title: Action brought on 16 January 1998 by Wirtschaftsvereinigung Stahl and Others against the Commission of the European Communities (Case T-16/98)

text:
28.3.98              EN                   Official Journal of the European Communities                                   C 94/33
Pleas in law and main arguments adduced in support:                  and 87/0296/B2, of which it has been unlawfully deprived.
                                                                     (1) Case C-199/91 Foyer Culturel du Sart-Tilman SARL v.
The applicant, a non-profit-making association governed                  Commission [1993] ECR I-2689.
by Belgian law, which has promoted a series of training              (2) OJ L 289, 22.10.1983, p. 1.
projects, states that the Belgian State submitted to the
European Social Fund, in its own name and on behalf of
the applicant itself, several applications for assistance
which gave rise to Commission decisions approving them
in six files bearing the numbers 84/3643/B6, 85/0077/B4,
85/0186/B6, 86/0274/B2, 87/0295/B2 and 87/0296/B2, as                Action brought on 16 January 1998 by Wirtschaftsver-
well as to the payment of advances. In December 1988 the             einigung Stahl and Others against the Commission of the
Belgian authorities informed the Commission that the                                    European Communities
applicant was being wound up and asked it to stop all                                        (Case T-16/98)
payments and inform it of the sums not yet disbursed in
respect of the approved files. The decisions to reduce                                        (98/C 94/80)
financial assistance finally taken by the Commission were
the subject of an action before the Court of Justice which,                         (Language of the case: German)
by judgment of 25 May 1993 (1), upheld in part the
applicant's claims.                                                  An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 16 January
The applicant claims that the Commission has still not               1998 by Wirtschaftsvereinigung Stahl, of Düsseldorf, AG
adopted the measures to comply with that judgment and                der Dillinger Hüttenwerke, of Dillingen/Saar, EKO Stahl
that failure to act has given rise to the damage allegedly           GmbH, of Eisenhüttenstadt, Krupp Thyssen Nirosta
suffered by the applicant.                                           GmbH, of Bochum, Thyssen Krupp Stahl GmbH, of
                                                                     Duisburg, Preussag Stahl AG, of Salzgitter, Stahlwerke
                                                                     Bremen GmbH, of Bremen, and Thyssen Stahl AG, of
In support of its claims it states in particular that:               Duisburg,       represented     by    Jochim     Sedemund,
                                                                     Rechtsanwalt, Berlin, with an address for service in
                                                                     Luxembourg at the Chambers of Aloyse May, 31 Grand-
                                                                     Rue.
Ð under the legislation applicable at the time when the
    applications for assistance were submitted and
    subsequently approved by the Commission, between                 The applicants claim that the Court should:
    1984 and 1987, a promoter whose application for
    assistance is approved by the Commission is entitled             Ð annul Commission Decision 98/4/ECSC of 26
    to payment of an advance and, following a further                     November 1997 relating to a proceeding pursuant to
    application accompanied by a detailed report certified                Article 65 of the ECSC Treaty (Case IV/36.069
    by the Member State, to payment of the balance,                       Wirtschaftsvereinigung Stahl),
                                                                     Ð order the Commission to pay the costs.
Ð Article 6 of Council Regulation (EEC) No 2950/83 of
    17 October 1983 on the implementation of Decision                Pleas in law and main arguments adduced in support:
    83/516/EEC (2), provides for the circumstances in
    which Fund assistance may be suspended, reduced or               By the contested decision the Commission prohibited the
    withdrawn and the amounts paid by way of an                      implementation of the information exchange agreement
    advance refunded,                                                notified by the applicants on 28 May 1996, on the ground
                                                                     of infringement of Article 65 of the ECSC Treaty (1).
Ð the right of a promoter whose applications have been               The applicants submit that the Commission infringed the
    approved and which received an advance to receive                principle of legal certainty by conceptual and logical
    the outstanding amount may not be removed other                  inconsistency in the interpretation of Article 65 (1) of the
    than in observance of the prescribed procedures, and             ECSC Treaty, a provision imposing a monetary penalty
                                                                     whose interpretation is subject to the principle of
                                                                     certainty. Second, the Commission breached the principles
Ð in particular the right must be inferred of a promoter             of the burden of proof: according to the case-law, the
    to a decision by the Commission on the application               Commission is dispensed from the need to prove that
    for payment of the balance submitted by the Member               there has been an actual restriction of competition only if
    State of which it has the nationality.                           the agreement is either intended to restrict competition or
                                                                     else anti-competitive per se. There is no question of that,
                                                                     however, in the case of the present market information
Finally, the applicant states that, in the absence of any            system, since that is to be regarded from the point of view
proper investigation by the Fund regarding its claims, it            of competition law as either neutral or even promoting
cannot but set its damage at the level of the amount of the          competition. The contested decision does not even attempt
balance of the assistance in files 85/0186/B6, 87/0295/B2            to carry out a corresponding empirical examination.
 ---pagebreak--- C 94/34               EN                    Official Journal of the European Communities                                    28.3.98
Third, the Commission made incorrect observations on                   The applicant claims that the Court should:
market transparency. An independent expert report
annexed to the application for negative certification,                 Ð annul, or at least declare void, the decision contained
which showed that competition is promoted by increased                     in the defendant's letter of 14 October 1997 refusing
transparency, was ignored by the Commission. That                          the applicant's request for repayment of the
constitutes a serious defect in the determination of the                   Community tax paid by the applicant in respect of the
facts, which affected the outcome of the decision.                         period from 1 January 1989 to 31 September 1995
                                                                           inclusive,
Fourth, in the applicants' submission, Article 60 of the
ECSC Treaty pursues a system of complete transparency in               Ð in so far as may be necessary, declare void the decision
the field of prices and conditions of sale. If, according to               of the European Parliament to subject freelance
the Court of Justice, that applies to market transparency                  interpreters working for it to Community tax,
in the field of prices, then market transparency must all                  alternatively rule that that decision may not be relied
the more be permitted with respect to quantities delivered.                upon against the applicant for the purposes of
                                                                           deducting, in respect of the period from 1 January
Fifth, the fact that the Commission did not investigate the                1989 to 31 September 1995 inclusive, Community tax
market shares with the means usually available to it, as                   from the income earned by her from her activities as a
described in its Notice on the definition of relevant                     freelance interpreter working for the defendant,
market' (2), constitutes a serious defect in the
determination of the facts.                                            Ð in so far as may be necessary, declare void Article 8 of
                                                                           the agreement with the AIIC, alternatively rule that
Sixth, the applicants submit that the Commission                           that article may not be relied upon against the
infringed the second paragraph of Article 47 of the ECSC                   applicant for the purposes of deducting, in respect of
Treaty by informing the Government of the United States                    the period from 1 January 1989 to 31 September 1995
of America that it had no objections to the exchange of                    inclusive, Community tax from the income earned by
ECSC questionnaire 2Ð72. The applicants had not made                       her from her activities as a freelance interpreter
exchange of that questionnaire the subject of their                        working for the defendant,
notification, and according to the case-law business secrets
of the undertakings concerned must, on the basis of the                Ð order the defendant to repay the Community tax paid
general principle of which the procedural rules of                         by the applicant during the period from 1 January
competition law are an expression, receive especially                      1989 to 31 September 1995 inclusive, currently
extensive protection, which also means that the                            estimated by the applicant as amounting to ECU
undertakings concerned must be informed beforehand in                      17 309, together with interest at the annual rate of
an adequately reasoned decision, in order thus to be given                 8 % or at the legal rate applicable,
the opportunity to seek judicial protection before the
                                                                       Ð by way of subsidiary relief:
information is passed on.
                                                                           order the defendant to compensate the applicant for
Finally, the contested decision infringes the obligation to
                                                                           the damage, currently estimated to amount to BEF
state reasons under Article 15 of the ECSC Treaty, since it
                                                                           642 199, together with such further damage as may be
lacks a convincing statement of reasons on a number of
                                                                           specified, arising from additional claims by the Belgian
points.
                                                                           tax and/or social security authorities in relation to the
                                                                           period from 1 January 1989 to 31 September 1995
(1) OJ L 1, 3.1.1998, p. 10.
                                                                           inclusive during which the defendant retained
(2) OJ C 372, 9.12.1997, p. 5, at point 33 et seq.
                                                                           Community tax deducted from the applicant's income,
                                                                       Ð order the defendant to pay the costs.
                                                                       Pleas in law and main arguments adduced in support:
Action brought on 14 January 1998 by F against the                     The pleas in law and main arguments are the same as in
                     European Parliament                               Case T-2/98.
                         (Case T-17/98)
                          (98/C 94/81)
                 (Language of the case: Dutch)
An action against the European Parliament was brought                  Action brought on 19 January 1998 by Peter Reichert
before the Court of First Instance of the European                                    against the European Parliament
Communities on 14 January 1998 by F, residing in                                               (Case T-18/98)
Brussels, represented by G. van der Wal, Advocaat with a                                        (98/C 94/82)
right of audience before the Hoge Raad der Nederlanden
(Supreme Court of the Netherlands), The Hague, and                                    (Language of the case: German)
L. Y. J. M. Parret, of the Brussels Bar, with an address for
service in Luxembourg at the Chambers of Aloyse May,                   An action against the European Parliament was brought
31 Grand-Rue.                                                          before the Court of First Instance of the European


