title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 16 September 1998 in Case T-215/97: Sari Kristiina Jouhki v Commission of the European Communities (Officials - Notice of competition - Refusal to admit to competition)

text:
24.10.98             EN                  Official Journal of the European Communities                                C 327/23
Jean-FrancËois Bellis and Richard Luff, of the Brussels Bar,        1. The application is dismissed.
with an address for service in Luxembourg at the
Chambers of Freddy Brausch, 11 Rue Goethe, against
Council of the European Union (Agents: Antonio Tanca,               2. The applicant is ordered to pay the costs.
Hans-Jürgen Rabe and Georg M. Berrisch) Ð application
for the annulment of Council Regulation (EC) No 648/96              (1) OJ C 199 of 28.6.1997.
of 28 March 1996 imposing a definitive anti-dumping
duty on imports of bicycles originating in Indonesia,
Malaysia and Thailand and collecting definitively the
provisional duties imposed (OJ L 91, 12.4.1996, p. 1) Ð
the Court of First Instance (Fourth Chamber, Extended
Composition), composed of: P. Lindh, President, R.
García-Valdecasas, K. Lenaerts, J. D. Cooke and M.                    JUDGMENT OF THE COURT OF FIRST INSTANCE
Jaeger, Judges; B. Pastor, Principal Administrator, for the                             of 16 September 1998
Registrar, has given a judgment on 17 July 1998, in which
it:                                                                 in Case T-215/97: Sari Kristiina Jouhki v Commission of
                                                                                the European Communities (1)
                                                                    (Officials Ð Notice of competition Ð Refusal to admit to
1. Dismisses the application;                                                                competition)
                                                                                (98/C 327/42)
2. Orders the applicant to pay the costs.
                                                                                (Language of the case: Finnish)
( ) OJ C 318, 26.10.1996.
 1
                                                                    In Case T-215/97: Sari Kristiina Jouhki, a nurse, residing
                                                                    in Pyhäjärvi, Finland, represented by Harri Ojala, of the
                                                                    Oulu Bar, against Commission of the European
                                                                    Communities (Agent: Esa Passivirta) Ð application for
                                                                    annulment of the decision of the Selection Board in Open
                                                                    Competition COM/B/973 not to allow the applicant to
   JUDGMENT OF THE COURT OF FIRST INSTANCE                          take part in the competition Ð the Court of First Instance
                                                                    (Fourth Chamber), composed of: P. Lindh, President, K.
                       (Third Chamber)                              Lenaerts and J. D. Cooke, Judges; A. Mair, Administrator,
                                                                    for the Registrar, has given a judgment on 16 September
                    of 15 September 1998
                                                                    1998 in which it:
in Case T-142/97: EugeÂnio Branco Ld.a v Commission of
               the European Communities (1)
                                                                    1. Dismisses the application;
(Actions for annulment Ð European Social Fund              Ð
Reduction of financial contribution Ð Certification by    the
                                                                    2. Orders the parties to bear their own costs.
Member State Ð Error of assessment of the facts            Ð
Legitimate expectations Ð Legal certainty                  Ð
                        Proportionality)                            (1) OJ C 357, 22.11.1997.
                         (98/C 327/41)
             (Language of the case: Portuguese)
                                                                         ORDER OF THE COURT OF FIRST INSTANCE
                                            a
In Case T-142/97: EugeÂnio Branco Ld., established in                                      of 20 July 1998
Lisbon, represented by Bolota Belchior, of the Vila Nova
                                                                          in Case T-61/96: JoseÂ Francisco Meoro AvileÂs v
de Gaia Bar, with an address for service in Luxembourg at
                                                                           Commission of the European Communities (1)
the Chambers of Jacques Schroeder, 6 Rue Heine, against
Commission of the European Communities (Agents: Maria               (Notices of competition Ð Non-submission of application
Teresa Figueira and Knut Simonsson) Ð application for                       Ð Action for annulment Ð Inadmissibility)
the annulment of the decision of the Commission C(96)
3170 of 16 December 1996 reducing a financial                                               (98/C 327/43)
contribution granted by the European Social Fund to the
applicant Ð the Court of First Instance (Third Chamber),                           (Language of the case: Spanish)
composed of V. Tiili, President, C. P. BrieÈt and A. Potocki,
Judges; Blanca Pastor, Principal Administrator, for the
Registrar, gave a judgment on 15 September 1998, the                In Case T-61/96: JoseÂ Francisco Meoro AvileÂs, a technical
operative part of which reads as follows:                           industrial engineer, residing in Alcantarilla (Spain),


C 144/32              EN                  Official Journal of the European Communities                                    15.6.2002
       Removal from the register of Case C-282/01 (1)                register of Case C-288/01 (Referral for a preliminary ruling by
                                                                     the Schleswig-Holsteinisches Finanzgericht): Ulf Thomsen v
                       (2002/C 144/66)                               Finanzamt Flensburg.
                                                                     (1) OJ C 275 of 29.9.2001.
By order of 21 March 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-282/01: Commission of the
European Communities v Portuguese Republic.
(1) OJ C 245 of 1.9.2001.                                                   Removal from the register of Case C-350/01 (1)
                                                                                (2002/C 144/69)
                                                                     By order of 6 March 2002 the President of the Court of Justice
       Removal from the register of Case C-287/01 (1)                of the European Communities ordered the removal from the
                                                                     register of Case C-350/01: Commission of the European
                       (2002/C 144/67)                               Communities v Italian Republic.
By order of 11 April 2002 the President of the Court of Justice      (1) OJ C 317 of 10.11.2001.
of the European Communities ordered the removal from the
register of Case C-287/01: Commission of the European
Communities v French Republic.
(1) OJ C 245 of 1.9.2001.                                                   Removal from the register of Case C-409/01 (1)
                                                                                (2002/C 144/70)
       Removal from the register of Case C-288/01 (1)                By order of 22 March 2002 the President of the Court of
                                                                     Justice of the European Communities ordered the removal
                       (2002/C 144/68)                               from the register of Case C-409/01 (Reference for a preliminary
                                                                     ruling by the Tribunale Civile e Penale di L’Aquila): Rolando
                                                                     Salusest v Giovanni Petrucci.
By order of 6 March 2002 the President of the Court of Justice
of the European Communities ordered the removal from the             (1) OJ C 348 of 8.12.2001.


title: Case C-10/05: Reference for a preliminary ruling from the Cour Administrative (Grand Duchy of Luxembourg) by judgment of that court of 11 January 2005 in Cynthia Mattern and Hajrudin Cikotic v Ministre du travail et de l'emploi

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/7

         Reference for a preliminary ruling from the Cour Administrative (Grand Duchy of Luxembourg) by judgment of that court of 11 January 2005 in Cynthia Mattern and Hajrudin Cikotic v Ministre du travail et de l'emploi
   (Case C-10/05)
   (2005/C 69/15)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by judgment of the Cour administrative (Higher Administrative Court) (Grand Duchy of Luxembourg) of 11 January 2005, received at the Court Registry on 14 January 2005, for a preliminary ruling in the proceedings between Cynthia Mattern and Hajrudin Cikotic and the Ministre du travail et de l'emploi on the following question:

      Do Community rules concerning freedom of movement for workers apply to the situation of a national of a non-member State married to a Community national who has attended a vocational training course and professional training in a Member State other than her own, and may the non-Community spouse therefore be exempt from the requirement to obtain a work permit on the basis of rules guaranteeing to Community nationals and members of their families who are non-member country nationals the right to freedom of movement as workers?


title: Case T-250/05: Action brought on 24 June 2005 by European Dynamics S.A. against the Office for Official Publications of the European Communities

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/50

         Action brought on 24 June 2005 by European Dynamics S.A. against the Office for Official Publications of the European Communities
   (Case T-250/05)
   (2005/C 217/106)
   Language of the case: English
   An action against the Office for Official Publications of the European Communities was brought before the Court of First Instance of the European Communities on 24 June 2005 by European Dynamics S.A., established in Athens (Greece), represented by N. Korogiannakis, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision of the OPOCE, to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

               —

               order the OPOCE to pay the applicant's legal and other costs and expenses incurred in connection with this Application, even if the current Application is rejected.

