title: Case T-207/14: Action brought on 28 March 2014 — Aluwerk Hettstedt v ECHA

text:
               30.6.2014

               EN

               Official Journal of the European Union

               C 202/24

         Action brought on 28 March 2014 — Aluwerk Hettstedt v ECHA
   (Case T-207/14)
   2014/C 202/31
   Language of the case: English

      Parties

      Applicant: Aluwerk Hettstedt GmbH (Hettstedt, Germany) (represented by: M. Ahlhaus and J. Schrotz, lawyers)

      Defendant: European Chemicals Agency (ECHA)

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare the decision No SME(2013) 4525 of 21 January 2014 of the European Chemicals Agency as well as invoice No 10046841 of 23 January 2014 to be void; and

               —

               Order the defendant to bear all costs including the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging the defendant’s lack of competence

                           —

                           The defendant has not been competent to adopt the contested decision SME(2013) 4525. Neither Regulation (EC) 1907/2006 (1) nor Regulation (EC) 340/2008 (2) entitles the defendant to issue a separate decision as to whether a registrant complies with the SME criteria.

               2.

               Second plea in law, alleging the violation of Regulation No 1 of 15 April 1958

                           —

                           In its entire communication with the applicant, the defendant disregarded its obligation to address a person subject to the sovereignty of a Member State in the official language of that state. This breach of law has prevented the applicant from fulfilling the requirements demanded on him with regard to proving its status as a small enterprise.

               3.

               Third plea in law, alleging that the contested decisions are unjustified and the administrative charge levied upon the applicant is disproportionate

                           —

                           The contested decisions are wrong on the substance. The applicant was entitled to benefit from a fee reduction according to Regulation (EC) 340/2008. The defendant’s invoice regarding the administrative charge is not justified because the administrative charge has been levied upon the applicant on the basis of an erroneous procedure. The administrative charge lacks an appropriate legal basis and is disproportionate.

      (1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC

      (2)  Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)


title: Case C-557/14: Action brought on 4 December 2014  — European Commission v Portuguese Republic

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/28

         Action brought on 4 December 2014 — European Commission v Portuguese Republic
   (Case C-557/14)
   (2015/C 046/35)
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: G. Braga da Cruz and E. Manhaeve, acting as Agents)

      Defendant: Portuguese Republic

      Form of order sought

   The applicant claims that the Court of Justice should:

               —

               declare that, in failing to take the necessary measures to comply with the judgment of 7 May 2009 in Case C-530/07 Commission v Portuguese Republic
                   (1), the defendant Member State has failed to fulfil its obligations under Article 260(1) TFEU;

               —

               order the Portuguese Republic to pay a penalty payment in the amount of EUR 20  196 per day of delay in failing to comply with the judgment delivered in Case C-530/07, referred to above, from the date of delivery of the judgment in the present case until the date of compliance with the judgment delivered in Case C-530/07;

               —

               order the Portuguese Republic to pay a lump sum of EUR 2  244 per day from the date the judgment was delivered in Case C-530/07 until the date of delivery of the judgment in the present proceedings, or until the date of compliance with the judgment in Case C-530/07 if such compliance occurs first;

               —

               order the Portuguese Republic to pay the costs of these proceedings.

      Pleas in law and main arguments

               I)

                     Determination of the fine
                   The fine is to be determined on the basis of three criteria:

               1.

                  Severity of the infringement The Commission proposes the application of a coefficient for seriousness of 3 on a scale of 1 to 20. In accordance with the Commission’s Communication on the application of Article 228 EC (‘the 2005 Communication’), the Commission calculates that coefficient taking account of the following:

                           a)

                              The importance of the rules of EU law which have been infringed It is apparent from Articles 1, 2, 3(1) and 4 of Council Directive 91/271/EEC concerning urban waste-water treatment (2) (‘Directive 91/271/EEC’), and Annex I thereto, that the disposal of untreated urban waste water into receiving waters causes pollution which has a significant impact on the quality of such waters and on the associated ecosystems. The collection and treatment of urban waste water from agglomerations with a population equivalent greater than 15  000 is of crucial importance in terms of the preservation and improvement of the quality of receiving waters and of aquatic and terrestrial ecosystems which depend directly on such water masses, and also in terms of ensuring full and correct compliance with other EU law directives.

                           b)

                              The consequences of that infringement for general and specific interests

                                       —

                                       The protection of the environment and of human health is of general interest. Incomplete compliance with the judgment of the Court of Justice in Case C-530/07 presents a serious risk in terms of pollution of the environment and has an impact on human health.

                                       —

                                       Incomplete compliance with that judgment also affects the implementation of other EU law directives and has a direct impact on the ability of citizens to enjoy unpolluted receiving waters, which they use for recreational activities, and could have an impact on the tourism sector and on related economic activities.

                           c)

                              Other aggravating and attenuating circumstances

                                       —

                                          Attenuating circumstances:

                                                   i)

                                                   The number of agglomerations with a population equivalent greater than 15  000 and which are not compliant with Article 4 of Directive 91/271/EEC went, as of the date of delivery of the judgment in accordance with Article 258 TFEU, from 15 to 2.

                                                   ii)

                                                   In relation to the agglomeration of Vila Real de Santo António, the new treatment plant has been operational since 2009 and only three zones of that agglomeration are still to be linked to the treatment plant; in so far as concerns Matosinhos, the current treatment plant enables the primary treatment of the waste water from that agglomeration. Such water in then disposed of in the sea, via an underwater outfall, more than 2 km off the coast.
                                                   According to the Portuguese authorities, this does not affect the good quality of the bathing waters.

                                       —

                                          Aggravating circumstances:

                                                   i)

                                                   Full compliance with the judgment cannot be demonstrated before 2018, even though the collection and treatment obligations in question in the present proceedings should have been fully satisfied by 31 December 2000, at the latest.

                                                   ii)

                                                   The provisions in question of Directive 91/271/EEC, which are the provisions infringed by the Portuguese Republic, set out clear obligations.

                                                   iii)

                                                   The successive time frames presented to the Commission by the Portuguese authorities were not adhered to and in a way which the Commission deems serious.

                                                   iv)

                                                   The high number of infringement proceedings brought against the Portuguese Republic, including in relation to judgments already delivered by the Court of Justice in the specific area of urban waste-water treatment, shows repetitive unlawful conduct, and this in a sector in which the repercussions on human health and the environment are particularly serious.

               2.

                  The duration of the infringement In the light of the time which has already passed since the date of delivery of the Court’s judgment, the Commission proposes that the maximum coefficient, namely 3, be applied in relation to the duration of the infringement.

               3.

                  The need to ensure the deterrent effect of the fine As set out in the 2005 Communication, the deterrent effect is taken into consideration by an ‘n’ factor, which is an average based, on the one hand, on the GDP of the Member State at issue and, on the other, on the weighting of votes in the Council. The ‘n’ factor currently applicable to the Portuguese Republic is 3,40.

         II)
         Calculation of the amount of the fine

               a)

                  Penalty payment per day of delay

                           —

                           In accordance with the 2005 Communication, such penalty payments are calculated on the basis of the following formula:

                              Standard flat-rate amount x coefficient for seriousness x coefficient for duration x ‘n’ factor, which in this case gives the following: 660 x 3 x 3 x 3,40 = EUR 20  196 per day.

                           —

                           To ensure the progressive decrease in the penalty payment per day of delay, the Commission proposes that that the amount of the penalty payment per day of delay — in this case EUR 20  196 — be divided by the population equivalent in relation to which compliance with the judgment in Case C-530/07 has still not been ensured. In accordance with the most recent figures, the population equivalent which is yet to comply with Directive 91/271/EEC is 3 21  950. Consequently, the Commission proposes that the amount of the standard flat-rate amount (EUR 20  196 per day) be divided by 3 21  950.

                           —

                           The resulting sum of that division (20  196: 3 21  950), that is EUR 0,06 per day, is to be deducted from the standard flat-rate amount for each population equivalent which has complied in the meantime with the directive.

               b)

                  Lump sum

                           —

                           The method of calculation of the daily amount used to determine the lump-sum fine is very similar to that for determining the daily rate of penalty payments. That method consists of multiplying a standard flat-rate amount by a coefficient for seriousness and multiplying the result obtained by a fixed factor per country (the ‘n’ factor), which factor indicates both the payment capacity of the Member State at issue and the number of votes allocated to that Member State in the Council.