title: Case C-394/13: Judgment of the Court (Ninth Chamber) of 11 September 2014 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Ministerstvo práce a sociálních věcí v B. (Reference for a preliminary ruling — Social security for migrant workers — Regulation (EEC) No 1408/71 and Regulation (EC) No 883/2004 — National legislation applicable — Determination of the competent Member State for the purpose of granting a family benefit — Situation in which a migrant worker and her family live in a Member State in which their centre of interest is located and family benefit has been paid — Application for family benefit in the Member State of origin after entitlement to benefits in the Member State of residence has expired — National legislation of the Member State of origin providing that such benefits are to be granted to any person registered as permanently resident in that State)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/16

         Judgment of the Court (Ninth Chamber) of 11 September 2014 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Ministerstvo práce a sociálních věcí v B.
   (Case C-394/13) (1)

   ((Reference for a preliminary ruling - Social security for migrant workers - Regulation (EEC) No 1408/71 and Regulation (EC) No 883/2004 - National legislation applicable - Determination of the competent Member State for the purpose of granting a family benefit - Situation in which a migrant worker and her family live in a Member State in which their centre of interest is located and family benefit has been paid - Application for family benefit in the Member State of origin after entitlement to benefits in the Member State of residence has expired - National legislation of the Member State of origin providing that such benefits are to be granted to any person registered as permanently resident in that State))
   2014/C 409/22
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: Ministerstvo práce a sociálních věcí

      Defendant: B.

      Operative part of the judgment

               1.

               Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008, in particular Article 13 thereof, must be interpreted as precluding a Member State from being regarded as the competent State for the purpose of granting a family benefit to a person on the sole ground that the person concerned is registered as being permanently resident in its territory, where neither that person nor the members of his family work or habitually reside in that Member State. Article 13 of that regulation must be interpreted as also precluding a Member State which is not the competent State in so far as concerns the person in question from granting family benefits to such a person unless there are specific and particularly close connecting factors between the situation at issue and the territory of that first Member State;

               2.

               Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, in particular Article 11 thereof, must be interpreted as precluding a Member State from being regarded as the competent State for the purpose of granting a family benefit to a person on the sole ground that the person concerned is registered as being permanently resident in its territory, where neither that person nor the members of his family work or habitually reside in that Member State.

      (1)  OJ C 260, 7.9.2013.


title: Case C-355/10: Judgment of the Court (Grand Chamber) of 5 September 2012 — European Parliament v Council of the European Union (Schengen Borders Code — Decision 2010/252/EU — Surveillance of the sea external borders — Introduction of additional rules governing border surveillance — Commission’s implementing powers — Scope — Application for annulment)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/2

      Judgment of the Court (Grand Chamber) of 5 September 2012 — European Parliament v Council of the European Union
      (Case C-355/10) (1)

      (Schengen Borders Code - Decision 2010/252/EU - Surveillance of the sea external borders - Introduction of additional rules governing border surveillance - Commission’s implementing powers - Scope - Application for annulment)
      (2012/C 331/02)
      Language of the case: English

         Parties

         Applicant: European Parliament (represented by: M. Dean, A. Auersperger Matić and K. Bradley, Agents)

         Defendant: Council of the European Union (represented by: Z. Kupčová and R. Szostak, Agents)

         Intervener in support of the defendant: European Commission (represented by: C. O’Reilly and M. Wilderspin, Agents)

         Re:

      Annulment of Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2010 L 111, p. 20) — Additional measures governing surveillance — Introduction of rules exceeding the extent of the Council’s implementing powers

         Operative part of the judgment

      The Court:

                  1.

                  Annuls Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;

                  2.

                  Maintains the effects of Decision 2010/252 until the entry into force of new rules within a reasonable time;

                  3.

                  Orders the Council of the European Union to pay the costs;

                  4.

                  Orders the European Commission to bear its own costs.

         (1)  OJ C 246, 11.9.2010.


title: Case T-141/12: Order of the General Court of 23 January 2014 — Pro-Duo v OHIM — El Corte Inglés (GO!) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate)

text:
               15.3.2014

               EN

               Official Journal of the European Union

               C 78/11

         Order of the General Court of 23 January 2014 — Pro-Duo v OHIM — El Corte Inglés (GO!)
   (Case T-141/12) (1)

   (Community trade mark - Opposition - Withdrawal of opposition - No need to adjudicate)
   2014/C 78/22
   Language of the case: English

      Parties

      Applicant: Pro-Duo NV (Ghent, Belgium) (represented initially by T.G. Alkin, subsequently by T.G. Alkin and C. Hall, Barristers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Geroulakos, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: El Corte Inglés, SA (Madrid, Spain) (represented by: J.L. Rivas Zurdo, E. Seijo Veiguela and I. Munilla Muñoz, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 January 2012 (Case R 1373/2011-4) relating to opposition proceedings between El Corte Inglés, SA and Pro-Duo NV.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               The applicant and intervener shall bear their own costs and each shall pay one half of the costs borne by the defendant.

      (1)  OJ C 165, 9.6.2012.


title: Case C-538/16: Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 25 October 2016 — Kevin Joseph Devine v Air Nostrum, Líneas Aéreas del Mediterráneo SA

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/17

         Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 25 October 2016 — Kevin Joseph Devine v Air Nostrum, Líneas Aéreas del Mediterráneo SA
   (Case C-538/16)
   (2017/C 030/20)
   Language of the case: German

      Referring court

   Landgericht Frankfurt am Main

      Parties to the main proceedings

      Applicant: Kevin Joseph Devine

      Defendants: Air Nostrum, Líneas Aéreas del Mediterráneo SA

      Questions referred

               1.

               Is Article 7(1)(a) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that the concept of ‘matters relating to a contract’ also covers a claim for compensation made under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, (2) brought against an operating air carrier which is not a party to the contract with the passenger concerned?

               2.

