title: Action brought on 20 September 1995 by Commission of the European Communities against the Federal Republic of Germany (Case C-301/95)

text:
11 . 11 . 95                EN                  Official Journal of the European Communities                                     No C 299/ 11
2 . Where a scheme has been commercially devised and                                 has found that, in the criminal proceedings, the
      marketed whereunder purchases made in Member                                   national court was in breach of the procedural
      State B for the personal use of a private individual in                        safeguards       enshrined     in   Article  6  of  the
      Member State A are made by an agent for that                                   Convention ?
      individual and those purchases are transported from
      Member State B to Member State A as a result of                           4. Is the legal entity against which proceedings have
      arrangements made by such an agent, does Directive                             been brought for State liability entitled to plead
      92/ 12/EEC have the effect of precluding the charging of                       that the punishment would have been on no
     excise duty on those purchases in Member State A ?                              different a scale if the violation of Article 6 of the
                                                                                Convention found by the Court of Human Rights
(') Council Directive 92/ 12/EEC of 25 February 1992 on the                          had not occurred , although the Austrian law of
    general arrangements for products subject to excise duty and on                  criminal procedure — to date — does not provide
    the holding, movement and monitoring of such products                            in such cases for proceedings for the revision of a
    ( OJ No L 76 , 23 . 3 . 1992 , p. 1 ).                                           judgment or other amending proceedings by means
                                                                                of which the procedural error could have been
                                                                                remedied ?
Reference for a preliminary ruling from the Oberster                            5 . Does the burden of proving the causal connection
                                                                                between     the      violation   of Article   6  of the
Gerichtshof by order of that court of 29 August 1995 in the
case of Dr Friedrich Wilhelm Kremzow, intervener: Dr                                 Convention and the deprivation of the plaintiff's
           Wilfried Ludwig Weh, v. Republic of Austria                               liberty fall on the plaintiff or does the burden of
                                                                                proof in respect of this defect fall on the defendant
                             ( Case C-299/95 )                                       legal entity ?'
                               ( 95/C 299/ 17 )
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberster
Gerichtshof ( Austrian Supreme Court ) of 29 August 1995 ,                 Action brought on 20 September 1995 by Commission of
which was received at the Court Registry on 18 September                   the European Communities against the Federal Republic of
1995 , for a preliminary ruling in the case of Dr. Friedrich                                               Germany
Wilhelm Kremzow, intervener : Dr Wilfried Ludwig Weh, v.                                            ( Case C-301 /95 )
Republic of Austria , on the following questions :                                                     ( 95/C 299/ 18 )
A. ' Are all or at least the substantive-law provisions of the             An action against the Federal Republic of Germany was
      European Convention for the Protection of Human                      brought before the Court of Justice of the European
       Rights and Fundamental Freedoms ( the Convention ) —                Communities on 20 September 1995 by the Commission of
      including the provisions of Articles 5 , 6 and 53 of the             the European Communities , represented by Dr Gotz zur
       Convention which are relevant to the proceedings                    Hausen , Legal Adviser, acting as Agent, with an address for
       before the Oberster Gerichtshof — part of Community                 service in Luxembourg at the office of Carlos Gomez de la
       law ( Article 164 of the EC Treaty ), with the result that          Cruz, of the Commission 's legal Service , Wagner Centre
      the Court of Justice of the European Communities may                 C 254 , Kirchberg .
      give a preliminary ruling on their interpretation
       pursuant to the first paragraph of Article 1 77 of the EC           The applicant claims that the Court should :
      Treaty ?'
                                                                           1 . declare that, by
B. The following further questions are referred to the
       Court of Justice of the European Communities for a                      — failing to adopt the measures necessary to comply
       preliminary ruling only in the event that Question A is                     with Council Directive 85/337/EEC of 27 June 1985
       answered in the affirmative — at least as regards                           on the assessment of certain public and private
       Articles 5 and 6 of the Convention :                                        projects on the environment (') within the
                                                                                prescribed period ,
       ' 1 . Are national courts bound by judgments of the
                                                                               — failing to communicate to the Commission all the
             European Court of Human Rights finding
             violations of the Convention at least in so far as                    measures which it has taken in order to comply with
                                                                                the Directive,
             they may not take the view that the conduct of State
             institutions to which the finding of a violation                  — failing to provide for an environmental impact
             relates was in accordance with the Convention ?                       assessment to be carried out for all projects in respect
                                                                                of which such an assessment is to be carried out
         2 . Are claims for compensation for damage based on                       under the Directive and for which the development
             Article 5 ( 5 ) of the Convention precluded where the                 consent procedure was commenced after 3 July
             damage is derived from a decision of the Oberster                      1988 ,
             Gerichtshof ?
                                                                               — failing to provide that all the projects set out in
         3 . Is detention within the meaning of Article 5 ( 1 ) ( a )              Annex II to the Directive must be examined in order
             of the Convention contrary to the Convention ex                       to determine whether they are likely to have
             tunc where the European Court of Human Rights                         significant effects on the environment,
 ---pagebreak--- No C 299/ 12               EN                         Official Journal of the European Communities                                    11 . 11 . 95
     — failing to adopt all the measures necessary to comply                     Action brought on 25 September 1995 by the Commission
          with Article 5 ( 2 ) of the Directive , and                            of the European Communities against the Hellenic
                                                                                Republic
     — authorizing the creation of a disposal site for special
          waste in Mainhausen and the construction of a                                                   ( Case C-304/95 )
          motorway near Luneburg without observing the                                                      ( 95/C 299/ 19 )
          procedure prescribed in the Directive ,
     — the Federal Republic of Germany has failed to fulfil                      An action against the Hellenic Republic was brought before
          its obligations under Article 5 and the third                          the Court of Justice of the European Communities on
          paragraph of Article 189 of the EC Treaty and under                    25 September 1995 by the Commission of the European
          Articles 2 , 3 , 5 ( 2 ), 6 ( 2 ), 8 , 9 and 12(1 ) and ( 2 ) of the   Communities, represented by Maria Kondou Durande, of
          Directive ;                                                            its Legal Service, with an address for service in Luxembourg
                                                                                at the office of Carlos Gomez de la Cruz, Wagner Centre,
2 . order the Federal Republic of Germany to pay the                             Kirchberg.
     costs .
Pleas in law and main arguments adduced in support:                              The applicant claims that the Court should :
— although the timelimit for the transposition of the
    Directive expired on 3 July 1 988 , the defendant did not                    1 . declare , that by not bringing into force , the laws,
    take any measures until it adopted the 'UVP-Gesetz ' of                           regulations and administrative provisions necessary to
     12 January 1990, which entered into force on 1 August                            comply with Council Directive 92/5/EEC of 10 February
     1990 ,                                                                           1992 amending and updating Directive 77/99/EEC on
                                                                                health problems affecting intra-Community trade in
— the duty to inform the Commission provided for in                                   meat products and amending Directive 64/433/EEC ('),
    Article 12 ( 2 ) of the Directive also covers rules enacted                       or at least not notifying those provisions to the
    by the Lander and provisions in force prior to the                                Commission within the prescribed period, the Hellenic
    adoption of the Directive; the existence of paragraph 4                           Republic failed to fulfil its obligations under the Treaty
    of     the    UVP-Gesetz            shows       that   the   defendant            and Directive 92/5/EEC ;
    presupposes that provisions enacted by the Lander are
    applicable to the field covered by the Directive ,
                                                                                2 . order the Hellenic Republic to pay the costs .
— paragraph 22 of the UVP-Gesetz provides that
    proceedings already commenced are to be completed in
    accordance with its provisions only where they had not                       Pleas in law and main arguments adduced in support:
    yet been publicly notified when the UVP-Gesetz entered
    into force ,                                                                The mandatory nature of the provisions of Article 189 of the
                                                                                Treaty requires the Member States to bring into force the
— in the Commission 's view, all the projects set out under                      provisions necessary for transposing into national law the
    the various letters in points 1 to 1 1 of Annex II to the                   directives of which they are the addressees before the expiry
    Directive are to be regarded as 'classes ' within the                       of the period provided therefor and immediately to notify
    meaning of Article 4 of the Directive . Paragraph 3 of the                  those provisions to the Commission . That period expired on
    UVP-Gesetz sets threshold values or criteria for some ,                      1 January 1993 without the Hellenic Republic bringing into
    but not all , of such classes; for the remaining classes , the               force the necessary provisions or indeed notifying those
    UVP-Gesetz does not make any provision for project                           provisions to the Commission .
    assessment in individual cases ,
— although the defendant has specified , in accordance with                      (') OJ No L 57 , n . 1 .
    the Directive, the documents to be submitted by the
    developer, the provisions in question are applicable only
    ' in so far as the . . . said documents are not defined in
    detail in a legislative provision '. The Commission does
    not share the defendant's view that on a proper
    interpretation of the UVP-Gesetz the rules laid down by
    the specific technical legal provisions are to be applied
    only where their requirements at least correspond to
    those of the UVP-Gesetz,                                                     Reference for a preliminary ruling from the Cour du Travail,
                                                                                Mons , by judgment of that Court of 21 September 1995 in
— it cannot be deduced from the documents submitted by                          the case of Universite Catholique de Louvain v. Francine
    the defendant that the obligations imposed by Articles 2 ,                                    Plapied and Danielle Gallez
    3 , 5 ( 2 ), 6 ( 2 ), 8 and 9 of the Directive were complied                                           Case C-305 /95 )
    with in the case of the Mainhausen and Luneburg
                                                                                ( 95 /C 299/20 )
    projects .
(') OJ No L 175 , 5 . 7 . 1985 , p . 40 .
                                                                                Reference has been made to the Court of Justice of the
                                                                                European Communities by a judgment of the Cour du