                           —

                           However, for the lump sum the Commission will use a lower standard flat-rate than that applicable to penalty payments, since the conduct of the infringing Member State becomes more reprehensible once a judgment has been delivered in accordance with Article 260 TFEU, in so far as the infringement still continues in spite of two consecutive judgments of the Court of Justice. The standard flat-rate amount for the lump-sum fine is currently set at EUR 220 per day, and the Commission does not propose the application of a coefficient for duration in this respect.

                           —

                           Accordingly, account being taken of the standard flat-rate amount, the coefficient for severity and the ‘n’ factor, the daily rate for the determination of the lump-sum fine amounts to (220 x 3 x 3,40 =) EUR 2  244.

               c)

                  Examination of the minimum lump sum

                           —

                           It is necessary to examine — bearing in mind the minimum lump sum established for the Member State in question — whether the Commission should propose a daily rate or a lump sum to the Court of Justice. To that effect, it is necessary to compare, on the one hand, the total cumulative value of the daily rate for the lump-sum fine, calculated until the date of the Commission’s decision (namely its decision to bring an action in accordance with Article 260 TFEU) and, on the other hand, the minimum lump sum determined for the Member State in question.

                           —

                           1987 days have passed since the date of delivery of the Court’s judgment (7 May 2009) and the date of the Commission’s decision to bring an action in accordance with Article 260 TFEU (16 October 2014). Consequently, on the date of the Commission’s decision referred to above the cumulative total of the daily rates for the calculation of the lump-sum fine is (EUR 2  244 x 1987 days =) EUR 4 4 58  828.

                           —

                           The minimum lump sum determined for Portugal is currently EUR 1 8 75  000.

                           —

                           Thus, since the total cumulative sum of the daily rates for the lump-sum fine as at 16 October 2014 exceeds the minimum lump sum determined for Portugal, the Commission proposes that that Member State be required to pay the daily rate of the lump-sum fine, that is to say EUR 2  244 per day starting from the date of delivery of the Court’s judgment in Case C-530/07 and until the date of delivery of the judgment in accordance with Article 260 TFEU, or until the date on which the Portuguese Republic complies with the first of the Court’s judgments, if that date is earlier.

      (1)  EU:C:2009:292.

      (2)  OJ 1991 L 135, p. 40.


title: Case C-367/12: Judgment of the Court (Fourth Chamber) of 13 February 2014 (request for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria)) — Proceedings initiated by Susanne Sokoll-Seebacher (Freedom of establishment — Public health — Article 49 TFEU — Pharmacies — Adequate supply of medicinal products to the public — Operating authorisation — Territorial distribution of pharmacies — Establishment of limits essentially based on a demographic criterion — Minimum distance between pharmacies)

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/9

         Judgment of the Court (Fourth Chamber) of 13 February 2014 (request for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria)) — Proceedings initiated by Susanne Sokoll-Seebacher
   (Case C-367/12) (1)

   (Freedom of establishment - Public health - Article 49 TFEU - Pharmacies - Adequate supply of medicinal products to the public - Operating authorisation - Territorial distribution of pharmacies - Establishment of limits essentially based on a demographic criterion - Minimum distance between pharmacies)
   2014/C 93/13
   Language of the case: German

      Referring court

   Unabhängiger Verwaltungssenat des Landes Oberösterreich

      Parties to the main proceedings

   Susanne Sokoll-Seebacher

      Third party: Agnes Hemetsberger, successor to Susanna Zehetner

      Re:

   Request for a preliminary ruling — Unabhängiger Verwaltungssenat des Landes Oberösterreich — Interpretation of Article 49 TFEU and Articles 16 and 47 of the Charter of Fundamental Rights of the European Union — Member State's rules which make the award of a concession to operate a pharmacy subject to an assessment of the needs of the market based on a number of complex and almost unforeseeable criteria.

      Operative part of the judgment

   Article 49 TFEU, in particular the requirement that the desired objective be achieved in a consistent manner, must be interpreted as precluding legislation such as that at issue in the main proceedings, which lays down, as an essential criterion for determining whether a need for the establishment of a new pharmacy exists, a rigid limit on the ‘people remaining to be served’, where the competent authorities cannot depart from that limit to take account of particular local geographical conditions.

      (1)  OJ C 331, 27.10.2012.


title: Case C-165/09: Reference for a preliminary ruling from the Raad van State (The Netherlands) lodged on 4 May 2009 — Stichting Natuur en Milieu, Stichting Greenpeace Nederland, B. Meijer and E. Zwaag, F. Pals v College van Gedeputeerde Staten van Groningen, interested third party: RWE Power AG

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/2

         Reference for a preliminary ruling from the Raad van State (The Netherlands) lodged on 4 May 2009 — Stichting Natuur en Milieu, Stichting Greenpeace Nederland, B. Meijer and E. Zwaag, F. Pals v College van Gedeputeerde Staten van Groningen, interested third party: RWE Power AG
   (Case C-165/09)
   2009/C 193/02
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: Stichting Natuur en Milieu, Stichting Greenpeace Nederland, B. Meijer, E. Zwaag, F. Pals

      Defendants: College van Gedeputeerde Staten van Groningen

      Interested third party: RWE Power AG

      Questions referred

               1.

               Does the obligation of interpretation in conformity with directives imply that the obligations under Directive 96/61/EC (1) concerning integrated pollution prevention and control (now Directive 2008/1/EC (2) concerning integrated pollution prevention and control), as transposed in the Wet Milieubeheer, can and should be interpreted as meaning that, in deciding on an application for an environmental permit, the national emission ceiling for SO2 in Directive 2001/81/EC (3) on national emission ceilings for certain atmospheric pollutants (“the NEC Directive”) should be fully taken into account, in particular as regards the obligations under Article 9(4) of Directive 96/61/EC, now Directive 2008/1/EC?

               2.

                           (a)

                           Does the duty of a Member State to refrain from adopting measures liable seriously to compromise the result prescribed by a directive also apply during the period of 27 November 2002 to 31 December 2010 envisaged in Article 4(1) of the NEC Directive?

                           (b)

                           Do positive obligations rest with the Member State concerned during the relevant period of 27 November 2002 to 31 December 2010, either in parallel with the aforementioned duty to refrain, or in place thereof, if the national emission ceiling for SO2 in the NEC Directive is exceeded or if there is a risk that it may be exceeded at the end of that period?

                           (c)

                           In answering Questions 2(a) and 2(b), is it significant that an application for an environmental permit for an installation which contributes to the national emission ceiling for SO2 in the NEC Directive being exceeded or the risk of it being exceeded, indicates that the installation will become operational in the year 2011 at the earliest?

               3.

                           (a)

                           Do the obligations referred to in question 2 imply that, in the absence of guarantees that the installation for which an environmental permit was sought would not contribute to the national emission ceiling for SO2 in the NEC Directive being exceeded or the risk of it being exceeded, the Member State must refuse the application for the environmental permit or attach further conditions or restrictions to it? In answering that question, is the extent to which the installation contributes to the emission ceiling being exceeded or the risk of it being exceeded, of significance?

                           (b)

                           Or does the NEC Directive imply that, where the national emission ceiling for SO2 is exceeded or risks being exceeded, a Member State also has the discretion to bring about the result prescribed by the Directive, not by refusing the permit or by making it subject to further conditions or restrictions, but rather by adopting other measures such as other forms of compensation?

               4.

               Where obligations as referred to in questions 2 and 3 rest with a Member State, can a private individual bring the issue of compliance with those obligations before a national court?

               5.

                           (a)

                           Can an individual rely directly on Article 4 of the NEC Directive?

                           (b)

                           If so, is it possible to do so from 27 November 2002 or only from 31 December 2010? Is it significant, when answering that question, that an application for an environmental permit indicates that the installation will become operational in the year 2011 at the earliest?

               6.

               More particularly, if the granting of an environmental permit and/or other measures contribute to the national emission ceiling for SO2 in the NEC Directive being exceeded or the risk of it being exceeded, is an individual entitled, on the basis of Article 4 of that Directive:

                           (a)

                           to make a general claim that the Member State concerned should adopt a package of measures which, by 2010 at the latest, would limit the annual national emissions of SO2 to amounts not greater than the national emission ceilings in the NEC Directive, or, if that does not succeed, a package of measures which would limit the emissions to those amounts as soon as possible thereafter?

                           (b)

                           to make concrete claims that the Member State concerned should adopt specific measures in respect of an individual installation — for example, by refusing a permit or attaching further conditions or restrictions to the permit — which, by the year 2010 at the latest, would contribute to the annual national emissions of SO2 being limited to amounts not greater than the emission ceilings in the NEC Directive, or, if that does not succeed, specific measures which would contribute to the emissions being limited to those amounts as soon as possible thereafter?