               Insofar as Article 7(1) of Regulation (EU) No 1215/2012 is applicable:
               When passengers are transported on two flights without any significant stopover at the connecting airport, is the final destination of the passengers to be regarded as being the place where the services were provided under the second indent of Article 7(1)(b) of Regulation (EU) No 1215/2012, even if the claim advanced in the application for compensation under Article 7 of Regulation (EC) No 261/2004 is based on the disruption of the first leg of the journey and the claim has been brought against the air carrier which operated the first flight, which is not a party to the contract of carriage?

      (1)  OJ 2012 L 351, p. 1.

      (2)  OJ 2004 L 46, p. 1.


title: Case T-540/14: Action brought on 16 July 2014  — Klass v OHIM — F. Smit (PLAYSEAT) (PLAYSEATS)

text:
               22.9.2014

               EN

               Official Journal of the European Union

               C 329/23

         Action brought on 16 July 2014 — Klass v OHIM — F. Smit (PLAYSEAT) (PLAYSEATS)
   (Case T-540/14)
   2014/C 329/32
   Language in which the application was lodged: German

      Parties

      Applicant: Oliver Klass (Remscheid, Germany) (represented by: U. Bender, lawyer)

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

      Other party to the proceedings before the Board of Appeal: F. Smit Holding BV (Doetinchem, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               Alter the decisions of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2014 in Cases R 1616/2013-4 and R 1834/2013-4 to the effect that both of the applications for a declaration of invalidity of 31 July 2012 are granted;

               —

               Order the defendant and the other party to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word marks ‘PLAYSEAT’ and ‘PLAYSEATS’ for goods in Class 9 — Community trade marks No 7 5 95  184 and No 8 8 42  254

      Proprietor of the Community trade mark: F. Smit Holding BV

      Applicant for the declaration of invalidity of the Community trade mark: the applicant

      Grounds for the application for a declaration of invalidity: the absolute grounds for invalidity in Article 52(1)(a) of Regulation No 207/2009 in conjunction with Article 7(1)(b) and (c) thereof

      Decision of the Cancellation Division: the applications for a declaration of invalidity were rejected

      Decision of the Board of Appeal: the appeals were dismissed

      Pleas in law: Infringement of Article 52(1)(a) of Regulation No 207/2009 in conjunction with Article 7(1)(b) and (c) thereof


title: Case C-383/13 PPU: Judgment of the Court (Second Chamber) of 10 September 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — M. G., N. R. v Staatssecretaris van Veiligheid en Justitie (Visas, asylum, immigration and other policies related to free movement of persons — Immigration policy — Illegal immigration and illegal residence — Repatriation of illegal residents — Directive 2008/115/EC — Return of illegally staying third-country nationals — Removal process — Detention measure — Extension of detention — Article 15(2) and (6) — Rights of the defence — Right to be heard — Infringement — Consequences)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/8

         Judgment of the Court (Second Chamber) of 10 September 2013 (request for a preliminary ruling from the Raad van State — Netherlands) — M. G., N. R. v Staatssecretaris van Veiligheid en Justitie
   (Case C-383/13 PPU) (1)

   (Visas, asylum, immigration and other policies related to free movement of persons - Immigration policy - Illegal immigration and illegal residence - Repatriation of illegal residents - Directive 2008/115/EC - Return of illegally staying third-country nationals - Removal process - Detention measure - Extension of detention - Article 15(2) and (6) - Rights of the defence - Right to be heard - Infringement - Consequences)
   2013/C 325/11
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: M. G., N. R.

      Defendant: Staatssecretaris van Veiligheid en Justitie

      Re:

   Request for a preliminary ruling — Raad van State — Interpretation of Article 41(2) of the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1) and of Article 15(6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) — Detention measures — Extension — Lack of cooperation on the part of the nationals concerned in the removal procedure — Breach of the rights of the defence — Right of every person to be heard before any individual measure which would affect him adversely is taken

      Operative part of the judgment

   European Union law, in particular Article 15(2) and (6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, must be interpreted as meaning that, where the extension of a detention measure has been decided in an administrative procedure in breach of the right to be heard, the national court responsible for assessing the lawfulness of that extension decision may order the lifting of the detention measure only if it considers, in the light of all of the factual and legal circumstances of each case, that the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different.

      (1)  OJ C 260, 7.9.2013.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/44

         Action brought on 16 December 2003 by Angelo Wille against European Parliament
   (Case T-412/03)
   (2004/C 94/125)
   Language of the case: German
   An action against the European Parliament was brought before the Court of First Instance of the European Communities on 16 December 2003 by Angelo Wille, residing in Brussels, represented by D. Rogalla, lawyer.
   The applicant claims that the Court should:

               —

               annul the defendant's decisions of 24 February 2003, 28 April 2003, 20 May 2003 and 17 September 2003;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:
   The applicant challenges the decisions of the Parliament refusing to admit him to competition EUR/A/167/02. The refusal was based on the ground that the applicant had not completed a period of at least two years' professional experience after qualifying as a lawyer.
   The applicant claims that the refusal is unlawful, as his application had complied with all time-limits and formal requirements, and as he had also met all other relevant general and particular conditions. He had completed his legal training and had the necessary professional experience. The decisions were unlawful because they were based on an erroneous interpretation by the defendant of the conditions set out in the notice. It was contrary to the wording of the notice and the prohibition on discrimination on grounds of nationality under Article 12 EC to treat university final examinations and the second state examination [Staatsexamen] as being equivalent. No higher standards should be imposed on German lawyers than on graduates from other Member States.


20150731005616572015/C 270/0612014CJC27020150817EN01ENINFO_JUDICIAL201506115622Case C-1/14: Judgment of the Court (Third Chamber) of 11 June 2015 (request for a preliminary ruling from the Grondwettelijk Hof — Belgium) — Base Company NV, formerly KPN Group Belgium NV, Mobistar NV v Ministerraad (Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Articles 4, 9, 13 and 32 — Universal service obligations and social obligations — Provision of access at a fixed location and provision of telephone services — Affordability of tariffs — Special tariff options — Financing of the universal service obligations — Additional mandatory services — Mobile communication services and/or internet subscription services)
 ---documentbreak--- C2702015EN520120150611EN00065262Judgment of the Court (Third Chamber) of 11 June 2015 (request for a preliminary ruling from the Grondwettelijk Hof — Belgium) — Base Company NV, formerly KPN Group Belgium NV, Mobistar NV v Ministerraad
   (Case C-1/14) (
         1
      )
   ‛(Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Articles 4, 9, 13 and 32 — Universal service obligations and social obligations — Provision of access at a fixed location and provision of telephone services — Affordability of tariffs — Special tariff options — Financing of the universal service obligations — Additional mandatory services — Mobile communication services and/or internet subscription services)’2015/C 270/06Language of the case: Dutch
      Referring court

   Grondwettelijk Hof

      Parties to the main proceedings

      Applicants: Base Company NV, formerly KPN Group Belgium NV, Mobistar NV

      Defendant: Ministerraad

      Intervener: Belgacom NV

      Operative part of the judgment

   Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that the special tariffs and the financing mechanism provided for in Articles 9 and 13(1)(b) of that directive respectively apply to internet subscription services requiring a connection to the internet at a fixed location, but not to mobile communication services, including internet subscription services provided by means of those mobile communication services. If those services are made publicly available within the national territory as ‘additional mandatory services’ for the purposes of Article 32 of Directive 2002/22, as amended by Directive 2009/136, they cannot be financed, under national law, by a mechanism involving specific undertakings.
   (
         1
      )	OJ C 102, 7.4.2014.


title: Case T-339/11: Action brought on 28 June 2011 — Spain v European Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/39

         Action brought on 28 June 2011 — Spain v European Commission
   (Case T-339/11)
   2011/C 252/88
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Decision 2011/244/EU final of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it is the subject of this action, and

