Association Agreement — Article 13 of Decision No 1/80 of the Association Council — Article 41 of the Additional Protocol — ‘Standstill’ clauses)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/20

      Judgment of the Court (Grand Chamber) of 15 November 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof, Austria) — Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic v Bundesministerium für Inneres
      (Case C-256/11) (1)

      (Citizenship of the Union - Right of residence of nationals of third countries who are family members of Union citizens - Refusal based on the citizen’s failure to exercise the right to freedom of movement - Possible difference in treatment compared with EU citizens who have exercised their right to freedom of movement - EEC-Turkey Association Agreement - Article 13 of Decision No 1/80 of the Association Council - Article 41 of the Additional Protocol - ‘Standstill’ clauses)
      (2012/C 25/33)
      Language of the case: German

         Referring court

      Verwaltungsgerichtshof, Austria

         Parties to the main proceedings

         Applicants: Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic

         Defendant: Bundesministerium für Inneres

         Re:

      Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 20 TFEU, Article 41(1) of the Additional Protocol of 23 November 1970 annexed to the Agreement establishing an Association between the European Economic Community and Turkey and on measures to be taken for their entry into force (JO 1972 L 293, p. 4), and Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, drawn up by of the Association Council set up by the aforementioned Agreement — Citizenship of the Union — Right of citizens of the Union and members of their families to reside freely in the territory of a Member State — Situation in which the citizen of the Union resides in the Member State of which he or she is a national — Conditions governing the granting of a residence permit to family members who are nationals of non-member countries.

         Operative part of the judgment

                  1.

                  European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.

                  2.

                  Article 41(1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, must be interpreted as meaning that the enactment of new legislation more restrictive that the previous legislation, which, for its part, relaxed earlier legislation concerning the conditions for the exercise of the freedom of establishment of Turkish nationals at the time of the entry into force of that protocol in the Member State concerned must be considered to be a ‘new restriction’ within the meaning of that provision.

         (1)  OJ C 219, 23.07.2011.


title: Case C-584/15: Judgment of the Court (Fourth Chamber) of 2 March 2017 (request for a preliminary ruling from the tribunal administratif de Melun — France) — Glencore Céréales France v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) (Reference for a preliminary ruling — Regulation (EC, Euratom) No 2988/95 — Protection of the European Union’s financial interests — Article 3 — Regulation (EEC) No 3665/87 — Article 11 — Recovery of an export refund unduly granted — Regulation (EEC) No 3002/92 — Article 5a — Security wrongly released — Interest due — Limitation period — Point from which time begins to run — Interruption of the period — Maximum limit — Longer period — Whether applicable)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/6

         Judgment of the Court (Fourth Chamber) of 2 March 2017 (request for a preliminary ruling from the tribunal administratif de Melun — France) — Glencore Céréales France v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)
   (Case C-584/15) (1)

   ((Reference for a preliminary ruling - Regulation (EC, Euratom) No 2988/95 - Protection of the European Union’s financial interests - Article 3 - Regulation (EEC) No 3665/87 - Article 11 - Recovery of an export refund unduly granted - Regulation (EEC) No 3002/92 - Article 5a - Security wrongly released - Interest due - Limitation period - Point from which time begins to run - Interruption of the period - Maximum limit - Longer period - Whether applicable))
   (2017/C 121/07)
   Language of the case: French

      Referring court

   Tribunal administratif de Melun

      Parties to the main proceedings

      Applicant: Glencore Céréales France

      Defendant: Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)

      Operative part of the judgment

               1.

               Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests must be interpreted as meaning that the limitation period laid down in that provision is applicable to the recovery of claims for interest, such as those at issue in the main proceedings, due on the basis of Article 11(3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 495/97 of 18 March 1997, and Article 5a of Commission Regulation (EEC) No 3002/92 of 16 October 1992 laying down common detailed rules for verifying the use and/or destination of products from intervention, as amended by Commission Regulation (EC) No 770/96 of 26 April 1996.

               2.

               The second subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that the fact that an operator is liable for claims for interest, such as those at issue in the main proceedings, does not constitute a ‘continuous or repeated irregularity’ within the meaning of that provision. Such claims must be regarded as resulting from the same irregularity, within the meaning of Article 1(1) of Regulation No 2988/95, as that giving rise to the recovery of the aid and amounts wrongly received, constituting the principal claims.

               3.