                           (c)

                           In answering questions 6(a) and 6(b), is the extent to which the installation contributes to the emission ceiling being exceeded or the risk of it being exceeded, of significance?

      (1)  Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26).

      (2)  Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version) (Text with EEA relevance) (OJ 24, 29.1.2008, p. 8).

      (3)  Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (OJ L 309, 27.11.2001, p. 22).


title: Case T-128/09: Action brought on 31 March 2009 — Meridiana and Eurofly v Commission

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/46

         Action brought on 31 March 2009 — Meridiana and Eurofly v Commission
   (Case T-128/09)
   2009/C 141/97
   Language of the case: English

      Parties

      Applicants: Meridiana SpA (Olbia, Italy) and Eurofly SpA (Milan, Italy) (represented by: N. Green, QC, K. Bacon, Barrister, C. Osti and A. Prastaro, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul Commission decision C(2008) 6745 final of 12 November 2008;

               —

               order the Commission to pay the applicants’ costs.

      Pleas in law and main arguments

   The applicants seek the annulment of Commission Decision C(2008) 6745 final of 12 November 2008 declaring that the procedure for selling off the assets of the Alitalia airline company, as notified by the Italian authorities, do not represent the granting of the State aid in favour of the purchaser (N 510/2008) (1). The applicants are the competitors on the air transport market and they lodged with the Commission the complaints regarding the measures notified by Italian authorities.
   The applicants put forward following pleas in law in support of their claims.
   First, they claim that the contested decision is vitiated by errors of law, manifest errors of facts and deficiencies of reasoning as the Commission concluded that the assets of Alitalia would be sold at market prices. In particular, the applicants submit that the features of the procedure set out by the Commission do not demonstrate the existence of an independent expert valuation of Alitalia’s assets prior to the negotiations for the sale of those assets. In the applicants’ opinion, the Commission also erred in law by failing to attach sufficient weight to the absence of an open and transparent procedure for the sale of Alitalia’s assets.
   Second, the applicants contend that the Commission’s conclusion staying that the arrangements of the transfer of the assets were not designed with the purpose of avoiding the obligation to repay State aid is based on errors in law, manifest errors of fact and deficiencies of reasoning.
   Third, the applicants submit that the Commission erred in law and breached its duty to state reasons by failing to consider whether the 2008 legislation introduced in Italy regarding the special insolvency procedure in itself constituted State aid to Alitalia and to the purchaser, as submitted in the applicants’ complaint as, in their opinion, it was aimed to enable the transfer of Alitalia’s assets.
   Fourth, in the applicants’ view, the Commission erred in law and breached its duty of reasoning by failing to consider whether a number of elements of the applicants’ complaint demonstrated the existence of State aid, namely the separation of Alitalia’s assets in circumstances where a normal private investor would not have done so, the breach of the principle of non-discrimination, the inclusion of the assets of another company in the sale and the acquisition of another company by the purchaser of the Alitalia’s assets.
   Finally, the applicants claim that the Commission erred in law by failing to initiate the formal investigation procedure under Article 88(2) EC and instead deciding the case following a preliminary investigation.

      (1)  OJ 2009 C 46, p. 6


C 3/50                EN                       Official Journal of the European Communities                                   5.1.2002
      Removal from the Register of Case T-247/99 (1)                            Removal from the Register of Case T-225/00 (1)
                         (2002/C 3/86)                                                              (2002/C 3/89)
                   (Language of the case: Italian)                                          (Language of the case: German)
By order of 20 September 2001, the President of the First
Chamber of the Court of First Instance of the European                    By order of 13 September 2001, the President of the Fifth
Communities has ordered the removal from the Register of                  Chamber of the Court of First Instance of the European
Case T-247/99, Flavia Angeletti and André Van Meuter v                    Communities has ordered the removal from the Register of
Commission of the European Communities.                                   Case T-225/00: Andrea Gaul v Commission of the European
                                                                          Communities.
(1) OJ C 34 of 5.2.2000.
                                                                          (1) OJ C 302 of 21.10.2000.
      Removal from the Register of Case T-167/00 (1)
                                                                                Removal from the Register of Case T-55/01 (1)
                         (2002/C 3/87)
                                                                                (2002/C 3/90)
                   (Language of the case: French)
                                                                                (Language of the case: German)
By order of 14 September 2001, the President of the Second
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of                  By order of 12 September 2001, the President of the Chamber
Case T-167/00: Jaume Costa v Commission of the European                   of the Court of First Instance of the European Communities
Communities.                                                              has ordered the removal from the Register of Case T-55/01,
                                                                          Asahi Vet SA v Commission of the European Communities.
(1) OJ C 247 of 26.8.2000.
                                                                          (1) OJ C 161 of 2.6.2001.
      Removal from the Register of Case T-192/00 (1)
                         (2002/C 3/88)                                          Removal from the Register of Case T-112/01 (1)
                   (Language of the case: French)                                                   (2002/C 3/91)
                                                                                (Language of the case: French)
By order of 10 September 2001, the President of the Fifth
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of
                                                                          By order of 10 September 2001, the President of the Fifth
Case T-192/00: Sabrina Tesoka v Commission of the European
                                                                          Chamber of the Court of First Instance of the European
Communities.
                                                                          Communities has ordered the removal from the Register of
                                                                          Case T-112/01: Ursula Klug v Council of the European Union.
(1) OJ C 273 of 23.9.2000.
                                                                          (1) OJ C 275 of 29.9.2001.


title: Case C-280/15: Judgment of the Court (Seventh Chamber) of 22 June 2016 (request for a preliminary ruling from the Harju Maakohus — Estonia) — Irina Nikolajeva v Multi Protect OÜ (Reference for a preliminary ruling — EU trade mark — Regulation (EC) No 207/2009 — Article 9(3) and Article 102(1) — Obligation on an EU trade mark court to issue an order prohibiting a third party from proceeding with acts of infringement — No application seeking such an order — Concept of ‘special reasons’ for not ordering such a prohibition — Concept of ‘reasonable compensation’ in respect of acts occurring after publication of an application for registration of an EU trade mark and before publication of the registration of the trade mark)

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/6

         Judgment of the Court (Seventh Chamber) of 22 June 2016 (request for a preliminary ruling from the Harju Maakohus — Estonia) — Irina Nikolajeva v Multi Protect OÜ
   (Case C-280/15) (1)

   ((Reference for a preliminary ruling - EU trade mark - Regulation (EC) No 207/2009 - Article 9(3) and Article 102(1) - Obligation on an EU trade mark court to issue an order prohibiting a third party from proceeding with acts of infringement - No application seeking such an order - Concept of ‘special reasons’ for not ordering such a prohibition - Concept of ‘reasonable compensation’ in respect of acts occurring after publication of an application for registration of an EU trade mark and before publication of the registration of the trade mark))
   (2016/C 314/09)
   Language of the case: Estonian

      Referring court

   Harju Maakohus

      Parties to the main proceedings

      Applicant: Irina Nikolajeva

      Defendant: Multi Protect OÜ

      Operative part of the judgment

               1.

               Article 102(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as not precluding an EU trade mark court from refraining, pursuant to certain principles of national procedural law, from issuing an order which prohibits a third party from proceeding with acts of infringement on the ground that the proprietor of the trade mark concerned has not applied for such an order before that court.

               2.

               The second sentence of Article 9(3) of Regulation No 207/2009 must be interpreted as precluding the proprietor of an EU trade mark from being able to claim compensation in respect of acts of third parties occurring before publication of an application for registration of a trade mark. In the case of acts of third parties committed during the period after publication of the application for registration of the mark concerned but before publication of its registration, the concept of ‘reasonable compensation’ in that provision refers to recovery of the profits actually derived by third parties from use of the mark during that period. On the other hand, that concept of ‘reasonable compensation’ rules out compensation for the wider harm which the proprietor of the mark may have suffered, including, as the case may be, moral prejudice.