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   By the contested decision, the Commission excludes from financing certain costs of environmental management of packaging (for the years 2006, 2007 and 2008), in the sum of EUR 37 252 551,10.
   The applicant argues in that regard that, by its Decision 2010/152/EU, the Commission excluded from EAGGF financing EUR 33 339 525,05 in connection with assistance for operational programmes, for it took the view that Community assistance to cover the costs entailed by the environmental management of packaging in the years from 2003 to 2006 had not been granted in accordance with the provisions of European Union law. That decision was the subject of an action for annulment brought by the Kingdom of Spain, at present pending as Case T-230/10.
   The arguments put forward in this action are the same as those set forth in Case T-230/10.


title: Case T-379/06: Judgment of the General Court of 24 March 2011 — Kaimer and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Rights of the defence — Participation in the infringement — Duration of the infringement — Fines — Attenuating circumstances — Proportionality — Equal treatment)

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/20

         Judgment of the General Court of 24 March 2011 — Kaimer and Others v Commission
   (Case T-379/06) (1)

   (Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Rights of the defence - Participation in the infringement - Duration of the infringement - Fines - Attenuating circumstances - Proportionality - Equal treatment)
   2011/C 145/30
   Language of the case: German

      Parties

      Applicants: Kaimer GmbH & Co. Holding KG (Essen, Germany); Sanha Kaimer GmbH & Co. KG (Essen); and Sanha Italia Srl (Milan, Italy) (represented by: J. Brück, lawyer)

      Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by A. Böhlke, lawyer)

      Re:

   Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicants in that decision.

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it relates to the period from 30 July 1996 to 31 July 1997 as regards the participation of Kaimer GmbH & Co. Holding KG and Sanha Kaimer GmbH & Co. KG and the period from 1 January 1998 to 14 July 1999 as regards the participation of Sanha Italia Srl;

               2.

               Sets the amount of the fine imposed on Kaimer at EUR 7,15 million, in respect of which it is jointly and severally liable with Sanha Kaimer as to EUR 7,15 million and with Sanha Italia as to EUR 6 325 million;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders Kaimer, Sanha Kaimer and Sanha Italia to bear their own costs and to pay 50 % of the costs of the European Commission;

               5.

               Orders the Commission to bear 50 % of its own costs.

      (1)  OJ C 42, 24.2.2007.


title: Case C-205/04: Judgment of the Court (Second Chamber) of  23 February 2006  — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Freedom of movement for workers — Failure to take account of seniority and professional experience acquired in the public service of other Member States — Article 39 EC — Article 7 of Regulation (EEC) No 1612/68)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/12

         Judgment of the Court (Second Chamber) of 23 February 2006 — Commission of the European Communities v Kingdom of Spain
   (Case C-205/04) (1)

   (Failure of a Member State to fulfil its obligations - Freedom of movement for workers - Failure to take account of seniority and professional experience acquired in the public service of other Member States - Article 39 EC - Article 7 of Regulation (EEC) No 1612/68)
   (2006/C 131/21)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet, acting as Agent)

      Defendant): Kingdom of Spain (represented by: N. Díaz Abad, acting as Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Article 39 EC and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (English Special Edition 1968 (II), p. 475) — Access to the Spanish civil service — Obligation to recognise from an economic point of view the services undertaken by Community citizens in the public service of another Member State
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt a law which expressly provides, in respect of the Spanish civil service, for account to be taken, for financial purposes, of previous periods of employment in the public service of another Member State, the Kingdom of Spain has failed to fulfil its obligations under Article 39 of the EC Treaty and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 168 of 26.06.2004.


title: Case C-387/12: Judgment of the Court (Fourth Chamber) of 3 April 2014 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Hi Hotel HCF SARL v Uwe Spoering (Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — International jurisdiction in matters relating to tort, delict or quasi-delict — Act committed in one Member State consisting in participation in an act of tort or delict committed in another Member State — Determination of the place where the harmful event occurred)

text:
               26.5.2014

               EN

               Official Journal of the European Union

               C 159/4

         Judgment of the Court (Fourth Chamber) of 3 April 2014 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Hi Hotel HCF SARL v Uwe Spoering
   (Case C-387/12) (1)

   ((Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - International jurisdiction in matters relating to tort, delict or quasi-delict - Act committed in one Member State consisting in participation in an act of tort or delict committed in another Member State - Determination of the place where the harmful event occurred))
   2014/C 159/05
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Hi Hotel HCF SARL

      Defendant: Uwe Spoering

      Re:

   Request for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — International jurisdiction in respect of tort, delict or quasi-delict — Act committed in one Member State and consisting in assistance in the commission of an unlawful act in the territory of a second Member State — Determination of the place where the harmful event occurred

      Operative part of the judgment

   Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, where there are several supposed perpetrators of damage allegedly caused to rights of copyright protected in the Member State of the court seised, that provision does not allow jurisdiction to be established, on the basis of the causal event of the damage, of a court within whose jurisdiction the supposed perpetrator who is being sued did not act, but does allow the jurisdiction of that court to be established on the basis of the place where the alleged damage occurs, provided that the damage may occur within the jurisdiction of the court seised. If that is the case, the court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs.

      (1)  OJ C 343, 10.11.2012.


title: Case C-57/05: Action brought on 9 February 2005 by the Commission of the European Communities against the French Republic

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/18

         Action brought on 9 February 2005 by the Commission of the European Communities against the French Republic
   (Case C-57/05)
   (2005/C 82/38)
   Language of the case: French
   An action against the French Republic was brought before the Court of Justice of the European Communities on 9 February 2005 by the Commission of the European Communities, represented by J.-P. Keppenne, acting as Agent, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               1.

               declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (1) or, in any event, by not informing the Commission thereof, the French Republic has failed to fulfil its obligations under that directive;

               2.

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for the transposition of the directive into national law expired on 31 July 2003.

      (1)  OJ 2002 L 183, p. 51.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 7 November 1997 in Case T-84/96: Cipeke - Comércio e Indústria de Papel Lda v. Commission of the European Communities (European Social Fund - Decision to reduce financial assistance - Duty to provide a statement of reasons)