title: Judgment of the Court of First Instance of 23 January 2003 in Case T-53/00: Serena Angioli v Commission of the European Communities (Officials — Action for annulment — Internal competition for the establishment of members of the temporary staff — Non-inclusion on the list of suitable candidates — Confidentiality of the work of the selection board)

text:
C 70/20                  EN                         Official Journal of the European Union                                       22.3.2003
                                                         COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 15 January 2003
                         of 23 January 2003
                                                                            In Joined Cases T-377/00, T-379/00, T-380/00, T-260/01
in Case T-53/00: Serena Angioli v Commission of the                         and T-272/01: Philip Morris International Inc. and Others
                    European Communities ( 1)                                      v Commission of the European Communities ( 1)
                                                                            (Decision to bring legal proceedings before a court in a non-
(Officials — Action for annulment — Internal competition                    Member State — Action for annulment — Concept of
for the establishment of members of the temporary staff                     decision for the purposes of the fourth paragraph of
— Non-inclusion on the list of suitable candidates —                                        Article 230 EC — Admissibility)
       Confidentiality of the work of the selection board)
                                                                                (2003/C 70/32)
                           (2003/C 70/31)
                                                                                (Language of the case: English)
                     (Language of the case: French)
                                                                            In Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and
                                                                            T-272/01, Philip Morris International, Inc., established in Rye
                                                                            Brook, New York (United States), represented by É. Morgan de
In Case T-53/00: Serena Angioli, residing in Brussels, represent-           Rivery and J. Derenne, lawyers, with an address for service in
ed by G. Vandersanden and L. Levi, avocats, with an address for             Luxembourg, applicant in Cases T-377/00 and T-272/01,
service in Luxembourg, against Commission of the European                   R. J. Reynolds Tobacco Holdings, Inc., established in Winston-
Communities (Agent: C. Berardis-Kayser) — application for                   Salem, North Carolina (United States), RJR Acquisition Corp.,
annulment of the Commission’s decision of 28 May 1999 not                   established in Wilmington, New Castle, Delaware (United
to include the applicant on the list of suitable candidates in              States), R. J. Reynolds Tobacco Company, established in Jersey
Internal Competition COM/TA/2/98 for the establishment of                   City, New Jersey (United States), R. J. Reynolds Tobacco
members of the temporary staff, and for annulment of all                    International, Inc., established in Dover, Kent, Delaware
subsequent measures taken by the selection board for the                    (United States), represented by P. Lomas, Solicitor, and
competition and by the appointing authority — the Court                     O. Brouwer, Lawyer, with an address for service in Luxem-
of First Instance (Fifth Chamber), composed of: R. García-                  bourg, applicants in Cases T-379/00 and T-260/01, Japan
Valdecasas, President, P. Lindh and J. D. Cooke, Judges;                    Tobacco, Inc., established in Tokyo (Japan), represented by
J. Palacio González, Principal Administrator, for the Registrar,            P. Lomas, Solicitor, and O. Brouwer, Lawyer, with an address
has given a judgment on 23 January 2003, the operative part                 for service in Luxembourg, against in Case T-380/00, v
of which is as follows:                                                     Commission of the European Communities (Agents: initially
                                                                            X. Lewis and C. Ladenburger, and, subsequently, C. Docksey
                                                                            and Ladenburger), supported by European Parliament (Agents:
                                                                            R. Passos and A. Baas), Kingdom of Spain (Agent: R. Silva de
1.     The application is dismissed;                                        Lapuerta), French Republic (Agent: G. de Bergues), Italian
                                                                            Republic (Agent: U. Leanza), Portuguese Republic (Agents:
                                                                            L. Fernandes and Â. Cortesão de Seiça Neves), Republic of
2.     The parties shall bear their own costs.                              Finland (Agents: T. Pynnä and E. Bygglin), in Cases T-377/
                                                                            00, T-379/00, T-380/00, T-260/01 and T-272/01, Federal
                                                                            Republic of Germany (Agents: W.-D. Plessing and M. Lumma),
                                                                            Hellenic Republic (Agent: V. Kontolaimos), in Cases T-260/01
( 1) OJ C 135 of 13.5.00.                                                   and T-272/01, Kingdom of the Netherlands (Agents: in Cases
                                                                            T-260/01 and T-272/01, H. Sevenster and, in Case T-379/00,
                                                                            Sevenster and J. van Bakel): Applications for annulment of two
                                                                            decisions by the Commission to commence legal proceedings
                                                                            against the applicants before a federal court in the United


No C 142/ 16              EN                  Official Journal of the European Communities                                   10 . 5 . 97
Reference for a preliminary ruling by the Tribunal de                    matters before the Court of Justice, acting as Agent, with
Grande Instance de Dijon by judgments of that court of                   an address for service in Luxembourg at the Spanish
26 February 1997 in the cases of Procureur de la                         Embassy, 4-6 Boulevard Emmanuel Servais .
Republique and Syndicat de Defense de l'Epoisses and
Others against Yvon Chiciak and Jean-Pierre Fol
                                respectively                             The applicant claims that the Court should:
                  ( Cases C-129/97 and C-130/97 )
                              ( 97/C 142/32 )                            — annul the element concerning anchovy contained in
                                                                                the Annex to Council Regulation ( EC ) No 390/97 (')
                                                                                of 20 December 1996 fixing, for certain fish stocks
Reference has been made to the Court of Justice of the                          and groups of fish stocks, the total allowable catches
European Communities by judgments of the Tribunal de                            for 1996 and certain conditions under which they may
Grande Instance de Dijon ( Regional Court, Dijon ) of                           be fished,
26 February 1997, which were received at the Court
Registry on 1 April 1997, for a preliminary ruling in the                — order the defendant institution to pay the costs .
cases of Procureur de la République and Syndicat de Dé
fense de l'Epoisses, Institut National des Appellations
d'Origine Contrôlées ( INAO ), Association Nationale                     Pleas in law and main arguments adduced in support:
d'Appellation d'Origine Laitière Française ( ANAOF)
against Yvon Chiciak and Fromagerie Chiciak ( Case                       The pleas in law and main arguments are analogous to
C-129/97) and Procureur de la République and Syndicat                    those in Case C-179/95 ( 2 ).
de Défense de l'Epoisses, Institut National des Appella
tions d'Origine Contrôlées ( INAO ), Association Nationale               (') OJ No L 66, 6 . 3 . 1997, p . 1 .
d'Appellation d'Origine Laitière Française ( ANAOF) Sari .               ( 2 ) OJ No C 208 , 12 . 8 . 1995 , p . 10 .
' Laiterie de la Côte', SA 'Fromagerie Henri Germain ' and
SA ' Fromagerie Berthaut' against Jean-Pierre Fol ( Case
C-130/97) on the following questions:
— Does Council Regulation ( EEC ) No 2081/92 (')
       preclude as from its entry into force any residual
       power on the part of the Member States to alter a
                                                                                Removal from the register of Case C-23/96 ( 1 )
       preexisting designation of origin ?
                                                                                ( 97/C 142/34 )
— Do the particulars given in the form of footnotes to
      the annex to Commission Regulation ( EC ) No 1107/                 By order of 6 March 1997 the President of the Sixth
       96 ( 2 ) constitute an exhaustive list of parts of names          Chamber of the Court Of Justice of the European
       made up of several terms which as such are not                    Communities has ordered the removal from the register of
       protected ?                                                       Case C-23/96 : Commission of the European Communities
                                                                         v. French Republic .
(') OJ No L 208 , 24 . 7. 1992 , p . 1 .
( 2 ) OJ No L 148 , 21 . 6 . 1996 , p . 1 .                              (') OJ No C 95 , 30 . 3 . 1996 .
Action brought on 27 March 1997 by the Kingdom of                                  Removal from the register of Case C-46/95 ( ')
        Spain against the Council of the European Union
                                                                                ( 97/C 142/35
                            ( Case C-132/97 )
                              ( 97/C 142/33 )
                                                                         By order of 11 March 1997 the President of the Court of
                                                                         Justice of the European Communities has ordered the
An action against the Council of the European Union was                  removal from the register of Case C-46/95 : Commission
brought before the Court of Justice of the European                      of the European Communities v. Grand Duchy of
Communities on 27 March 1997 by the Kingdom of                           Luxembourg.
Spain, represented by Rosario Silva de Lapuerta, Abogado
del Estado of the State Legal Department dealing with                    O OJ No C 87, 8 . 4 . 1995 .


title: Case C-64/07: Action brought on 8 February 2007 — Commission of the European Communities v Ireland

text:
               24.3.2007

               EN

               Official Journal of the European Union

               C 69/13

         Action brought on 8 February 2007 — Commission of the European Communities v Ireland
   (Case C-64/07)
   (2007/C 69/31)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro and D. Lawunmi, Agents)

      Defendant: Ireland
   The applicant claims that the Court should:

               —

               declare that by failing to adopt the laws, regulations or administrative provisions necessary to comply with Directive 2004/42/EC of the European Parliament and of the Council of 21 April 2004 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain paints and varnishes and vehicle refinishing products and amending Directive 1999/13/EC (1) or, in any event, by failing to notify such provisions to the Commission, Ireland has failed to fulfil its obligations under Article 14 of that Directive.