      (1)  OJ C 262, 10.8.2015.


title: Case C-500/07 P: Order of the Court of 25 November 2008 — Territorio Energia Ambiente SpA (TEA) v Commission of the European Communities (Appeal — Action for annulment — Time limit for bringing proceedings — Starting point — Action seeking a ruling from the Court of First Instance on the personal scope of a Commission decision — Manifest lack of jurisdiction)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/11

         Order of the Court of 25 November 2008 — Territorio Energia Ambiente SpA (TEA) v Commission of the European Communities
   (Case C-500/07 P) (1)

   (Appeal - Action for annulment - Time limit for bringing proceedings - Starting point - Action seeking a ruling from the Court of First Instance on the personal scope of a Commission decision - Manifest lack of jurisdiction)
   (2009/C 69/18)
   Language of the case: Italian
   Parties

      Appellant: Territorio Energia Ambiente SpA (TEA) (represented by: E. Coffrini and F. Tesauro, avvocati)

      Other party to the proceedings: Commission of the European Communities (represented by: E. Righini and G. Conte, agents)
   Re:
   Appeal against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-175/07 Territorio Energia Ambiente SpA v Commission by which the Court of First Instance dismissed an application for a ruling, primarily, that Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21) did not apply to the appellant and, in the alternative, that the appellant did not benefit from any unlawful aid, and for the consequential annulment, in so far as necessary, of that decision
   Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Territorio Energia Ambiente SpA (TEA) is ordered to pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Action brought on 24 May 1996 by Ana Maria Fernandes Leite Mateus against the Council of the European Union (Case T-80/96)

text:
 No C 233/ 14           EN                   Official Journal of the European Communities                                      10 . 8 . 96
 Commission in order to combat the difficulties caused by               she carried out in Portugal , as an employee in the private
the tropical storms 'Debbie', ' Iris ', 'Luis ' and 'Marilyn' that      sector, various duties as an 'empregada ' and 'escriturâria ',
adaptation of the tariff quota should have enabled, and                 involving work as a secretary and/or shorthand typist.
 must enable, the Community market to be adequately
 supplied and compensation to be paid to operators who                  The applicant maintains that there has been a breach of the
have suffered damage through being unable to supply the                 notice of competition and a manifest error of assessment.
 Community market with bananas from the regions or                      The special conditions for admission to the competition in
countries affected by the disaster, and that analogous                  question included point ( d ), which required an in-depth
measures were previously taken by the national authorities              knowledge of the French language . In addition, point ( d ) of
 before the common organization of the market took effect.              those special conditions required candidates to show that, at
There was, and therefore still is, an obligation to take the            the date of publication of the notice of competition, they had
same action in the context of that organization . These                 two years ' professional experience as a secretary and/or
arguments are also valid in the case of the insufficient                shorthand typist. The conditions laid down by the notice of
availability of Somalian bananas , since the fact that this was         competition do not state that the professional experience
caused by a war rather than a cyclone is of little                      required has to have been obtained in French . According to
relevance .                                                             the applicant, however, the express rejection clearly
                                                                        establishes that, having regard to the nature of the
On that basis, Camar views the Commission's failure to                  competition, only activities carried on within the
adopt measures as a breach of the principles underlying the             Commission could be regarded as valid experience for the
common organization of the market in bananas, namely                    purposes of the competition .
that all economic operators should be protected, that
Community rules should be adapted in the face of                        Second, the selection board committed a manifest error of
unforeseen or special difficulties, and that there may be no            assessment in considering that the terms 'empregada ' and
discrimination .
                                                                        'escrituraria ' do not necessarily entail work as a secretary or
                                                                        shorthand typist .
Action brought on 24 May 1996 by Ana Maria Fernandes
 Leite Mateus against the Council of the European Union
                          ( Case T-80/96 )                              Action brought on 24 May 1996 by Christos Apostolidis
                            ( 96/C 233 /25 )                            and 64 others against the Commission of the European
                                                                                Communities
                 (Language of tbe case: French)                                                 ( Case T-81/96 )
                                                                                ( 96/C 233/26 )
An action against the Council of the European Union was
brought before the Court of First Instance of the European                              (Language of the case: French)
Communities on 24 May 1 996 by Ana Maria Fernandes
Leite Mateus, residing at Zaventem ( Belgium ), represented
by Jean-Noël Louis, Thierry Demaseure and Ariane Tornel ,              An action against the Commission of the European
of the Brussels Bar, with an address for service in                     Communities was brought before the Court of First
Luxembourg at the offices of Fiduciaire Myson Sàrl , 1 Rue             Instance of the European Communities on 24 May 1996 by
Glesener .                                                              Christos Apostolidis and 64 others, all employed in the
                                                                       European Institute for Transuranic Elements ( Karlsruhe ),
                                                                       represented by Jean-Noël Louis, Thierry Demaseure and
The applicant claims that the Court should :                           Ariane Tornel, of the Brussels Bar, with an address for
                                                                       service in Luxembourg at the offices of Fiduciaire Myson
— annul the decision of the selection board in competition             Sàrl , 1 Rue Glesener.
    Conseil/C/360 of 3 October 1995 not to admit her to the
    competition,
                                                                       The applicants claim that the Court should :
— order the defendant to pay the costs .
                                                                       — declare that the Commission has acted wrongfully by
Pleas in law and main arguments adduced in support:                         failing to adopt the measures required in order to comply
                                                                            with the judgment of the Court of First Instance ( Fourth
The applicant, an official of the Commission, contests the                  Chamber ) of 27 October 1994 in Case T-64/92 ,
decision of the selection board not to admit her to the tests in
competition Conseil/C/360 for the constitution of a reserve            — annul        the   Commission's      decision   rejecting     the
for future recruitment of French-language secretaries, on the               applicants ' request for the drawing-up of their pay slips
ground that she had failed to show that she had two years '                 for January 1992 and for the payment to each applicant
professional experience as a secretary and/or shorthand                     of the sum of Bfrs 50 000 by way of compensation for
typist . She states in that regard that between 1973 and 1979               the non-material damage suffered,


title: Case C-521/12: Request for a preliminary ruling from the Raad van State (Nederland) lodged on 19 November 2012 — T.C. Briels and Others v Minister van Infrastructuur en Milieu

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/3

         Request for a preliminary ruling from the Raad van State (Nederland) lodged on 19 November 2012 — T.C. Briels and Others v Minister van Infrastructuur en Milieu
   (Case C-521/12)
   2013/C 55/04
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: T.C. Briels, M. Briels-Loermans, R.L.P. Buchholtz, Stichting A2-Platform Boxtel e.o.and Others, H.W.G. Cox, G.P.A. Damman, P.A.M. Goevaers and Others, J.H. van Haaren en L.S.P. Dijkman, R.A.H.M. Janssen, M.M. van Lanschot, J.E.A.M. Lelijveld and Others, A. Mes and Others, A.J.J. Michels, VOF Isphording and Others, M. Peijnenborg en S. Peijnenborg-van Oers, G. Oude Elferink, W. Punte en P.M. Punte-Cammaert, Stichting Reinier van Arkel, E. de Ridder, W.C.M.A.J.G. van Rijckevorsel en M. van Rijckevorsel-van Asch van Wijck, Vereniging tot Behoud van het Groene Hart van Brabant en Stichting Boom en Bosch, Stichting Overlast A2 Vught e.o., Streekraad Het Groene Woud en De Meijerij, A.C.M.W. Teulings en Stichting Bleijendijk, M. Tilman, Vereniging van Eigenaars Appartementengebouw De Heun I and Others, M.C.T. Veroude, E.J.A.M. Widlak, Van Roosmalen Sales BV and Others, M.A.A. van Kessel, Bricorama BV and Others

      Defendant: Minister van Infrastructuur en Milieu

      Other parties to the proceedings: Burgemeester en Wethouders van Best, Burgemeester en Wethouders van Boxtel

      Questions referred

               1.

               Is the phrase ‘not adversely affect the integrity of the site’ in Article 6(3) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora to be interpreted as meaning that where the project adversely affects the area of a protected natural habitat type within the site, the integrity of the site is not adversely affected if in the framework of the project an area of that natural habitat type of equal or similar size is created within that site?

               2.

               If the answer to the first question is that the phrase ‘not adversely affect the integrity of the site’ is to be interpreted as meaning that the integrity of the Natura 2000 site is affected, is the creation of a new area of a natural habitat type then to be regarded in that case as a compensatory measure within the meaning of Article 6(4) of the directive?