text:
20 . 12 . 97             EN                   Official Journal of the European Communities                                 C 387/ 19
Communities,          residing at        Sterrebeek      ( Belgium ),      JUDGMENT OF THE COURT OF FIRST INSTANCE
represented by Jean-Noel Louis, Thierry Demaseure and                                           of 7 November 1997
Ariane Tornel, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Fiduciaire Myson                 in Case T-2 18/95 : Azienda Agricola 'Le Canne' Srl v.
SARL, 30 Rue de Cessange, v. Commission of the                                   Commission of the European Communities ( 1 )
European Communities ( Agents : Gianluigi Valsesia and,
                                                                         (Agriculture — Fisheries — Aquaculture and establishment
initially, Ana Maria Alves Vieira and, subsequently,
                                                                         of protected marine areas — Community financial aid —
Florence Clotuche ) — application for annulment of the
decision, dated 26 March 1996, of the selection board in                 Declaration of ineligibility of certain expenditure —
                                                                                Action for annulment — Action for damages)
competition COM/A/955 , by which it decided not to
admit the applicant to the oral test in the competition                                               ( 97/C 387/35 )
and, in so far as may be necessary, annulment of
the    initial   decision      of that  selection   board,     dated
16 February 1996 — the Court of First Instance ( Second                                   (Language of the case: Italian)
Chamber ), composed of: C. W. Bellamy, President, and
A. Kalogeropoulos and P. Lindh, Judges; A. Mair,
                                                                         In Case T-218/95 : Azienda Agricola ' Le Canne' Sri,
Administrator, for the Registrar, has given a judgment on
6 November 1997, in which it:
                                                                         established in Porto Viro, Italy, represented by Giulio
                                                                         Schiller, Giuseppe Carraro and Francesca Mazzonetto, of
1 . dismisses the action;                                                the Padua Bar, and by Guy Arendt, of the Luxembourg
                                                                         Bar, with an address for service in Luxembourg at the
1.   orders the Commission to bear its own costs and to                  latter's Chambers, 62 Avenue Guillaume, v. Commission
     pay one third of the applicant's costs.                             of the European Communities ( Agents : Eugenio de March
                                                                         and Hubertus Van Vliet ) — application, first, for
(') OJ C 233 , 10 . 8 . 1996 .
                                                                         annulment of the decision by the Commission to reduce
                                                                         Community financial aid originally granted and, secondly,
                                                                         for compensation for the damage suffered by the applicant
                                                                         as a result of that reduction — the Court of First Instance
                                                                         ( Third Chamber ), composed of: B. Vesterdorf, President,
                                                                         C. P. Briët and A. Potocki, Judges; J. Palacio Gonzalez,
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                Administrator, for the Registrar, has given a judgment on
                        of 6 November 1997
                                                                         7 November 1997, in which it :
in Case T-101 /96 : Maria Elisabeth Wolf v. Commission of
                  the European Communities (')                           1 . dismisses the action ;
(Officials — Open competition — Non-admission to the
            tests — Professional experience required)                    2 . orders the applicant to pay the costs.
                            ( 97/C 387/34 )
                                                                         (') OJ C 77, 16 . 3 . 1996 .
                  (Language of the case: French)
In Case T-101 /96 : Maria Elisabeth Wolf, a member of the
auxiliary staff of the Commission of the European
Communities, represented by Jean-Noel Louis, Thierry
Demaseure and Ariane Tornel , of the Brussels Bar, with an
address for service in Luxembourg at the offices of                        JUDGMENT OF THE COURT OF FIRST INSTANCE
Fiduciaire Myson SARL, 30 Rue de Cessange , v.                                                  of 7 November 1997
Commission of the European Communities ( Agents : Julian
Currall and Bertrand Wägenbaur ) — application for                       in Case T-84/96: Cipeke — Comercio e Industria de Papel
annulment of the decision of the selection board in                          Lda v. Commission of the European Communities (')
competition COM/A/955 not to admit the applicant to
that competition, and for compensation for the non-                      (European Social Fund — Decision to reduce financial
material damage suffered by her as a result of that                          assistance — Duty to provide a statement of reasons)
decision — the Court of First Instance ( Second Chamber ),                                            ( 97/C 387/36 )
composed of: C. W. Bellamy, President, and A.
Kalogeropoulos and M. Jaeger, Judges; A. Mair,
Administrator, for the Registrar, has given a judgment on                              (Language of the case: Portuguese)
6 November 1997, in which it:
1.   dismisses the action ;                                              In Case T-84/96 : Cipeke — Comercio e Industria de Papel
                                                                         Lda , established in Lisbon, represented by Miguel Ferrão
2 . orders the parties to bear their own costs.                          Castelo Branco, then by João Caniço Gomes, both of the
                                                                         Lisbon Bar, with an address for service in Luxembourg at
(") OJ C 233 , 10 . 8 . 1996 .                                           the Chambers of Francois Brouxel , 6 Rue Zithe , v.
                                                                         Commission of the European Communities ( Agent: Maria
                                                                         Teresa Figueira and Knut Simonsson ) — application for
 ---pagebreak---  C 387/20                EN                 Official Journal of the European Communities                                    20 . 12 . 97
 annulment of Commission Decision PT-C(95)543 of                            ORDER OF THE COURT OF FIRST INSTANCE
 12 December 1995 reducing financial assistance — the                                          of 30 September 1997
 Court of First Instance (Third Chamber ), composed of: B.
Vesterdorf, President, C. P. Briët and A. Potocki, Judges;             in Case T-122/96 : Federazione Nazionale del Commercio
 B. Pastor, Principal Administrator, for the Registrar, has            Oleario ( Federolio ) v. Commission of the European
given a judgment on 7 November 1997, in which it:                                                  Communities (')
                                                                        (Agriculture — Common organization of the markets —
 1 . dismisses the action;                                             Olive oil — Consumption aid — Regulation (EC)
                                                                       No 887/96 — Action for annulment — Association of
                                                                                traders — Inadmissibility)
2 . orders the applicant to pay the costs, including the                                             ( 97/C 387/38 )
     costs of the proceedings on the application for interim
     measures .
                                                                                (Language of the case: Italian)
(<) OJ C 233 , 10 . 8 . 1996 .
                                                                       In Case T-122/96 : Federazione Nazionale del Commercio
                                                                       Oleario ( Federolio ), established in Rome, represented by
                                                                       Livia Magrone Furlotti, of the Rome Bar, with an address
                                                                       for service in Luxembourg at the Chambers of Marc
                                                                       Loesch, 1 1 Rue Goethe, v. Commission of the European
                                                                       Communities ( Agents : Eugenio de March and Paolo
     ORDER OF THE COURT OF FIRST INSTANCE                              Ziotti ) — application for partial annulment of
                       of 30 September 1997                            Commission Regulation ( EC ) No 887/96 of 15 May 1996,
                                                                       amending Regulation ( EEC) No 2677/85 laying down
in Case T-151/95 : Instituto Europeu de Formação                       implementing rules in respect of the system of
Profissional Lda ( INEF ) v. Commission of the European                consumption aid for olive oil ( OJ L 119 , 16 . 5 . 1996 , p. 16
                          Communities (')                              and OJ L 254, 25 . 9 . 1985 , p. 5 , respectively ) — the
                                                                       Court of First Instance ( Fifth Chamber ), composed of: R.
(European Social Fund — Reduction of financial                         García-Valdecasas, President, J. Azizi and M. Jaeger,
assistance — Actions for annulment of measures — Time
                                                                      Judges; H. Jung, Registrar, made an order on 30 September
                     limits — Inadmissibility)                         1997, the operative part of which is as follows:
                           ( 97/ C 387/37 )
                                                                       1 . the application is dismissed as inadmissible;
              (Language of the case: Portuguese)
                                                                      2 . the applicant is ordered to pay the costs.
In Case T-151/95 : Instituto Europeu de Formação
                                                                       (') OJ C 370 , 7 . 12 . 1996 .
Profissional Lda ( INEF ), established at Oporto ( Portugal ),
represented by Bolota Belchior, of the Vila Nova de Gaia
Bar, with an address for service in Luxembourg at the
Chambers of Jacques Schroeder, 6 Rue Heinrich Heine, v.
Commission of the European Communities ( Agents:
initially, Ana Maria Alves Vieira and Günter Wilms and,
subsequently, Maria Teresa Figueira and Knut Simonsson )              Action brought on 2 October 1997 by Associazione
— application for annulment of the Commission 's                      G.A.L. Penisola Sorrentina against Commission of the
decision of 2 December 1991 reducing the aid granted by                                       European Communities
the European Social Fund in case 991005 PI in favour of
a vocational training programme operated in Portugal by                                           ( Case T-263/97 )
the applicant — the Court of First Instance ( Second                                                ( 97/C 387/39 )
Chamber), composed of: C. W. Bellamy, President; A.
Kalogeropoulos and M. Jaeger, Judges; H. Jung, Registrar,
made an order on 30 September 1997, the operative part                                   (Language of the case: Italian)
of which is as follows :
                                                                      An action against the Commission of the European
                                                                       Communities was brought before the Court of Justice of
1 . the application is dismissed;                                      the European Communities on 2 October 1997 by
                                                                       Associazione G.A.L. Penisola Sorrentina, represented by
2 . the applicant is ordered to pay the costs.
                                                                       Gian Luca Lemmo and Vincenzo Mormile , of the Naples
                                                                       Bar, with an address for service in Naples at 31 Via del
                                                                       Parco Marguerita .
(') OJ C 268 , 14 . 10 . 1995 .
                                                                       The applicant claims that the Court should annul
                                                                       Commission Decision C(97) 1261 of 15 May 1997.


title: Case C-134/13: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 18 March 2013 — Raytek GmbH, Fluke Europe BV v Commissioners for Her Majesty's Revenue and Customs

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/16

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 18 March 2013 — Raytek GmbH, Fluke Europe BV v Commissioners for Her Majesty's Revenue and Customs
   (Case C-134/13)
   2013/C 141/29
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicants: Raytek GmbH, Fluke Europe BV

      Defendant: Commissioners for Her Majesty's Revenue and Customs

      Question referred

   Is Commission Regulation (EU) No 314/2011 of 30 March 2011 concerning the classification of certain goods in the Combined Nomenclature (1) valid in so far as it classifies infrared thermal cameras under CN code 9025 19 20?