         Pleas in law and main arguments
   The applicant company filed a bid in response to the OPOCE's call for tenders No. 6019-1 for the AProvision of Services in Relation to the Collection, Production and Dissemination of Electronic Publications, in particular the Supplement to the Official Journal of the European Union (OJS)@. By the contested decision the applicant's bid was rejected and the contract awarded to another bidder.
   In support of its application the applicant contends that the contested decision was taken in violation of the principle of non-discrimination since the OPOCE failed to take action to investigate and remedy a problem brought to its attention by the applicant, namely that only a very limited number of companies producing CD-ROMs and located inside an approximate two-hours range from Luxembourg could supply the requested quantity within the framework imposed by the call for tenders, and that in this way tenderers were obliged to produce bids in collaboration with those companies and therefore be linked with them on price and quality issues. According to the applicant several alternatives existed but OPOCE failed to take any action and this led to a situation where only one bid could be accepted as fulfilling the technical evaluation criteria.
   The applicant further invokes two alleged evident errors of assessment of the Evaluation Report, namely mistakenly considering that the price offered by the applicant was some EUR 800 000 higher than it actually was and noting, also erroneously, that the production did not seem realizable and that there was no information in the tender with regard to the CD-ROM.
   Finally, the applicant submits that the contested decision is vitiated by a failure to provide pertinent information and to state reasons.


title: Case T-479/11: Action brought on 9 September 2011 — France v Commission

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/26

         Action brought on 9 September 2011 — France v Commission
   (Case T-479/11)
   2011/C 340/54
   Language of the case: French

      Parties

      Applicant: French Republic (represented by: E. Belliard, G. de Bergues, B. Beaupère-Manokha and J. Gstalter, acting as Agents)

      Defendant: European Commission

      Form of order sought

               —

               Annul the contested decision in its entirety;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   By its application, the applicant seeks annulment of Commission Decision C(2011) 4483 final of 29 June 2011 relating to State aid No NN C 35/2008 granted by France to the industrial and commercial public body, the Institut Français du Pétrole (French Petroleum Institute; ‘IFP’).
   In support of the action, the applicant puts forward three pleas in law:

               1.

               First plea, alleging an error of law in that the Commission did not establish to the requisite legal standard the existence of State aid. The applicant argues that, when concluding that there was State aid, the Commission did not comply with the rules governing proof in relation to State aid, as regards either the burden of proof or the standard of proof.

               2.

               Second plea, divided into four parts, alleging errors of fact and law in so far as the Commission held there to be an implicit unlimited State guarantee in favour of the IFP. The applicant submits that:

                           —

                           an examination of French law does not show there to be a principle that the debts of the IFP are guaranteed by the State;

                           —

                           the fact that ordinary law procedures regarding receivership and insolvency are not applicable to the IFP does not mean that the creditors of such a body are in a more favourable situation than the creditors of an undertaking subject to commercial law;

                           —

                           the mechanisms for putting the State’s liability in issue cannot be likened to the mechanism of an unlimited guarantee;

                           —

                           the fact that certain debts connected with the public-service obligations of the IFP may be upheld is not related to the body’s status.

               3.

               Third plea, divided into two parts, alleging an error in the application of the concept of ‘advantage’ for the purposes of Article 107(1) TFEU, inasmuch as:

                           —

                           the Commission incorrectly concluded that the existence of a guarantee — were it to be established — would create an advantage in favour of the IFP;

                           —

                           in the alternative, the Commission misapplied the concept of advantage when it held that the advantage from which it claimed the IFP benefited on account of the guarantee resulting from its status was transferred to its private-law subsidiaries Axens and Prosernat.


title: Case T-244/10: Judgment of the General Court of 8 May 2012 — Tsakiris-Mallas v OHIM — Seven (7 Seven Fashion Shoes) (Community trade mark — Opposition proceedings — Application for Community figurative mark 7 Seven Fashion Shoes — Earlier national figurative marks Seven and 7seven — Partial refusal to register — Relative grounds for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/10

         Judgment of the General Court of 8 May 2012 — Tsakiris-Mallas v OHIM — Seven (7 Seven Fashion Shoes)
   (Case T-244/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark 7 Seven Fashion Shoes - Earlier national figurative marks Seven and 7seven - Partial refusal to register - Relative grounds for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 184/16
   Language of the case: English

      Parties

      Applicant: Tsakiris-Mallas AE (Athens, Greece) (represented by: N. Simantiras, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Seven SpA (Leinì, Italy) (represented by D. Sindico, lawyer)

      Re:

   ACTION brought against the decision of the Second Board of Appeal of OHIM of 22 March 2012 (R 1045/2009-2) relating to opposition proceedings between Seven SpA and Tsakiris-Mallas AE.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Tsakiris-Mallas AE to pay the costs.

      (1)  OJ C 221, 14.8.2010.


title: Case C-224/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 17 May 2005 in 1. Maatschap H. and J. van 't Oever, 2. Maatschap F. van 't Oever and W. Fien, 3. B. van 't Oever, 4. Maatschap A. and J. Fien, 5. Maatschap K. Koers and J. Stellingwerf, 6. H. Koers, 7. Maatschap K. and G. Polinder, 8. G. van Wijhe, v Minister van Landbouw, Natuur en Voedselkwaliteit

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/14

         Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 17 May 2005 in 1. Maatschap H. and J. van 't Oever, 2. Maatschap F. van 't Oever and W. Fien, 3. B. van 't Oever, 4. Maatschap A. and J. Fien, 5. Maatschap K. Koers and J. Stellingwerf, 6. H. Koers, 7. Maatschap K. and G. Polinder, 8. G. van Wijhe, v Minister van Landbouw, Natuur en Voedselkwaliteit
   (Case C-224/05)
   (2005/C 193/23)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) of 17 May 2005, received at the Court Registry on 20 May 2005, for a preliminary ruling in the proceedings between 1. Maatschap H. and J. van 't Oever, 2. Maatschap F. van 't Oever and W. Fien, 3. B. van 't Oever, 4. Maatschap A. and J. Fien, 5. Maatschap K. Koers and J. Stellingwerf, 6. H. Koers, 7. Maatschap K. and G. Polinder, 8. G. van Wijhe and Minister van Landbouw, Natuur en Voedselkwaliteit (Minister for Agriculture, Nature and Food Quality) on the following questions:

               1.

               Does Community law require the courts of their own motion to conduct an examination, that is to say an examination of grounds which are outside the terms of the dispute but are based on Directive 85/511/EEC? (1)

               2.

               If the answer to Question 1 is affirmative, does the obligation on Member States under the first indent of Article 11(1) of Directive 85/511/EEC, read in conjunction with the second indent of Article 13(1) thereof, to ensure that laboratory testing to detect the presence of FMD is carried out by a laboratory listed in Annex B to Directive 85/511/EEC have direct effect?

               3.

                           (a)

                           Must Article 11(1) of Directive 85/511/EEC be interpreted as meaning that legal consequences must be attached to the fact that the presence of FMD is found by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

                           (b)

                           If the answer to Question 3(a) is in the affirmative:
                           Is the purpose of Article 11(1) of Directive 85/511/EEC to protect the interests of individuals, such as the appellants in the main proceedings? If not, can individuals, such as the appellants in the main proceedings, plead possible failure to fulfil the obligations which this provision places on the authorities of the Member States?

                           (c)

                           If the answer to Question 3(b) means that individuals can rely on Article 11(1) of Directive 85/511/EEC:
                           What legal consequences must be attached to a finding of the presence of FMD by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

               4.