      (1)  OJ L 206, p. 7.


title: Case T-55/09: Action brought on 13 February 2009 — Swarovski v OHIM — Swarovski (Daniel Swarovski Privat)

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/18

         Action brought on 13 February 2009 — Swarovski v OHIM — Swarovski (Daniel Swarovski Privat)
   (Case T-55/09)
   2009/C 102/30
   Language in which the application was lodged: German

      Parties

      Applicant: Daniel Swarovski (Volders, Austria) (represented by: R. Küppers, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Swarovski AG (Triesen, Liechtenstein)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of 9 November 2008 in Case R 0348/2008-1;

               —

               dismiss the appeal;

               —

               order the intervener to pay the costs of the proceedings, including the costs of the appeal proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Daniel Swarovski

      Community trade mark concerned: Word mark ‘Daniel Swarovski Privat’ for goods and services in classes 3, 4, 8, 9, 15, 16, 18, 20, 21, 26, 28, 29, 30, 31, 32, 33, 39 and 44 (application No 3 981 099)

      Proprietor of the mark or sign cited in the opposition proceedings: Swarovski AG

      Mark or sign cited in opposition: Word mark ‘DANIEL SWAROVSKI’ for goods and services in classes 16, 18, 21, 25 and 41 (Community trade mark No 3 895 133); word mark ‘Swarovski’ for goods and services in classes 2, 3, 6, 8, 9, 11, 16, 18, 19, 20, 21, 24, 25, 28, 34, 35 and 41 (Community trade mark No 3 895 091); word mark ‘Swarovski’ for services in class 36 (Austrian word mark No 218 795); word mark ‘Swarovski’ for goods in classes 11, 16, 21 and 34 (Austrian word mark No 96 389); and word mark ‘Swarovski’ for goods in classes 8, 9, 11, 14, 18, 21, 25 and 26 (international registration in respect of Italy No 528 189)

      Decision of the Opposition Division: Opposition allowed in part

      Decision of the Board of Appeal: Appeal dismissed in part

      Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (1) since there is no likelihood of confusion between the marks at issue or the requisite detriment to the earlier marks and, moreover, since the scope of protection of the earlier marks has been determined incorrectly.

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


title: Case T-499/15: Action brought on 31 August 2015 — LG Electronics v OHIM — Cyrus Wellness Consulting (VIEWTY SMILE)

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/41

         Action brought on 31 August 2015 — LG Electronics v OHIM — Cyrus Wellness Consulting (VIEWTY SMILE)
   (Case T-499/15)
   (2015/C 354/50)
   Language in which the application was lodged: English

      Parties

      Applicant: LG Electronics, Inc. (Seoul, Republic of Korea) (represented by: M. Graf, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Cyrus Wellness Consulting GmbH (Berlin, Germany)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: Community word mark ‘VIEWTY SMILE’ — Application for registration No 9 125 601

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 11 June 2015 in Joined Cases R 1565/2014-2 and R 1939/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea(s) in law

               —

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


title: Case T-108/09: Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (MEMORY) (Community trade mark — Invalidity proceedings — Community word mark MEMORY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 75 of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 77 of Regulation (EC) No 207/2009))

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/38

         Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (MEMORY)
   (Case T-108/09) (1)

   (Community trade mark - Invalidity proceedings - Community word mark MEMORY - Absolute ground for refusal - Descriptive character - Article 7(1)(c) and Article 75 of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 77 of Regulation (EC) No 207/2009))
   2010/C 179/66
   Language of the case: English

      Parties

      Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Educa Borras, SA (Barcelona, Spain) (represented by: I. Valdelomar Serrano, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 8 January 2009 (Case R 305/2008-2), relating to invalidity proceedings between Educa Borras, SA and Ravensburger AG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Ravensburger AG to pay the costs.

      (1)  OJ C 129, 6.6.2009.


title: Case F-79/12: Order of the Civil Service Tribunal (Third Chamber) of 29 January 2013 — Brus v Commission (Civil Service — Officials — Application instituting proceedings — Formal requirements — Statement of the grounds on which the application is based — Action manifestly inadmissble)

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/35

         Order of the Civil Service Tribunal (Third Chamber) of 29 January 2013 — Brus v Commission
   (Case F-79/12) (1)

   (Civil Service - Officials - Application instituting proceedings - Formal requirements - Statement of the grounds on which the application is based - Action manifestly inadmissble)
   2013/C 147/67
   Language of the case: Dutch

      Parties

      Applicant: Karel Brus (Zaventem, Belgium) (represented by: J. Duvekot, lawyer)

      Defendant: European Commission (represented by: J. Currall, J. Baquero Cruz and W. Roels, acting as Agents)

      Re:

   Application to annul the Commission’s decisions to dismiss the applicant from his functions and to reduce the amount of his pension following disciplinary proceedings brought finding an infringement of Article 11 of the Staff Regulations.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Brus shall bear his own costs and is ordered to pay the costs incurred by the European Commission.

      (1)  OJ C 319, 20.10.2012, p. 18.


title: Case T-273/07: Order of the Court of First Instance of 13 March 2009 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/44

         Order of the Court of First Instance of 13 March 2009 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE)
   (Case T-273/07) (1)

   2009/C 113/88

      Language of the case: Spanish

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

      (1)  OJ C 235, 6.10.2007.


title: Case C-150/15: Order of the President of the Court of 15 April 2016 (request for a preliminary ruling from the Sächsisches Oberverwaltungsgericht — Germany) — Der Bundesbeauftragte für Asylangelegenheiten beim Bundesamt für Migration und Flüchtlinge v N, in the presence of: Federal Republic of Germany

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/24

         Order of the President of the Court of 15 April 2016 (request for a preliminary ruling from the Sächsisches Oberverwaltungsgericht — Germany) — Der Bundesbeauftragte für Asylangelegenheiten beim Bundesamt für Migration und Flüchtlinge v N, in the presence of: Federal Republic of Germany
   (Case C-150/15) (1)

   (2016/C 279/32)
   Language of the case: German
   The President of the Grand Chamber has ordered that the case be removed from the register.

      (1)  OJ C 236, 20.7.2015.


title: Case C-517/08 P: Appeal brought on 25 November 2008 by Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 September 2008 in Case T-75/06 Bayer CropScience AG and Others v Commission

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/19

         Appeal brought on 25 November 2008 by Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 September 2008 in Case T-75/06 Bayer CropScience AG and Others v Commission
   (Case C-517/08 P)
   (2009/C 19/34)
   Language of the case: English
   Parties

      Appellants: Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA (represented by: C. Mereu, K. Van Maldegem, avocats)

      Other parties to the proceedings: Commission of the European Communities, Bayer CropScience AG, European Crop Protection Association (ECPA), Kingdom of Spain
   Form of order sought
   The appellant claims that the Court should, following an oral hearing:

               —

               set aside the judgment of the Court of First Instance in Case T-75/06; and

               —

               annul Commission Decision 2005/864/EC (1) of 2 December 2005 concerning the non-inclusion of endosulfan in Annex I to Directive 91/414/EEC (2) and the withdrawal of authorisations for plant protection products containing that substance; or

               —

               alternatively, refer the case back to the Court of First Instance for judgment; and

               —

               order the Respondent to pay all the costs of these proceedings (including the costs before the Court of First Instance).

         Pleas in law and main arguments
   The Appellants submit that, in dismissing their application for annulment in respect of Commission Decision 2005/864/EC of 2 December 2005 concerning the non-inclusion of endosulfan in Annex I to Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance, the Court of First Instance breached Community law. In particular, the Appellants contend that the Court of First Instance committed a number of errors in its interpretation of the facts and of the legal framework as applicable to the Appellants' situation. That resulted in it making a number of errors in law, in particular:

               (i)

               in failing to find that the Appellants had been placed in a situation of force majeure by the conduct of the competent authorities such that the failure of the competent authorities to defer the procedural deadlines amounted to a manifest error of assessment; and

               (ii)

               in holding that the Appellants' legal and procedural rights had not been infringed.

      (1)  OJ L 317, p. 25.

      (2)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, p. 1).


title: Judgment of the Court of First Instance of 17 March 2005 in Case T-177/00, Koninklijke Philips Electronics NV v Council of the European Union (Dumping — Failure by the Council to adopt a Commission proposal for a regulation imposing a definitive anti-dumping duty — Absence of simple majority necessary for the adoption of a regulation — Obligation to state reasons)

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/23

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 17 March 2005
   in Case T-177/00, Koninklijke Philips Electronics NV v Council of the European Union (1)

   (Dumping - Failure by the Council to adopt a Commission proposal for a regulation imposing a definitive anti-dumping duty - Absence of simple majority necessary for the adoption of a regulation - Obligation to state reasons)
   (2005/C 132/42)
   Language of the case: English
   In Case T-177/00, Koninklijke Philips Electronics NV, established in Eindhoven (Netherlands), represented by C. Stanbrook, QC, and F. Ragolle, lawyer, against Council of the European Union (Agent: S. Marquardt, assisted by G.M. Berrisch, lawyer) — action for annulment of the Council's decision of 8 May 2000 to reject the proposal for a Council Regulation (EC) imposing a definitive anti-dumping duty on imports of certain parts of television camera systems originating in Japan, submitted by the Commission of the European Communities on 7 April 2000 (document COM (2000) 195 final) — the Court of First Instance (Fourth Chamber, Extended Composition), composed of H. Legal, President, P. Lindh, P. Mengozzi, I. Wiszniewska-Białecka and V. Vadapalas, Judges; H. Jung, Registrar, gave a judgment on 17 March 2005, in which it:

               1.