      (1)  OJ L 86, p. 57


title: Case C-343/09: Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — United Kingdom) — Afton Chemical Limited v Secretary of State for Transport (Reference for a preliminary ruling — Validity — Directive 2009/30/EC — Article 1(8) — Directive 98/70/EC — Article 8a — Atmospheric pollution — Fuels — Use of metallic additives in fuels — Limit for methylcyclopentadienyl manganese tricarbonyl (MMT) content — Labelling — Impact assessment — Manifest error of assessment — Precautionary principle — Proportionality — Equal treatment — Legal certainty — Admissibility)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/14

         Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — United Kingdom) — Afton Chemical Limited v Secretary of State for Transport
   (Case C-343/09) (1)

   (Reference for a preliminary ruling - Validity - Directive 2009/30/EC - Article 1(8) - Directive 98/70/EC - Article 8a - Atmospheric pollution - Fuels - Use of metallic additives in fuels - Limit for methylcyclopentadienyl manganese tricarbonyl (MMT) content - Labelling - Impact assessment - Manifest error of assessment - Precautionary principle - Proportionality - Equal treatment - Legal certainty - Admissibility)
   2010/C 234/20
   Language of the case: English

      Referring court

   High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court)

      Parties to the main proceedings

      Applicant: Afton Chemical Limited

      Defendant: Secretary of State for Transport

      Re:

   Reference for a preliminary ruling — High Court of Justice of England & Wales, Queen’s Bench Division (Administrative Court) — Validity of Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (OJ 2009 L 140, p. 88) — Validity with regard to the labelling requirement for fuels which contain metallic additives and with regard to the setting of a limit for methylcyclopentadienyl manganese tricarbonyl (MMT) — Manifest error of assessment — Infringement of the principles of proportionality, equal treatment and legal certainty

      Operative part of the judgment

   Consideration of the questions referred has disclosed nothing capable of affecting the validity of Article 1(8) of Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC, in so far as it inserts a new Article 8a(2) and 8a(4) to (6) in Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC.

      (1)  OJ C 267, 7.11.2009


title: Case T-425/13: Judgment of the General Court of 26 November 2015 — Giant (China) v Council (Dumping — Imports of bicycles originating in China — Interim review — Article 9(5) and Article 18 of Regulation (EC) No 1225/2009 — Individual treatment — Non-cooperation — Necessary information — Facts available — Related companies — Circumvention)

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/35

         Judgment of the General Court of 26 November 2015 — Giant (China) v Council
   (Case T-425/13) (1)

   ((Dumping - Imports of bicycles originating in China - Interim review - Article 9(5) and Article 18 of Regulation (EC) No 1225/2009 - Individual treatment - Non-cooperation - Necessary information - Facts available - Related companies - Circumvention))
   (2016/C 027/40)
   Language of the case: English

      Parties

      Applicant: Giant (China) Co. Ltd (Kunshan, China) (represented by: P. De Baere, lawyer)

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

      Interveners in support of the defendant: European Commission (represented by: J.-F. Brakeland and M. França, acting as Agents) and European Bicycle Manufacturers Association (EBMA) (represented by: L. Ruessmann, lawyer, and J. Beck, Solicitor)

      Re:

   Application for annulment of Council Regulation (EU) No 502/2013 of 29 May 2013 amending Implementing Regulation (EU) No 990/2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China following an interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2013 L 153, p. 17).

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Regulation (EU) No 502/2013 of 29 May 2013 amending Implementing Regulation (EU) No 990/2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China following an interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 so far as it concerns Giant (China) Co. Ltd;

               2.

               Orders the Council of the European Union to pay the costs of Giant (China) and to bear its own costs;

               3.

               Orders the European Commission and the European Bicycle Manufacturers Association (EBMA) to bear their own costs.

      (1)  OJ C 325, 9.11.2013.


title: Case C-276/14: Judgment of the Court (Grand Chamber) of 29 September 2015 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Gmina Wrocław v Minister Finansów (Reference for a preliminary ruling — Value added tax — Directive 2006/112/EC — Article 9(1) — Article 13(1) — Taxable persons — Interpretation of the word ‘independently’ — Municipal body — Economic activities carried out by an organisational entity of a municipality other than as a public authority — Whether such an entity may be regarded as a ‘taxable person’ within the meaning of the provisions of Directive 2006/112 — Articles 4(2) and 5(3) TEU)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/7

         Judgment of the Court (Grand Chamber) of 29 September 2015 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Gmina Wrocław v Minister Finansów
   (Case C-276/14) (1)

   ((Reference for a preliminary ruling - Value added tax - Directive 2006/112/EC - Article 9(1) - Article 13(1) - Taxable persons - Interpretation of the word ‘independently’ - Municipal body - Economic activities carried out by an organisational entity of a municipality other than as a public authority - Whether such an entity may be regarded as a ‘taxable person’ within the meaning of the provisions of Directive 2006/112 - Articles 4(2) and 5(3) TEU))
   (2015/C 381/07)
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Applicant: Gmina Wrocław

      Defendant: Minister Finansów

      Operative part of the judgment

   Article 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that bodies governed by public law, such as the municipal budgetary entities at issue in the main proceedings, cannot be regarded as taxable persons for the purposes of value added tax in so far as they do not satisfy the criterion of independence set out in that provision.

      (1)  OJ C 303, 8.9.2014.


title: Case T-677/15: Action brought on 20 November 2015 — Panzeri v Parliament and Commission

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/74

         Action brought on 20 November 2015 — Panzeri v Parliament and Commission
   (Case T-677/15)
   (2016/C 027/93)
   Language of the case: Italian

      Parties

      Applicant: Pier Antonio Panzeri (Calusco d’Adda, Italy) (represented by: C. Cerami, lawyer)

      Defendants: European Parliament, European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               As regards the substance of the case: uphold the present action and, consequently, annul the contested decision on the ground that it is unlawful;

               —

               In the alternative: refer the applications to the Secretary General of the European Parliament for a fair reassessment of the sum in respect of which recovery is sought;

               —

               Order the defendants to pay the costs of the present proceedings.

               —

               Order that all rights deriving from the law and reasonableness should be reserved, including the right to seek an order requiring that the defendant refund, together with interest and adjustment for inflation, any sums which may have been paid in the interim period, in accordance with the contested order.

      Pleas in law and main arguments

   The present action is brought against letter No 315070 of 21 September 2015 of the Directorate-General for Finance of the European Parliament — Directorate for Members’ Financial and Social Entitlements enclosing a debit note addressed to the applicant for EUR 83 764,00, and against letter No 312998 of 27 July 2012 of the Secretary General of the European Parliament, in English, relating to the reasons for debit note No 315070 of 21 September 2015; and against any other previous, connected and subsequent decisions relating to the abovementioned decisions.
   The applicant relies on four pleas in law in support of his action.