               The first subparagraph of Article 3(1) of Regulation 2988/95 must be understood as meaning that, as regards proceedings resulting in the adoption of administrative measures for the recovery of claims for interest, such as those at issue in the main proceedings, the limitation period laid down in the first subparagraph of Article 3(1) starts to run from the date on which the irregularity which gives rise to the recovery of the aid and amounts not due, on the basis of which that interest is calculated, was committed, that is, on the date of the factor constituting that irregularity, namely, either the date of the act or omission or the date of the prejudice, which occurs last.

               4.

               The fourth subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that, as regards proceedings resulting in the adoption of administrative measures for the recovery of interest, such as those at issue in the main proceedings, limitation becomes effective on the expiry of the period laid down in the fourth subparagraph of Article 3(1), when within that period the competent authority, while having sought recovery of the aid or amounts wrongly received by the operator concerned, has not adopted a decision regarding that interest.

               5.

               Article 3(3) of Regulation No 2988/95 must be interpreted as meaning that a limitation period laid down under national law, which is longer than that laid down in Article 3(1) of that regulation, may be applied, in a situation such as that at issue in the main proceedings, as regards the recovery of claims arising before the date on which that period entered into force, not yet time-barred under Article 3(1).

      (1)  OJ C 38, 1.2.2016.


title: Case C-210/07: Action brought on 20 April 2007 — Commission of the European Communities v Kingdom of Spain

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/14

         Action brought on 20 April 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-210/07)
   (2007/C 129/25)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by R. Vidal Puig and P. Dejmek, Agents)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive 2004/49/EC (1) of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive), or in any event by not communicating such measures to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 33 of that Directive;

               —

               order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposing Directive 2004/49/EC into national law expired on 30 April 2006.

      (1)  OJ 2004 L 164, p. 44.


title: Case T-696/15: Action brought on 1 December 2015 — Bodegas Vega Sicilia v OHIM (TEMPOS VEGA SICILIA)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/71

         Action brought on 1 December 2015 — Bodegas Vega Sicilia v OHIM (TEMPOS VEGA SICILIA)
   (Case T-696/15)
   (2016/C 038/95)
   Language of the case: Spanish

      Parties

      Applicant: Bodegas Vega Sicilia, SA (Valbuena de Duero, Spain) (represented by: S. Alonso Maruri, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community word mark ‘TEMPOS VEGA SICILIA’ — Application for registration No 13 066 121

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 30 September 2015 in Case R 285/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul and, accordingly, declare inapplicable the decision of the Fourth Board of Appeal of OHIM of 30 September 2015 in Case R 285/2015-4;

               —

               annul and, accordingly, declare inapplicable the refusal decision of OHIM of 8 December 2014;

               —

               order OHIM to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(j) of Regulation No 207/2009 in conjunction with Article 118l of Regulation No 491/2009 on the organisation of the wine market.


title: Judgment of the Court of First Instance of 13 July 2005 in Case T-260/97 Camar Srl v Council of the European Union and Commission of the European Communities (Common organisation of the markets — Bananas — Import arrangements — Non-contractual liability of the Community — Assessment of loss)

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/12

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 13 July 2005
   in Case T-260/97 Camar Srl v Council of the European Union and Commission of the European Communities (1)

   (Common organisation of the markets - Bananas - Import arrangements - Non-contractual liability of the Community - Assessment of loss)
   (2005/C 229/23)
   Language of the case: Italian
   In Case T-260/97: Camar Srl, established in Florence (Italy), represented by W. Viscardini Donà, M. Paolin and S. Donà, lawyers, with an address for service in Luxembourg, against the Council of the European Union (Agents: initially J.P. Hix and A. Tanca, subsequently J.P. Hix and F. Ruggeri Laderchi, with an address for service in Luxembourg) and the Commission of the European Communities (Agents: initially H. van Vliet, subsequently C. Van der Hauwaert and L. Visaggio, and A. Dal Ferro, lawyer, with an address for service in Luxembourg), supported by the French Republic (Agents: K. Rispal-Bellanger and C. Vasak, with an address for service in Luxembourg) — action to determine the amount of damages which the Commission was ordered to pay the applicant following the annulment, by interlocutory judgment of the Court of First Instance in Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193, of the Commission's decision of 17 July 1997 rejecting the application by the applicant for transitional measures under Article 30 of Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (OJ 1993 L 47, p. 1) — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, P. Mengozzi and I. Wiszniewska-Białecka, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 13 July 2005, in which it:

               1.

               Orders the Commission to pay the applicant compensation in the amount of EUR 5 024 192;

               2.

