title: Case T-763/14: Judgment of the General Court of 25 November 2015 — Soprema v OHIM — Sopro Bauchemie (SOPRAPUR) (Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark SOPRAPUR — Prior Community word mark Sopro — Relative ground for refusal — Similarity of the goods and the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               18.1.2016

               EN

               Official Journal of the European Union

               C 16/37

         Judgment of the General Court of 25 November 2015 — Soprema v OHIM — Sopro Bauchemie (SOPRAPUR)
   (Case T-763/14) (1)

   ((Community trade mark - Opposition proceedings - International registration designating the European Community - Word mark SOPRAPUR - Prior Community word mark Sopro - Relative ground for refusal - Similarity of the goods and the signs - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 016/45)
   Language of the case: French

      Parties

      Applicant: Holding Soprema (Strasbourg, France) (represented by: M.-R. Hirsch, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: E. Scheffer and A. Folliard-Monguiral, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Sopro Bauchemie GmbH (Wiesbaden, Germany)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 14 August 2014 (Case R 1370/2013-2) concerning opposition proceedings between Sopro Bauchemie GmbH and Holding Soprema.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Holding Sopremo to pay the costs.

      (1)  OJ C 73, 2.3.2015.


title: Case T-406/05: Action brought on  9 November 2005  — Alessandro Cavallaro v Commission of the European Communities

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/30

         Action brought on 9 November 2005 — Alessandro Cavallaro v Commission of the European Communities
   (Case T-406/05)
   (2006/C 10/58)
   Language of the case: Italian
   Parties

      Applicant: Alessandro Cavallaro (Rome, Italy) (represented by: Carlo Forte, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               annul decision ADMIN. B.2.-ABF/adm-D(05)18560 of the appointing authority (AIPN) of 10 August 2005;

               —

               in the alternative, order time to start running again for the purposes of bringing an action for annulment of decisions ADMIN-B-3 No 10577 of 27 February 2002 and No 53089 of 14 November 2002;

               —

               in the further alternative, declare admissible the plea of unlawfulness seeking a declaration that decisions ADMIN-B-3 No 10577 of 27 February 2002 and No 53089 of 14 November 2002 are inapplicable, allowing the applicant the right to payment of the sums relating to the expatriation allowance from 1 December 2001 and for the entire period of service with the European Commission in Brussels, including arrears and interest;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant in the present case appeals against the decision of the appointing authority of 10 August 2005, in which he was refused the expatriation allowance provided for in Article 4 of Annex VII to the Staff Regulations of the European Communities, and requests payment of the sums relating to such allowance to be allowed from 1 March 2005 and for the entire period of service with the Commission delegation in Rome.
   It must be noted in that respect that back in 2002, immediately after being employed by the Commission, that authority refused the expatriation allowance of 16 % on the assumption that during the entire reference period for the calculation of the five years referred to in the second indent of Article 4(1)(a) of Annex VII to the Staff Regulations, the applicant had exercised his professional activities in Brussels.
   The applicant was subsequently transferred to the office of the Commission delegation in Rome, and again asked for the benefit of that allowance. The present action is brought against the adverse decision in respect of that new request.
   In support of his claims, the applicant pleads:

               —

               misapplication of Article 4(1)(b) of the Staff Regulations;

               —

               inconsistency of the statement of reasons and error in fact concerning the documentation supplied in respect of the 1990-1995 period. On that point, the applicant reiterates that he lived outside Italy from 1990 to 1995, and that he did not study in Italy between 1992 and 1995. In any event, the Commission's statements in the contested decision contradict the statements set out in the decisions of 2002; and

               —

               inconsistency of the statement of reasons concerning the presumption that from July 1990 to July 1995 the applicant lived in Italy. In that respect it is asserted that the mere declaration of the applicant, made at a time in which he was working as an auxiliary agent, that his place of recruitment was to be determined as Ariccia, in Italy, did not suffice to demonstrate his intention to remain living in that place uninterruptedly, developing normal social relations there.


C 55/18                EN                      Official Journal of the European Union                                        8.3.2003
        Removal from the register of Case C-359/99 ( 1)                        Removal from the register of Case C-486/99 ( 1)
                         (2003/C 55/34)                                                         (2003/C 55/37)
By order of 19 November 2002 the President of the Court of             By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-359/99 (Reference for a preliminary        from the register of Case C-486/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Autogolf Srl v Ministero          ruling by the Tribunale di Brescia): Flos SpA and Others v
delle Finanze.                                                         Ministero delle Finanze.
( 1) OJ C 352 of 4.12.1999.                                            (1 ) OJ C 79 of 18.03.2000.
        Removal from the register of Case C-360/99 ( 1)                        Removal from the register of Case C-487/99 ( 1)
                         (2003/C 55/35)                                                         (2003/C 55/38)
By order of 15 November 2002 the President of the Court of             By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-360/99 (Reference for a preliminary        from the register of Case C-487/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Union Factor SpA and              ruling by the Tribunale di Brescia): Petra SpA v Ministero delle
Others v Ministero delle Finanze.                                      Finanze.
( 1) OJ C 352 of 4.12.1999.                                            (1 ) OJ C 79 of 18.03.2000.
        Removal from the register of Case C-485/99 ( 1)                        Removal from the register of Case C-488/99 ( 1)
                         (2003/C 55/36)                                                         (2003/C 55/39)
By order of 19 November 2002 the President of the Court of             By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-485/99 (Reference for a preliminary        from the register of Case C-488/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Gottinghen SpA and Others         ruling by the Tribunale di Brescia): Supercar Srl v Ministero
v Ministero delle Finanze.                                             delle Finanze.
( 1) OJ C 79 of 18.03.2000.                                            (1 ) OJ C 79 of 18.03.2000.


title: Case C-246/10: Order of the President of the Court of 3 January 2011 — European Commission v Grand Duchy of Luxembourg

text:
               16.4.2011

               EN

               Official Journal of the European Union

               C 120/9

         Order of the President of the Court of 3 January 2011 — European Commission v Grand Duchy of Luxembourg
   (Case C-246/10) (1)

   2011/C 120/19
   Language of the case: French
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 195, 17.7.2010.


title: Case F-59/12: Judgment of the Civil Service Tribunal (1st Chamber) of 17 October 2013 — BF v Court of Auditors of the European Union (Civil service — Appointment — Recruitment of a director — Vacancy notice — Act adversely affecting an official — None — Inadmissibility)

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/28

         Judgment of the Civil Service Tribunal (1st Chamber) of 17 October 2013 — BF v Court of Auditors of the European Union
   (Case F-59/12) (1)

   (Civil service - Appointment - Recruitment of a director - Vacancy notice - Act adversely affecting an official - None - Inadmissibility)
   2014/C 9/45
   Language of the case: French

      Parties

      Applicant: BF (Luxembourg, Luxembourg) (represented by: L. Levi, lawyer)

      Defendant: Court of Auditors of the European Union (represented by: T. Kennedy and J. Vermer, Agents, assisted by D. Waelbroeck, lawyer)

      Re:

   Application to annul vacancy notice ECA/2011/67 of the Court of Auditors for the post of Director of the Human Resources Directorate.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders BF to bear his own costs and to pay the costs incurred by the Court of Auditors of the European Union.

      (1)  OJ C 227, 28.7.2012, p. 38.


title: Case C-58/04: Referencefor a preliminary ruling by the Bundesfinanzhof by order of that Court of 23 October 2003 in the case of Antje Köhler againstFinanzamt Düsseldorf Nord

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/18

         Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 23 October 2003 in the case of Antje Köhler against Finanzamt Düsseldorf Nord
   (Case C-58/04)
   (2004/C 106/33)
   Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) of 23 October 2003, received at the Court Registry on 11 February 2004, for a preliminary ruling in the case of Antje Köhler against Finanzamt Düsseldorf Nord on the following question:
   Are stops made by a ship in ports of non-member countries, at which passengers may disembark the vessel only for a short period, for example for sightseeing purposes, but at which they may not begin or end their journey, ‘stops in a third territory’ within the meaning of Article 8(1)(c) of Directive 77/388/EEC (1)?