               Must Annex B to Directive 85/511/EEC be interpreted, having regard to Articles 11 and 13 thereof, as meaning that the mention in Annex B to Directive 85/511/EEC of ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.?

               5.

               If it follows from the above answers that the presence of FMD can be found by a laboratory which is not listed in Annex B to Directive 85/511/EEC or that Annex B to Directive 85/511/EEC must be interpreted as meaning that the mention of the ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.:
               Must Directive 85/511/EEC be interpreted as providing that the national administrative authority authorised to adopt decisions is bound by the outcome of an examination by a laboratory which is listed in Annex B to Directive 85/551/EEC or — if the answer to Question 2a means that the administrative authority may base its FMD control measures also on results obtained by a laboratory which is not listed in Annex B to Directive 85/511/EEC — by the results of the latter laboratory, or does the determination of final authority in that regard fall within the procedural autonomy of the Member State and must the court before which the main proceedings are pending examine whether the rules in that respect apply irrespective of whether the laboratory examination is carried out by virtue of a Community or national legal obligation and of whether or not the application of the provisions of national procedural law renders the implementation of the Community rules extremely difficult or practically impossible?

               6.

               If the answer to Question 4 means that the issue of whether national authorities are bound by the laboratory result is governed by Directive 85/511/EEC:
               Are the national authorities bound unconditionally by the result of an FMD examination carried out by a laboratory? If not, what margin of discretion does Directive 85/511/EEC leave these national authorities?

      (1)  Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease (OJ 1985 L 315, p. 1).


title: Case T-457/04: Action brought on 9 November 2004 by Camar S.r.l. against the Commission of the European Communities

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/28

         Action brought on 9 November 2004 by Camar S.r.l. against the Commission of the European Communities
   (Case T-457/04)
   (2005/C 31/53)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 November 2004 by Camar S.r.l., represented by Wilma Viscardini, Simonetta Donà and Mario Paolin.
   The applicant claims that the Court should:

               —

               annul the Commission's refusal communicated by the Director General for Agriculture by letter of 10 September 2004 (ref D (2004) 29695 A/25707) received on 20 September 2004;

               —

               order that paragraph 1 of the operative part of the judgment of 8 June 2000 in Joined Cases T-79/96, T-260/97 and T-117/98 be enforced;

               —

               order the Commission to give effect to paragraph 1 of the operative part of that judgment by the financial equivalent of the value of the entitlements that it should have, but has not delivered, pursuant to the judgment in question, in the sum of EUR 5 065 600, or such other sum as the Court may fix, increased to reflect changes in monetrary values, and interest at a rate to be determined by the Court, with effect from 8 June 2000 until the date of discharge of the judgment debt;

               —

               order the Commission to compensate the applicant for non-pecuniary loss – to be determined equitably by the Court – sustained by the applicant's constituent partners as a result of the failure to enforce the judgment of 8 June 2000;

               —

               order the Commission to pay the costs of the present action.

         Pleas in law and main arguments:
   In support of its pleas in law, the applicant submits that the Commission's failure to act – not only has it not adopted any specific measure, it has not even proposed to Camar appropriate measures to give effect to the judgment delivered in Case T-79/96 (a continuing failure to act since 8 June 2000) – and its express refusal to enforce that judgment, communicated by the letter of 10 September 2000, constitute a serious infringement of Article 233 EC.
   To the extent that the Commission is no longer able to deliver the entitlements to the applicant which it should have done to give effect to that judgment – because, in short, imports of third-country bananas will no longer be subject to tariff quota but instead completely liberalised –, Camar seeks equivalent enforcement in the form of compensation for financial loss which, according to settled case-law, is available where it is no longer possible to enforce a judgment in a specific way.
   The applicant also seeks equitable damages for the non-pecuniary loss sustained by reason of the failure to enforce the judgment of 8 June 2000. According to settled case-law, that fact alone already constitutes a ground for compensation in that it infringes the principle of legitimate expectations. In this case, that infringement is aggravated by the fact that Camar expected the Commission to enforce the judgment because it said it would do so in a letter of 20 May 2003. That letter has since been withdrawn.


title: Case C-308/04 P: Appeal brought on 19 July 2004 by SGL Carbon AG against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/14

         Appeal brought on 19 July 2004 by SGL Carbon AG against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01
   (Case C-308/04 P)
   (2004/C 262/26)
   An appeal was brought before the Court of Justice of the European Communities on 19 July 2004 by SGL Carbon AG, represented by Martin Klusmann and Kirsten Beckmann, Rechtsanwälte, of Freshfields Bruckhaus Deringer, Freiligrathstrasse 1, D-40479 Düsseldorf, against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01.
   The appellant claims that the Court should:

               1.

               uphold the pleas in law submitted at first instance and set aside in part the judgment delivered by the Court of First Instance of the European Communities on 29 April 2004 in Case T-239/01 (1) to the extent to which it dismisses the action in as far as that action is directed against Articles 3 and 4 of the respondent's decision of 18 July 2001;

               2.

               in the alternative, reduce as appropriate the fine imposed on the appellant in Article 3 of Decision COMP/E-1/36.490 and the interest in respect of pending proceedings and default interest fixed in Article 4 of the decision in conjunction with the letter of 23 July 2001 from the respondent (SG 2001 D/290091);

               3.

               in the further alternative, refer the case back to the Court of First Instance for reconsideration in the light of the legal views expressed by the Court of Justice;

               4.

               order the respondent to pay all of the costs of the proceedings.

         Pleas in law and main arguments:
   The appellant seeks, by a total of seven grounds of appeal, to have Articles 3 and 4 of the Commission decision set aside to a greater degree than that to which they were set aside in the judgment of the Court of First Instance:

               1.

               The appellant first submits that there has been an infringement of the principle of ne bis in idem by reason of the fact that no account was taken of the sanction which, prior to the adoption of the contested Commission decision, had already been imposed in North America in respect of the same acts. The appellant argues that, in view of the identical substantive objectives pursued by the prohibitory rules serving to protect competition in Europe and North America, some account at least ought to be taken of penalties previously imposed in respect of the same facts. This follows either directly from the ne bis in idem principle, as broadly understood, which applies in the relationship of Community law to the law of non-member countries, or from the principle of natural justice, which is even broader in scope and has been applicable since the Walt Wilhelm case-law. Furthermore, the Court has, in its judgment in Boehringer, already confirmed that there is in principle a duty to take into account sanctions imposed in the U.S. when a case before it relates to the same facts. That is something which the Court of First Instance failed to do.

               2.

               With regard to the Court of First Instance's findings concerning the establishment of the basic amounts of the fine, the appellant submits that the Court of First Instance erred in failing to make a downward adjustment of the basic amount in relation to the appellant, even though this ought to have occurred had the definitive calculation criteria established by that Court been applied in a non-discriminatory manner.

               3.

               In its third ground of appeal the appellant contends that the specific 25 % increase in the basic amount of the fine in the light of warning calls made prior to the commencement of the Commission's inspection was unlawful. Those calls, the appellant submits, did not form part of the facts constituting the charge in issue and, contrary to the view taken by the Court of First Instance, could not have been taken into account as aggravating grounds in the calculation of the fine under Article 15(2) of Regulation No 17 without thereby infringing the principle of nulla poena sine lege. The Sarrió case-law which the Court of First Instance cites in support of the opposite contention is, the appellant argues, irrelevant inasmuch as in the facts underlying that case aggravating circumstances in the commission of acts were taken into account for purposes of increasing the fine, whereas later acts which, in retrospect, could or should have made detection of those acts more difficult were not. Furthermore, the Court of First Instance in the present case made assumptions in respect of internal matters to the detriment of the appellant, a course of action at variance with the rules of evidence.

               4.