               Orders that that compensation figure be revalued in accordance with the criteria laid down in paragraphs 139 to 141 and 145 of this judgment;

               3.

               Orders that default interest from the date of delivery of this judgment until payment in full be added to the compensation figure, as revalued. The interest rate to be applied shall be two points above the rate set by the European Central Bank for its main refinancing operations as applicable during the period in question;

               4.

               Orders the Commission to pay 90 % of the costs of the stage in the present proceedings which follows the judgment of the Court of First Instance in Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193;

               5.

               Orders the Council to pay 10 % of the costs of the stage in the present proceedings which follows the judgment of the Court of First Instance in Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193;

               6.

               Orders the French Republic to bear its own costs.

      (1)  OJ C 357 of 22.11.1997.


title: Case C-438/01: Reference for a preliminary ruling from the Cour de Cassation, Grand Duchy of Luxembourg, by judgment of that court of 8 November 2001 in the case of Design Concept SA v Flanders Expo SA

text:
C 84/36                EN                    Official Journal of the European Communities                                       6.4.2002
(a)   Do the provisions of Council Regulation (EEC)                     under which an insurance policy issued by an insurance
      No 1785/81 of 30 June 1981 (1) and/or of Council                  company in the UK, Germany or Denmark which meets the
      Regulation (EEC) No 193/82 of 26 January 1982 (2)                 conditions laid down in Sweden for occupational pension
      preclude those authorities from stipulating that such a           insurance — apart from the condition that the policy must be
      transfer or reallocation of quotas is for value and,              issued by an insurance company operating in Sweden — is
      therefore, that the recipient undertaking or undertakings         treated as an endowment insurance policy with income tax
      must pay financial consideration?                                 effects which, depending on the circumstances in the individual
                                                                        case, may be less favourable than the tax effects of an
                                                                        occupational pension policy?
(b) Even if the answer is in the negative, do the same
      provisions nevertheless preclude the price of the quota to
      be transferred, and the distribution thereof, from being
      decided by public auction? Do those provisions preclude
      recourse to public auction even where it has been
      stipulated that, as part of the reallocation of quotas
      carried out by such a procedure, the measures required to         Reference for a preliminary ruling from the Cour de
      prevent any possible negative repercussions for national          Cassation, Grand Duchy of Luxembourg, by judgment of
      agricultural producers of sugar beet will be adopted?             that court of 8 November 2001 in the case of Design
                                                                                Concept SA v Flanders Expo SA
(c)   Is the interpretation of Community law the same, and
      must the answers also be so, in the light of Council                                       (Case C-438/01)
      Regulation (EC) No 1260/2001 of 19 June 2001 (3) on
      the common organisation of the markets in the sugar                                         (2002/C 84/61)
      sector, which repeals the earlier regulations?
                                                                        Reference has been made to the Court of Justice of the
(1) On the common organization of the markets in the sugar sector       European Communities by a judgment of the Cour de Cas-
    (OJ 1981 L 177, p. 4).                                              sation (Court of Cassation), Grand Duchy of Luxembourg, of
(2) Laying down general rules for transfers of quotas in the sugar      8 November 2001, which was received at the Court Registry
    sector (OJ 1982 L 21, p. 3).                                        on 13 November 2001, for a preliminary ruling in the case of
 3
( ) OJ 2001 L 178, p. 1.                                                Design Concept SA v Flanders Expo SA on the following
                                                                        question:
                                                                        ‘Is Article 9(2)(e) of Sixth Council Directive 77/388/EEC of
                                                                        17 May 1977 on the harmonisation of the laws of the Member
                                                                        States relating to turnover taxes — Common system of
                                                                        value added tax: uniform basis of assessment (1), concerning
                                                                        “advertising services”, applicable to services supplied indirectly
                                                                        to the advertiser and invoiced to a third party who in turn
Reference for a preliminary ruling from the Regeringsrät-               invoices them to the advertiser, if the advertiser does not
ten (Supreme Administrative Court) of 23 October 2001                   produce goods in the price of which the cost of the services is
in the case of Försäkringsaktiebolaget Skandia and Ola                  going to be included?’
     Ramstedt v Riksskatteverket (National Tax Board)
                                                                        (1) OJ 1977 L 145, p. 1.
                         (Case C-422/01)
                          (2002/C 84/60)
                                                                        Reference for a preliminary ruling by the Bundesverwal-
Reference has been made to the Court of Justice of the                  tungsgericht by order of 18 September 2001 in the
European Communities by a decision of the Regeringsrätten               case of Stadt Villingen-Schwenningen v Ophilia Akosua
of 23 October 2001, which was received at the Court Registry                                         Owusu
on 25 October 2001, for a preliminary ruling in the case of
Försäkringsaktiebolaget Skandia and Ola Ramstedt v Riksskat-                                     (Case C-444/01)
teverket on the following question:
                                                                                (2002/C 84/62)
Are the provisions of Community law on freedom of move-
ment for persons, services and capital, in particular Article 49
EC, in conjunction with Article 12 EC, to be interpreted as             Reference has been made to the Court of Justice of the
meaning that they preclude application of national tax rules            European Communities by order of 18 September 2001 by