               —

               order Ireland to pay the costs.

         Pleas in law and main arguments
   The period within which the directive had to be transposed expired on 30 October 2005.

      (1)  OJ L 143, p. 87.


title: Case C-124/13: Action brought on 14 March 2013 — European Parliament v Council of the European Union

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/21

         Action brought on 14 March 2013 — European Parliament v Council of the European Union
   (Case C-124/13)
   2013/C 156/32
   Language of the case: English

      Parties

      Applicant: European Parliament (represented by: L.G. Knudsen, I. Liukkonen and R. Kaškina, Agents)

      Defendant: Council of the European Union

      The applicant claims that the Court should:

               —

               annul Council Regulation (EU) No 1243/2012 of 19 December 2012 amending Regulation (EC) No 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks (1); and

               —

               order Council of the European Union to pay the costs.

      Pleas in law and main arguments

   The European Parliament raises a single plea of annulment of the contested Regulation on the grounds that Article 43(3) TFEU is not the appropriate legal basis for the contested Regulation and that it should have been adopted on the basis of Article 43(2) TFEU, as the latter provision gives the European Union legislature the necessary powers for adopting an act with the aim and content of the contested Regulation. The legal basis used excluded Parliament from taking part in the adoption of the act, whereas Article 43(2) TFEU provides for the ordinary legislative procedure to be followed. The erroneous legal basis must lead to the annulment of the contested Regulation.
   Under the first limb of its plea Parliament asserts that each multiannual plan, such as that at stake in the present case, as a fish stocks conservation and management tool, forms a whole which only contains provisions in the pursuit of the sustainability and conservation objectives of the CFP and must therefore be adopted in its entirety under Article 43(2) TFEU.
   The second limb of Parliament's plea consists of the assertion that the adoption of the contested Regulation separately from the remainder of the Commission proposal constitutes in any event an abuse of the procedure and empties the established case-law on the choice of legal basis according to the centre of gravity of the act, of its contents. Splitting the proposal enabled the Council to artificially choose a separate legal basis for certain elements of the proposed act, whereas these would have been absorbed by the single legal basis of Article 43(2) TFEU had the act been adopted in the form of the initially proposed whole.

      (1)  OJ L 352, p. 10


title: Case C-552/13: Request for a preliminary ruling from the Juzgado Contencioso-Administrativo n °6 de Bilbao (Spain) lodged on 25 October 2013 — Grupo Hospitalario Quirón S.A. v Departamento de Sanidad del Gobierno Vasco

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/3

         Request for a preliminary ruling from the Juzgado Contencioso-Administrativo no 6 de Bilbao (Spain) lodged on 25 October 2013 — Grupo Hospitalario Quirón S.A. v Departamento de Sanidad del Gobierno Vasco
   (Case C-552/13)
   2014/C 24/05
   Language of the case: Spanish

      Referring court

   Juzgado Contencioso-Administrativo no 6 de Bilbao

      Parties to the main proceedings

      Applicant: Grupo Hospitalario Quirón S.A.

      Defendant: Departamento de Sanidad del Gobierno Vasco

      Co-defendant: Instituto de Religiosas Siervas de Jesús de la Caridad

      Question referred

   Is the requirement, included in public contracts for the management of public health-care services, that the provision of health services which is the subject-matter of such contracts be carried out ONLY in a determined municipality, which is not necessarily the municipality in which the patients reside, compatible with European Union law?


title: Case T-123/10: Action brought on 18 March 2010 — Hartmann v OHIM (Complete)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/45

         Action brought on 18 March 2010 — Hartmann v OHIM (Complete)
   (Case T-123/10)
   2010/C 134/73
   Language in which the application was lodged: German

      Parties

      Applicant: Paul Hartmann AG (Heidenheim, Germany) (represented by N. Aicher, lawyer)

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

      Form of order sought

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 January 2010 in Case R 601/2009-4;

               —

               order the defendant to pay the costs, including the costs of the proceedings before OHIM.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘Complete’ for goods in classes 5 and 10 (Application No 7 432 024)

      Decision of the Examiner: Rejection of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(c) of Regulation (EC) No 207/2009, (1) in that the sign applied for in respect of the goods in question is not directly descriptive and, further, infringement of Article 7(1)(b) of Regulation No 207/2009 in that this sign does not lack the requisite distinctive character.

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


title: Case T-535/12: Action brought on 8 December 2012 — Still v OHIM (Truck Data Services)

text:
               2.2.2013

               EN

               Official Journal of the European Union

               C 32/25

         Action brought on 8 December 2012 — Still v OHIM (Truck Data Services)
   (Case T-535/12)
   2013/C 32/40
   Language of the case: German

      Parties

      Applicant: Still GmbH (Hamburg, Germany) (represented by S. Waller, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2012 in Case R 4/2012-1;

               —

               Order the defendant to pay the costs;

               —

               Join the case under Article 50(1) of the Rules of Procedure of the General Court with the action brought in parallel against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 130/2012-1, also of 10 September 2012, regarding the Community trade mark application ‘Fleet Data Services’, application No 009931387.

      Pleas in law and main arguments

      Community trade mark concerned: the figurative mark including the word elements ‘Truck Data Services’ for goods and services in Classes 9, 12, 35, 36, 37 and 39 — Community trade mark application No 9 931 429

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law:

               —

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

               —

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

               —

               Infringement of the second sentence of Article [75] of Regulation No 207/2009


title: Case T-300/04: Action brought on 15 July 2004 by easyJet Airline Company Limited against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/39

         Action brought on 15 July 2004 by easyJet Airline Company Limited against the Commission of the European Communities
   (Case T-300/04)
   (2004/C 262/74)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 July 2004 by easyJet Airline Company Limited, Luton, United Kingdom, represented by Mr J. Cook and Ms L. Mills Solicitors.
   The applicant claims that the Court should:

               —

               Annul the Commission's Decision of 7 April 2004 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/38.284/D2 Société Air France/Alitalia Linee Aeree Italiane S.p.A.);

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   By the contested decision the Commission declared the provisions of Article 81 paragraph 1 of the EC Treaty inapplicable to the cooperation agreement between the airline companies Air France and Alitalia for the period 12 November 2001 to 11 November 2007, subject to compliance with the commitments in the annex to that decision.
   The applicant, which is itself an airline company, seeks the annulment of that decision. It claims that the cooperation agreement is a merger of the activities of the parties to it on the routes between France and Italy and, as such, should have been assessed under Council Regulation 4064/89 (1). It further submits that the Commission failed to define the relevant markets correctly, by not considering the position of the parties to the agreement as purchasers of airport services and concluding incorrectly that the two Paris airports are substitutable and that low cost carriers are not a viable alternative for time-sensitive passengers on routes between France and Italy.
   The applicant also considers that the Commission failed to apply Article 81 paragraph 1 EC properly, by carrying out an inadequate assessment of potential competition between the parties to the agreement, failing to assess accurately whether the agreement satisfies the four conditions set out in paragraph 3 of this article and basing its conclusions on manifest errors in law and assessment. Regarding the commitments annexed to the decision, it claims that the Commission failed to adequately assess their effectiveness and whether they are sufficient to restore competition. Finally, it submits that the contested decision does not contain an adequate statement of reasons because the Commission failed to consider the parties dominance on any market and the applicability of Article 82 EC to their agreement.