      (1)  OJ L 145, p. 1.


C 188/24              EN                   Official Journal of the European Communities                                      3.7.1999
Reference for a preliminary ruling by the Bundesgericht-              on 14 May 1999, for a preliminary ruling in the case of Sanofi
shof by order of that court of 25 March 1999 in the case              Winthrop SA v Directeur des Services Fiscaux de Val-de-Marne,
of Hans Schwarzkopf GmbH & Co. KG against Zentrale                    on the validity, in the light of the principle of proportionality,
        zur Bekämpfung unlauteren Wettbewerbs e.V.                    of Council Decision 89/847/EEC of 28 July 1989 authorising
                                                                      the French Republic to apply a measure derogating from the
                                                                      second subparagraph of Article 17(6) of the Sixth Direc-
                        (Case C-169/99)                               tive 77/388/EEC on the harmonisation of the laws of the
                                                                      Member States relating to turnover taxes. (1)
                        (1999/C 188/53)
                                                                      (1) OJ L 239, p. 21.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshof
(Federal Court of Justice) — First Civil Chamber of 25 March
1999, received at the Court Registry on 5 May 1999, for a
preliminary ruling in the case of Hans Schwarzkopf GmbH &
Co. KG against Zentrale zur Bekämpfung unlauteren Wettbew-
erbs e.V. on the following question:                                         Removal from the register of Case C-25/98 (1)
                                                                                (1999/C 188/55)
Is the term ‘practical reasons’ in the second sentence of
Article 6(1)(d) of Council Directive 76/768/EEC on the                By order of 22 March 1999 the President of the Court of
approximation of the laws of the Member State relating to             Justice of the European Communities ordered the removal
cosmetic products (1) to be interpreted as also permitting the        from the register of Case C-25/98: (reference for a preliminary
inclusion of prescribed warnings in several languages, where          ruling from the Juzgado de lo Social de Santiago de Compost-
the manufacturer or marketer of cosmetic products considers           ela): Dorinda Teresa López Tourı́s v Instituto Nacional de
it desirable on economic grounds and to enhance the market-           Empleo (INEM) and Instituto Nacional de la Seguridad Social
ability of the products in the Community, if as a result the full     (INSS).
warning appears in a clearly legible format on an enclosed
leaflet only, with the packaging and container simply fur-
                                                                      (1) OJ No C 94 of 28.3.1998.
nishing abbreviated information for lack of space? Specifically,
is it permissible for the packaging and container to carry not
the full warning but only abbreviated information where a
company, for the reasons given above, considers it desirable
to market its products in a uniform getup in the languages of
the nine different countries where the product is sold (which
include eight EU Member States)?
                                                                             Removal from the register of Case C-32/98 (1)
                                                                                (1999/C 188/56)
( 1) (OJ 1976 L 262, p. 169) as amended by Council Directive
     88/667/EEC (OJ 1988 L 382, p. 46).                               By order of 11 February 1999 the President of the Court of
                                                                      Justice of the European Communities ordered the removal
                                                                      from the register of Case C-32/98: Commission of the
                                                                      European Communities v Federal Republic of Germany.
                                                                      (1) OJ No C 94 of 28.3.1998.
Reference for a preliminary ruling from the Tribunal
Administratif (Administrative Court), Melun (Fifth
Chamber), France, by judgment of that court of 3 Decem-
ber 1998 in the case of Sanofi Winthrop SA v Directeur                       Removal from the register of Case C-227/98 (1)
             des Services Fiscaux de Val-de-Marne
                                                                                (1999/C 188/57)
                        (Case C-181/99)                               By order of 15 March 1999 the President of the Court of
                                                                      Justice of the European Communities ordered the removal
                        (1999/C 188/54)                               from the register of Case C-227/98: Commission of the
                                                                      European Communities v Ireland.
Reference has been made to the Court of Justice of the                (1) OJ No C 278 of 5.9.1998.
European Communities by a judgment of the Tribunal Admini-
stratif (Administrative Court), Melun (Fifth Chamber), France,
of 3 December 1998, which was received at the Court Registry


title: Case C-150/17 P: Appeal brought on 24 March 2017 by the European Union, represented by the Court of Justice of the European Union, against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 1 February 2017 in Case T-479/14, Kendrion v European Union

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/14

         Appeal brought on 24 March 2017 by the European Union, represented by the Court of Justice of the European Union, against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 1 February 2017 in Case T-479/14, Kendrion v European Union

   (Case C-150/17 P)
   (2017/C 161/18)
   Language of the case: Dutch

      Parties

      Appellant: European Union, represented by the Court of Justice of the European Union (represented by: J. Inghelram and E. Beysen, acting as Agents)

      Other parties to the proceedings: Kendrion NV, European Commission

      Form of order sought

   The appellant submits that the Court of Justice should:

               —

               annul point 1 of the operative part of the judgment under appeal;

               —

               reject Kendrion’s claim at first instance for compensation in respect of the material damage allegedly suffered or, in the furthest alternative, reduce that claim for compensation to EUR 175 709,87;

               —

               order Kendrion to pay the costs.

      Grounds of appeal and main arguments

   In support of its appeal, the appellant puts forward three grounds.
   The first ground alleges an error of law in the interpretation of the concept of a causal link, in so far the General Court found that the failure to adjudicate within a reasonable period was the decisive cause of the alleged material damage consisting in the payment of bank guarantee charges, whereas an undertaking’s own choice not to pay the fine during the course of the proceedings before the EU Courts is, according to settled case-law, the decisive cause of the payment of such charges.
   The second ground alleges an error of law in the interpretation of the concept of damage, in so far as the General Court refused to apply to the alleged material damage — relating to the payment of the charges for bank guarantees — the same condition as that which it had formulated for the alleged damage in relation to the payment of interest on the amount of the fine, namely that the applicant at first instance had to show that the financial burden linked to that latter payment was greater than the benefit which it might have derived from not paying the fine.
   The third ground alleges an error in law in the determination of the period in which the alleged damage occurred and an inadequate statement of reasons, in so far as the General Court, without setting out reasons for so finding, found that the period in which the material damage consisting in the payment of bank guarantee charges occurred could have differed from the period in which the General Court had situated the unlawful conduct that had allegedly resulted in that damage.


title: Case C-479/09 P: Judgment of the Court (Fifth Chamber) of 30 September 2010 — Evets Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Word mark DANELECTRO — Figurative mark QWIK TUNE — Request for renewal of registration of the trade mark — Application for restitutio in integrum — Failure to observe the time-limit for submitting the request for renewal of registration of the trade mark)

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/11

         Judgment of the Court (Fifth Chamber) of 30 September 2010 — Evets Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-479/09 P) (1)

   (Appeal - Community trade mark - Word mark DANELECTRO - Figurative mark QWIK TUNE - Request for renewal of registration of the trade mark - Application for restitutio in integrum - Failure to observe the time-limit for submitting the request for renewal of registration of the trade mark)
   2010/C 317/20
   Language of the case: English

      Parties

      Appellant: Evets Corp. (represented by: S. Ryan, Solicitor)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Re:

   Appeal against the judgment of the Court of First Instance (First Chamber) of 23 September 2009 in Joined Cases T-20/08 and T-21/08 Evets v OHIM, by which that Court dismissed an action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 5 November 2007 in Case R 603/2007-4 dismissing the appeal against the decision of the Administration of Trade Marks and Legal Division and declaring that the application for restitutio in integrum filed by the appellant with a view to having its rights regarding the renewal of the word mark ‘DANELECTRO’ re-established was deemed not to have been filed on account of lateness — Failure to observe the time-limit for submitting the request for renewal of the trade marks

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Evets Corp. to pay the costs.