               In regard to the calculation of the fine, the appellant also takes issue with the fact that the upper limit for a fine of 10 % of an undertaking's turnover, as laid down in Article 15(2) of Regulation No 17, was exceeded. Had the Commission taken as its basis the conclusive turnover figures for 2000 or 1999, it would have been obliged to cap the arithmetical amount of the fine at 10 % of the undertaking's turnover before applying the rule under the leniency programme. The Court of First Instance erroneously left the entire question open on the legally incorrect assumption that it had no bearing on the dismissal of the relevant complaint.

               5.

               The appellant further takes issue with the insufficient attention paid to the significance of documents withheld in the context of the inadequate document access. The appellant expands on its submission at first instance by contending that new and incriminating documents, of which the appellant was unaware and on which it had not previously had an opportunity to set out its views, were even used for the first time in the decision by the Court of First Instance.

               6.

               The appellant further challenges the categorical decision not to take account of what all parties accept was its reduced financial capacity when the fine was being calculated and claims that such a failure constitutes an infringement of the principle of proportionality and breaches its freedom to dispose of its property. Penalties imposed under competition law may not jeopardise the existence of those on whom the penalties are imposed; the operational undertaking must be the standard by which the appropriateness and propriety of sanctions in individual cases fall to be judged. It is in general impermissible to concentrate on those parts of an undertaking which may still be salvageable after insolvency brought about by the imposition of a fine. Every fine must be calculated in such a way that no economic ‘death sentences’ are passed.

               7.

               The appellant concludes by challenging the fact that no adjudication was made on its multi-limbed head of complaint concerning the fixing of default interest and interest in respect of pending proceedings, which was dismissed only in the result and not formally. The Court of First Instance erred in law in failing to take into account the fact that there is no legal basis whatever for determining interest and none for the level of interest established which was here used as a basis. Even if one were to recognise that the setting of interest is in principle permissible in order to prevent the bringing of abusive actions, the setting of interest is at best required to be at a significantly lower level in order to attain that objective. That must in particular be the case in view of the drastically increased level of the fine, which leads to an equally drastic increase in the absolute level of the interest imposed. The substantive heads of complaint raised were not addressed in the judgment under appeal; instead, there was a ruling on a head of complaint that the appellant had not raised.

      (1)  Not yet published in the European Court Reports.


title: Case F-83/11: Action brought on 26 August 2011 — ZZ v Commission

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/41

         Action brought on 26 August 2011 — ZZ v Commission
   (Case F-83/11)
   2011/C 340/86
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision of the president of the selection board for competition EPSO/AST/112/10 — Assistants (AST3) not to admit the applicant to the assessment tests.

      Form of order sought

               —

               Principally:

                           —

                           annul the decision adopted on 17 May 2011 refusing to permit the applicant to take part in the assessment tests for competition EPSO/AST/112/10 — Assistants in grade AST3;

                           —

                           consequently, declare that the applicant must be reinstated in the recruitment procedure put in place by that competition, if necessary, by holding fresh assessment tests.

               —

               In the alternative, if the principal application is not granted, quod non, pay the applicant an amount to be fixed provisionally and ex aequo et bono at EUR 2 000 by way of compensation for material damage suffered, with interest for delayed payment at the legal rate from the date of delivery of the judgment in the present case;

               —

               In any event, pay the applicant an amount to be fixed provisionally and ex aequo et bono at EUR 2 000 by way of compensation for non-material damage suffered, with interest for delayed payment at the legal rate from the date of delivery of the judgment in the present case;

               —

               Order the Commission to pay the costs.


title: Case T-858/16: Action brought on 6 December 2016 — Dow Corning and Dow Corning Europe v Commission

text:
               13.2.2017

               EN

               Official Journal of the European Union

               C 46/20

         Action brought on 6 December 2016 — Dow Corning and Dow Corning Europe v Commission
   (Case T-858/16)
   (2017/C 046/23)
   Language of the case: English

      Parties

      Applicants: Dow Corning Corporation (Midland, Michigan, United States) and Dow Corning Europe (Seneffe, Belgium) (represented by: S. Verschuur, M. Stroungi and L. Mélia, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Articles 1-4 of the Commission’s decision of 11 January 2016 on State Aid SA.37667 (2015/C) (ex 2015/NN) on the Excess Profit Exemption State aid Scheme implemented by Belgium (‘the contested decision’) (1);

               —

               in the alternative, annul Article 2(1) of the contested decision;

               —

               order the Commission to pay the costs of this procedure.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission violated Article 1(d) of Regulation 2015/1589 (2) by incorrectly qualifying the excess profit rulings as a scheme, thereby committing various manifest errors of law, fact and assessment and also giving an inadequate statement of reasons.

               2.

               Second plea in law, alleging that the Commission violated Article 107(1) TFEU by committing a material error of law and a manifest error of assessment when interpreting and applying the reference system for purposes of assessing whether the excess profit rulings conferred a selective advantage.

               3.

               Third plea in law, alleging that the Commission violated Article 107(1) TFEU by incorrectly establishing that the excess profit rulings conferred a selective advantage, thereby committing various manifest errors of fact and assessment, failing to conduct a diligent and impartial examination and giving an inadequate statement of reasons.

               4.

               Fourth plea in law, alleging that the Commission violated Article 16 of Regulation 2015/1589 and various principles of EU law by committing a material error of law and a manifest error of assessment and giving an inadequate statement of reasons when establishing the methodology to quantify the alleged aid.

      (1)  Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (notified under document C(2015) 9837) (OJ L 260, 2016, p. 61)

      (2)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 2015, p. 9)


title: Case T-431/07: Order of the General Court of 15 December 2011 — Gebr. Heller Maschinenfabrik v OHIM (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               11.2.2012

               EN

               Official Journal of the European Union

               C 39/13

         Order of the General Court of 15 December 2011 — Gebr. Heller Maschinenfabrik v OHIM
   (Case T-431/07) (1)

   (Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
   2012/C 39/25
   Language of the case: German

      Parties

      Applicant: Gebr. Heller Maschinenfabrik GmbH (Nürtingen, Germany) (represented by: W. Keßler and S. Baur, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: S. Schäffner, and subsequently by: R. Pethke, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Manuel Fernández Martinez (Elche, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 11 September 2007 (Case R 974/2006-2), concerning opposition proceedings between Manuel Fernández Martinez and Gebr. Heller Maschinenfabrik GmbH.

      Operative part of the order

               1.

               There is no further need to adjudicate in the action.

               2.

               The applicant shall pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Case C-448/13 P: Appeal brought on 7 August 2013 by Delphi Technologies, Inc. against the judgment of the General Court (Sixth Chamber) delivered on 6 June 2013 in Case T-515/11: Delphi Technologies, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/10

         Appeal brought on 7 August 2013 by Delphi Technologies, Inc. against the judgment of the General Court (Sixth Chamber) delivered on 6 June 2013 in Case T-515/11: Delphi Technologies, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-448/13 P)
   2013/C 313/19
   Language of the case: English

      Parties

      Appellant: Delphi Technologies, Inc. (represented by: C. Albrecht, J. Heumann, Rechtsanwälte)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the decision T-515/11 of the General Court dated 6 June 2013, annul the contested decision as far as it rejected the appeal brought by the appellant against the examiner’s decision of 25 August 2010 and order that the OHIM shall pay the costs.

      Pleas in law and main arguments

   The Appeal is directed against the decision T-515/11 of the Sixth Chamber of the General Court of the European Union dismissing an action for annulment against a decision of the Second Board of Appeal confirming the rejection of the CTM application ‘INNOVATION FOR THE REAL WORLD’.
   The appeal is based on three pleas:

               1.

               The General Court violated Article 7 (1) (b) CTMR (1) by not determining the relevant public and their degree of awareness properly. The goods are exclusively directed at professionals who have a high degree of awareness with respect to promotional slogans.

               2.

               The General Court further violated Article 7 (1) (b) CTMR by applying too strict a test in assessing whether the mark applied for had a distinctive character. In particular, the General Court misunderstood the guidelines laid down in the more recent case law, and, in particular, in Case C-398/08 P, Audi v OHIM.