title: Case T-328/05: Judgment of the Court of First Instance of 1 July 2008 — Apple Computer v OHIM — TKS-Teknosoft (QUARTZ) (Community trade mark — Opposition proceedings — Application for Community word mark QUARTZ — Earlier Community figurative mark QUARTZ — Relative ground for refusal — Likelihood of confusion — Similarity between goods — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/46

         Judgment of the Court of First Instance of 1 July 2008 — Apple Computer v OHIM — TKS-Teknosoft (QUARTZ)
   (Case T-328/05) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark QUARTZ - Earlier Community figurative mark QUARTZ - Relative ground for refusal - Likelihood of confusion - Similarity between goods - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2008/C 209/79)
   Language of the case: English
   Parties

      Applicant: Apple Computer, Inc. (Cupertino, California (United-States) (represented by: P. Rawlinson, S. Jones, J. Rutter and T.M. D'Souza Culora, solicitors)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. García Murillo, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: TKS-Teknosoft SA (Trélex, Switzerland) (represented by: C. Moreau, T. van Innis and K. Manhaeve, lawyers)
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 27 April 2005 (Case R 416/2004-4) relating to opposition proceedings between TKS-Teknosoft SA and Apple Computer, Inc.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action

               2.

               Orders Apple Computer Inc. to pay the costs.

      (1)  OJ C 281, 18.11.2005.


title: Judgment of the Court of First Instance of 12 December 2002 in Joined Cases T-338/00 and T-376/00: Carmelo Morello v Commission of the European Communities (Officials — Procedure for filling vacant posts — Statement of reasons — Comparative examination of applicants and equal treatment of officials — Actions for annulment — Actions for damages)

text:
22.2.2003                EN                        Official Journal of the European Union                                             C 44/25
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               residing in Brussels, represented by J. Sambon and P.-P. Van
                                                                           Gehuchten, Lawyers, with an address for service in Luxem-
                        of 5 December 2002                                 bourg, against Commission of the European Communities
                                                                           (Agents: C. Berardis-Kayser and D. Waelbroeck) — application
in Case T-249/00: Paul Edwin Hoyer v Commission of the                     for annulment of the Commission’s decision not to appoint
                    European Communities ( 1)                              the applicant to the post of Head of Unit 2 ‘Motor vehicles and
                                                                           other means of transport’ within Directorate F ‘Consumer
(Members of the temporary staff — Termination of contract                  goods and capital goods industries’ within the Directorate-
          — Calculation of notice — Leave not taken)                       General for Competition (COM/113/99) and of its decision to
                                                                           appoint a different applicant to the post and an application for
                                                                           damages — the Court of First Instance (Third Chamber),
                            (2003/C 44/45)
                                                                           composed of M. Jaeger, President, and K. Lenaerts and J. Azzizi,
                                                                           Judges; J. Palacio González, Principal Administrator, for the
                    (Language of the case: Dutch)                          Registrar, gave a judgment on 12 December 2002, in which it:
In Case T-249/00: Paul Edwin Hoyer, a former member of                     1.     Joined Cases T-338/00 and T-376/00;
the temporary staff of the Commission of the European
Communities, residing in Hoeilaart (Belgium), represented by               2.     Dismissed the action in Case T-376/00 as inadmissible;
G. van der Wal, lawyer, with an address for service in
Luxembourg, against the Commission of the European Com-                    3.     In case T-338/00 ordered the Commission to pay the applicant
munities (Agents: initially G. Valsesia and C. Van der Hauwaert,                  the sum of EUR 2 500;
and subsequently F. Clotuche-Duvieusart and H.M.H. Speyart)
— application for the annulment of the Commission’s                        4.     Dismissed the remainder of the action in Case T-338/00;
decisions of 14 June 2000 concerning the calculation of the
final date of notice when the applicant’s contract as a member
of the temporary staff was terminated (Decision No R/78/                   5.     Ordered each of the parties in Case T-376/00 to bear their
2000) and determining the number of days’ leave not taken                         own costs;
when he left (Decision No R/26/2000 — the Court of First
Instance (Fourth Chamber), composed of: M. Vilaras, President,             6.     Ordered the Commission to bear the costs in Case T-338/00.
V. Tiili and P. Mengozzi, Judges; J. Palacio González, Principal
Administrator, for the Registrar, gave a judgment on 5 Decem-
ber 2002, the operative part of which is as follows:                       (1 ) OJ C 372 of 23.12.2000 and C 61 of 24.2.2001.
1.     The application is dismissed.
2.     The parties will bear their own costs.
( 1) OJ C 355 of 9.12.2000.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 12 December 2002
     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                           in Case T-378/00: Carmelo Morello v Commission of the
                        of 12 December 2002                                                    European Communities ( 1)
in Joined Cases T-338/00 and T-376/00: Carmelo Morello                     (Officials — Procedure for filling vacant posts — Statement
       v Commission of the European Communities ( 1)                       of reasons — Comparative examination of applicants and
                                                                           equal treatment of officials — Actions for annulment —
(Officials — Procedure for filling vacant posts — Statement                                       Actions for damages)
of reasons — Comparative examination of applicants and
equal treatment of officials — Actions for annulment —
                        Actions for damages)                                                         (2003/C 44/47)
                            (2003/C 44/46)                                                     (Language of the case: French)
                    (Language of the case: French)
                                                                           In Case T-378/00: Carmelo Morello, an official of the Com-
In Joined Cases T-338/00 and T-376/00: Carmelo Morello, an                 mission of the European Communities, residing in Brussels,
official of the Commission of the European Communities,                    represented by J. Sambon and P.-P. Van Gehuchten, Lawyers,