      (1)  OJ C 24, 30.01.2010.


title: Case T-806/14: Action brought on 3 December 2014 — August Storck v OHIM (Representation of a square-shaped packaging in white and blue)

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/59

         Action brought on 3 December 2014 — August Storck v OHIM (Representation of a square-shaped packaging in white and blue)
   (Case T-806/14)
   (2015/C 046/76)
   Language of the case: English

      Parties

      Applicant: August Storck KG (Berlin, Germany) (represented by: P. Goldenbaum, I. Rohr, T. Melchert and A. Richter, lawyers)

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

      Details of the proceedings before OHIM

      Trade mark at issue: International registration designating the European Union in respect of the figurative mark (Representation of a packaging in the shape of a square) — International registration No 1 169 244 designating the European Union

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 8 September 2014 in Case R 644/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision;

               —

               Order OHIM to pay its own costs and those of the applicant.

      Plea in law

               —

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


title: Case C-381/06: Judgment of the Court (Eighth Chamber) of 13 September 2007 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/14/EC — Informing and consulting employees — Failure to transpose within the period prescribed)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/15

         Judgment of the Court (Eighth Chamber) of 13 September 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-381/06) (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/14/EC - Informing and consulting employees - Failure to transpose within the period prescribed)
   (2007/C 269/29)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: M. Patakia and J. Enegren, acting as Agents)

      Defendant: Hellenic Republic (represented by: N. Dafniou, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, all the provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community — Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, the Hellenic Republic has failed to fulfil its obligations under that directive;

               2.

               orders the Hellenic Republic to pay the costs.

      (1)  OJ C 261, 28.10.2006.


title: Case C-423/99: Action brought on 29 October 1999 by the Commission of the European Communities against the Italian Republic

text:
22.1.2000               EN                     Official Journal of the European Communities                                          C 20/13
Action brought on 29 October 1999 by the Commission                       Giacinto Bisogni, acting as Agents, with an address for service
of the European Communities against the Italian Republic                  in Luxembourg at the office of Carlos Gómez de la Cruz, of its
                                                                          Legal Service, Wagner Centre, Kirchberg.
                           (Case C-421/99)
                                                                          The applicant claims that the Court should:
                            (2000/C 20/26)
                                                                          — declare that, by failing to adopt and bring into force or, in
An action against the Italian Republic was brought before the                 any event, by failing to communicate the laws, regulations
Court of Justice of the European Communities on 29 October                    and administrative provisions necessary to comply with
1999 by the Commission of the European Communities,                           Directive 97/51/EC of the European Parliament and of the
represented by Lena Ström, of its Legal Service, and Giacinto                 Council of 6 October 1997 amending Council Directives
Bisogni, an appeal court judge on secondment to its Legal                     90/387/EEC and 92/44/EEC for the purpose of adaptation
Service, acting as Agents, with an address for service in                     to a competitive environment in telecommunications (1),
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner                  the Italian Republic has failed to fulfil its obligations under
Centre, Kirchberg.                                                            that directive; and
The applicant claims that the Court should:
                                                                          — order the Italian Republic to pay the costs.
— declare that, by failing to adopt, or at any rate to
     communicate to the Commission, the laws, regulations
     and administrative measures necessary in order to comply
                                                                          Pleas in law and main arguments
     with Council Directive 94/67/EC of 16 December 1994 (1)
     on the incineration of hazardous waste, the Italian Republic
     has failed to fulfil its obligations under that directive;
                                                                          Under Article 249 of the EC Treaty, according to which a
                                                                          directive is to be binding, as to the result to be achieved, upon
— order the Italian Republic to pay the costs.
                                                                          each Member State to which it is addressed, Member States are
                                                                          required to observe the time-limits laid down in directives for
                                                                          their transposition. That time-limit expired on 31 December
Pleas in law and main arguments                                           1997 without the Italian Republic having brought into force
                                                                          the necessary provisions in order to comply with the directive
Article 249 EC (formerly Article 189 of the EC Treaty),                   referred to in the Commission’s application.
according to which a directive is to be binding, as to the result
to be achieved, upon each Member State to which it is
addressed, requires Member States to observe the time-limits
laid down in directives for their transposition. The time-limit           (1) OJ 1997 L 295, p. 23.
in the present case expired on 31 December 1996 without the
Italian Republic having adopted the necessary provisions in
order to comply with the directive referred to in the Com-
mission’s application.
(1) OJ L 365 of 31.12.1994, p. 34.
                                                                          Action brought on 29 October 1999 by the Commission
                                                                          of the European Communities against the Italian Republic
Action brought on 29 October 1999 by the Commission                                               (Case C-423/99)
of the European Communities against the Italian Republic
                                                                                (2000/C 20/28)
                           (Case C-422/99)
                                                                          An action against the Italian Republic was brought before the
                            (2000/C 20/27)
                                                                          Court of Justice of the European Communities on 29 October
                                                                          1999 by the Commission of the European Communities,
An action against the Italian Republic was brought before the             represented by Claudia Schmidt, of its Legal Service, and by
Court of Justice of the European Communities on 29 October                Giacinto Bisogni, acting as Agents, with an address for service
1999 by the Commission of the European Communities,                       in Luxembourg at the office of Carlos Gómez de la Cruz, of its
represented by Claudia Schmidt, of its Legal Service, and by              Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- C 20/14               EN                      Official Journal of the European Communities                                      22.1.2000
The applicant claims that the Court should                               2. Paragraphs 1 and 3 of the Judgment of the Court of First
                                                                             Instance in case T-110/98 be set aside.
— declare that, by failing to adopt and bring into force or, in
    any event, by failing to communicate the laws, regulations
    and administrative provisions necessary to comply with               3. Commission Decision 98/687/ECSC of 10 June 1998 on
    Directive 98/10/EC of the European Parliament and of the                 German aid to the coal industry for 1997 (OJ 1998 L 234,
    Council of 26 February 1998 on the application of open                   p. 30) be annulled.
    network provision (ONP) to voice telephony and on
    universal service for telecommunications in a competitive            4. The Commission pay the costs of this appeal and those
    environment (1), the Italian Republic has failed to fulfil its           incurred before the Court of First Instance.
    obligations under that directive;
— order the Italian Republic to pay the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         The Appellant submits that any reading of the words
Under Article 249 of the EC Treaty, according to which a                 used in Article 1 of the Code (Commission Decision
directive is to be binding, as to the result to be achieved, upon        No. 3632/93/ECSC (2) of 28 December 1993 establishing
each Member State to which it is addressed, Member States are            Community rules for State aid to the coal industry) must
required to observe the time-limits laid down in directives for          conclude that Article 9 is a precondition before any aid may
their transposition. That time-limit expired on 30 June 1998             be considered Community aid and hence compatible with the
without the Italian Republic having brought into force the               common market. Compliance with Article 9 is not merely a
necessary provisions in order to comply with the directive               procedural requirement. It is a pre-condition. State aid, there-
referred to in the Commission’s application.                             fore, may be considered Community aid only if it complies
                                                                         with Article 9(4).
(1) OJ 1998 L 101, p. 24.
                                                                         The Appellant submitted to the Court of First Instance that, if
                                                                         the clear wording of the Code is applied, the Commission lacks
                                                                         the competence to consider State aid as Community aid if the
                                                                         State aid is paid without complying with Article 9 (and, thus,
                                                                         does not satisfy the condition of prior authorisation).
Appeal brought on 8 November 1999 by RJB Mining plc
against the judgment delivered on 9 September 1999 by
the First Chamber, Extended Composition, of the Court                    In rejecting the Appellant’s arguments the Court of First
of First Instance of the European Communities in case                    Instance held that:
T-110/98 (1) between RJB Mining plc and the Commission
of the European Communities, supported by the Federal
                                                                         a) a procedural provision could not have the same status as a
Republic of Germany, the Kingdom of Spain and RAG
                                                                             substantive provision, and, on that basis;
                       Aktiengesellschaft
                       (Case C-427/99 P)                                 b) non-compliance with a procedural provision did not have
                                                                             the legal consequence of depriving the Commission of the
                         (2000/C 20/29)                                      competence to approve the State aid.
An appeal against the judgment delivered on 9 September
1999 by the First Chamber, Extended Composition, of the                  The Appellant submits that the Court of First Instance’s
Court of First Instance of the European Communities in case              conclusion depends on a tortuous interpretation of the Code
T-110/98 between RJB Mining plc and the Commission of the                and is clearly wrong in law.
European Communities, supported by the Federal Republic of
Germany, the Kingdom of Spain and RAG Aktiengesellschaft,
was brought before the Court of Justice of the European                  According to the Appellant the Code makes no distinction
Communities on 8 November 1999 by RJB Mining plc, a                      between substantive and procedural pre-conditions to aid
public limited company incorporated in England with its                  being considered compatible with the common market and,
registered office at Harworth, United Kingdom, represented by            therefore, failing to satisfy either type of condition results in a
Mark Brealey, Barrister, of the Bar of England and Wales, and            lack of competence on the part of the Commission to approve
Jonathan Lawrence, Solicitor, with an address for service in             the aid.
Luxembourg at the Chambers of Arendt and Medernach, 8-10,
Rue Mathias Hardt.                                                       (1) OJ C 299 of 26.9.98, p. 38.
                                                                         (2) OJ 1993 L 329, p. 12.
The Appellant seeks an order that:
1. The Appeal be allowed.