               3.

               Thirdly the General Court violated the general principles of equal treatment and sound administration, which are basic principles for the proper administration of the EU. The fact that the OHIM registered slogans with an identical structure containing the word ‘INNOVATION’ in the past should be taken into account, even though the previous decisions are not binding.

         The applicant submits that the contested decision should, therefore, be set aside and that the inherent distinctiveness of the slogan ‘INNOVATION FOR THE REAL WORLD’ should be affirmed.

      (1)  Council Regulation (EC) No 207/2009 of 27 February 2009 on the Community trade mark
   OJ L 78, p. 1


title: Judgment of the Court (Sixth Chamber) 9 July 2002 in Case C-181/00 (Reference for a preliminary ruling from the Supremo Tribunal Administrativo): Flightline Ltd v Secretário de Estado dos Transportes e Communicações, Transportes Aéreos Portugueses SA (TAP) (Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC) No 2408/92 — Imposition of public service obligations on scheduled air services serving a peripheral region — Compatibility with Member States' power to restrict cabotage until 1 April 1997 — Interpretation of Article 1(e) of Decision 94/698/EC)

text:
28.9.2002              EN                      Official Journal of the European Communities                                             C 233/7
Abad): Application for a declaration that, by failing to take the                     —      have not given prior approval for the sampling and
measures necessary in order to ensure, as regards the three                                  measurement procedures and have not determined
incineration furnaces installed at Mazo and Barlovento on the                                the location of the measurement points concerned;
island of La Palma (Spain), the application of:
                                                                                —      have not laid down any measurement programme;
—    Article 2 of Council Directive 89/369/EEC of 8 June                        —     Article 7 of that directive, inasmuch as those furnaces are
     1989 on the prevention of air pollution from new                                 not equipped with auxiliary burners, which would make it
     municipal waste incineration plants (OJ 1989 L 163,                              possible to maintain the minimum combustion tempera-
     p. 32), inasmuch as those furnaces are operating without                         ture of 850C, particularly during start-up and shut-down
     the required prior authorisation:                                                operations,
                                                                                the Kingdom of Spain has failed to fulfil its obligations under
                                                                                that directive;
—    Article 6 of that directive, inasmuch as, with regard to
     those furnaces, the competent authorities
                                                                          2.    Dismisses the remainder of the action;
                                                                          3.    Orders the Commission of the European Communities to pay
     —     have not taken periodic measurements in respect of                   one third of the costs and the Kingdom of Spain two thirds of
           the parameters prescribed by that article;                           the costs.
                                                                          (1 ) OJ C 192 of 8.7.2000.
     —     have not given prior approval for the sampling and
           measurement procedures and have not determined
           the location of the measurement points concerned;
     —     have not laid down any measurement programme;
                                                                                JUDGMENT OF THE COURT
—    Article 7 of that directive, inasmuch as those furnaces are
     not equipped with auxiliary burners, which would make                                           (Sixth Chamber)
     it possible to maintain the minimum combustion tem-
     perature of 850oC, particularly during start-up and shut-
     down operations,                                                                                9 July 2002
                                                                          in Case C-181/00 (Reference for a preliminary ruling from
the Kingdom of Spain has failed to fulfil its obligations under           the Supremo Tribunal Administrativo): Flightline Ltd v
that directive, the Court (Fifth Chamber), composed of: P. Jann,          Secretário de Estado dos Transportes e Communicações,
President of the Chamber, D.A.O. Edward and C.W.A. Timmer-                        Transportes Aéreos Portugueses SA (TAP) ( 1)
mans (Rapporteur), Judges; P. Léger, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 11 July
2002, in which it:                                                        (Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC)
                                                                          No 2408/92 — Imposition of public service obligations
                                                                          on scheduled air services serving a peripheral region —
                                                                          Compatibility with Member States’ power to restrict cabo-
                                                                          tage until 1 April 1997 — Interpretation of Article 1(e) of
1.   Declares that, by failing to adopt the measures necessary in                                  Decision 94/698/EC)
     order to ensure, as regards the three incineration furnaces
     installed at Mazo and Barlovento on the island of La Palma,
     the application of:                                                                              (2002/C 233/11)
                                                                                (Language of the case: Portuguese)
     —     Article 6 of Council Directive 89/369/EEC of 8 June
           1989 on the prevention of air pollution from new               (Provisional translation; the definitive translation will be published
           municipal waste incineration plants, inasmuch as, with                              in the European Court Reports)
           regard to those furnaces, the competent authorities
           —     have not taken periodic measurements in respect of       In Case C-181/00: Reference to the Court under Article 234
                 the parameters prescribed by that article;               EC by the Supremo Tribunal Administrativo (Portugal) for a
 ---pagebreak--- C 233/8                  EN                       Official Journal of the European Communities                                          28.9.2002
preliminary ruling in the proceedings pending before that                                     JUDGMENT OF THE COURT
court between Flightline Ltd and Secretário de Estado dos
Transportes e Communicações, Transportes Aéreos Portugue-
ses SA (TAP), on the interpretation of Articles 3(2) and 4(1)(a)                                       (Fifth Chamber)
and (d) of Council Regulation (EEC) No 2408/92 of 23 July
1992 on access for Community air carriers to intra-Com-                                                  11 July 2002
munity air routes (OJ 1992 L 240, p. 8) and Article 1(e) of
Commission Decision 94/698/EC of 6 July 1994 concerning
increase in capital, credit guarantees and tax exemption in                  in Case C-210/00 (Reference for a preliminary ruling from
favour of TAP (Transportes Aéreos Portugueses) (OJ 1994                      the Bundesfinanzhof): Käserei Champignon Hofmeister
L 279, p. 29), the Court (Sixth Chamber), composed of:                           GmbH & Co. KG v Hauptzollamt Hamburg-Jonas (1)
F. Macken (Rapporteur), President of the Chamber, C. Gul-
mann, R. Schintgen, V. Skouris and J. N. Cunha Rodríguez,
Judges; S. Alber, Advocate General; H. A. Rühl, Principal                    (Agriculture — Export refunds — False declaration —
                                                                             Penalty — Validity of point (a) of the first subparagraph of
Administrator, for the Registrar, has given a judgment on
                                                                             Article 11(1) of Regulation (EEC) No 3665/87, as amended
9 July 2002, in which it has ruled:
                                                                             by Regulation (EC) No 2945/94 — Concept of ‘force
                                                                                majeure’)
                                                                                (2002/C 233/12)
1.    The exercise by a Member State of the rights and powers laid
      down in Article 4 of Council Regulation (EEC) No 2408/92                                  (Language of the case: German)
      of 23 July 1992 on access for Community air carriers to intra-
      Community air routes does not presuppose or mean that that
      Member State must waive its right under Article 3(2) of that           (Provisional translation; the definitive translation will be published
      regulation to restrict competition until 1 April 1997 in                                  in the European Court Reports)
      cabotage services within its territory.
                                                                             In Case C-210/00: Reference to the Court under Article 234
2.    In a public tender procedure organised in 1995 for the provision       EC, by the Bundesfinanzhof (Germany) for a preliminary ruling
      of scheduled air services on a route subject to public service         in the proceedings pending before that court between Käserei
      obligations imposed on that route under Article 4 of Regulation        Champignon Hofmeister GmbH & Co. KG and Hauptzollamt
      No 2408/92, a Member State was entitled to require air                 Hamburg-Jonas, on the validity of point (a) of the first
      carriers licensed by another Member State which submitted bids         subparagraph of Article 11(1) of Regulation (EEC) No 3665/
      to meet the conditions laid down in Article 3(2) of that               87 of 27 November 1987 laying down common detailed rules
      regulation, provided that the invitation to tender did not             for the application of the system of export refunds on
      continue to have effect beyond 1 April 1997.                           agricultural products (OJ 1987 L 351, p. 1), as amended by
                                                                             Commission Regulation (EC) No 2945/94 of 2 December
                                                                             1994 (OJ 1994 L 310, p. 57), and on the interpretation of the
                                                                             concept of ‘force majeure’ in the first indent of the third
3.    Article 1(e) of Commission Decision 94/698/EC of 6 July                subparagraph of Article 11(1) of the same regulation, the
      1994 concerning increase in capital, credit guarantees and tax         Court (Fifth Chamber), composed of: D. A. O. Edward, acting
      exemption in favour of TAP, which makes approval of the aid            for the President of the Fifth Chamber, A. La Pergola and
      for which it provides subject to the condition that the Portuguese     C. W. A. Timmermans (Rapporteur), Judges; C. Stix-Hackl,
      Republic honour its undertaking to apply Article 4 of Regu-            Advocate General; H. A. Rühl, Principal Administrator, for the
      lation No 2408/92 to the autonomous regions of Madeira                 Registrar has given a judgment on 11 July 2002, in which it
      and the Azores with effect from 1 January 1996 at the latest           has ruled:
      and publish the public service obligations for the routes in
      question, does not preclude that Member State from exercising          1.    Examination of the first question referred has not revealed any
      its right under Article 3(2) of that regulation.                             factors capable of calling into question the validity of point (a)
                                                                                of the first subparagraph of Article 11(1) of Commission
                                                                                Regulation (EEC) No 3665/87 of 27 November 1987 laying
                                                                                down common detailed rules for the application of the system
                                                                                of export refunds on agricultural products, as amended by
                                                                                Commission Regulation (EC) No 2945/94 of 2 December
( 1) OJ C 192 of 8.7.2000.
                                                                                1994, in so far as it penalises an exporter who, without fault
                                                                                on his part, applies for an export refund which exceeds that to
                                                                                which he is entitled.
                                                                             2.    On a proper interpretation of the first indent of the third
                                                                                subparagraph of Article 11(1) of Regulation No 3665/87, as
                                                                                amended by Regulation No 2945/94, there is no force majeure