      (1)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 257/90, p. 13).


title: Case C-441/17: Action brought on 20 July 2017 — European Commission v Republic of Poland

text:
               9.10.2017

               EN

               Official Journal of the European Union

               C 338/9

         Action brought on 20 July 2017 — European Commission v Republic of Poland
   (Case C-441/17)
   (2017/C 338/10)
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: C. Hermes and K. Herrmann, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the Republic of Poland has failed to fulfil its obligations under Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’) (1) by approving an appendix to a forest management plan for the Białowieża Forest District without satisfying itself that it will not adversely affect the integrity of the Białowieża Forest Site of Community Importance (SCI) and Special Protection Area (SPA) PLC200004;

               —

               declare that the Republic of Poland has failed to fulfil its obligations under Article 6(1) of the Habitats Directive and under Article 4(1) and (2) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (‘the Birds Directive’) (2) by not taking the necessary conservation measures corresponding to the ecological requirements of (i) the natural habitat types listed in Annex I and the species listed in Annex II to the Habitats Directive, and (ii) the birds listed in Annex I to the Birds Directive and the regularly occurring migratory species not listed in that annex, for which the Białowieża Forest SCI and SPA PLC200004 were designated;

               —

               declare that the Republic of Poland has failed to fulfil its obligations under Article 12(1)(a) and (d) of the Habitats Directive by not guaranteeing the strict protection of the saproxylic beetles (the Flat Bark Beetle (Cucujus cinnaberinus), the Goldstreifiger Beetle (Buprestis splendens), the False Darkling Beetle (Phryganophilus ruficollis) and Pytho kolwensis) listed in Annex IV to the Habitats Directive, that is, by failing to prohibit the deliberate killing or disturbance of those beetles or the deterioration or destruction of their breeding sites in the Białowieża Forest District; and

               —

               declare that the Republic of Poland has failed to fulfil its obligations under Article 5(b) and (d) of the Birds Directive by not guaranteeing the protection of the species of birds referred to in Article 1 of the Birds Directive, including, in particular, the White-Backed Woodpecker (Dendrocopos leucotos), the Three-Toed Woodpecker (Picoides tridactylus), the Pygmy Owl (Glaucidium passerinum) and the Boreal Owl (Aegolius funereus), that is, by failing to ensure that they will not be killed or disturbed during their breeding and rearing periods and that their nests or eggs in the Białowieża Forest District will not be deliberately destroyed, damaged or removed;

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   In response to an outbreak of Spruce Bark Beetle (Ips typographus), on 25 March 2016 the Polish Minister for the Environment approved an appendix to the 2012 Forest Management Plan (FMP) permitting a threefold increase in logging in the forests of the Białowieża Forest District, that is, from 63 471 m3 to 188 000 m3, between 2012 and 2021, and, in areas previously outside the scope of such activity, permitting the application of Forest Action Plans consisting in the removal of centuries-old dead and dying trees, including, in particular, spruces affected by the Spruce Bark Beetle — so-called ‘sanitary pruning’, afforestation and restoration. That appendix constitutes a plan within the meaning of Article 6(3) of the Habitats Directive. The integrity of the Białowieża Forest area PLC200004 consists in: the fact of its being natural and untouched by human activity, the high proportion of ancient forest cover, including a large number of centuries-old dead standing and lying trees (deadwood), and the presence of species typical of natural forests (saproxylic beetles, the Three-Toed Woodpecker, the White-Backed Woodpecker, the Pygmy Owl and the Boreal Owl). Therefore the activities taking place in the Białowieża Forest District area are, in the Commission’s view, contrary to Article 6(3) of the Habitats Directive, because the Polish authorities did not ensure, prior to approving the appendix, that its adoption would not adversely affect the integrity of that site.
   Following the issuing of Decision No 51 by the Director-General of State Forests on 17 February 2017, work began on the removal of dead trees and trees affected by the Spruce Bark Beetle from all Forest District areas (Białowieża, Browsk, Hajnówka), that is to say, over a total area of approximately 34 000 hectares (the surface area of the Białowieża Forest area PLC200004 is 63 147 hectares).
   The Commission takes the view that the Forest Action Plans for the bog and swamp forest habitat 91D0, the willow, poplar, alder and ash riparian forest habitat 91E0, and the centuries-old stands in the subcontinental broadleaved forest habitat 9170 and for the habitats of the White-Backed Woodpecker, the Three-Toed Woodpecker, the Pygmy Owl, the Boreal Owl, the Honey Buzzard, the Red-Breasted Flycatcher, the Collared Flycatcher and the Stock Dove and of the saproxylic beetles Cucujus cinnaberinus, Boros schneideri, Phryganophilus ruficollis, Pytho kolwensis, Rhysodes sulcatus and Buprestis splendens, and the removal of centuries-old dead spruces and sections of trees as part of the increased logging in the Białowieża Forest area PLC200004 resulting from the implementation of the decision of the Polish Minister for the Environment of 25 March 2016 and Decision No 51 of the Director-General of State Forests of 17 February 2017 constitute potential threats to natural habitats and to the habitats of the animals and birds identified in the Site Management Plans for the Białowieża Forest area PLC200004 and prevent the implementation of conservation measures set out in those plans aimed at properly preserving the conservation status of the Białowieża Forest area PLC200004, which constitutes an infringement of Article 6(1) of the Habitats Directive.
   The Commission also submits that the Forest Action Plans described above, implemented on the basis of the appendix and destroying the habitat of strictly protected saproxylic beetles, prevent the adoption of practical and specific measures designed to ensure an adequate level of protection for the four species of saproxylic beetle (Cucujus cinnaberinus, Buprestis splendens, Phryganophilus ruficollis and Pytho kolwensis) included in Annex IV(a) to the Habitats Directive.
   Lastly, the Commission submits that the Forest Action Plans described above and implemented, on the basis of the appendix, fail, because of the destruction of the habitats of the White-Backed Woodpecker (Dendrocopos leucotos), the Three-Toed Woodpecker (Picoides tridactylus), the Pygmy Owl (Glaucidium passerinum) and the Boreal Owl (Aegolius funereus), to fulfil the obligation to provide effective protection for those species of birds, inasmuch as they prevent neither the destruction of those birds’ nests nor their deliberate disturbance.

      (1)  OJ 1992 L 206, p. 7.

      (2)  OJ 2010 L 20, p. 7.


title: Case T-92/08: Action brought on 22 February 2008 — Republic of Cyprus v Commission

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/28

         Action brought on 22 February 2008 — Republic of Cyprus v Commission
   (Case T-92/08)
   (2008/C 142/51)
   Language of the case: Greek
   Parties

      Applicant: Republic of Cyprus (represented by: P. Kliridis)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the procurement notice under reference EuropeAid/126111/C/SER/CY for the conclusion of a contract entitled ‘Technical Assistance to support the ongoing reform of the primary and secondary education sector’, which was published, only in English, on the webpage http://ec.europa.eu/europaid/tender/data/ on or around 14 December 2007, and annul points 5 and 28.2 of the notice;

               —

               order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   The applicant submits that the notice is unlawful for the following reasons:

               —

               first, because, in issuing the notice, the Commission exceeded and/or infringed its legal basis, to be specific Council Regulation (EC) No 389/2006 of 27 February 2006 establishing an instrument of financial support for encouraging the economic development of the Turkish Cypriot community and amending Council Regulation (EC) No 2667/2000 on the European Agency for Reconstruction (1);

               —

               second, because the notice is contrary to and/or incompatible with Article 299 EC, as amended by Article 19 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (2) (‘the 2003 Act of Accession’) and Protocol No 10, on Cyprus, to the 2003 Act of Accession (3);

               —

               third, because the notice is contrary to or incompatible with both obligations flowing from rules of mandatory international law and United Nations Security Council Resolutions 541(1983) and 550(1984);

               —

               fourth, because the notice is contrary to and/or incompatible with the principle of sincere cooperation between the institutions of the European Union and the Member States, as laid down under Article 10 EC; and

               —

               fifth, because the notice was not published in the Official Journal.

      (1)  OJ 2006 L 65, p. 5.

      (2)  OJ 2003 L 236, p. 33.

      (3)  OJ 2003 L 236, p. 955.


title: Case T-255/04: Judgment of the Court of First Instance of 10 May 2007 — Negenman v Commission (Civil service — Officials — Maternity leave — Sickness leave — Probable date of confinement — Date of beginning of maternity leave)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/19

         Judgment of the Court of First Instance of 10 May 2007 — Negenman v Commission
   (Case T-255/04) (1)

   (Civil service - Officials - Maternity leave - Sickness leave - Probable date of confinement - Date of beginning of maternity leave)
   (2007/C 140/31)
   Language of the case: French
   Parties

      Applicant: Monique Negenman (Roosendaal, The Netherlands) (represented by: L. Vogel, lawyer)

      Defendant: Commission of the European Communities (represented by: initially D. Waelbrock, then H. Tserepa-Lacombe, Agents, the latter assisted by N. Rampal, lawyer)
   Re:
   Application for, first, annulment of the Commission's decision fixing the dates of the beginning and end of the applicant's maternity leave in accordance with Article 58 of the Staff Regulations of Officials of the European Communities and, second, damages.
   Operative part of the judgment
   The Court:

               1.