title: Case T-618/11 P: Appeal brought on 6 December 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 28 September 2011 in Case F-13/10, De Nicola v EIB

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/65

      Appeal brought on 6 December 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 28 September 2011 in Case F-13/10, De Nicola v EIB
      (Case T-618/11 P)
      (2012/C 25/125)
      Language of the case: Italian

         Parties

         Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by L. Isola, lawyer)

         Other party to the proceedings: European Investment Bank

         Form of order sought by the appellant

      The appellant claims that the Court should:

                  —

                  annul:

                  —

                  the measure of 23 September 2009 by which the Appeals Committee rejected the appellant’s complaint against the staff report for 2008, and all related measures;

                  —

                  the entire staff report for 2008;

                  —

                  the promotions decided upon on 18 March 2009;

                  —

                  all related, consequent and prior measures, including the guidelines laid down by the HR Directorate (in the proceedings at first instance, the appellant adjusted his claim, requesting that the guidelines be disapplied);

                  —

                  order the EIB to pay compensation for the consequent material and non-material damage, to pay the costs of the proceedings, together with interest and a sum in respect of monetary depreciation;

                  —

                  order the EIB to pay the costs.

         Pleas in law and main arguments

      The present appeal is brought against the judgment of the Civil Service Tribunal (CST) of 28 September 2011 dismissing the appellant’s action seeking: (i) annulment of the decision of 23 September 2009 adopted by the Appeals Committee of the European Investment Bank; (ii) annulment of the appellant’s staff report for 2008; (iii) annulment of the promotion decisions of 18 March 2009; (iv) annulment of the decision refusing promotion; and (v) an order that the EIB pay compensation for the material and non-material damage which the appellant claims to have suffered.
      The appellant relies on the following grounds of appeal:

                  A.

                  The claims seeking annulment

                              1.

                              The appellant complains that the CST failed to rule substantially on his application for annulment of the decision of the Appeals Committee, which forms part of his personal file and could have an adverse effect on his future career;

                              2.

                              In the appellant’s opinion, since he challenged two separate measures on different grounds, the CST cannot legitimately refuse to give a ruling, all the more so since, first, that court has always ruled out the possibility of consequential annulment (relating to the related, consequent and prior measures, which are not, however, independent but closely connected to the measures declared invalid and/or ineffective) and, second, the appellant also has a clear interest in a fresh decision on the part of the Appeals Committee, which is the body adjudicating on the substance of the complaint, and, unlike the General Court, can even substitute its own assessment for that given by his superiors;

                              3.