title: Case T-123/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN-čerpací stanice) (EU trade mark — Opposition proceedings — Application for the EU word mark UNICORN-čerpací stanice — Earlier national word and figurative marks UNICORN — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/15

         Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN-čerpací stanice)
   (Case T-123/15) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU word mark UNICORN-čerpací stanice - Earlier national word and figurative marks UNICORN - Relative ground for refusal - Reputation - Article 8(5) of Regulation (EC) No 207/2009))
   (2016/C 462/17)
   Language of the case: English

      Parties

      Applicant: Unicorn a.s. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO: Mercilink Equipment Leasing Ltd (Limassol, Cyprus)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 13 January 2015 (Case R 153/2014-5), concerning opposition proceedings between Unicorn and Mercilink Equipment Leasing.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Unicorn a.s. to pay the costs.

      (1)  OJ C 171, 26.5.2015.


title: Case C-401/09 P: Judgment of the Court (Third Chamber) of 9 June 2011 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Central Bank (Appeal — Admissibility — Power of attorney — Consortium — Public contracts — Negotiated procedure — IT consultancy and IT development services — Rejection of the tender — Rules of Procedure of the General Court — Interest in bringing proceedings — Ground for exclusion — Permit required by national law — Obligation to state reasons)

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/4

         Judgment of the Court (Third Chamber) of 9 June 2011 — Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Central Bank
   (Case C-401/09 P) (1)

   (Appeal - Admissibility - Power of attorney - Consortium - Public contracts - Negotiated procedure - IT consultancy and IT development services - Rejection of the tender - Rules of Procedure of the General Court - Interest in bringing proceedings - Ground for exclusion - Permit required by national law - Obligation to state reasons)
   2011/C 226/05
   Language of the case: English

      Parties

      Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, dikigoros)

      Other party to the proceedings: European Central Bank (represented by: F. von Lindeiner and G. Gruber, Agents)

      Re:

   Appeal brought against the order of the Court of First Instance (Fourth Chamber) of 2 July 2009 in Case T-279/06 Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Central Bank (ECB) dismissing an action for annulment of the decision of the European Central Bank (ECB) of 31 July 2006 rejecting the tender submitted by the applicant in the negotiated procedure for the provision of IT consultancy and IT development services to the ECB (OJ 2005 S 137-135345) and of the decision to award the contract to another tenderer

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

      (1)  OJ C 11, 16.1.2010.


title: Case C-235/05 P: Order of the Court (Fourth Chamber) of 27 April 2006 — L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Revlon (Switzerland) SA (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Similarity between two trade marks — Likelihood of confusion — Application for Community trade mark FLEXI AIR — Earlier word mark FLEX — Refusal to register)

text:
               14.10.2006

               EN

               Official Journal of the European Union

               C 249/1

         Order of the Court (Fourth Chamber) of 27 April 2006 — L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Revlon (Switzerland) SA
   (Case C-235/05 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Similarity between two trade marks - Likelihood of confusion - Application for Community trade mark FLEXI AIR - Earlier word mark FLEX - Refusal to register)
   (2006/C 249/01)
   Language of the case: English
   Parties

      Applicant: L'Oréal SA (represented by: X. Buffet Delmas d'Autane, avocat)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: G. Schneider, Agent), Revlon (Switzerland) SA
   Re:
   Appeal against the judgment of the Court of First Instance (Second Chamber) of 16 March 2005 in Case T-112/03 L'Oréal SA v OHIM, dismissing as unfounded an application brought by the applicant for the Community word mark FLEXI AIR for goods in Class 3 for the annulment of decision R 0396/2001-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 15 January 2003, dismissing the appeal against the decision of the Opposition Division refusing registration of that mark in opposition proceedings brought by the proprietor of the national word marks FLEX for goods in Classes 3 and 34
   Operative part of the order

               1.

               The appeal is dismissed;

               2.

               L'Oréal SA is ordered to pay the costs.

      (1)  OJ C 205, 20.8.2005.


title: Judgment of the Court (Sixth Chamber) of 16 October 2003 in Case C-283/00: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Public procurement — Directive 93/37/EEC — Procedure for the award of public works contracts — State commercial company governed by private law — Company's object consisting of the implementation of a plan for repaying the costs of and establishing prisons — Concept of "contracting authority")

text:
29.11.2003              EN                           Official Journal of the European Union                                                   C 289/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       contracting authority for the purposes of Article 1(b) of
                                                                             Council Directive 93/37/EEC of 14 June 1993 concerning the
                                                                             coordination of procedures for the award of public works
                         (Sixth Chamber)                                     contracts (OJ 1993 L 199, p. 54), the amount of which far
                                                                             exceeds the threshold provided for by that directive, by failing
                       of 16 October 2003                                    to comply with all the provisions of that directive and, more
                                                                             specifically, the advertising rules laid down in Article 11(2),
                                                                             (6), (7) and (11), and the provisions of Articles 12(1), 29(3),
in Case C-283/00: Commission of the European Communi-                        18, 27 and 30(4), the Kingdom of Spain has failed to fulfil its
                   ties v Kingdom of Spain (1)                               obligations under Community law, the Court (Sixth Chamber),
                                                                             composed of: J.-P. Puissochet, President of the Chamber,
                                                                             R. Schintgen, V. Skouris (Rapporteur), N. Colneric and
(Failure of a Member State to fulfil its obligations — Public                J.N. Cunha Rodrigues, Judges; S. Alber, Advocate General;
procurement — Directive 93/37/EEC — Procedure for                            R. Grass, Registrar, has given a judgment on 16 October 2003,
the award of public works contracts — State commercial                       in which it:
company governed by private law — Company’s object
consisting of the implementation of a plan for repaying the
costs of and establishing prisons — Concept of ‘contracting
                             authority’)                                     1.    Declares that, by failing to comply with all the provisions of
                                                                                Council Directive 93/37/EEC of 14 June 1993 concerning the
                                                                                coordination of procedures for the award of public works
                         (2003/C 289/01)                                           contracts in connection with the call for tenders for the execution
                                                                                of works for the Centro Educativo Penitenciario Experimental
                                                                                de Segovia issued by the Sociedad Estatal de Infraestruturas y
                   (Language of the case: Spanish)
                                                                                Equipamientos Penitenciarios S.A. (‘SIEPSA’), a company
                                                                                falling within the definition of a contracting authority for the
(Provisional translation; the definitive translation will be published             purposes of Article 1(b) of the Directive, the Kingdom of Spain
                   in the European Court Reports)                                  has failed to fulfil its obligations under that directive;
                                                                             2.    Orders the Kingdom of Spain to pay the costs.
In Case C-283/00, Commission of the European Communities
(Agent: G. Valero Jordana) v Kingdom of Spain (Agent:
M. Lópes-Monís Gallego): Application for a declaration that, in
connection with the call for tenders for the execution of works              (1) OJ C 259 of 9.9.2000.
for the Centro Educativo Penitenciario Experimental de Segovia
(Experimental Educational Prison, Segovia) issued by the
Sociedad Estatal de Infraestruturas y Equipamientos Penitencia-
rios S.A., a company falling within the definition of a