               Annuls the Commission's decision of 23 October 2003 fixing the dates of the beginning and end of the applicant's maternity leave;

               2.

               Dismisses the remainder of the application;

               3.

               Orders the Commission to pay the costs.

      (1)  OJ C 228 of 11.9.2004.


title: Case C-355/13: Request for a preliminary ruling from the Commissione Tributaria Regionale dell’Umbria (Italy) lodged on 27 June 2013 — Umbra Packaging srl v Agenzia delle Entrate — Direzione Provinciale di Perugia

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/27

         Request for a preliminary ruling from the Commissione Tributaria Regionale dell’Umbria (Italy) lodged on 27 June 2013 — Umbra Packaging srl v Agenzia delle Entrate — Direzione Provinciale di Perugia
   (Case C-355/13)
   2013/C 260/49
   Language of the case: Italian

      Referring court

   Commissione Tributaria Regionale dell’Umbria

      Parties to the main proceedings

      Applicant: Umbra Packaging srl

      Defendant: Agenzia delle Entrate — Direzione Provinciale di Perugia

      Questions referred

               1.

               Is Article 160 of Legislative Decree No 259/2003, which provides the basis for the government concession tax charged at the tariff indicated in Article 21 of [the Annex to] Presidential Decree No 641/1972, consistent with Article 3 of Directive 20/2002/EC, (1) which, within the liberalised system for communications, prohibits administrative authorities from having the power of control which is used to justify the charge imposed on service users?

               2.

               Is Article 3(2) of Ministerial Decree No 33/1990, which is referred to in the tariff indicated in Article 21 of [the Annex to] Presidential Decree No 641/1972, as amended by Article 3 of Legislative Decree No 151/1991, consistent with the system of free competition and the prohibition, laid down in Article 102 of the Treaty, of applying dissimilar conditions to equivalent transactions?

               3.

               Are the differing rates of the government concession tax imposed on domestic and business users and its being applied only to subscription agreements, not to pre-paid services, consistent with the criteria of reasonableness and appropriateness and do those differences not impede the creation of a competitive market?

      (1)  Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ L 108, p. 21).


title: Case C-578/11 P: Appeal brought on 18 November 2011 by Deltafina SpA against the judgment of the General Court (Third Chamber) delivered on 9 September 2011 in Case T-12/06 Deltafina v Commission

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/37

      Appeal brought on 18 November 2011 by Deltafina SpA against the judgment of the General Court (Third Chamber) delivered on 9 September 2011 in Case T-12/06 Deltafina v Commission
      (Case C-578/11 P)
      (2012/C 25/71)
      Language of the case: Italian

         Parties

         Appellant: Deltafina SpA (represented by: J.-F. Bellis and F. Di Gianni, avvocati)

         Other party to the proceedings: European Commission

         Form of order sought

                  —

                  Set aside, in whole or in part, the judgment under appeal in so far as it dismisses the appellant’s action;

                  —

                  Annul, in whole or in part, the Commission’s decision of 20 October 2005 in so far as it concerns the appellant;

                  —

                  Cancel or reduce the fine imposed on the appellant, including on the basis of the Court’s unlimited jurisdiction under Article 261 TFEU;

                  —

                  In the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

                  —

                  Order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

         Pleas in law and main arguments

      The appellant relies on four grounds of appeal.

                  1.

                  The General Court erred in concluding that Deltafina acted in breach of its duty to cooperate by failing to inform the Commission of the disclosure of information concerning its cooperation with the Commission. It should have ruled, instead, on the issue whether, in the light of the agreement reached concerning the ‘rules of the game’ at the meeting between the Commission and Deltafina on 14 March 2002, the Commission was entitled to find that Deltafina had failed to have regard to its duty to cooperate on the basis that it disclosed that it had applied for immunity at the meeting held at APTI’s offices on 4 April 2002.
                  In so doing, the General Court substituted itself for the parties by defining ex post the conditions governing Delatafina’s duty to cooperate, failed to rule on the principal plea relied on by Deltafina and infringed its rights of defence.

                  2.

                  The General Court failed to make adequate or correct findings of fact because, instead of using measures of enquiry provided for in Article 65 of its Rules of Procedure, at the hearing it heard evidence, following an allegedly informal, and thus defective, procedure from two participants at the meeting of 24 March 2002 on the subject of the ‘rules of the game’, without having regard, therefore, to the guarantees laid down in Articles 68 and 76 of the Rules of Procedure, and disregarded fundamental rules on obtaining evidence.

                  3.

                  The General Court failed to observe the principle that it should adjudicate within a reasonable time. The proceedings before the General Court were excessively lengthy, lasting five years and eight months, more than 43 months elapsing between the end of the written procedure and the decision to open the oral procedure.

                  4.

                  Lastly, the General Court unlawfully refused to rule, in accordance with its unlimited jurisdiction, on the argument that the fine imposed on Deltafina was disproportionate and discriminatory, in so far as the Commission applied the same level of reduction to the fine of Deltafina as that of Dimon Italia, in spite of the substantial difference between their respective contributions to the finding of an infringement. Case T-13/03 Nintendo v Commission established the principle that the Commission is not entitled to disregard the principle of equal treatment in appraising the cooperation provided by undertakings during the administrative procedure, which must be compared from both a chronological point of view and a qualitative point of view.


title: Case C-268/08 P: Appeal brought on 24 June 2008 by Christos Michail against the judgment of the Court of First Instance (First Chamber) delivered on 16 April 2008 in Case T-486/04 Michail v Commission

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/27

         Appeal brought on 24 June 2008 by Christos Michail against the judgment of the Court of First Instance (First Chamber) delivered on 16 April 2008 in Case T-486/04 Michail v Commission
   (Case C-268/08 P)
   (2008/C 223/42)
   Language of the case: French
   Parties

      Appellant: Christos Michail (represented by: C Meidanis. lawyer)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               Declaration that the appeal is admissible and well-founded;

               —

               Annulment, as necessary, of the judgment of the Court of First Instance of 16 April 2008 in Case T-486/04;

               —

               Order as appropriate that costs be paid.

         Pleas in law and main arguments
   The appellant relies on three grounds in support of his appeal.
   In his first ground of appeal, Mr Michail claims that the Court of First Instance erred in the interpretation and application of Community law and failed to comply with its duty to state reasons in judgments, in that the Court acknowledged, in the contested judgment, that the Commission was partly responsible for the appellant feeling that he was subject to psychological harassment, within the meaning of Article 12a of the Staff Regulations, but nonetheless rejected his action as unfounded.
   In his second ground of appeal, the appellant complains that the Court of First Instance distorted the sense of the facts presented for its assessment, in particular by examining the facts individually and not in their overall context, and that the Court made several errors in the legal classification of those facts.
   In his third ground of appeal, the appellant lastly criticises the decision of the Court of First Instance to reject as inadmissible, for lack of precision, the numerous pleas in law on which he relied in support of his action, alleging, inter alia, infringement of Articles 21a, 22a and 22c of the Staff Regulations and of the principles of equal treatment and proportionality. By breaking down his action into several parts, the Court of First Instance altered the essential nature of the action in its objectives and structure.


title: Case T-540/11: Order of the General Court of 11 September 2013 — Melkveebedrijf Overenk and Others v Commission (Action for damages — Levy in the milk and milk products sector — Regulation (EC) No 1468/2006 — Manifest inadmissibility)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/23

         Order of the General Court of 11 September 2013 — Melkveebedrijf Overenk and Others v Commission
   (Case T-540/11) (1)

   (Action for damages - Levy in the milk and milk products sector - Regulation (EC) No 1468/2006 - Manifest inadmissibility)
   2013/C 336/47
   Language of the case: Dutch

      Parties

      Applicants: Melkveebedrijf Overenk BV (Sint Anthonis, Netherlands); Maatschap Veehouderij Kwakernaak (Oosterwolde, Netherlands); Mulders Agro vof (Heerle, Netherlands); Melkveebedrijf Engelen vof (Grashoek, Netherlands); Melkveebedrijf De Peel BV (Heusden, Netherlands); and Mathijs Moonen (Nederweert, Netherlands) (represented by P. Mazel and A. van Beelen, lawyers)

      Defendants: European Commission (represented by Z. Malůšková and B. Burggraaf, acting as Agents)

      Re:

   Claim for damages for the loss allegedly caused to the applicants by Commission Regulation (EC) No 1468/2006 of 4 October 2006 amending Regulation (EC) No 595/2004 laying down detailed rules for applying Council Regulation (EC) No 1788/2003 establishing a levy in the milk and milk products sector (JO 2006 L 274, p. 6).