               Annuls the Council's decision of 8 May 2000 to reject the proposal for a Council Regulation (EC) imposing a definitive anti-dumping duty on imports of certain parts of television camera systems originating in Japan, submitted by the Commission of the European Communities on 7 April 2000 (document COM (2000) 195 final).

               2.

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

      (1)  OJ C 273 of 23.9.2000.


title: Case T -377/03: Order of the Court of First Instance of  27 April 2006  — ATI Technologies v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Asociación de Técnicos de Informatica (ATI)

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/22

         Order of the Court of First Instance of 27 April 2006 — ATI Technologies v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Asociación de Técnicos de Informatica (ATI)
   (Case T -377/03) (1)

   (2006/C 154/53)

      Language of the case: French

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

      (1)  OJ C 21, 24.1.2004.


title: Case T-131/99: Action brought on 27 May 1999 by Michael Hamilton Shaw, Timothy John Falla and WPP Luxembourg Appeal Group Limited against the Commission of the European Communities

text:
C 246/36               EN                     Official Journal of the European Communities                                      28.8.1999
In support of his claims, the applicant alleges:                         (a) L a c k o f c o m p e t e n c e
— breach of Articles 24 and 29 of the Staff Regulations;
                                                                             The Commission has no competence to grant an individual
— breach of Article 233 of the EC Treaty (ex Article 176)                    exemption pursuant to Article 81(3) E C with retroactive
     through failure to comply with the above judgments;                     effect unless the conditions set out therein are fulfilled ‘at
                                                                             all times’. It is apparent from the contested decision that
— misuse of powers by the defendant and breach of the                        the countervailing benefits necessary to satisfy Article 81
     principle of proportionality.                                           (3) were not present from 1990/91 to 1993/94, namely
                                                                             four years out of the seven-year review period adopted by
                                                                             the Commission
Finally, the applicant alleges breach of the requirement that
reasons must be stated for acts.
                                                                             Any analysis of an agreement within the meaning of
(1) Case T-140/94 Gutiérrez de Quijano v European Parliament                 Article 81 (1) with a view to the grant of a retroactive
    (1996) ECR-SC II-689).                                                   individual exemption under Article 81 (3) can only be
(2) Case C-252/96 European Parliament v Gutiérrez de Quijano                 undertaken by the Commission by reference to the date of
    (1998) ECR I-7421).                                                      the agreement or to the date to which retroactivity is
                                                                             sought. The Commission has no power to grant an
                                                                             exemption in respect of an agreement which now qualifies
                                                                             for exemption under Article 81(3) but did not do so at any
                                                                             time prior to the Commission’s assessment.
                                                                         (b) M a n i f e s t e r r o r i n m a k i n g t h e c o n t e s t e d
Action brought on 27 May 1999 by Michael Hamilton                            decision
Shaw, Timothy John Falla and WPP Luxembourg Appeal
Group Limited against the Commission of the European
                          Communities                                        In concluding that Whitbread should be granted an
                                                                             individual exemption under Article 81(3), the Commission
                                                                             made a manifest error:
                        (Case T-131/99)
                        (1999/C 246/73)                                      — in relying upon evidence produced by Whitbread
                                                                                which was partisan, inaccurate and unrepresentative;
                   (Language of the case: English)
                                                                             — in failing to accept and/or admit contrary evidence of
                                                                                Whitbread tenants as to the true facts;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 May 1999 by Michael Hamilton                      — in failing, after having been put on notice as to the
Shaw, Timothy John Falla and WPP Luxembourg Appeal                                inaccuracy and unrepresentative nature of the evidence
Group Limited, represented by Julian Henry Maitland-Walker,                       upon with it sought to rely, to carry out a further
with an address for service in Luxembourg at the Chambers of
                                                                                investigation to determine the true facts;
Loeff Claeys Verbeke, 58 rue Charles Martel.
The applicant claims that the Court should:                                  — in concluding that the evidence upon which the
                                                                                contested decision was based was sufficient to justify
1. annul the whole or in part the Commission Decision of 24                       the conclusion that an individual exemption should be
     February 1999 granting to Whitbread Plc an individual                        granted.
     exemption under Article 85(3) of the EC Treaty (now
     Article 81(3) EC) in respect of certain individual lease
     agreements in standard form operated by Whitbread since             (c) I n a d e q u a t e
     1 January 1990 (OJ L 1999 88 p.16);
2. order the Commission to pay the costs of the action,                      The contested decision fails to provide adequate reasoning
     including those of the applicants.                                      for the grant of an individual exemption having regard to
                                                                             the fact that the contested decision itself shows that there
                                                                             were no countervailing benefits present in four out of the
Pleas in law and main arguments                                              seven years covered by the Commission’s analysis.
The applicants submit that the contested decision granting an
individual exemption under Article 85(3) of the EC Treaty
(now Article 81(3) EC), should be declared void in whole or in
part for the reasons set out below:


title: Case T-452/09 P: Order of the General Court of 21 June 2011 — Rosenbaum v Commission (Appeal — Civil service — Officials — Classification in grade at the time of recruitment — Taking account of the professional experience of the person concerned — Article 31 of the Staff Regulations — Obligation to state reasons)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/16

         Order of the General Court of 21 June 2011 — Rosenbaum v Commission
   (Case T-452/09 P) (1)

   (Appeal - Civil service - Officials - Classification in grade at the time of recruitment - Taking account of the professional experience of the person concerned - Article 31 of the Staff Regulations - Obligation to state reasons)
   2011/C 238/27
   Language of the case: German

      Parties

      Appellant: Eckehard Rosenbaum (Berlin, Germany) (represented by: H.-J. Rüber, lawyer)

      Other party to the proceedings: European Commission (represented by: J. Currall and E. Eggers, Agents); and Council of the European Union (represented by: K. Zieléskiewicz and M. Bauer, Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) in Case F-9/08 Rosenbaum v Commission, judgment of 10 September 2009, not published in the ECR, asking for that judgment to be set aside.

      Operative part of the order

   The Court:

               1.

               Dismisses the appeal.

               2.

               Orders Mr Eckehard Rosenbaum to bear his own costs and to pay those incurred by the European Commission in the present proceedings.

               3.

               Orders the Council of the European Union to bear its own costs.

      (1)  OJ C 11, 16.1.2010.


title: Case T-302/14: Order of the General Court of 16 March 2015 — Buderus Guss v Commission

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/39

         Order of the General Court of 16 March 2015 — Buderus Guss v Commission
   (Case T-302/14) (1)

   (2015/C 155/51)
   Language of the case: German
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 223, 14.7.2014.


title: Case C-509/03: Reference for a preliminary ruling by the Magistrates' Court, Bitonto by order of that court of 21 November 2003 in the case of Vincenzo Manfredi against Lloyd Adriatico Assicurazioni