title: Case T-461/13: Action brought on 30 August 2013 — Kingdom of Spain v Commission

text:
               19.10.2013

               EN

               Official Journal of the European Union

               C 304/23

         Action brought on 30 August 2013 — Kingdom of Spain v Commission
   (Case T-461/13)
   2013/C 304/41
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: A. Rubio González)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   The action is brought against the decision of the Commission of 19 June 2013, on State aid SA.28599 (C 23/2010) (ex NN 36/010, ex CP 163/2009) implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less-urbanised areas (other than Castilla-La Mancha). That decision found that that aid was partly incompatible with the internal market and therefore ordered that it be recovered.
   In support of the action, the applicant relies on five 11 pleas in law.

               1.

               First plea: infringement of Article 107(1) TFEU, in the absence, in the present case, of any economic advantage granted to an entity engaged in an economic activity, of selectivity of that measure and of distortion of competition.

               2.

               Second plea: infringement of Article 106(2) TFEU, and Article 107(3)(c) TFEU, given that it has not been established that the principle of technological neutrality was breached.

               3.

               Third plea: infringement of the procedure in State aid cases, having regard, in the present case, to its excessive duration, to the failure to take into account evidence that was presented, as well as lack of consistency and objectivity during the appraisal.

               4.

               The fourth plea, in the alternative: infringement of the principles of legal certainty, equality, proportionality and subsidiarity, and absence of the obligation to recover the resulting aid, in so far as Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) waives that recovery requirement where the general principles of European Union law have been disregarded.

               5.

               Fifth plea, likewise in the alternative: breach of the right to information, enshrined in the Charter of Fundamental Rights of the European Union, and of the lack of a requirement to recover the resulting aid.


title: Case C-121/13: Request for a preliminary ruling from the Amtsgericht Wedding (Deutschland) lodged on 14 March 2013 — Rechtsanwaltskanzlei CMS Hasche Sigle, Partnerschaftsgesellschaft v Xceed Holding Ltd.

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/10

         Request for a preliminary ruling from the Amtsgericht Wedding (Deutschland) lodged on 14 March 2013 — Rechtsanwaltskanzlei CMS Hasche Sigle, Partnerschaftsgesellschaft v Xceed Holding Ltd.
   (Case C-121/13)
   2013/C 164/16
   Language of the case: German

      Referring court

   Amtsgericht Wedding

      Parties to the main proceedings

      Applicants: Rechtsanwaltskanzlei CMS Hasche Sigle, Partnerschaftsgesellschaft

      Defendant: Xceed Holding Ltd.

      Questions referred

               1.

               Must Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (1) be interpreted to mean that a defendant may apply for a review by the competent court of the European order for payment also where the order for payment was not served on him or not effectively served on him? In those circumstances, may recourse be had, mutatis mutandis, in particular to Article 20(1) or Article 20(2) of Regulation No 1896/2006?

               2.

               If the answer to Question 1 is in the affirmative:
               What are the legal consequences for the procedure if the application for review is successful; may recourse be had in that connection, mutatis mutandis, in particular to Article 20(3) or Article 17(1) of Regulation No 1896/2006?

      (1)  OJ 2006 L 399, p. 1.


title: Case C-449/14 P: Judgment of the Court (First Chamber) of 10 November 2016 — DTS Distribuidora de Televisión Digital SA v European Commission, Telefónica de España SA, Telefónica Móviles España SA, Kingdom of Spain, Corporación de Radio y Televisión Española SA (RTVE) (Appeal — State aid — State aid scheme in favour of the national public broadcast organisation — Public service obligations — Set-off — Article 106(2) TFEU — Decision declaring the aid scheme compatible with the internal market — Alteration of the method of financing — Tax measures — Tax imposed on pay-television operators — Decision declaring the amended aid scheme compatible with the internal market — Taking into account of the method of financing — Existence of hypothecation between the tax and the aid scheme — Direct impact of the revenue from the tax on the amount of the aid — Coverage of the net costs of fulfilling the public service mandate — Competitive relationship between the person liable to pay the tax and the beneficiary of the aid — Distortion of national law)

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/2

         Judgment of the Court (First Chamber) of 10 November 2016 — DTS Distribuidora de Televisión Digital SA v European Commission, Telefónica de España SA, Telefónica Móviles España SA, Kingdom of Spain, Corporación de Radio y Televisión Española SA (RTVE)
   (Case C-449/14 P) (1)

   ((Appeal - State aid - State aid scheme in favour of the national public broadcast organisation - Public service obligations - Set-off - Article 106(2) TFEU - Decision declaring the aid scheme compatible with the internal market - Alteration of the method of financing - Tax measures - Tax imposed on pay-television operators - Decision declaring the amended aid scheme compatible with the internal market - Taking into account of the method of financing - Existence of hypothecation between the tax and the aid scheme - Direct impact of the revenue from the tax on the amount of the aid - Coverage of the net costs of fulfilling the public service mandate - Competitive relationship between the person liable to pay the tax and the beneficiary of the aid - Distortion of national law))
   (2017/C 014/02)
   Language of the case: Spanish

      Parties

      Appellant: DTS Distribuidora de Televisión Digital SA (represented by: H. Brokelmann and M. Ganino, abogados)

      Other parties to the proceedings: European Commission (represented by: C. Urraca Caviedes, B. Stromsky and G. Valero Jordana, acting as Agents), Telefónica de España SA, Telefónica Móviles España SA (represented by: F. González Díaz, F. Salerno and V. Romero Algarra, abogados), Kingdom of Spain (represented by: A. Sampol Pucurull, acting as Agent), Corporación de Radio y Televisión Española SA (RTVE) (represented by: A. Martínez Sánchez and J. Rodríguez Ordóñez, abogados)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders DTS Distribuidora de Televisión Digital SA to bear its own costs and to pay those incurred by the European Commission in respect of the appeal in the main proceedings;

               3.

               Orders Telefónica de España SA and Telefónica Móviles España SA to bear their own costs and to pay those incurred by the European Commission in respect of the cross-appeal;

               4.

               Orders Corporación de Radio y Televisión Española SA (RTVE) and the Kingdom of Spain to bear their own costs.