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Melkveebedrijf Overenk BV, Maatschap Veehouderij Kwakernaak, Mulders Agro vof, Melkveebedrijf Engelen vof, Melkveebedrijf De Peel BV and Mr Mathijs Moonen are ordered to pay the costs.

      (1)  OJ C 347, 26.11.2011.


title: Case T-228/08: Order of the Court of First Instance of 24 November 2009 — Szomborg v Commission (Action for failure to act — Commission’s failure to present a scientific assessment within the prescribed period — Non-actionable measure — Not individually concerned — Inadmissibility)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/52

         Order of the Court of First Instance of 24 November 2009 — Szomborg v Commission
   (Case T-228/08) (1)

   (Action for failure to act - Commission’s failure to present a scientific assessment within the prescribed period - Non-actionable measure - Not individually concerned - Inadmissibility)
   2010/C 24/93
   Language of the case: Polish

      Parties

      Applicant: Szomborg (Jastarnia, Poland) (represented by: R. Nowosielski, lawyer)

      Defendant: Commission of the European Communities (represented by: K. Banks and A. Szmytkowska, Agents)

      Re:

   Action for failure to act, seeking a declaration that the Commission unlawfully failed to present within the prescribed period the scientific assessment provided for in Article 27 of Council Regulation (EC) No 2187/2005 of 21 December 2005 for the conservation of fishery resources through technical measures in the Baltic Sea, the Belts and the Sound, amending Regulation (EC) No 1434/98 and repealing Regulation (EC) No 88/98 (OJ 2005 L 349, p. 1)

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Mr Grzegorz Szomborg shall bear his own costs and pay those incurred by the Commission of the European Communities.

      (1)  OJ C 209, 15.08.2008.


title: Case T-273/06: Action brought on 11 September 2006 — ISD Polska and Industrial Union of Donbass v Commission

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/57

         Action brought on 11 September 2006 — ISD Polska and Industrial Union of Donbass v Commission
   (Case T-273/06)
   (2006/C 294/117)
   Language of the case: French
   Parties

      Applicants: ISD Polska sp. z.o.o. (Częstochowa, Poland) and Industrial Union of Donbass Corp. (Donetsk, Ukraine) (represented by: C. Rapin and E. Van den Haute, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare this action admissible;

               —

               annul Article 3 of the Commission decision of 5 July 2005 concerning the aid granted by Poland to Huta Częstochowa SA (notified under C(2005) 1962);

               —

               in the alternative, declare that on the date of this action there is no obligation on Poland to recover the aid and interest referred to in Article 3 of the decision and therefore that the amounts of that aid and interest is not payable;

               —

               in the further alternative, annul the second subparagraph of Article 3(2) of the decision and refer the question of the interest to the Commission for a new decision in accordance with Annex A to this application, or with such other consideration as the Court may indicate in the grounds of the judgment;

               —

               in any event, order the Commission to pay all of the costs;

               —

               if the Court should decide that there is no need to adjudicate, order the Commission to pay the costs pursuant to the combined provisions of Article 87(6) and Article 90(a) of the Rules of Procedure of the Court of First Instance.

         Pleas in law and main arguments
   By its decision C(2005) 1962 final of 5 July 2005 (State Aid No C 20/04, ex NN 25/04), the Commission declared certain restructuring aid granted by Poland to the steel producer Huta Częstochowa SA incompatible with the common market and ordered its recovery. The applicant ISD Polska is successor to the beneficiary of the aid and a subsidiary of the second applicant, Industrial Union of Donbass, which holds all of its shares. The two applicants are referred to in the contested decision among the undertakings required jointly and severally to repay the aid declared incompatible with the common market.
   In support of their application for the partial annulment of the decision, the applicants rely on six pleas in law.
   By their first plea, they claim that the Commission made a manifest error of assessment of the facts decisive for the outcome of the investigation. They maintain that once the assets of the original beneficiary of the incompatible aid have been sold, those assets having been bought by ISD Polska (and Donbass), it is the seller of the original beneficiary of the aid which retains the benefit of that aid, and must ensure that it is repaid. The applicants claim that in this case, if the Commission had correctly established the relevant facts concerning the sale of the assets of Huta Częstochowa SA to ISD Polska (and Donbass) it would have considered that, because the means of production of Huta Częstochowa were acquired at a price reflecting the market price, restitution of the aid had thereby already been made to the seller. According to the applicants, the Commission was therefore in breach of its obligation to examine, carefully and impartially, all the relevant factors of the case.
   The second plea relied upon by the applicants alleges infringement of the right to submit comments, as recognised by Article 88 EC and Article 6 of Regulation No 659/1999 (1). They maintain that the publication in the Official Journal of the European Communities of the decision to initiate the formal investigation procedure did not state in sufficient detail the aid called into question or its amount, although according to the applicants that information was known to the Commission, which prevented them from ascertaining which aid was covered by the investigation and evaluating the desirability of submitting their comments.
   The same alleged irregularity is the basis for the third plea relied on by the applicants, namely infringement of the principle of the protection of legitimate expectations. They maintain that if the decision to initiate the investigation procedure had enabled Donbass to ascertain which aid was covered by the procedure, that company could have submitted evidence to the Commission showing, as ISD Polska and Donbass are doing in this action, that that aid was compatible with Community law.
   By their fourth plea, the applicants claim that the Commission infringed Protocol No 8 to the Treaty of Accession, on the restructuring of the Polish steel industry (2), by interpreting purely literally some of its provisions which, in the view of the applicants, it should have interpreted in the light of the objectives pursued by that protocol and in consideration of the background to its adoption. That allegedly incorrect interpretation led the Commission to require, by its decision, repayment of State aid received before the adoption of Protocol No 8 by companies not included in Annex 1, which designates eight benefiting companies which are eligible for aid from Poland in derogation from Articles 87 and 88 EC. The applicants claim that since it acted thus without a legal basis, the Commission is not competent to give a decision on some of the aid referred to in the contested decision and that it therefore encroached upon the temporal competence of other Community institutions.
   The fifth plea relates to infringement of Article 14(1) of Regulation No 659/1999, since the decision to recover the aid runs counter to the principles of the protection of legitimate expectations, legal certainty and equal treatment.
   By their sixth plea, the applicants claim in the alternative that the Commission infringed Regulation No 794/2004 (3) when calculating the interest rate applicable to the recovery of the aid in the present case.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ L 83 of 27.3.1999, p. 1.

      (2)  OJ 2003 L 236, p. 948.

      (3)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ L 140 of 30.4.2004, p. 1.


title: JUDGMENT OF THE COURT (Third Chamber) of 8 February 1996 in Case C-149/94 (reference for a preliminary ruling from the Tribunale de Grande Instance, Caen): Criminal proceedings against Didier Vergy (Directive 79/409/EEC on the conservation of wild birds - Prohibition of sale - Specimen born and reared in captivity)