               1.

               First plea in law, alleging infringement of the substantive rule laid down in Article 81(1) of Regulation (EU, Euratom) No 966/2012, infringement of the ‘reasonable time’ principle, and the limitation period in respect of the European Union’s claim.

                           —

                           In that regard, the applicant considers that the claim amounting to EUR 83 764,34 sought by the Parliament under an administrative procedure against Mr Panzeri is time-barred pursuant to Article 81(1) of Regulation No 966/2012. This is because the facts which served as the basis for the European Union's claim refer solely to the five year period 2004-2009, while the payment order adopted by the directorate was issued only on 21 September 2015 and is accordingly wholly out of time.

               2.

               Second plea in law, alleging infringement of the essential procedural requirements laid down in Articles 1, 4(6), 6(5) and 9 of Regulation (EC) No 1073/1999 and recital 10 in the preamble thereto, infringement of the essential procedural requirements laid down in Article 4 of the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by OLAF; lack of competence of OLAF; infringement of the principle of proportionality and reasonableness and inadequate investigation and careful consideration.

                           —

                           In that regard, the applicant considers that the procedure carried out by OLAF is vitatied on a number of grounds, given that the inter-partes procedure was not properly conducted in relation to Mr Panzeri, there was no final investigation report and the whole OLAF investigation procedure took place in clear breach of Article 6(5) of Regulation No 1073/1999 since it was opened on 23 November 2009 and only concluded (presumably) in July 2012. Furthermore, OLAF could not have been competent, given the trivial nature of the behaviour attributed to the applicant, with the result that the principle of proportionality has been breached.

               3.

               Third plea in law, alleging infringement of Article 55 TEU, Article 20 TFEU and Article 24(4) TFEU and infringement of the essential procedural requirements laid down in Article 7(1) of Decision 2005/684/EC of the European Parliament (adopting the Statute for Members of the European Parliament).

                           —

                           The applicant submits that letter No 312998 of 27 July 2012 of the Secretary General of the European Parliament, which contains the only claims actually made against the applicant, was written in English. This is a breach of several provisions of the European Treaties and the Statute for Members of the European Parliament, which are intended to ensure that every citizen of the European Union, including the Members of the European Parliament, has the right to communicate, orally or in writing, with all the institutions of the European Union in his own mother tongue.

               4.

               Fourth plea in law, alleging infringement of the essential procedural requirements laid down in Articles 62 and 68 of the Decision of the Bureau of the European Parliament of 19 May and 9 July 2008; infringement of the essential procedural requirements laid down in Article 14(2) of the Rules on Payment of Expenses and Allowances to Members of the European Parliament (PEAM); non-existence of the decision and complete failure to give reasons.

                           —

                           In that regard, it should be noted in that the Secretary-General failed to issue (or at least to communicate to Mr Panzeri) the final decision on the basis of which the payment order contested in the present case was issued. This clearly points to a complete failure to give reasons or even to the fact that there was no final decision. The prerequisites for the application of Article 14(2) of the PEAM rules are not met.


title: Case C-186/09: Action brought on 26 May 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/33

         Action brought on 26 May 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
   (Case C-186/09)
   2009/C 180/55
   Language of the case: English

      Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek, P. Van den Wyngaert, Agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland

      The applicant claim that the Court should:

               —

               Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/113/EC (1) of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, or in any event, by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;

               —

               order United Kingdom of Great Britain and Northern Ireland to pay the costs.

      Pleas in law and main arguments

   The period within which the Directive had to be transposed expired on 21 December 2007.

      (1)  OJ L 373, p. 37.


title: Case C-86/06: Order of the President of the Court of 18 September 2006 — Commission of the European Communities v Hellenic Republic

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/53

         Order of the President of the Court of 18 September 2006 — Commission of the European Communities v Hellenic Republic
   (Case C-86/06) (1)

   (2006/C 326/112)

      Language of the case: Greek

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

      (1)  OJ C 74, 25.03.2006.


title: Case T-421/10: Action brought on 20 September 2010 — Cooperativa Vitivinícola Arousana v OHIM — Constantina Sotelo Ares (ROSALIA DE CASTRO)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/61

         Action brought on 20 September 2010 — Cooperativa Vitivinícola Arousana v OHIM — Constantina Sotelo Ares (ROSALIA DE CASTRO)
   (Case T-421/10)
   ()
   2010/C 301/98
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Cooperativa Vitivinícola Arousana, S. Coop. Galega (Meaño, Spain) (represented by: E Sánchez-Quiñones González, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Doña Constantina Sotelo Ares (Cambados, Spain)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of OHIM of 19 July 2010 in Case R 1804/2008-4;

               —

               order that trade mark 5635867 ROSALIA DE CASTRO be granted in respect of Classes 32, 33 and 35;

               —

               order the defendant to pay the costs, annulling the costs which the applicant was ordered to pay in the appeal.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Cooperativa Vitivínicola Arousana, S. Coop. Galega.

      Community trade mark concerned: Word mark ‘ROSALIA DE CASTRO’ for goods and services in Classes 32, 33 and 35.

      Proprietor of the mark or sign cited in the opposition proceedings: Doña Constantina Sotelo Ares.

      Mark or sign cited in opposition: Spanish word mark ‘ROSALIA’ for goods and services in Class 33.

      Decision of the Opposition Division: Opposition rejected.

      Decision of the Board of Appeal: Appeal allowed and opposition upheld.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks at issue.

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


title: Case C-12/09: Judgment of the Court (Seventh Chamber) of 12 November 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2006/17/EC — Technical requirements for the donation, procurement and testing of human tissues and cells — Failure to transpose within the prescribed period)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/7

         Judgment of the Court (Seventh Chamber) of 12 November 2009 — Commission of the European Communities v Italian Republic
   (Case C-12/09) (1)

   (Failure of a Member State to fulfil obligations - Directive 2006/17/EC - Technical requirements for the donation, procurement and testing of human tissues and cells - Failure to transpose within the prescribed period)
   2010/C 11/11
   Language of the case: Italian

      Parties

      Applicant: Commission of the European Communities (represented by: C. Cattabriga and S. Mortoni, acting as Agents)

      Defendant: Italian Republic (represented by: I. Bruni, acting as Agent, F. Arena, avvocato dello Stato)

      Re:

   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells (OJ 2006 L 38, p. 40)

      Operative part of the judgment

   The Court:

               1.

               declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells, the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 7(1) of Directive 2006/17;

               2.

               orders the Italian Republic to pay the costs.

      (1)  OJ C 55, 07.03.2009.


title: Case F-8/14: Action brought on 31 January 2014 — ZZ v EIB

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/28

         Action brought on 31 January 2014 — ZZ v EIB
   (Case F-8/14)
   2014/C 85/50
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: A. Senes and L. Payot, lawyers)

      Defendant: European Investment Bank

      Subject-matter and description of the proceedings

   Annulment of the decision refusing to promote the applicant from function F to function E.

      Form of order sought

               —

               Annul the decision of the Adjudication Committee of 23 October 2013;

               —

               order the EIB to pay the costs.


title: Case C-95/10: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 22 February 2010 — Strong Segurança SA v Município de Sintra, Securitas-Serviços e Tecnologia de Segurança

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/28

         Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 22 February 2010 — Strong Segurança SA v Município de Sintra, Securitas-Serviços e Tecnologia de Segurança
   (Case C-95/10)
   2010/C 113/43
   Language of the case: Portuguese

      Referring court

   Supremo Tribunal Administrativo

      Parties to the main proceedings

      Appellant: Strong Segurança, SA

      Respondent: Município de Sintra, Securitas-Serviços e Tecnologia de Segurança

      Questions referred

               1.