                              With regard to the challenge to his staff report, the appellant complains that, of its own motion, the CST, first, unlawfully refused to take account of the numerous documented incidents of harassment to which he had been subjected in the course of the year, thus reversing the burden of proof, failed to rule on virtually all the pleas relied on — ranging from claims alleging failure to assess some of his tasks to inappropriate objectives, from failure to consider the exceptional initiative shown to bad faith on the part of his assessor etc;

                              4.

                              The appellant also alleges that the grounds of the judgment under appeal are erroneous, often as a result of distortion of the application, and failure to rule on the contested unlawful aspects the ‘Guide to staff reports’, which were designed to enable ‘friends’ and not ‘the best’ to be promoted and to evade review by the court, having transformed the annual assessment from an absolute into a relative exercise, and never having specified the conditions under which a performance is to be regarded as excellent, very good, in keeping with expectations or inadequate;

                              5.

                              Lastly, the appellant complains of the failure to indicate the criteria used to interpret the request he made to the Appeals Committee and to rule out the possibility that, in challenging the fact that he was not promoted, he did not intend to challenge only the promotions decided on by the EIB that are documented.

                  B.

                  The claim for damages

                              6.

                              With regard to the claim for compensation for material and non-material damage resulting from the EIB’s unlawful conduct, once again the appellant alleges that the defence put forward by the CST of its own motion is inadmissible, that court having, first, reduced the claim on the basis of pleas not raised by the EIB, then rejected the claim on the grounds of pending proceedings which the EIB had withdrawn and do not exist, because they are not substantiated, because no provision is made for the defect of litis pendenza in the Code of Procedure and because, at best, the allegedly similar claim was pending at a different level of proceedings.

                              7.

                              The appellant also alleges substantive failure to rule on his request that the limitation periods laid down by his own national law be applied, both on the grounds that his employment contract is governed by private law and that, as the weaker contracting party, he is entitled to have the more favourable rules applied to him.

                              8.

                              Lastly, the appellant claims that the premiss on which the CST based its decision was incorrect, given that he intended to challenge the unlawful conduct of his employer, whereas the court persisted in identifying an unlawful act, claiming that it could apply to his private law contract those provisions which are, instead, expressly laid down for public employees.


title: Case T-122/00: Action brought on 8 May 2000 by K & N Efthymiadis S.A. against the Commission of the European Communities

text:
8.7.2000               EN                     Official Journal of the European Communities                                    C 192/23
Action brought on 8 May 2000 by K & N Efthymiadis S.A.                   — subsidiarily declare Article 4, paragraph 3, point 2 of
against the Commission of the European Communities                           Council Directive 65/65/EEC as amended and Article 1,
                                                                             point 2, 1st indent, Article 2 point 1a and Article 7,
                         (Case T-122/00)                                     point 1a of Council Directive 92/27 as amended as well as
                                                                             the Guideline on Packaging Information illegal in so far as
                         (2000/C 192/43)                                     any of these provisions could be read as containing — as
                                                                             alleged — a requirement to use a single trademark and a
                                                                             single package layout for medicinal products authorised
                   (Language of the case: French)                            under the central marketing authorisation procedure; and
An action against the Commission of the European Communi-                — order the defendant to bear the costs of the present
ties was brought before the Court of First Instance of the                   proceedings.
European Communities on 8 May 2000 by K & N Efthymiadis
S.A., established in Thessaloniki (Greece), represented by
Miquel Roca Junyent and Joan Roca Sagarra, of the Barcelona
Bar.                                                                     Pleas in law and main arguments
The applicant claims that the Court should:
                                                                         The present application is for the annulment of the decision of
— declare null and void Commission Regulation (EC)                       the European Agency for the Evaluation of Medicinal Products
    No 451/2000 of 28 February 2000 laying down the                      (EMEA/H/C/135/I/04) rejecting the application for variation of
    detailed rules for the implementation of the second                  the marketing authorisation for ‘Daquiran’ submitted by the
    and third stages of the work programme referred to in                applicant, concerning a change in the name of the product.
    Article 8(2) of Council Directive 91/414/EEC;
— order the European Commission to pay the costs.                        The refusal has been justified on the grounds that:
Pleas in law and principal arguments                                     — the granting of a single Community Marketing Authoris-
                                                                             ation under the Centralised Procedure requires one single
                                                                             name for the medicinal product being authorised;
The pleas in law and main arguments are the same as those
advanced in Case T-112/00.
                                                                         — the presentations of a medicinal product must be identical
                                                                             throughout the Community.
                                                                         In support of its action, the applicant makes the following
                                                                         submissions:
Action brought on 9 May 2000 by Dr. Karl Thomae
GmbH against the Commission of the European Com-                         — authorisations and variations to marketing authorisations
                             munities                                        may only be refused when the safety, quality or efficacy of
                                                                             the medicinal product has not been adequately or suf-
                         (Case T-123/00)                                     ficiently demonstrated. A ‘single trademark’ and a ‘single
                                                                             package layout’, to be used in all Member States of
                         (2000/C 192/44)                                     the European Community, should, accordingly, not be
                                                                             considered as a prerequisite for obtaining a marketing
                                                                             authorisation under the Community Marketing Authoris-
                  (Language of the case: English)                            ation regime, and may not be used to refuse marketing
                                                                             authorisations or variations to marketing authorizations.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               — The contested decision illegally interferes with the appli-
European Communities on 9 May 2000 by Dr. Karl Thomae                        cant’s right of property as guaranteed by Article 222 of
GmbH, a company incorporated under the law of Germany,                       the EC Treaty (now Article 295 EC) and Article 36 of the
represented by Denis Waelbroeck and Dirk Brinckman, of                       EC Treaty (now Article 30 EC), as well as with the
Liedekerke Siméon Wessing Houthoff, Brussels.                                fundamental right to pursue economic activities.
The applicant claims that the Court should:
                                                                         — The defendant does not provide adequate reasoning for its
— annul the decision of the European Agency for the                          decision.
    Evaluation of Medicinal Products rejecting the applicant’s
    request for variation to the marketing authorisation of the
    medicinal product Daquiran concerning a change in the
    name of the product;