      (1)  OJ C 395, 10.11.2014.


title: Case F-95/06: Action brought on 11 August 2006 — Taruffi v Commission

text:
               30.9.2006

               EN

               Official Journal of the European Union

               C 237/23

         Action brought on 11 August 2006 — Taruffi v Commission
   (Case F-95/06)
   (2006/C 237/40)
   Language of the case: French
   Parties

      Applicant: Adrien Taruffi (Schouweiler, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Tribunal should:

               —

               Declare illegal Article 4(1) of the General Implementing Provisions for Article 45 of the Staff Regulations, adopted by the Commission decision of 23 December 2004 (GIP);

               —

               Annul the Commission decisions fixing the applicant's merit and priority points in respect of the 2004 and 2005 promotion exercises and the decisions not to include his name on the merit list after Promotion Committees and on the list of officials promoted to Grade B*10 in the 2004 promotion exercise;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his application, the applicant argues that there was no genuine examination of his merits in the appraisal carried out by the Promotion Committee, following the administration's positive response to his first complaint.
   As regards the 2004 exercise, the applicant pleads, inter alia, that there was a manifest error of assessment in that his merits in the 2004 exercise were compared to those of the officials covered by the ‘research’ budget whereas, for that exercise, he was covered by the ‘operations’ budget.
   As regards the 2005 exercise, the applicant regards as illegal the Commission's interpretation of Article 4(1) of the GIP, under which, even though the applicant had been assigned to two separate Directorates-General and an interim report had been drawn up for the first part of 2004 including the award of merit points, only the Directorate-General responsible for establishing his final report would have the power to award priority points.
   In general, the applicant submits that the contested decisions were adopted in breach of Article 45 of the Staff Regulations and that length of service, rather than merit, was taken into account as the decisive criterion.


title: Case T-10/09 RENV: Judgment of the General Court of 11 December 2014  — Formula One Licensing v OHIM — ESPN Sports Media (F1-LIVE) (Community trade mark — Opposition proceedings — Application for the Community figurative mark F1-LIVE — Earlier Community figurative mark F1 and national and international word marks F1 Formula 1 — Relative grounds for refusal — Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (now Article 8(1)(b) and (5) of Regulation (EC) No 207/2009))

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/41

         Judgment of the General Court of 11 December 2014 — Formula One Licensing v OHIM — ESPN Sports Media (F1-LIVE)
   (Case T-10/09 RENV) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark F1-LIVE - Earlier Community figurative mark F1 and national and international word marks F1 Formula 1 - Relative grounds for refusal - Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (now Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)))
   (2015/C 046/49)
   Language of the case: English

      Parties

      Applicant: Formula One Licensing BV (Rotterdam, Netherlands) (represented by: B. Klingberg and K. Sandberg, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: ESPN Sports Media Ltd (London, United Kingdom) (represented by: T. de Haan, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 16 October 2008 (Case R 7/2008-1), concerning opposition proceedings between Racing-Live and Formula One Licensing BV.

      Operative part of the judgment

   The Court:

               1)

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 October 2008 (Case R 7/2008-1).

               2)

               Orders OHIM and ESPN Sports Media Ltd to pay the costs incurred by Formula One Licensing BV in the proceedings before the General Court and the Court of Justice, and in the proceedings before the Board of Appeal of OHIM.

      (1)  OJ C 55, 7.3.2009.


title: Case T-144/05: Judgment of the Court of First Instance of 18 December 2008 — Muñiz v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a meeting of the Working Group of the  Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous) of the Customs Code Committee — Refusal of access — Exception relating to the protection of the decision-making process)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/41

         Judgment of the Court of First Instance of 18 December 2008 — Muñiz v Commission
   (Case T-144/05) (1)

   (Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a meeting of the Working Group of the ‘Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)’ of the Customs Code Committee - Refusal of access - Exception relating to the protection of the decision-making process)
   (2009/C 44/70)
   Language of the case: English
   Parties

      Applicant: Pablo Muñiz (Brussels, Belgium) (represented: initially by B. Dehandschutter, and subsequently by L. Defalque, lawyers)

      Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira and I. Chatzigiannis, Agents)
   Re:
   Application for annulment of the Commission's decision of 3 February 2005 refusing to grant access to certain documents relating to the September 2004 meeting of the Working Group of the ‘Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)’ of the Customs Code Committee.
   Operative part of the judgment
   The Court:

               1.

               Annuls the Commission's decision of 3 February 2005 inasmuch as it refused access to documents, ‘TAXUD/1369/2003’ relating to home cinema, ‘TAXUD/974/2004’ relating to vehicles for dual use, ‘TAXUD/1342/2003’, ‘TAXUD/2465/2004’ and ‘TAXUD/2495/2004’ relating to power supply units, ‘XXI/770/1998’ relating to incomplete ADP machines, and to the minutes of the September 2004 meeting of the Working Group of the ‘Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)’ of the Customs Code Committee (document ‘TAXUD/3010/2004 — Annex V’);

               2.

               Declares that there is no need to adjudicate on the remainder of the action;

               3.

               Orders the Commission to pay the costs incurred by Mr Pablo Muñiz.

      (1)  OJ C 132, 28.5.2005.


title: Case T-460/09: Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Cheapflights — Earlier national figurative mark CheapFlights — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/22

         Judgment of the General Court of 5 May 2011 — CheapFlights International v OHIM — Cheapflights (Cheapflights)
   (Case T-460/09) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark Cheapflights - Earlier national figurative mark CheapFlights - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 186/40
   Language of the case: English

      Parties

      Applicant: CheapFlights International Ltd (Ballybofey, Ireland) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Cheapflights Ltd (London, United Kingdom) (represented by: M. Edenborough, QC)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 31 August 2009 (Case R 1356/2007-4), relating to opposition proceedings between CheapFlights International Ltd and Cheapflights Ltd

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 August 2009 (Case R 1356/2007-4);

               2.

               Dismisses the action as to the remainder;

               3.

               Orders OHIM and Cheapflights Ltd to pay the costs including those incurred by CheapFlights International Ltd in the proceedings before the Board of Appeal.

      (1)  OJ C 24, 30.1.2010.


title: Case T-33/02: Action brought on 21 February 2002 by Britannia Alloys and Chemicals Limited against the Commission of the European Communities

text:
C 109/56               EN                     Official Journal of the European Communities                                         4.5.2002
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the Council’s decision refusing to allow the appli-
      cant access to his medical file;
—     order the Council to pay the costs.
                                                                         The applicant contests the above-mentioned Decision in which
                                                                         the Commission found that the applicant and five other
                                                                         undertakings had infringed the provisions of Article 81(1) of
Pleas in law and main arguments                                          the Treaty and Article 53(1) of the EEA Agreement by
                                                                         participating in continuing agreement and/or concerted prac-
                                                                         tices in the zinc phosphate sector. A fine of EUR 3.37 million
According to the applicant, the documents contained in                   was imposed on the applicant following a reduction of 10 %
an official’s medical file are directly connected with his               of the fine pursuant to Section D(2) of the Leniency Notice.
administrative and legal situation and must therefore be
included in his personal file, whilst observing the guarantees
provided for in Article 26 of the Staff Regulations, in particular
the right of access to those documents. The applicant disputes
the assertion that the possibility of consulting his medical file
through the intermediary of his doctor constitutes adequate              The applicant submits that the Commission infringed
access to the documents or a necessary measure in accordance             Article 15(2) of Regulation No. 17/62 by referring in the
with the principle of medical confidentiality. He maintains that         Decision to the applicant’s turnover for the business year
he must be given the chance to consult in person any                     ending 30 June 1996 when applying the limit fixed at 10 % of
document in his medical file.                                            turnover, instead of referring to its business year preceding the
                                                                         adoption of the Decision, and by thus determining that a fine
                                                                         of EUR 3.75 million did not exceed the upper limit of the fine
                                                                         that could be imposed. By referring to a business year
                                                                         other than the business year preceding the Decision for the
                                                                         mentioned calculation, the Commission departed from its
                                                                         previous practice and thus infringed the general principle of
Action brought on 21 February 2002 by Britannia Alloys                   equal treatment.
and Chemicals Limited against the Commission of the
                    European Communities
                          (Case T-33/02)
                                                                         The applicant alleges that by referring to the last entire year of
                                                                         ‘normal economic activity’ instead of the business year preced-
                        (2002/C 109/108)                                 ing the Decision, the Decision discriminated between undertak-
                                                                         ings in essentially the same situation and thus breached the
                   (Language of the case: English)                       general principle of equal treatment. It also breached the
                                                                         general principle of proportionality by imposing a fine on the
                                                                         applicant which does not reflect the applicant’s financial
                                                                         standing at the time of the Decision.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 February 2002 by Britannia
Alloys and Chemicals Limited, represented by Ms Samantha
Mobley and Ms Helen Bardell of Baker & McKenzie, London
(United Kingdom).                                                        Furthermore, the applicant submits that, insofar as the
                                                                         Decision relates to the applicant, the Commission infringed
                                                                         the general principle of legal certainty by referring to a business
The applicant claims that the Court should:                              year other than the financial year preceding the Decision for
                                                                         the purposes of calculating the limit fixed at 10 % of turnover.
—     annul Article 3 of the Commission Decision of 12 Decem-            Such a way of proceeding makes it impossible for undertakings
      ber 2001 relating to a proceeding under Article 81 of the          to predict the way in which penalties might be imposed on
      EC Treaty and Article 53 of the EEA Agreement (Case                them with sufficient certainty. In accordance with the above-
      COMP/E-1/37.027 — Zinc Phosphate) insofar as it                    mentioned principle, Article 15(2) of Regulation No. 17/62
      pertains to the applicant;                                         must be interpreted strictly so that the 10 % limit is always
                                                                         applied to the business year immediately prior to the adoption
—     in the alternative, modify Article 3 of the Decision insofar       of the Decision.
      as it pertains to the applicant, so as to annul or
      substantially reduce the fine imposed on the applicant
      therein; and
—     order the Commission to pay all the costs of the
      proceedings.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 20 November 1997 in Case C-90/96 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Veneto): David Petrie and Others v. Università degli Studi di Verona, Camilla Bettoni (Freedom of movement for workers - Foreign-language assistants - Eligibility for appointment to teach supplementary courses and to fill temporary teaching vacancies in universities)