               Is Article 47 of Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 directly applicable in the domestic legal order as from 31 January 2006, in the sense that it confers on individuals a right on which they can rely in proceedings against organs of the Portuguese authorities?

               2.

               If so, is that principle applicable, despite the provision contained in Article 21 of that Directive, to contracts which have as their object services referred to in Annex II B?

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).


title: Case T-408/14: Action brought on 10 June 2014  — Venatto Design v Commission

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/53

         Action brought on 10 June 2014 — Venatto Design v Commission
   (Case T-408/14)
   2014/C 253/70
   Language of the case: Spanish

      Parties

      Applicant: Venatto Design, SL (Toledo, Spain) (represented by: A. López Gómez, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               in the alternative, annul the decision categorising the measures which together constitute the ‘Spanish Tax Lease System’ (‘STLS’) as new State aid that is incompatible with the internal market;

               —

               in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the only beneficiaries of the alleged aid and, consequently, as solely liable for its recovery;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it orders recovery of the alleged aid in breach of general principles of EU law;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it makes a determination as to the lawfulness of private contracts between the investors and other entities; and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are those raised in Case T-401/14 Duro Felguera SA v Commission.


title: Judgment of the Court (Third Chamber) of 10 March 2005 in Joined Cases C-96/03 and C-97/03 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): A. Tempelman v Directeur van de Rijksdienst voor de keuring van Vee en Vlees (Agriculture — Control of foot-and-mouth disease — Protective measures adopted in addition to the measures provided for in Directive 85/511/EEC — Powers of the Member States)

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/3

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 10 March 2005
   in Joined Cases C-96/03 and C-97/03 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): A. Tempelman v Directeur van de Rijksdienst voor de keuring van Vee en Vlees (1)

   (Agriculture - Control of foot-and-mouth disease - Protective measures adopted in addition to the measures provided for in Directive 85/511/EEC - Powers of the Member States)
   (2005/C 115/05)
   Language of the case: Dutch
   In Joined Cases C-96/03 and C-97/03: reference for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 7 January 2003, received at the Court on 4 March 2003, in the proceedings pending before that court between A. Tempelman (C-96/03), Mr and Mrs T.H.J.M. van Schaijk (C-97/03) and Directeur van de Rijksdienst voor de keuring van Vee en Vlees — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General, M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:
   Since foot-and-mouth disease is a disease which constitutes a serious hazard for animals, Article 10(1) of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market confers on Member States the power to adopt measures to control the disease in addition to those provided for in Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease, as amended by Council Directive 90/423/EEC of 26 June 1990, in particular the power to order the slaughter of animals belonging to a holding adjacent to or within a specific radius of a holding containing infected animals.
   Such measures must be adopted in compliance with the objectives pursued by the Community rules in force and, more particularly, Directive 85/511, as amended by Directive 90/423, the general principles of Community law, such as the principle of proportionality, and the obligation to communicate laid down in Article 10(1) of Directive 90/425.

      (1)  OJ C 146 of 21.06.2003.


title: Case C-407/11 P: Order of the Court of 12 July 2012 — Government of Gibraltar v European Commission, Kingdom of Spain, United Kingdom of Great Britain and Northern Ireland (Appeal — Directive 92/43/EEC — Conservation of natural habitats — List of sites of Community importance for the Mediterranean biogeographical region — Inclusion in the list of the site ‘Estrecho oriental’ proposed by the Kingdom of Spain, which is stated to include an area of British Gibraltar territorial waters and an area of the high seas — Action for annulment — Application for partial annulment — Severability — Rights of the defence)

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/20

         Order of the Court of 12 July 2012 — Government of Gibraltar v European Commission, Kingdom of Spain, United Kingdom of Great Britain and Northern Ireland
   (Case C-407/11 P) (1)

   (Appeal - Directive 92/43/EEC - Conservation of natural habitats - List of sites of Community importance for the Mediterranean biogeographical region - Inclusion in the list of the site ‘Estrecho oriental’ proposed by the Kingdom of Spain, which is stated to include an area of British Gibraltar territorial waters and an area of the high seas - Action for annulment - Application for partial annulment - Severability - Rights of the defence)
   2012/C 366/33
   Language of the case: English

      Parties

      Appellant: Government of Gibraltar (represented by: D. Vaughan QC and M. Llamas, Barrister)

      Other parties to the proceedings: European Commission (represented by: D. Recchia and K. Mifsud-Bonnici, acting as Agents), Kingdom of Spain (represented by: N. Díaz Abad and M. Muñoz Pérez, acting as Agents), United Kingdom of Great Britain and Northern Ireland

      Re:

   Appeal against the order of the General Court (Seventh Chamber) of 24 May 2011 in Case T-176/09 Government of Gibraltar v Commission, by which that Court declared inadmissible an action for the partial annulment of Commission Decision 2009/95/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document number C(2008) 8049) to the extent that the decision adds to the list a site called ‘Estrecho Oriental’ (ES6120032), proposed by Spain, which is stated by the appellant to include an area of British Gibraltar territorial waters and an area of the high seas

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               The Government of Gibraltar shall pay the costs.

               3.

               The Kingdom of Spain shall bear its own costs.

      (1)  OJ C 290, 1.10.2011.


title: Case C-340/04: Judgment of the Court (First Chamber) of  11 May 2006  (Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia (Italy)) — Carbotermo SpA, Consorzio Alisei v Comune di Busto Arsizio, AGESP SpA (Directive 93/36/EEC — Public supply contracts — Award of contract without a call for tenders — Award of the contract to an undertaking in which the contracting authority has a shareholding)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/5

         Judgment of the Court (First Chamber) of 11 May 2006 (Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia (Italy)) — Carbotermo SpA, Consorzio Alisei v Comune di Busto Arsizio, AGESP SpA
   (Case C-340/04) (1)

   (Directive 93/36/EEC - Public supply contracts - Award of contract without a call for tenders - Award of the contract to an undertaking in which the contracting authority has a shareholding)
   (2006/C 165/09)
   Language of the case: Italian
   Referring court
   Tribunale amministrativo regionale della Lombardia
   Parties to the main proceedings

      Applicants: Carbotermo SpA, Consorzio Alisei

      Defendants: Comune di Busto Arsizio, AGESP SpA

      Intervener: Associazione Nazionale Imprese Gestione servizi tecnici integrati (AGESI)
   Re:
   Reference for a preliminary ruling — Tribunale Amministrativo Regionale della Lombardia (Italy) — Interpretation of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and of Article 13 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) — Direct award of a contract for the supply and management of fuel and heating for heating appliances in buildings belonging to a municipality — Award to a company the shares of which are held by another company in which the municipality is a majority shareholder
   Operative part of the judgment
   The Court rules:

               1.

               Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts precludes the direct award of a public supply and service contract, the main value of which lies in supply, to a joint stock company whose Board of Directors has ample managerial powers which it may exercise independently and whose share capital is, at present, held entirely by another joint stock company whose majority shareholder is, in turn, the contracting authority.

               2.

               Article 13 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectorsmust not be applied in the assessment of the requirement relating to the inapplicability of Directive 93/36, according to which the undertaking to which a supply contract was awarded directly must carry out the essential part of its activities with the controlling authority.

               3.

               In order to determine whether an undertaking carries out the essential part of its activities with the controlling authority, for the purpose of deciding on the applicability of Directive 93/36, account must be taken of all the activities which that undertaking carries out on the basis of an award made by the contracting authority, regardless of who pays for those activities, whether it be the contracting authority itself or the user of the services provided; the territory where the activities are carried out is irrelevant.

      (1)  OJ C 251, 09.10.2004.