text:
20.3.2004                  EN                           Official Journal of the European Union                                                  C 71/5
course in the district of Wörschach in the Province of Styria                   with an address for service in Luxembourg, v United Kingdom
despite a negative assessment of the implications for the                       of Great Britain and Northern Ireland (Agent: K. Manji):
habitat of the corncrake (crex crex) in the special protection                  Application for a declaration that, by failing to adopt the laws,
area, within the meaning of Article 4 of Council Directive 79/                  regulations and administrative provisions necessary to comply
409/EEC of 2 April 1979 on the conservation of wild birds                       with Council Directive 96/29/Euratom laying down basic
(OJ 1979 L 103, p. 1), situated in that district, the Republic of               safety standards for the protection of the health of workers
Austria has failed to fulfil its obligations under Article 6(3)                 and the general public against the dangers arising from
and (4), in conjunction with Article 7, of Council Directive 92/                ionizing radiation (OJ 1996 L 159, p. 1) in its whole territory,
43/EEC of 21 May 1992 on the conservation of natural                            or in any event by failing to communicate them to the
habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), the                 Commission, the United Kingdom of Great Britain and North-
Court (Second Chamber), composed of: C.W.A. Timmermans,                         ern Ireland has failed to fulfil its obligations under that
President of the Chamber, C. Gulmann (Rapporteur),                              directive, the Court (Fourth Chamber), composed of:
J.N. Cunha Rodrigues, J.-P. Puissochet and N. Colneric, Judges;                 C.W.A. Timmermans (Rapporteur), acting for the President of
P. Léger, Advocate General; R. Grass, Registrar, has given a                    the Fourth Chamber, A. La Pergola and S. von Bahr, Judges;
judgment on 29 January 2004, in which it:                                       A. Tizzano, Advocate General; R. Grass, Registrar, has given a
                                                                                judgment on 29 January 2004, in which it:
1.     Declares that, by authorising the proposed extension of the golf
       course in the district of Wörschach in the Province of Styria            1.   Declares that, by failing to adopt, within the prescribed period,
       despite a negative assessment of its implications for the habitat             the laws, regulations and administrative provisions necessary to
       of the corncrake (crex crex) in the ‘Wörschacher Moos’ special                comply with Council Directive 96/29/Euratom laying down
       protection area situated in that district and classified as provided          basic safety standards for the protection of the health of workers
       for in Article 4 of Council Directive 79/409/EEC of 2 April                   and the general public against the dangers arising from ionizing
       1979 on the conservation of wild birds, the Republic of Austria               radiation in its whole territory, the United Kingdom of Great
       has failed to fulfil its obligations under Article 6(3) and (4), in           Britain and Northern Ireland has failed to fulfil its obligations
       conjunction with Article 7, of Council Directive 92/43/EEC of                 under that directive;
       21 May 1992 on the conservation of natural habitats and of
       wild fauna and flora;                                                    2.   Orders the United Kingdom of Great Britain and Northern
                                                                                Ireland to pay the costs.
2.     Orders the Republic of Austria to pay the costs.
                                                                                (1) OJ C 180 of 27.7.2002.
(1 ) OJ C 169 of 13.7.2002.
                                                                                Reference for a preliminary ruling by the Magistrates’
                   JUDGMENT OF THE COURT                                        Court, Bitonto by order of that court of 21 November
                                                                                2003 in the case of Vincenzo Manfredi against Lloyd
                                                                                Adriatico Assicurazioni
                           (Fourth Chamber)
                                                                                (Case C-509/03)
                           of 29 January 2004
                                                                                (2004/C 71/08)
in Case C-218/02: Commission of the European Communi-
ties v United Kingdom of Great Britain and Northern
                                 Ireland (1)
                                                                                Reference has been made to the Court of Justice of the
(Failure of a Member State to fulfil obligations — Directive                    European Communities by order of the Magistrates’ Court,
96/29/Euratom — Protection of the health of workers and                         Bitonto of 21 November 2003, received at the Court Registry
the general public against the dangers arising from ionizing                    on 4 December 2003, for a preliminary ruling in the case of
      radiation — Failure to transpose in whole territory)                      Vincenzo Manfredi against Lloyd Adriatico Assicurazioni. The
                                                                                Magistrates’ Court, Bitonto asks the Court to give a ruling on
                                                                                the following questions:
                              (2004/C 71/07)
                                                                                1.   Do the facts as found in Judgment No 2199 of the
                     (Language of the case: English)                                 Consiglio di Stato (Council of State) of 23 April 2002 and
                                                                                in Judgment No 6139 of the Tribunale Amministrativo
                                                                                Regionale (Regional Administrative Court), Lazio (Rome)
                                                                                of 5 July 2001, which are deemed to be set out here in
In Case C-218/02, Commission of the European Communities                             full, constitute infringements of Community law, in
(Agents: initially T.F. Cusack, and, subsequently, X. Lewis),                        particular of Articles 81 EC and 82 EC?
 ---pagebreak--- C 71/6               EN                         Official Journal of the European Union                                        20.3.2004
2.  Does an infringement of Articles 81 EC and 82 EC imply                    party who has suffered damage as a result of an agreement
    an obligation on the part of the person committing it to                  which is unlawful and void under Article 81 EC or an
    compensate end users, and all those who demonstrate                       abuse of a dominant position unlawful under Article 82
    that they have suffered any injury, for damage suffered?                  EC and who seeks to obtain damages to make an
                                                                              application to a court other than the one which has
                                                                              jurisdiction ratione loci on the basis of the registered
3.  In assessing the amount of damages, in addition to the                    office (sede) of the subsidiary of the insurance company
    restitution of sums charged in breach of Community                        with which they entered into a contract or in the court
    rules, is the national court required (again as a matter of               district in which the injured party is resident, having
    Community law) to award the injured party a sum by way                    regard also to the difference in legal costs which each
    of punitive damages against those persons responsible                     approach involves?
    for the prohibited agreement or abuse of a dominant
    position?
                                                                        10. Does Community law require national courts to disapply
                                                                              national rules in conflict with Community law or rather
                                                                              to interpret them so as to comply with Community law?
4.  Does Community law also require the payment of
    damages for non-material loss?
5.  As a matter of Community law, is the national court
    required of its own motion to order the payment of
    punitive damages or damages for non-material loss?
6.  Is the limitation period of one year for bringing an action
    for damages for breach of Articles 81 EC and 82 EC                  Action brought on 17 December 2003 by the Commission
    under Italian law too short and therefore in conflict with          of the European Communities against the Hellenic
    Community law?                                                                                Republic
7.  As a matter of Community law, for the purposes of the                                        (Case C-526/03)
    limitation period for bringing an action for damages,
    does time begin to run from the day on which the
    infringement of Articles 81 EC and 82 EC was committed
    or the day on which that infringement came to an end?                                         (2004/C 71/09)
8.  Is there a conflict between Community competition law
    and/or the fundamental principles of Community law
    (with reference in particular to Article 6(1) and Article 13        An action against the Hellenic Republic was brought before the
    of the European Convention on Human Rights) and a                   Court of Justice of the European Communities on 17 December
    national provision having an effect similar to that in the          2003 by the Commission of the European Communities,
    second paragraph of Article 3 of Italian Law No 287 of              represented by Gregorio Valerio Jordana and Minas Konstanti-
    10 October 1990 which requires a consumer or a third                nidis, of its Legal Service.
    party who has suffered damage as a result of an agreement
    which is unlawful and void under Article 81 EC or an
    abuse of a dominant position unlawful under Article 82
    EC and who seeks to obtain damages to make an                       The Commission claims that the Court should:
    application to a court other than the one which has
    jurisdiction ratione loci, ratione materiae and for the
                                                                        —     declare that, by failing to take all the measures necessary
    value of the dispute in accordance with the ordinary
                                                                              to make urban waste water from the wider Athens region
    national rules on jurisdiction, Article 33 of Law No 287/
                                                                              subject to treatment more stringent than secondary
    90 involving an increase in the cost and duration of the
                                                                              treatment before its discharge into the sensitive area
    case which would not occur had the ordinary national
                                                                              comprising the inner Saronic Gulf, the Hellenic Republic
    rules on jurisdiction ratione loci, ratione materiae and for
                                                                              has failed to fulfil its obligations under Article 5(2) of
    the value of the dispute applied?
                                                                              Council Directive 91/271/EEC of 21 May 1991 concern-
                                                                              ing urban waste-water treatment, as amended by Com-
                                                                              mission 98/15/EC of 27 February 1998 which amends
9.  Is there a conflict between Community competition law                     Council Directive 91/271 with respect to certain require-
    and/or the fundamental principles of Community law                        ments established in Annex I (1) thereto;
    (with reference in particular to Article 6(1) and Article 13
    of the European Convention on Human Rights) and a
    national provision which requires a consumer or a third             —     order the Hellenic Republic to pay the costs.


title: Case T-67/10: Judgment of the General Court of 22 September 2011 — Kingdom of Spain v European Commission (EAGGF — Guidance Section — Reduction of financial assistance — Financial assistance awarded to an operational programme for the improvement of the processing and marketing of agricultural products — Effectiveness of checks — Proportionality)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/17

         Judgment of the General Court of 22 September 2011 — Kingdom of Spain v European Commission
   (Case T-67/10) (1)

   (EAGGF - Guidance Section - Reduction of financial assistance - Financial assistance awarded to an operational programme for the improvement of the processing and marketing of agricultural products - Effectiveness of checks - Proportionality)
   2011/C 319/34
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, abogado del Estado)

      Defendant: European Commission (represented by: F. Jimeno Fernández and G. von Rintelen, Agents)

      Re:

   Application for annulment of Commission Decision C(2009) 9827 of 10 December 2009 applying financial corrections to the EAGGF assistance, Guidance Section, awarded to the operational programme CCI 2000.ES.16.1.PO.007 (Spain, Castilla y León) in relation to the measure improving processing and marketing of agricultural products.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 100, 17.4.2010.