title: JUDGMENT OF THE COURT (Fourth Chamber) of 5 July 1995 in Case C-46/94 (reference for a preliminary ruling from the Tribunal de Police, Bordeaux (France): Criminal proceedings against Michèle Voisine (Description of wines - Definition of 'labelling' - Affixing of decoration unconnected with the wine marketed)

text:
2 . 9 . 95            1 HN                   Official Journal of the European Communities                                 No C 229/9
2 . declares that the effects ofthe annulled Directive shall be                       JUDGMENT OF THE COURT
       preserved until the Council has adopted new legislation                                  ( Sixth Chamber)
       in the matter;
                                                                                of 6 July 1995
                                                                        in Case C-62/93 ( reference for a preliminary ruling from the
3 . orders the Council to pay the costs;                                Dioikitiko Protodikeio Athinas ): BP Supergas Anonimos
                                                                        Etairia Geniki Emporiki-Viomichaniki kai Antiprossopeion
4 . orders the Federal Republic of Germany and the United                                      v. Greek State (*)
       Kingdom of Great Britain and Northern Ireland to bear            (Interpretation ofArticles 11, 17 and 27 of the Sixth VAT
       their own costs.                                                 Directive — Greek system for the taxation of petroleum
                                                                        products — Taxable amount — Right to deduct —
H OJ No C 59 , 26 . 2 . 1994 .                                                                       Exemption)
(2 ) OJ No L 279 , 12 . 11 . 1993 , p . 32 .                                                       ( 95 /C 229/ 17 )
                                                                                (Language of the case: Greek)
                                                                        (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                JUDGMENT OF THE COURT
                         ( Fourth Chamber)                              In Case C-62/93 : reference to the Court under Article 177 of
                            of 5 July 1995                              the EC Treaty by the Dioikitiko Protodikeio Athinas for a
                                                                        preliminary ruling in the proceedings pending before that
in Case C-46/94 ( reference for a preliminary ruling from
                                                                        court between BP Supergas Anonimos Etairia Geniki
the Tribunal de Police, Bordeaux ( France ): Criminal
                                                                        Emporiki-Viomichaniki kai Antiprosopeion and the Greek
             proceedings against Michele Voisine ( J )                  State on the interpretation of Article 11 , 17 and 27 of the
(Description of wines — Definition of 'labelling' — Affixing            Sixth Council Directive 77/388/EEC of 17 May 1977 on the
       of decoration unconnected with the wine marketed)                harmonization of the laws of the Member States relating to
                            ( 95/C 229/16 )                             turnover taxes — Common system of value added tax:
                                                                        uniform basis of assessment ( 2 ) — the Court ( Sixth
                                                                        Chamber) composed of: F. A. Schockweiler, President of the
                  (Language of the case: French)                        Chamber, G. F. Mancini ( Rapporteur), J. L. Murray and
                                                                        G. Hirsch, Judges; Advocate-General : F. G. Jacobs;
(Provisional translation; the definitive translation will be            Registrar: H. A. Rühl, Principal Administrator, has given a
            published in the European Court Reports)                    judgment on 6 July 1995 , in which it rules :
In Case C-46/94 : reference to the Court under Article 177 of            1 . Articles 2, 11 and 17 of the Sixth Council Directive
the EC Treaty from the Tribunal de Police, Bordeaux                          77/388/EEC of 17 May 1977, on the harmonization of
( France ), for a preliminary ruling in the criminal                         the laws of the Member States relating to turnover taxes
proceedings pending before that court against Michele                        — Common system of value added tax: uniform basis of
Voisine on the interpretation of Council Regulation ( EEC )                  assessment, must be interpreted as precluding national
No 2392/89 of 24 July 1989 laying down general rules for                     rules which make the importation offinished petroleum
the description and presentation of wines and grape                          products subject to VAT calculated on the basis of a
musts (2 ) — the Court ( Fourth Chamber ), composed of:                      basic price different from that provided for in Article 1 1
P. J. G. Kapteyn, President of the Chamber, C. N. Kakouris                   of that Directive and which, by exempting traders in the
and J. L. Murray ( Rapporteur), Judges; M. B. Elmer,                         petroleum sector from the obligation to submit returns,
Advocate-General; L. Hewlett, Administrator, for the                         deprive them ofthe right to deduct VAT charged directly
Registrar, gave a judgment on 5 July 1995 , the operative                    on transactions relating to inputs;
part of which is as follows:
                                                                         2 . the provisions of the Sixth Directive, in particular
 The definition of 'labelling' in Article 38 (1 ) of Council                 Articles 13 to 17 thereof, are to be interpreted as
 Regulation (EEC) No 2392/89 of24 July 1 989 laying down                     precluding an exemption from VAT on services in
general rules for the description and presentation of wines                  respect of the transport and storage of petroleum
 and grape musts covers decoration or advertising which is                   products that are unconnected with the transport of
 unconnected with the wine concerned.                                        those products from a first destination to another
                                                                             named destination;
 (') OJ No C 90, 26 . 3 . 1994 .
 ( 2 ) OJ No L 232, 9 . 8 . 1989 , p . 13 .                              3 . the provisions of Article 11A (1 ) and B (1 ) and (2) and
                                                                             of Article 17 (1 ) and (2) of the Sixth Directive confer
                                                                             rights on individuals on which they may rely before a
                                                                             national court;


title: Case C-162/17 P: Appeal brought on 30 March 2017 by the Republic of Poland against the judgment of the General Court (Ninth Chamber) delivered on 19 January 2017 in Case T-701/15, Stock Polska v EUIPO — Lass & Steffen (LUBELSKA)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/22

         Appeal brought on 30 March 2017 by the Republic of Poland against the judgment of the General Court (Ninth Chamber) delivered on 19 January 2017 in Case T-701/15, Stock Polska v EUIPO — Lass & Steffen (LUBELSKA)
   (Case C-162/17 P)
   (2017/C 239/28)
   Language of the case: Polish

      Parties

      Appellant: Republic of Poland (represented by: B. Majczyna)

      Other party to the proceedings: European Union Intellectual Property Office

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of the European Union (Ninth Chamber) of 19 January 2017 in Case T-701/15, Stock Polska v EUIPO — Lass & Steffen (LUBELSKA), in its entirety;

               —

               order that the case be referred back to the General Court for judgment;

               —

               order each of the parties to bear their own costs.