text:
C 7/6                 EN                  Official Journal of the European Communities                                     10. 1. 98
Subheading 60.04 B IV b 2 bb of the Common Customs                                 JUDGMENT OF THE COURT
Tariff, in the version resulting from Council Regulation
(EEC) No 3400/84 of 27 November 1984 amending                                                (Fifth Chamber)
Regulation (EEC) No 950/68 on the Common Customs
                                                                                of 20 November 1997
Tariff, must be construed as covering undergarments
which, by reason of their objective characteristics, are             in Case C-90/96 (reference for a preliminary ruling from
intended to be worn exclusively or essentially in bed.               the Tribunale Amministrativo Regionale per il Veneto):
                                                                     David Petrie and Others v. UniversitaÁ degli Studi di
(1) OJ C 333, 9. 12. 1995.                                                             Verona, Camilla Bettoni (1)
                                                                     (Freedom of movement for workers Ð Foreign-language
                                                                     assistants Ð Eligibility for appointment to teach
                                                                     supplementary courses and to fill temporary teaching
                                                                                vacancies in universities)
                                                                                (98/C 7/12)
              JUDGMENT OF THE COURT
                       (Fifth Chamber)
                    of 20 November 1997                                              (Language of the case: Italian)
in Case C-244/95 (reference for a preliminary ruling from
the Dioikitiko Protodikeio Athinon): P. Moskof A.E. v.
              Ethnikos Organismos Kapnou (1)
                                                                       (Provisional translation; the definitive translation will be
(Agriculture Ð Raw tobacco Ð Monetary measures Ð                              published in the European Court Reports)
                Agricultural conversion rates)
                          (98/C 7/11)
                                                                     In Case C-90/96: reference to the Court under Article 177
                                                                     of the EC Treaty from the Tribunale Amministrativo
                (Language of the case: Greek)                        Regionale per il Veneto (Italy) for a preliminary ruling in
                                                                     the proceedings pending before that court between David
                                                                     Petrie and Others and UniversitaÁ degli Studi di Verona,
                                                                     Camilla Bettoni Ð on the interpretation of Articles 5 and
  (Provisional translation; the definitive translation will be
                                                                     48 of the EC Treaty and Articles 1 and 3 of Regulation
         published in the European Court Reports)
                                                                     (EEC) No 1612/68 of the Council of 15 October 1968 on
                                                                     freedom of movement for workers within the Community
                                                                     (OJ, English Special Edition 1968 (II), p. 475) Ð the
In Case C-244/95: reference to the Court under Article 177           Court (Fifth Chamber), composed of: C. Gulmann,
of the EC Treaty by the Dioikitiko Protodikeio Athinon               President of the Chamber, J. C. Moitinho de Almeida
for a preliminary ruling in the proceedings pending before           (Rapporteur), D. A. O. Edward, J.-P. Puissochet and L.
that court between P. Moskof A.E. and Ethnikos                       Sevón, Judges; N. Fennelly, Advocate-General; L. Hewlett,
Organismos Kapnou Ð on the validity of Commission                    Administrator, for the Registrar, has given a judgment on
Regulation (EC) No 3477/93 of 17 December 1993                       20 November 1997, in which it has ruled:
concerning the agricultural conversion rates to be applied
in the tobacco sector (OJ L 317, 18. 12. 1993, p. 30) Ð
the Court, composed of C. Gulmann, President of the
Chamber, J.-P. Puissochet, P. Jann and L. Sevón                      Articles 5 and 48 (2) of the EC Treaty do not preclude a
(Rapporteur), Judges; M. B. Elmer, Advocate-General; L.              national rule which reserves eligibility for appointment to
Hewlett, Administrator, for the Registrar, has given a               fill temporary teaching vacancies in universities to tenured
judgment on 20 November 1997, in which it has ruled:                 teachers and established researchers and excludes foreign-
                                                                     language assistants, unless such appointment is open to
                                                                     other categories of staff appointed to university teaching
Examination of the various grounds referred to by the                otherwise than by way of open competition, whose
national court in its questions has not revealed any factor          teaching and academic skills are not subject to evaluation
capable of affecting the validity of Article 5 of                    in the same way as those of researchers, whilst foreign-
Commission Regulation (EC) No 3477/93 of 17 December                 language assistants who, under national law, have the
1993 concerning the agricultural conversion rates to be              same status and perform equivalent duties are excluded.
applied in the tobacco sector.
                                                                     (1) OJ C 158, 1. 6. 1996.
(1) OJ C 268, 14. 10. 1995.


title: Case C-259/17: Request for a preliminary ruling from the Budai Központi Kerületi Bíróság (Hungary) lodged on 16 May 2017 — Zoltán Rózsavölgyi and Zoltánné Rózsavölgyi v Unicredit Leasing Hungary Zrt. and Unicredit Leasing Immo Truck Zrt.

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/8

         Request for a preliminary ruling from the Budai Központi Kerületi Bíróság (Hungary) lodged on 16 May 2017 — Zoltán Rózsavölgyi and Zoltánné Rózsavölgyi v Unicredit Leasing Hungary Zrt. and Unicredit Leasing Immo Truck Zrt.
   (Case C-259/17)
   (2017/C 256/07)
   Language of the case: Hungarian

      Referring court

   Budai Központi Kerületi Bíróság

      Parties to the main proceedings

      Applicants: Zoltán Rózsavölgyi and Zoltánné Rózsavölgyi

      Defendants: Unicredit Leasing Hungary Zrt. and Unicredit Leasing Immo Truck Zrt.

      Questions referred

               1.

               Given, in particular, that when the definition of the main subject matter of a contract is found to be unfair, the contract is consequently invalid in its entirety (and not merely in part), may a declaration that the term defining the main subject-matter of a loan agreement is invalid because of its unfairness (meaning that the consumer cannot be bound by that term) have as a consequence (for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law) that the legal characterisation of the contract, or its effects, changes such that, in particular, a foreign currency based loan agreement (in which the credit provided for in the loan agreement is determined and denominated in a foreign currency (‘the credit currency’) and the obligation to pay that credit is fulfilled in the national currency (‘the payment currency’)), must be regarded as a loan agreement denominated in Hungarian forints?