title: Case C-441/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 3 October 2012 — Almer Beheer BV and Another v Van den Dungen Vastgoed BV and Another

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/29

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 3 October 2012 — Almer Beheer BV and Another v Van den Dungen Vastgoed BV and Another
   (Case C-441/12)
   2013/C 9/48
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellants: Almer Beheer BV, Daedalus Holding BV

      Respondents: Van den Dungen Vastgoed BV, Oosterhout II BVBA

      Questions referred

               1.

               Must Article 3(1) of the Prospectus Directive (1) be interpreted as meaning that the obligation to publish a prospectus laid down therein is also applicable in principle (that is to say, apart from the exemptions and exceptions for certain cases referred to in that directive) to an enforced sale of securities?

               2.

                           (a)

                           If the answer to Question 1 is in the affirmative, should the concept of ‘the total consideration of the offer’ used in Article 1(2)(h) of the Prospectus Directive then be interpreted as meaning that the sums deriving from an enforced sale of securities must be those reasonably to be expected, with due regard for the particular nature of an enforced sale, even if the sums reasonably to be expected are well below the real economic value?

                           (b)

                           If the answer to Question 1 is in the affirmative, but the answer to Question 2(a) is in the negative, how should ‘the total consideration of the offer’ referred to in Article 1(2)(h) of the Prospectus Directive be construed, particularly in the case of an enforced sale of securities?

      (1)  Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ 2003 L 345, p. 64).


title: Case C-61/02: Action brought on 26 February 2002 by the Commission of the European Communities against the Republic of Austria