text:
 No C 95/2             EN                 Official Journal of the European Communities                                      30 . 3 . 96
Article 4 (1 ) of Council Directive 79/7'/EEC of 19 December               the species concerned is a species of naturally occurring
 1978 on the progressive implementation of the principle of                birds in the wild state in the European territory of the
 equal treatment for men and women in matters of social                    Member States to which the Treaty applies — subject to
security must be interpreted as meaning that a national                    the option to derogate provided for by Article 9.
statutory scheme, such as that established by the IOAW,
 which provides for a benefit designed to guarantee                  2 . Directive 79/409/EEC is not applicable to specimens of
 beneficiaries income at the level of the social minimum,                  birds born and reared in captivity.
 irrespective as to whether the claimant has any resources but
subject to conditions relating to his previous employment
and age, does not involve discrimination on grounds of sex           3 . Directive 79/409/EEC requires each Member State to
even if it is established that a much greater number of men               ensure the protection of a species of bird naturally
 than women find in that scheme a way of avoiding the                     occurring in the wild state in the European territory of
means test which, in contrast, has to be satisfied in the case            the Member States to which the Treaty applies, even if
of another scheme, such as that established by the RWW,                   the natural habitat of the species in question does not
which, albeit providing for a benefit of the same type, is less           occur in the territory of the Member State concerned.
favourable, since the national legislature was reasonably
entitled to consider that the scheme in question was                 (') OJ No C 202 , 23 . 7. 1994 .
necessary in order to attain a social policy aim unrelated to
any discrimination on grounds of sex.
(') OJ No C 59 , 26 . 2 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                (Third Chamber)
                                                                                of 8 February 1996
                                                                    in Case C-166/94 (reference for a preliminary ruling by
               JUDGMENT OF THE COURT                                the Corte d'Appello, Salerno ): Pezzullo Molini Pastifici
                        (Third Chamber )                                 Mangimifici SpA against Ministero delle Finanze ( l )
                      of 8 February 1996                             (Inward processing arrangements — National legislation
in Case C-149/94 ( reference for a preliminary ruling from          providing for default interest on agricultural levies and
the Tribunale de Grande Instance, Caen ): Criminal                   VAT for the period between temporary and definitive
             proceedings against Didier Vergy ( 1 )                                            importation)
 (Directive 79/409/EEC on the conservation of wild birds —                                     ( 96/C 95/04 )
Prohibition of sale — Specimen born and reared in
                              captivity)                                              (Language of the case: Italian)
                           ( 96/C 95/03 )
                                                                    (Provisional translation; the definitive translation will be
                (Language of the case: French)                           published in the Reports of Cases before the Court)
(Provisional translation; the definitive translation will be        In Case C- 166/94 — reference by the Corte d'Appello
         published in the European Court Reports)                   ( Court of Appeal ), Salerno, for a preliminary ruling in the
                                                                    proceedings pending before that court between Pezzullo
                                                                    Molini Pastifici Mangimifici SpA and Ministero delle
In Case C-149/94 : reference to the Court under Article 177         Finanze on the interpretation of Articles 9 , 12, 13 , 30 and 38
of the EC Treaty from the Tribunale de Grande Instance              of the EC Treaty and Article 18 ( 2 ) of Council Regulation
( Regional Court), Caen ( France ), for a preliminary ruling in     ( EEC ) No 2727/75 of 29 October 1975 on the common
the criminal proceedings pending before that court against          organization of the market in cereals ( OJ No L 281 , 1975 ,
Didier Vergy — on the interpretation of Council Directive           p. 1 ) and Article 16 of Council Directive 69/73/EEC of
79/409/EEC of 2 April 1979 on the conservation of wild              4 March 1969 on the harmonization of provisions laid
birds ( OJ No L 103 , 1979 , p. 1 ) — the Court (Third              down by law, regulation or administrative action in respect
Chamber ), composed of: J. -P. Puissochet, President of the         of inward processing ( OJ English Special Edition 1969 ( I ),
Chamber, J. C. Moitinho de Almeida and C. Gulmann                   p. 75 ) — the Court (Third Chamber ), composed of J. -P.
( Rapporteur ), Judges; N. Fennelly, Advocate-General; H.           Puissochet, President of the Chamber, J. C. Moitinho de
von Holstein, Administrator, for the Registrar, gave a              Almeida and C. Gulmann ( Rapporteur ), Judges; F. G:
judgment on 8 February 1 996 , the operative part of which is       Jacobs, Advocate-General; R. Grass, Registrar, gave a
as follows :                                                        judgment on 8 February 1996, the operative part of which is
                                                                    as follows :
1 . Council Directive 79/409/EEC of 2 April 1979 on the
     conservation ofwild birds requires the Member States to        1 . Council Directive 69/73/EEC of 4 March 1969 on the
     prohibit trade in specimens belonging to a species ofbird            harmonization of provisions laid down by law,
     which is not listed in the Annexes thereto — in so far as            regulation or administrative action in respect of inward


C 264/26              EN                           Official Journal of the European Union                                       1.11.2003
Action brought on 19 September 2003 by the Com-                                  Removal from the register of Case C-214/02 (1)
mission of the European Communities against the
                  Kingdom of the Netherlands                                                      (2003/C 264/45)
                        (Case C-395/03)                                    By order of 26 March 2003 the President of the Court of
                                                                           Justice of the European Communities ordered the removal
                        (2003/C 264/44)                                    from the register of Case C-214/02 (Reference for a preliminary
                                                                           ruling by the Unabhängiger Verwaltungssenat des Landes
                                                                           Vorarlberg): Gerhard Lintschinger.
An action against the Kingdom of the Netherlands was brought               (1) OJ C 180 of 27.7.2002.
before the Court of Justice of the European Communities on
19 September 2003 by the Commission of the European
Communities, represented by W. Wils and K. Banks, acting as
Agents.
                                                                                Removal from the register of Case C-219/02 (1)
The applicant claims that the Court should:                                                       (2003/C 264/46)
1.    Declare that, by failing to adopt the laws, regulations and          By order of 26 June 2003 the President of the Court of Justice
      administrative provisions necessary to give effect to                of the European Communities ordered the removal from the
      Directive 98/44/EC (1) of the European Parliament and of             register of Case C-219/02: Commission of the European
      the Council of 6 July 1998 on the legal protection of                Communities v Hellenic Republic.
      biotechnological inventions, or in any event by failing to
      inform the Commission of those provisions, the Kingdom
      of the Netherlands has failed to fulfil its obligations under        (1) OJ C 191 of 10.8.2002.
      that directive;
2.    Order the Kingdom of the Netherlands to pay the costs.
                                                                           Removal from the register of Joined Cases C-242/02 and
                                                                                C-243/02 (1)
Pleas in law and main arguments                                                                   (2003/C 264/47)
The period within which the directive had to be transposed                 By order of 26 March 2003 the President of the Court of
expired on 30 July 2000.                                                   Justice of the European Communities ordered the removal
                                                                           from the register of Joined Cases C-214/02 and C-243/02
                                                                           (Reference for a preliminary ruling by the Unabhängiger
(1) OJ L 213 of 30.7.1998, p. 13.                                          Verwaltungssenat des Salzburg): Manfred Hückel.
                                                                           (1) OJ C 247 of 12.10.2002.


title: Case T-290/15: Judgment of the General Court of 9 November 2016 — Smarter Travel Media v EUIPO (SMARTER TRAVEL) (EU trade mark — Application for the figurative EU trade mark SMARTER TRAVEL — Absolute grounds for refusal — Descriptive character — No distinctive character — Article 7(1)(b) and (c) and Article 7(2) of Regulation (EC) No 207/2009 — Equal treatment)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/35

         Judgment of the General Court of 9 November 2016 — Smarter Travel Media v EUIPO (SMARTER TRAVEL)
   (Case T-290/15) (1)

   ((EU trade mark - Application for the figurative EU trade mark SMARTER TRAVEL - Absolute grounds for refusal - Descriptive character - No distinctive character - Article 7(1)(b) and (c) and Article 7(2) of Regulation (EC) No 207/2009 - Equal treatment))
   (2017/C 006/42)
   Language of the case: English

      Parties

      Applicant: Smarter Travel Media LLC (Boston, Massachusetts, United States) (represented by: P. Olson, lawyer)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 20 March 2015 (Case R 1986/2014-2), relating to an application for registration of the figurative sign SMARTER TRAVEL as an EU trade mark

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Smarter Travel Media LLC to pay the costs.

      (1)  OJ C 262, 10.8.2015.


title: Case C-107/99: Action brought on 29 March 1999 by the Italian Republic against the Commission of the European Communities