                           1.1.

                           In the event that the application of the invalidity resulting from the unfairness of the term defining the main subject-matter of a loan agreement may have as a consequence that the legal characterisation of the agreement, or its effects, changes, may the alteration of that legal characterisation have as a consequence (for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law) that certain parameters of the legal relationship having a financial impact may also change to the detriment of the consumer (for example, the retroactive application of the market interest rate for loans denominated in Hungarian forints or of the Central Bank base rate instead of the lower interest rate laid down in the agreement)?

               2.

               Are the legal consequences entailed by the unfairness [of a term] a purely legal question, of an absolute nature, or may regard be had, in the assessment of those consequences, to

                           (1)

                           the contractual practice followed as regards types of contracts other than those to which the unfair term relates;

                           (2)

                           the alleged vulnerability of certain operators directly concerned financially (for example, the group of borrowers in a foreign currency and the banking system); or

                           (3)

                           the interests of third persons or certain groups which are not directly concerned financially, for example because, following the invalidity, the members of the group of borrowers in foreign currencies are, for the most part, ultimately liable to find themselves, from an accounting perspective, in a more advantageous situation than that of the group of borrowers in forint.

               3.

               For the purposes of Article 3(1), Article 4(2), Article 5 and Article 6(1) of Directive 93/13/EEC (1) (that is to say, for the purposes of assessing the unfairness and its legal effects), may the term imposing the currency risk on the consumer (that is to say the provision(s) of the contract governing the allocation of the risk) be composed of various terms?

               4.

               May Article 6(1) of Directive 93/13/EEC (according to which the unfair terms used in a contract concluded with a consumer by a seller or supplier are not binding on the consumer) be interpreted as meaning that a term (not a specific part of that term, but the term taken as a whole) may be either unfair in its entirety or both partly fair and partly unfair, with the result that it remains applicable in part and (for example, depending on the assessment of the court in a specific case) may be binding on the consumer to a certain extent (that is to say, that, as regards its effects, the term is unfair only to a certain extent in both cases), for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law?

                           4.1.

                           In the event that Article 6(1) of Directive 93/13 must be interpreted as meaning that a given term may be unfair in its entirety or both partly fair and partly unfair, with the result that it remains applicable in part and may be binding on the consumer to a certain extent (that is to say, that, as regards its effects, the term is unfair only to a certain extent in both cases), may the declaration of invalidity of the entire loan agreement as a result of the unfair nature of the term in question, which defines the main subject-matter of the contract, give rise to the consequence that the consumer is, from an accounting perspective, in a less favourable situation and the seller or supplier in a more favourable situation than if, for the same reason, the loan agreement were merely declared unfair in part (in which case the other terms of the contract would continue to be binding on parties without any change to the content of those terms).

               5.

                           5.1.

                           In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning that the amount of the repayment instalments to be paid under the loan agreement may exceed the amount of the consumer’s income noted by the seller or supplier in the examination of creditworthiness; given also the fact that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?

                           5.2.

                           In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning that the amount of the outstanding capital may exceed the value of the debtor’s assets noted by the seller or supplier in the examination of creditworthiness; given also the fact that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?

                           5.3.

                           In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning that (1) there is no ceiling to the potential fluctuations in the exchange rate; (2) there is a real possibility of a fluctuation of the exchange rate, which may occur during the entire repayment period; (3) the amount of the repayment instalments may increase without limit following such a fluctuation; (4) following a fluctuation of the exchange rate, not only the amount of the repayment instalments, but also that of the outstanding capital may increase without limit; (5) there are no limits to the losses that may be incurred; (6) the effectiveness of the necessary preventative measures is limited and requires constant vigilance, (7) which the seller or supplier cannot ensure; taking into account also the fact that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?

                           5.4.

                           In view, inter alia, of the fact that the national case-law or legislation establishes, or may establish, that, in the case of foreign currency based loan agreements, the consumer may borrow in the foreign currency as a result of the more favourable interest rates during the period considered as compared with loans denominated in Hungarian forints, in consideration for which he alone bears the effects of a fluctuation of the exchange rate; taking into account also that the national case-law or legislation establishes, or may establish, that the unfair nature of the unilateral and unforeseeable transfer of contractual responsibilities after the conclusion of the loan agreement cannot be assessed, since the grounds of invalidity must exist at the time the contract is concluded; taking into account, in addition, that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess that risk, is it possible, in view of its financial consequences, not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning regarding the foreseeable direction of the fluctuation of the exchange rate during the term of the agreement (at the very least during the initial period) and its minimum and/or maximum values (for example by relying on the method for calculating forward interest rates and/or on the interest rate parity principle — according to which, as regards loans denominated in foreign currencies, it is possible to predict with a high degree of certainty that an advantage with respect to interest rates, namely the fact that the LIBOR (London Interbank Offered Rate] or the EURIBOR (Euro Interbank Offered Rate) is less that the BUBOR (Budapest Interbank Offered Rate), means that the consumer suffers a currency loss, since the value of the payment currency falls by comparison with the credit currency)?

                           5.5.

                           In view of its financial consequences, is it possible not to characterise as unfair, in that it is drafted in a clear and comprehensible manner, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning indicating precisely (for example by comparing, through a set of data or a graph, the changes in the exchange rate of the foreign currency in which the debt is denominated with that of the payment currency during a period at least as long as that of the consumer’s commitment) the risk actually incurred by the debtor because he is liable for the currency risk; taking into account, in addition, that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess the potentially significant financial consequences for him resulting from the currency risk allocated to him and, therefore, the total cost of the sum borrowed?

                           5.6.

                           Taking account of the fact that the national case-law or legislation establishes, or may establish, that, in the case of foreign currency based loan agreements, the consumer may borrow in foreign currencies because of a more favourable interest rate during the period concerned as compared with loans denominated in Hungarian forint, in consideration for which he alone bears the risks of a fluctuation of the exchange rate; taking into account, in addition, that the relevant national legislation provides for a detailed written presentation of the risk and not a mere statement of the existence of the risk and its allocation; and since, moreover, according to paragraph 74 of the judgment delivered by the Court of Justice of the European Union in Case C-26/13, the seller or supplier may be required not only to render the risk identifiable for the consumer, but also to ensure that the consumer is able to assess that risk, is it permissible to characterise as fair, in that it is drafted in a clear and understandable manner, having regard to its financial consequences, a term which places the currency risk on the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, where that term does not contain an express warning indicating (for example explicitly and quantified by a set of data relating to a past period at least as long as that of the consumer’s commitment) the amount of profits foreseeable as regards interest in the event that the BUBOR is applied in the case of loans denominated in Hungarian forints and the LIBOR or the EURIBOR in the case of loans denominated in a foreign currency?

               6.

               For the purposes of assessing the unfairness of a contractual term which allocates the currency risk to the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, how should the burden of proof be allocated between the consumer and the seller or supplier in order to assess whether the consumer actually had the opportunity, before the conclusion of the loan agreement, to become acquainted with the term in question to which he was irrevocably bound (Article 3(3) of Directive 93/13/EEC and point 1(i) of the annex)?

               7.

               Must it be considered that, in foreign currency based loan agreements — that is to say, for the purposes of transactions in relation to services whose price is linked to fluctuations in an exchange rate on the monetary markets — credit institutions which conclude agreements with a consumer using their own foreign currency exchange rates are sellers or suppliers who do not control the price fluctuations within the meaning of point 2(c) of the annex to Directive 93/13/EEC?

      (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993, L 95, p. 29).