      Grounds of appeal and main arguments

   The Republic of Poland seeks the setting aside of the judgment of the General Court of the European Union (Ninth Chamber) of 19 January 2017 in Case T-701/15, Stock Polska v EUIPO — Lass & Steffen (LUBELSKA), EU:T:2017:16, and the referring of the case back to that court for judgment.
   In the judgment under appeal, the General Court dismissed the action brought by Stock Polska sp. z o.o., established in Lublin, against the decision of the Board of Appeal of the then Office for Harmonisation in the Internal Market (OHIM; now, following a change of name, known as the European Union Intellectual Property Office (EUIPO)) of 24 September 2015 in Case R 1788/2014-5 upholding the decision of EUIPO of 14 May 2014 rejecting the EU trade mark application submitted by Stock Polska sp. z o.o..
   The judgment of the General Court and the decision of EUIPO preceding that judgment refuse to register the trade mark ‘Lubelska’ (‘the sign’) on account of its similarity to the trade mark ‘Lubeca’, a similarity giving rise to a likelihood of confusion on the part of the public in Germany (the territory in which the earlier trade mark ‘Lubeca’ is protected) as regards the origin of the goods designated by that mark within the meaning of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark.
   The Republic of Poland invokes the following grounds against the judgment under appeal:

               1.

               Infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (1) through failure to carry out a global assessment of the existence of a likelihood of confusion based on an overall impression and taking into account the signs’ dominant and distinctive elements, on account of, inter alia, the unjustified restricting of the assessment of the similarity between the sign and the earlier trade mark to a single element of the sign (the word element).
               The General Court erred in accepting that it is possible to restrict the assessment of the similarity between two trade marks to an assessment consisting in examining only one of the elements forming the composite trade mark (the word element) and comparing that element with the other trade mark, eliminating the graphical element from that assessment without first establishing that the word element constitutes the dominant element, while the graphical element is meaningless. The General Court established only that the graphical element is weakly distinctive, failing to take into account that the fact that a particular element of a sign is weakly distinctive does not mean that that element may not be the dominant element.

               2.

               Infringement of Article 8(1)(b) of Regulation No 207/2009 and infringement of the principles of equal treatment, sound administration and legal certainty through failure to take into consideration the fact that EUIPO had neglected to follow its previous decision-making practice as set out in the EUIPO Guidelines and, consequently, through acceptance of a decision running counter to that practice.
               The General Court disregarded the fact that EUIPO had departed from its previous decision-making practice as set out in the Guidelines in relation to the application of Article 8(1)(b) of Regulation No 207/2009 and that there were no special circumstances justifying a departure from that practice.

               3.

               Infringement of Article 8(1)(b) of Regulation No 207/2009 through carrying out an assessment of the existence of a likelihood of confusion by accepting as true so-called facts which do not tally with common knowledge and by disregarding widely-known, relevant facts, which as a result has led to a misrepresentation of the facts and evidence, namely:

                           (a)

                           accepting as a widely-known fact that the average German consumer does not know the meaning of the name Lubeca, disregarding the fact that a person’s degree of familiarity with Latin names of cities (such as ‘Lubeca’ for Lübeck) has no bearing on that person’s degree of familiarity with Latin names as such and that consumers of alcoholic beverages attach great significance to the geographical origin of those beverages,

                           (b)

                           accepting as a widely-known fact that the graphical element in the form of a crown is widely used on labels of alcoholic beverages.

               4.

               Infringement of the obligation to state reasons when applying Article 8(1)(b) of Regulation No 207/2009 through:

                           (a)

                           failure to specify which of the elements of the sign was recognised by the General Court as being the dominant element,

                           (b)

                           failure to specify the grounds for the assertion that the average German consumer is not familiar with the meaning of the word ‘Lubeca’.

      (1)  OJ 2009 L 78, p. 1.


title: Case T-31/09: Action brought on 21 January 2009 — Baid v OHIM (LE GOMMAGE DES FACADES)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/50

         Action brought on 21 January 2009 — Baid v OHIM (LE GOMMAGE DES FACADES)
   (Case T-31/09)
   (2009/C 69/110)
   Language in which the application was lodged: French
   Parties

      Applicant: Baid SARL (Paris, France) (represented by M. Grasset, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 October 2008 (Case R 963/2008-1) and alter it to the effect that the action before OHIM brought by the applicant is well founded and, consequently, that the mark applied for is granted;

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘LE GOMMAGE DES FACADES’ for goods and services in Classes 3, 19 and 37 — application No 6 071 641

      Decision of the Examiner: Rejection of the application for registration

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 40/94, since the mark applied for is not descriptive; of Article 7(3) of that regulation, since the mark applied for has acquired distinctive character through use and of Article 73 of that regulation, since the contested decision is largely based on references to Internet pages.


title: Case C-524/06: Judgment of the Court (Grand Chamber) of 16 December 2008 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany)) — Heinz Huber v Bundesrepublik Deutschland (Protection of personal data — European citizenship — Principle of non-discrimination on grounds of nationality — Directive 95/46/EC — Concept of necessity — General processing of personal data relating to citizens of the Union who are nationals of another Member State — Central register of foreign nationals)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/5

         Judgment of the Court (Grand Chamber) of 16 December 2008 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany)) — Heinz Huber v Bundesrepublik Deutschland
   (Case C-524/06) (1)

   (Protection of personal data - European citizenship - Principle of non-discrimination on grounds of nationality - Directive 95/46/EC - Concept of necessity - General processing of personal data relating to citizens of the Union who are nationals of another Member State - Central register of foreign nationals)
   (2009/C 44/07)
   Language of the case: German
   Referring court
   Oberverwaltungsgericht für das Land Nordrhein-Westfalen
   Parties to the main proceedings

      Applicant: Heinz Huber

      Defendant: Bundesrepublik Deutschland
   Re:
   Reference for a preliminary ruling — Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Interpretation of the first paragraph of Article 12 EC, Article 17 EC, Article 18(1) EC and the first paragraph of Article 43 EC, and of Article 7(e) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) — National rules providing for the general processing of personal data relating to citizens of the other Member States in a national central register of foreign nationals, which differ from the national rules relating to the personal data of citizens of the State in question, which are processed only in the municipal registers for declarations of residence
   Operative part of the judgment

               1)

               A system for processing personal data relating to Union citizens who are not nationals of the Member State concerned, such as that put in place by the Law on the central register of foreign nationals (Gesetz über das Ausländerzentralregister) of 2 September 1994, as amended by the Law of 21 June 2005, and having as its object the provision of support to the national authorities responsible for the application of the law relating to the right of residence does not satisfy the requirement of necessity laid down by Article 7(e) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, interpreted in the light of the prohibition on any discrimination on grounds of nationality, unless:

                           —

                           it contains only the data which are necessary for the application by those authorities of that legislation, and

                           —

                           its centralised nature enables the legislation relating to the right of residence to be more effectively applied as regards Union citizens who are not nationals of that Member State.

                     It is for the national court to ascertain whether those conditions are satisfied in the main proceedings.
               The storage and processing of personal data containing individualised personal information in a register such as the Central Register of Foreign Nationals for statistical purposes cannot, on any basis, be considered to be necessary within the meaning of Article 7(e) of Directive 95/46.

               2)

               Article 12(1) EC must be interpreted as meaning that it precludes the putting in place by a Member State, for the purpose of fighting crime, of a system for processing personal data specific to Union citizens who are not nationals of that Member State.