text:
3.7.1999                EN                       Official Journal of the European Communities                                       C 188/7
Reference for a preliminary ruling by the Diikitiko                         Action brought on 29 March 1999 by the Italian Republic
Protodikio Thessalonikis (First Chamber, Three Judges)                        against the Commission of the European Communities
by judgment of that court of 30 November 1998 in the
case of P. Moskof A.E. against the Idrima Kinonikon
                              Asfalision                                                              (Case C-107/99)
                          (Case C-103/99)
                                                                                (1999/C 188/16)
                          (1999/C 188/14)
Reference has been made to the Court of Justice of the                      An action against the Commission of the European Communi-
European Communities by judgment of the Diikitiko Protodi-                  ties was brought before the Court of Justice of the European
kio Thessalonikis (Administrative Court of First Instance,                  Communities on 29 March 1999 by the Italian Republic,
Thessaloniki) (First Chamber, Three Judges) of 30 November                  represented by Umberto Leanza, acting as Agent, assisted by
1998, received at the Court Registry on 22 March 1999, for a                Ivo M. Braguglia, with an address for service in Luxembourg at
preliminary ruling in the case of P. Moskof A.E. against the                the Italian Embassy, 5 Rue Marie Adelaïde.
Idrima Kinonikon Asfalision (Social Security Institution) on
the following question:
Articles 6 and 7 of Legislative Decree 2348/1953 (FEK I,                    The applicant claims that the Court should:
p. 75), as supplemented by Article 2 of Legislative Decree
2519/1953 (FEK I, p. 220) and amended by Articles 9 and                     — annul the contested decision of 16 December 1998 and,
11(4) of Legislative Decree 4104/1960 (FEK I, p. 147), provide                   in so far as necessary, also annul the other contested acts,
for the imposition of a special contribution at the rate of 0.5%
                                                                                in particular the letter of the Commission dated 19 January
on the value of tobacco exported outside the borders of the
                                                                                1999, the table thereto attached and the opinion of the
country, paid by the exporters at the time of export and
                                                                                Management Committee of 22 September 1998;
collected by the customs office through which the export of
tobacco takes place. The proceeds of the special contribution
were stipulated to be revenue of the special account for                    — order the defendant to pay the costs.
tobacco workers, and now of the Pensions Branch of the
Idrima Kinonikon Asfalision (Social Security Institution); they
are made available for the continued payment of pensions
to pensioners of the former Tamio Asfaliseos Kapnergaton                    Pleas in law and main arguments
(Tobacco Workers’ Insurance Fund) which was abolished and
amalgamated with the Idrima Kinonikon Asfalision and for
the payment of pensions to the tobacco workers insured with
the abolished fund, as well as to persons entitled under them               1. The applicant Government has not been made aware of
on their death. Is it possible for that special contribution, with               any text for the contested decision and does not even
those features, to be regarded as a charge having equivalent                     know whether such a text exists other than in the letter of
effect to customs duty under Articles 9, 12 and 16 of the EEC                    the Secretary General of 9 January 1999 and the table
Treaty?                                                                          attached thereto. Accordingly the Italian Government must
                                                                                express its objection as if the contested decision were set
                                                                                out in the abovementioned letter.
Reference for a preliminary ruling by the Commissione
Tributaria Provinciale di Brindisi, Sezione V by order of                        The applicant claims that the decision as subscribed by the
that court of 14 January 1999 in the case of Oleifici                            Secretary General, rather than by the President or a
Italiani SpA against Direzione Regionale delle Entrate per                       Member of the European Commission is non-existent or is
           la Puglia - Sezione distaccata di Brindisi                            absolutely null and void.
                          (Case C-104/99)
                          (1999/C 188/15)                                        Next, it claims that no statement of reasons was provided
                                                                                for the decision, contrary to the provisions of Article 190
Reference has been made to the Court of Justice of the                           of the EC Treaty.
European Communities by order of the Commissione Tributar-
ia Provinciale di Brindisi, Sezione V (Provincial Tax Court (Fifth
Chamber), Brindisi) of 14 January, which was received at the                2. The Commission has infringed Article 24 of Regulation
Court Registry on 23 March 1999, for a preliminary ruling in                     No 4253/88, (1) as amended by Article 1 of Regulation
the case of Oleifici Italiani SpA against Direzione Regionale                    No 2082/93, (2) in that it failed to undertake a suitable
delle Entrate per la Puglia — Sezione distaccata di Brindisi of a                examination of the case, the Member State was not
question seeking to ascertain whether the tax on the net assets                  involved and no irregularities were revealed.
of companies under Decree Law No 394 of 30 September
1994 is a charge having equivalent effect to other taxes levied             3. The Commission had no power to decide unilaterally to
on capital contributions and thus contrary to Article 10 of                      reduce or amend the purpose of the funds for Community
Directive 69/335/EEC (1) on indirect taxes on the raising of                     initiative programmes which had been granted.
capital.
(1) OJ, English Special Edition 1969 (II), p. 412.                          4. The partnership principle laid down in Article 4 of
                                                                                Regulation No 2052/88 (3) wasmanifestly breached by the
                                                                                contested Commission decision.
 ---pagebreak--- C 188/8                 EN                     Official Journal of the European Communities                                            3.7.1999
5. The solution opted for by the contested decision, based on             Reference for a preliminary ruling by the Tribunal Admin-
     entirely irrelevant criteria, breaches the principles of social      istratif de Pau (First Chamber) by judgment of that
     cohesion and of solidarity among the Member States. It               court of 23 March 1999 in the case of Association
     further breaches the principle of non-discrimination, given          basco-béarnaise des opticiens indépendants against Préfet
     that the reduction of the aid already granted to Italy was           des Pyrénées-Atlantiques in the presence of Mutualité
     greater than that applied to any other Member State.                 ‘Adour Mutualité’ and Mutualité Française Union des
                                                                                Pyrénées-Atlantiques
6. The applicant Government further submits that the Com-
     mission’s conduct is contradictory and is ultra vires.                                          (Case C-109/99)
     Moreover, the contested decision allegedly infringes
     Article 2 of Regulation No 1866/90, (4) as amended by
     Article 1 of Regulation No 2745/94. (5)                                                         (1999/C 188/18)
                                                                          Reference has been made to the Court of Justice of the
(1) Council Regulation (EEC) of 19 December 1988 (OJ 1988 L 374,          European Communities by judgment of the Tribunal Adminis-
    p. 1).                                                                tratif de Pau (Administrative Court, Pau) of 23 March 1999,
(2) Council Regulation (EEC) of 20 July 1993 (OJ 1993 L 193, p. 20).      received at the Court Registry on 29 March 1999, for a
(3) Council Regulation (EEC) of 24 June 1993 (OJ 1988 L 185, p. 9).
(4) Council Regulation (EEC) of 2 July 1990 (OJ 1990 L 170, p. 36).
                                                                          preliminary ruling in the case of Association basco-béarnaise
(5) Council Regulation (EEC) of 10 November 1994 (OJ 1994 L 290,          des opticiens indépendants against Préfet des Pyrénées-
    p. 4).                                                                Atlantiques in the presence of Mutualité ‘Adour Mutualité’
                                                                          and Mutualité Française Union des Pyrénées-Atlantiques. The
                                                                          Tribunal Administratif de Pau (First Chamber) requests a ruling
                                                                          from the Court of Justice of the following two questions:
                                                                          (1) Must Article 8(1)(b) of Council Directive 73/239/EEC (1)
                                                                               be interpreted as precluding the provisions of
                                                                               Articles L 123-1 and L 123-2 of the French Mutuality
                                                                               Code, which allow mutual benefit societies whose sole
Reference for a preliminary ruling by the High Court                           business is that of insurance to create between them
of Justice (England & Wales), Queen’s Bench Division,                          mutual benefit bodies which have legal personality and
Divisional Court, by order of that court of 2 September                        legal autonomy and engage in commercial business in the
1998, in the case of Commissioners of Customs and                              optical sector?
        Excise against Cantor Fitzgerald International
                                                                          (2) If the provisions of the directive are incompatible with
                                                                               French law, is the prohibition of commercial business
                          (Case C-108/99)                                      imposed on the mutual benefit body set up by mutual
                                                                               benefit societies whose sole business is that of insurance
                         (1999/C 188/17)                                       general and absolute, or is it open to the competent
                                                                               authorities of the Member State to define the conditions
                                                                               under which and the spheres in which a commercial
Reference has been made to the Court of Justice of the                         business may be pursued?
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division, Divisional
Court of 2 September 1998, which was received at the Court                (1) Of 24 July 1973 on the coordination of laws, regulations and
Registry on 30 March 1999, for a preliminary ruling in the                    administrative provisions relating to the taking-up and pursuit of
case of Commissioners of Customs and Excise against Cantor                    the business of direct insurance other than life insurance (OJ 1973
Fitzgerald International, on the following question:                          L 228 p. 3).
Following the decision of the Court in Case C-63/92 (Lubbock
Fine & Co v Customs and Excise Commissioners); (1) does
Article 13B(b) of the Sixth VAT Directive (2) exempt from VAT
a supply made by a person (‘the person’) who does not have
any interest in immovable property, where the person agrees
to accept an assignment of a lease of that immovable property
                                                                          Reference for a preliminary ruling by the Landgericht
from a lessee, and the lessee pays that person a sum of money
                                                                          Düsseldorf by order of that court of 19 January 1999 in
in return for that person taking the assignment of the lease in
                                                                          the case of Toshiba Europe GmbH against Katun Germany
that immovable property?
                                                                                GmbH
(1) ECR 1993 p. I-6665.                                                                              (Case C-112/99)
(2) Directive 77/388/EEC of the Council of 17 May 1977 on the
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform                                       (1999/C 188/19)
    basis of assessment (OJ L 145, 13.06.77, p. 1).
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Landgericht Düsseldorf
                                                                          (Higher Regional Court, Düsseldorf), Fourth Civil Chamber, of


title: Case C-94/08: Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/20

         Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-94/08)
   (2008/C 107/32)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet and L. Lozano Palacios, agents)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               Declare that, by maintaining in its legislation the requirement of Spanish nationality for persons occupying the posts of captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction, the Kingdom of Spain has failed to fulfil its obligations under Community law, and in particular Article 39 EC.

               —

               order Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   In accordance with the Spanish legislation, the posts of captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction, must be occupied by Spanish citizens.
   The Commission considers that the requirement, as a general rule, that those posts be occupied by persons of Spanish nationality infringes Article 39 EC and cannot be justified by the derogation of Article 39(4). The Commission's interpretation is supported in particular by Case C-405/01 (1), in which the Court ruled that the scope of that derogation must be limited to what is strictly necessary for safeguarding the general interests of the Member State concerned, and in respect of the posts concerned, those interests cannot be imperilled if the relevant rights under powers conferred by public law are exercised only sporadically, even exceptionally, by nationals of other Member States. The Kingdom of Spain has not amended the legislation in the way recommended by the Commission, although it undertook to make the necessary amendments in its response to the reasoned opinion.

      (1)  Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391.