title: Case T-31/07: Judgment of the General Court of 12 April 2013 — Du Pont de Nemours (France) and Others v Commission (Plant protection products — Active substance flusilazole — Inclusion of flusilazole in Annex I to Directive 91/414/EEC — Actions for annulment — Partial annulment — Non-severability — Inadmissibility — Non-contractual liability — Limiting the inclusion for a period of 18 months and for four crops — Precautionary principle — Principle of proportionality — Right to be heard — Equal treatment — Statement of reasons — Misuse of powers — Sufficiently serious breach of a rule of law conferring rights on individuals)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/26

         Judgment of the General Court of 12 April 2013 — Du Pont de Nemours (France) and Others v Commission
   (Case T-31/07) (1)

   (Plant protection products - Active substance flusilazole - Inclusion of flusilazole in Annex I to Directive 91/414/EEC - Actions for annulment - Partial annulment - Non-severability - Inadmissibility - Non-contractual liability - Limiting the inclusion for a period of 18 months and for four crops - Precautionary principle - Principle of proportionality - Right to be heard - Equal treatment - Statement of reasons - Misuse of powers - Sufficiently serious breach of a rule of law conferring rights on individuals)
   2013/C 156/43
   Language of the case: English

      Parties

      Applicants: Du Pont de Nemours (France) SAS (Puteaux, France); Du Pont Portugal — Serviços, Sociedade Unipessoal Lda (Lisbon, Portugal); Du Pont Ibérica, SL (Barcelona, Spain); Du Pont de Nemours (Belgium) BVBA (Mechelen, Belgium); Du Pont de Nemours Italiana Srl (Milan, Italy); Du Pont De Nemours (Nederland) BV (Dordrecht, Netherlands); Du Pont de Nemours (Deutschland) GmbH (Bad Homburg vor der Höhe, Germany); DuPont CZ s.r.o. (Prague, Czech Republic); DuPont Magyarország Kereskedelmi kft (Budaors, Hungary); DuPont Poland sp. z o.o. (Warsaw, Poland); DuPont Romania Srl (Bucharest, Romania); DuPont (UK) Ltd (Stevenage, United Kingdom); Dy-Pont Agkro Ellas AE (Halandri, Greece); DuPont International Operations SARL (Le Grand Saconnex, Switzerland); DuPont Solutions (France) SAS (Puteaux) (represented: initially by D. Waelbroeck and N. Rampal, and subsequently by D. Waelbroeck, lawyers)

      Defendant: European Commission (represented: initially by L. Parpala and B. Doherty, and subsequently by L. Parpala and G. von Rintelen, acting as Agents)

      Intervener in support of the applicants: European Crop Protection Association (ECPA) (Brussels, Belgium) (represented: by U. Zinsmeister and E. Antypas, lawyers)

      Re:

   Action for (i) annulment of Commission Directive 2006/133/EC of 11 December 2006 amending Council Directive 91/414/EEC to include flusilazole as active substance (OJ 2006 L 349, p. 27) in so far as it includes flusilazole in Annex I to Directive 91/414 in respect of only four crops and for a period of 18 months and (ii) damages.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Du Pont de Nemours (France) SAS, Du Pont Portugal — Serviços, Sociedade Unipessoal Lda, Du Pont Ibérica, SL, Du Pont de Nemours (Belgium) BVBA, Du Pont de Nemours Italiana Srl, Du Pont De Nemours (Nederland) BV, Du Pont de Nemours (Deutschland) GmbH, DuPont CZ s.r.o., DuPont Magyarország Kereskedelmi kft, DuPont Poland sp. z o.o., DuPont Romania Srl, DuPont (UK) Ltd, Dy-Pont Agkro Ellas AE, DuPont International Operations SARL and DuPont Solutions (France) SAS, to bear their own costs and to pay those of the Commission in respect of the main proceedings and the interlocutory proceedings;

               3.

               Orders the European Crop Protection Association (ECPA) to bear its own costs.

      (1)  OJ C 69, 24.3.2007.


title: Case C-67/11 P: Order of the Court (Fifth Chamber) of 20 October 2011 — DTL Corporación, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gestión de Recursos y Soluciones Empresariales SL (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Opposition procedure — Figurative mark containing the word element ‘Solaria’ and earlier national figurative mark containing the word element ‘Solartia’ — Registration refused in part — Likelihood of confusion — Request for a stay of the proceedings before the General Court — Failure to lodge the request in good time)

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/14

         Order of the Court (Fifth Chamber) of 20 October 2011 — DTL Corporación, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gestión de Recursos y Soluciones Empresariales SL
   (Case C-67/11 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Opposition procedure - Figurative mark containing the word element ‘Solaria’ and earlier national figurative mark containing the word element ‘Solartia’ - Registration refused in part - Likelihood of confusion - Request for a stay of the proceedings before the General Court - Failure to lodge the request in good time)
   2012/C 49/23
   Language of the case: Spanish

      Parties

      Appellant: DTL Corporación, SL (represented by: A. Zuazo Araluze, abogado)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent), Gestión de Recursos y Soluciones Empresariales SL (represented by: M. Polo Carreño and M. Granado Carpenter, abogadas)

      Re:

   Appeal brought against the judgment of the General Court (Fourth Chamber) of 15 December 2010 in Case T-188/10 DTL v OHIM — Gestión de Recursos y Soluciones Empresariales (Solaria) in which the General Court dismissed an action brought against the decision of the Second Board of Appeal of OHIM of 17 February 2010 (Case R 767/2009-2) relating to opposition proceedings between Gestión de Recursos y Soluciones Empresariales SL and DTL Corporación SL

      Operative part of the order

               1.

               There is no need to adjudicate on the appeal in so far as it concerns the services falling within Class 37 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

               2.

               The appeal is dismissed in so far as it concerns the services falling within Class 42 of the Nice Agreement.

               3.

               DTL Corporación SL shall pay the costs.

      (1)  OJ C 130, 30.4.2011.


title: Case T-552/10: Action brought on 3 December 2010 — riha Richard Hartinger Getränke v OHIM — Lidl Stiftung (VITAL&FIT)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/52

         Action brought on 3 December 2010 — riha Richard Hartinger Getränke v OHIM — Lidl Stiftung (VITAL&FIT)
   (Case T-552/10)
   ()
   2011/C 30/93
   Language in which the application was lodged: German

      Parties

      Applicant: riha Richard Hartinger Getränke GmbH & Co. Handels-KG (Rinteln, Germany) (represented by: P. Goldenbaum, T. Melchert and I. Rohr, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 5 October 2010 in Case R 1229/2009-4;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the figurative mark containing the word element ‘VITAL&FIT’ for goods in Class 32

      Proprietor of the mark or sign cited in the opposition proceedings: Lidl Stiftung & Co. KG

      Mark or sign cited in opposition: five earlier rights, including the national word mark ‘VITAFIT’ for goods in Class 32

      Decision of the Opposition Division: opposition upheld

      Decision of the Board of Appeal: appeal dismissed

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as the marks at issue are not so similar that there is a likelihood of confusion, and infringement of rules of procedure in that the Board of Appeal did not itself examine the supposed aural similarity of the marks, did not take account of decisions of OHIM and of the Court, to which the parties referred, did not have regard to those decisions and did not make it clear whether it did in fact take into account only German commercial circles and their views

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


title: Case C-445/13 P: Judgment of the Court (Sixth Chamber) of 7 May 2015 — Voss of Norway ASA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 207/2009 — Article 7(1)(b) — Absolute ground for refusal — No distinctive character — Three-dimensional sign consisting of the shape of a cylindrical bottle)

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/6

         Judgment of the Court (Sixth Chamber) of 7 May 2015 — Voss of Norway ASA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-445/13 P) (1)

   ((Appeal - Community trade mark - Regulation (EC) No 207/2009 - Article 7(1)(b) - Absolute ground for refusal - No distinctive character - Three-dimensional sign consisting of the shape of a cylindrical bottle))
   (2015/C 236/07)
   Language of the case: English

      Parties

      Appellant: Voss of Norway ASA (represented by: F. Jacobacci and B. La Tella, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: V. Melgar, acting as Agent), Nordic Spirit AB (publ)

      Intervener in support of the appellant: International Trademark Association (represented by T. De Haan, avocat, F. Folmer and S. Klos, advocaten, and S. Helmer, Solicitor)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Voss of Norway ASA to pay the costs;

               3.

               Orders the International Trademark Association to bear its own costs.

      (1)  OJ C 344, 23.11.2013.