      (1)  OJ C 56, 10.3.2007.


title: Judgment of the Court (Second Chamber) of 14 October 2004 in Case C-55/03: Commission of the European Communities v Kingdom of Spain (Workers — Recognition of diplomas — Civil air traffic controllers — Inadmissibility)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/18

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 14 October 2004
   in Case C-55/03: Commission of the European Communities v Kingdom of Spain (1)

   (Workers - Recognition of diplomas - Civil air traffic controllers - Inadmissibility)
   (2004/C 300/35)
   Language of the case: Spanish
   In Case C-55/03: action under Article 226 EC for failure to fulfil obligations, brought on 11 February 2003 by Commission of the European Communities (Agents: M. Patakia and M. Valverde López) against Kingdom of Spain (Agent: S. Ortiz Vaamonde) — the Court (Second Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, G. Arestis and J. Klučka, Judges; Advocate General: P. Léger; Registrar: R. Grass, gave a judgment on 14 October 2004, in which it:

               1.

               Dismisses the action as inadmissible;

               2.

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

      (1)  OJ C 83 of 5.4.2003.


title: Case C-97/09: Judgment of the Court (Grand Chamber) of 26 October 2010 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria)) — Ingrid Schmelz v Finanzamt Waldviertel (Sixth VAT Directive — Articles 24(3) and 28i — Directive 2006/112/EC — Article 283(1)(c) — Validity — Articles 12 EC, 43 EC and 49 EC — Principle of equal treatment — Special scheme for small undertakings — Exemption from VAT — Benefit of the exemption refused to taxable persons established in other Member States — Definition of annual turnover )

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/12

         Judgment of the Court (Grand Chamber) of 26 October 2010 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Wien (Austria)) — Ingrid Schmelz v Finanzamt Waldviertel
   (Case C-97/09) (1)

   (Sixth VAT Directive - Articles 24(3) and 28i - Directive 2006/112/EC - Article 283(1)(c) - Validity - Articles 12 EC, 43 EC and 49 EC - Principle of equal treatment - Special scheme for small undertakings - Exemption from VAT - Benefit of the exemption refused to taxable persons established in other Member States - Definition of ‘annual turnover’)
   2010/C 346/20
   Language of the case: German

      Referring court

   Unabhängiger Finanzsenat, Außenstelle Wien

      Parties to the main proceedings

      Applicant: Ingrid Schmelz

      Defendant: Finanzamt Waldviertel

      Re:

   Reference for a preliminary ruling — Unabhängiger Finanzsenat, Ausßenstelle Wien — Validity of a certain wording in Articles 24(3) and 28i of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 92/111/EEC of 14 December 1992 amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax, and of a certain wording in Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Special VAT scheme for small undertakings permitting a tax exemption except in the case of supplies of goods and services by a taxable person who is not established in the territory of the country — Refusal to grant an exemption, by virtue of those provisions, to a person established in another EU Member State — Compatibility of that scheme with Articles 12, 43 and 49 EC and with the general principles of Community law — If the wording in question is invalid, interpretation of the expression ‘annual turnover’ contained in Article 24 of Directive 77/388/EEC and point 2(c) of Annex XV, Title IX Taxation, of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 335), and also in Article 287 of Directive 2006/112/EC

      Operative part of the judgment

               1.

               Consideration of the questions has disclosed no factor of such a kind as to affect the validity, with regard to Article 49 EC, of Articles 24(3) and 28i of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2006/18/EC of 14 February 2006, or of Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax.

               2.

               Articles 24 and 24a of Directive 77/388, as amended by Directive 2006/18, and Articles 284 to 287 of Directive 2006/112 must be interpreted as meaning that the term ‘annual turnover’ refers to the turnover generated by an undertaking in one year in the Member State in which it is established.

      (1)  OJ C 129, 6.6.2009.


title: Case T-218/16: Action brought on 9 May 2016 — Mühlbauer Technology v EUIPO (Magicrown)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/32

         Action brought on 9 May 2016 — Mühlbauer Technology v EUIPO (Magicrown)
   (Case T-218/16)
   (2016/C 232/41)
   Language of the case: German

      Parties

      Applicant: Mühlbauer Technology GmbH (Hamburg, Germany) (represented by: M. Zintler and A. Stolz, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘Magicrown’ — Application No 13 627 641

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 7 March 2016 in Case R 1213/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

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


title: Judgment of the Court (First Chamber) of  10 November 2005  in Case C-197/04: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Tax on the consumption of manufactured tobacco — Separate taxation of cigarettes and rolls of tobacco  West Single Packs )

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/3

      JUDGMENT OF THE COURT

   (First Chamber)
   of 10 November 2005
   in Case C-197/04: Commission of the European Communities v Federal Republic of Germany (1)

   (Failure of a Member State to fulfil obligations - Tax on the consumption of manufactured tobacco - Separate taxation of cigarettes and rolls of tobacco ‘West Single Packs’)
   (2006/C 10/06)
   Language of the case: German
   In Case C-197/04, Commission of the European Communities (Agent: K. Gross) v Federal Republic of Germany (Agents: C.-D. Quassowski, A. Tiemann and U. Forsthoff) — Action under Article 226 EC for failure to fulfil obligations, brought on 30 April 2004, — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, E. Juhász, M. Ilešič and E. Levits (Rapporteur), Judges; F.G. Jacobs, Advocate General; M. Ferreira, Principal Administrator, for the, Registrar, gave a judgment on 10 November 2005, in which it:

               1.

               Declares that, by applying the tax rate for fine-cut tobacco for self-rolled cigarettes to rolls of tobacco sold under the name ‘West Single Packs’, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1)(b) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, and the first paragraph of Article 2 of Council Directive 92/79/EEC of 19 October 1992 on the approximation of taxes on cigarettes;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 168, 26.6.2004.


title: Case T-265/14: Action brought on 29 April 2014  — Schumacher Packaging v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/23

         Action brought on 29 April 2014 — Schumacher Packaging v Commission
   (Case T-265/14)
   2014/C 223/28
   Language of the case: German

      Parties

      Applicant: Schumacher Packaging GmbH (Schwarzenberg, Germany) (represented by: H. Janssen and G. Engel, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 in State aid case SA.33995 (2013/C) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law: Infringement of Article 107(1) TFEU

                           —

                           The applicant claims that the contested decision infringes Article 107(1) TFEU because the EEG-surcharge provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) and the special compensation regime did not constitute an allocation of State or State-controlled resources. All the facts relevant to the qualification of those measures were determined in the preliminary proceedings between the Commission and the Federal Republic of Germany. There were no longer any doubts, which the Commission should have found in a proceeding pursuant to Article 108(2) TFEU and Article 4(4) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (1)

               2.

               Second plea in law: Infringement of Article 108(1) TFEU and the principle of legal certainty

                           —

                           The applicant submits in that regard that the Commission infringed Article 108(1) TFEU and the principle of legal certainty by applying the procedure for new aid pursuant to Article 4(4) of Regulation No 659/1999 instead of the procedure for existing aid pursuant to Article 17 et seq. of Regulation No 659/1999 in order to review its provisional assessment of the EEG as aid. In that regard, the applicant observes in particular that, by decision of 22 May 2002, the Commission did not classify the 2000 EEG as aid within the meaning of Article 107(1) TFEU because there was no transfer of State resources. The changes from the 2000 EEG to the 2012 EEG were not substantial in comparison to the Commission decision of 22 May 2002. The Commission, therefore, could have asserted an amended legal opinion in a proceeding pursuant to Article 108(1) TFEU without impacting on the applicant.

               3.

               Third plea in law: Infringement of Article 41 of the Charter of Fundamental Rights and the principle of audi alteram partem

                           —

                           The applicant also claims that the defendant adopted the contested decision without previously giving the applicant the opportunity to provide comments.

      (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 1999 L 83, p. 1.