text:
C 97/8                EN                   Official Journal of the European Communities                                         20.4.2002
Action brought on 26 February 2002 by the Commission                  2002 by the Commission of the European Communities,
of the European Communities against the Republic of                   represented by António Caeiros, acting as Agent, with an
                              Austria                                 address for service in Luxembourg.
                         (Case C-61/02)
                                                                      The applicant claims that the Court should:
                         (2002/C 97/15)
                                                                      —     Declare that
An action against the Republic of Austria was brought                       1.    by failing to transpose the following provisions into
before the Court of Justice of the European Communities on                        its legal system:
26 February 2002 by the Commission of the European
Communities, represented by Gerald Braun, of its Legal Service,
with an address for service in Luxembourg at the office of Luis                   —     Article 3(3), Article 10, Article 11 and Arti-
Escobar Guerrero, of its Legal Service, Wagner Centre C 254,                            cle 12(4) of Directive 92/43/EEC;
Kirchberg.
                                                                                —     Article 7, Article 8 and Article 12 of Directive
The Commission claims that the Court should:                                            79/409/EEC; and
1.    declare that, by not adopting within the time-limit laid              2.    by failing to transpose correctly
      down the provisions and measures necessary to comply
      with Council Directive 98/58/EC (1) of 20 July 1998
      concerning the protection of animals kept for farming                       —     Article 1,     Article      6(3),      Article 6(4),
      purposes, the Republic of Austria has failed to fulfil its                        Article 12(1)(d), Article 6(1) and Article 6(2) of
      obligations under the EC Treaty;                                                  Directive 92/43/EEC,
2.    order the Republic of Austria to pay the costs.
                                                                                —     Article 2, Article 4(1), Article 4(4) and Article 6
                                                                                of Directive 79/409/EEC,
Pleas in law and main arguments                                             the Portuguese Republic failed to fulfil its obligations
                                                                            under Article 23 of Directive 92/43/EEC Council Direc-
By virtue of the binding nature of the third paragraph of                   tive 92/43/EEC (1) of 21 May 1992 on the conservation
Article 249 EC and the first paragraph of Article 10 EC, the                of natural habitats and of wild fauna and flora and
Member States are obliged to transpose a directive addressed                Article 18 of Council Directive 79/409/EEC (2) of 2 April
to them into national law so that it has full effect on expiry of           1979 on the conservation of wild birds;
the period laid down for its transposition. The period for
transposition laid down in Article 10 of the directive expired        —     Order the Portuguese Republic to pay the costs.
on 31 December 1999 without all Länder having as yet
adopted the necessary provisions.
(1) OJ L 221, 8.8.1998, p. 23.
                                                                      Pleas in law and main arguments
                                                                      The Portuguese Republic has not contested any of the Commis-
                                                                      sion’s complaints set out in the reasoned opinion. Rather, it
                                                                      appears from the reply of the Portuguese Government and, in
Action brought on 4 March 2002 by Commission of the                   particular, from the report that legislation implementing
    European Communities against Portuguese Republic                  Directives 79/409/EEC and 92/43/EEC is being prepared, that
                                                                      that Government admits that those complaints are well
                                                                      founded.
                         (Case C-72/02)
                         (2002/C 97/16)
                                                                      (1) OJ 1992 L 206, p. 7.
                                                                      (2) OJ 1979 L 103, p. 1.
An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 4 March


title: Case C-362/08 P: Judgment of the Court (Grand Chamber) of 26 January 2010 — Internationaler Hilfsfonds eV v European Commission (Appeal — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Action for annulment — Notion of measure open to challenge for the purposes of Article 230 EC)

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/9

         Judgment of the Court (Grand Chamber) of 26 January 2010 — Internationaler Hilfsfonds eV v European Commission
   (Case C-362/08 P) (1)

   (Appeal - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Action for annulment - Notion of ‘measure open to challenge’ for the purposes of Article 230 EC)
   2010/C 63/14
   Language of the case: German

      Parties

      Appellant: Internationaler Hilfsfonds eV (represented by: H. Kaltenecker and R. Karpenstein, Rechtsanwälte)

      Other party to the proceedings: European Commission (represented by: P. Costa de Oliveira, S. Fries and by T. Scharf, Agents)

      Re:

   Appeal brought against the judgment delivered by the Court of First Instance (Fifth Chamber) on 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds e.V. v Commission, by which the Court of First Instance dismissed as inadmissible the action for annulment of the decision allegedly contained in the Commission’s letter of 14 February 2005 refusing to grant the appellant access to certain documents relating to Contract LIEN 97-2011 concerning the co-financing of a medical aid programme organised in Kazakhstan — Inadmissibility of an action for annulment brought against a measure that merely confirms an earlier decision not contested within the time-limit for initiating proceedings — Wrong classification of the contested measure — Inadmissibility of an action for annulment brought against a measure constituting an initial response, for the purposes of Article 7(1) of Regulation No 1049/2001 — Wrong interpretation of Article 7(2) of Regulation No 1049/2001

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the Court of First Instance of 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds v Commission;

               2.

               Rejects the plea of inadmissibility raised by the Commission of the European Communities before the Court of First Instance of the European Communities;

               3.

               Refers the case back to the General Court of the European Union for judgment on the claims of Internationaler Hilfsfonds eV seeking annulment of the decision of the Commission of the European Communities of 14 February 2005 refusing it access to certain documents in the Commission’s possession;

               4.

               Orders the European Commission to pay the costs of the present proceedings and those arising at first instance relating to the plea of inadmissibility;

               5.

               Orders the costs to be reserved as to the remainder.

      (1)  OJ C 272, 25.10.2008.