title: Case C-147/17: Request for a preliminary ruling from the Curtea de Apel Constanţa (Romania) lodged on 23 March 2017 — Sindicatul Familia Constanța and Others v Direcția Generală de Asistență Socială și Protecția Copilului Constanța

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/3

         Request for a preliminary ruling from the Curtea de Apel Constanţa (Romania) lodged on 23 March 2017 — Sindicatul Familia Constanța and Others v Direcția Generală de Asistență Socială și Protecția Copilului Constanța
   (Case C-147/17)
   (2017/C 231/04)
   Language of the case: Romanian

      Referring court

   Curtea de Apel Constanţa

      Parties to the main proceedings

      Applicant: Sindicatul Familia Constanța and Others

      Defendant: Direcția Generală de Asistență Socială și Protecția Copilului Constanța

      Questions referred

               (1)

               Must Article 1(3) of Directive 2003/88/EC (1) in conjunction with Article 2 of Directive 89/391/EEC (2) be interpreted as excluding from the ambit of the directive activity such as that of parental assistants, performed by the applicants?

               (2)

               If the answer to the first question is in the negative, must Article 17 of Directive 2003/88/EC be interpreted to the effect that an activity such as that of parental assistants, performed by the applicants, may be the object of a derogation from the provisions of Article 5 of the directive in accordance with paragraphs 1, 3(b) and (c) or 4(b) [of Article 17]?

               (3)

               If the answer to the preceding question is in the affirmative, is Article 17(1) or, if applicable, Article 17(3) or (4) of Directive 2003/88/EC to be interpreted to the effect that such a derogation must be explicit, or may it also be implicit as a result of the adoption of special legislation laying down other rules for organising working hours for a particular professional activity? If such a derogation need not be explicit, what are the minimum conditions for it to be considered that national legislation introduces a derogation and may such a derogation be expressed in the terms deriving from Law No 272/2004?

               (4)

               If the answer to questions 1, 2 or 3 is in the negative, must Article 2(1) of Directive 2003/88/EC be interpreted to the effect meaning that the period spent by a parental assistant with the assisted minor, in his own home or in another place of his choice, constitutes working time even if none of the activities described in the individual employment contract is performed?

               (5)

               If the answer to questions 1, 2 or 3 is in the negative, is Article 5 of Directive 2003/88/EC to be interpreted as precluding national provisions such as those in Article 122 of Law No 272/2004? And if the answer should confirm that paragraph (3)(b) and (c) or paragraph 4(b) of Article 17 of the directive is applicable, must that article be interpreted as precluding that national legislation?

               (6)

               If the answer to question 1 is in the negative and the answer to question 4 is in the affirmative, may Article 7(2) of Directive 2003/88/EC be interpreted to the effect that it does not, however, preclude the award of compensation equal to the allowance that the worker would have received during annual leave, because the nature of the activity performed by parental assistants prevents them taking such leave or, even though leave is formally granted, the worker continues in practice to perform that activity if, in the period in question, he is not permitted to leave the assisted minor? If the answer is in the affirmative, must the worker, in order to be entitled to compensation, have requested permission to leave the minor and the employer have withheld permission?

               (7)

               If the answer to question 1 is in the negative, the answer to question 4 is in the affirmative and the answer to question 6 is in the negative, does Article 7(1) of Directive 2003/88 preclude a provision such as that contained in Article 122(3)(d) of Law No 272/2004 in a situation in which that law gives the employer discretion to decide whether to authorise separation from the minor during leave and, if so, is the inability de facto to take leave as a result of the application of that provision of the law an infringement of EU law that meets the conditions for the worker to be entitled to compensation? If so, must such compensation be paid by the State for infringement of Article 7 of that directive or by the public body, as employer, which has not provided for separation from the assisted minor during the period of leave? In that situation, must the worker, in order to be entitled to compensation, have requested permission to leave the minor and the employer have withheld permission?

      (1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

      (2)  Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).


title: Case T-771/16: Action brought on 24 October 2016 — Toontrack Music v EUIPO (EZMIX)

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/45

         Action brought on 24 October 2016 — Toontrack Music v EUIPO (EZMIX)
   (Case T-771/16)
   (2017/C 014/53)
   Language of the case: Swedish

      Parties

      Applicant: Toontrack Music AB (Umeå, Sweden) (represented by: L.-E. Ström, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: European Union word mark ‘EZMIX’ — Application for registration No 13 945 423

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 27 July 2016 in Case R 2436/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision in accordance with Articles 7(1)(b), 7(1)(c), 7(2), 43 and 65 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark; and

               —

               order EUIPO to pay the applicant’s costs and to bear its own costs.

      Plea in law

               —

               Infringement of Articles 7(1)(b), 7(1)(c), 7(2) and 43 of Regulation No 207/2009.


title: Case T-492/07 P: Judgment of the Court of First Instance of 24 April 2009 — Sanchez Ferriz and Others v Commission (Appeal — Staff Cases — Officials — Promotion — 2005 promotion year — Non-inclusion on the list of promoted officials — Multiplication rates for guidance purposes — Articles 6 and 10 of Annex XIII to the Staff Regulations — Legal interest in raising a plea)

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/39

         Judgment of the Court of First Instance of 24 April 2009 — Sanchez Ferriz and Others v Commission
   (Case T-492/07 P) (1)

   (Appeal - Staff Cases - Officials - Promotion - 2005 promotion year - Non-inclusion on the list of promoted officials - Multiplication rates for guidance purposes - Articles 6 and 10 of Annex XIII to the Staff Regulations - Legal interest in raising a plea)
   2009/C 141/81
   Language of the case: French

      Parties

      Appellants: Carlos Sanchez Ferriz (Brussels, Belgium) and the nine other officials of the Commission of the European Communities whose names appear in the annex to the judgment (represented by: F. Frabetti, lawyer)

      Other party to the proceedings: Commission of the European Communities (represented by: C. Berardis-Kayser and G. Berscheid, Agents)

      Re:

   Appeal brought against the order of the European Union Civil Service Tribunal (Second Chamber) of 17 October 2007 in Case F-115/06 Sanchez Ferriz and Others v Commission, not yet published in the ECR, seeking annulment of that order.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Carlos Sanchez Ferriz and the nine other Commission officials whose names appear in the annex to bear their own costs and to pay those incurred by the Commission in the present proceedings.

      (1)  OJ C 64, 8.3.2008.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 7 November 1996 in Case C-221/94: Commission of the European Communities v. Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations - Non-transposition of Directive 91/263/EEC - Telecommunications - Telecommunications terminal equipment - Mutual recognition of their conformity)

text:
 11.1.97            1 EN 1                Official Journal of the European Communities                                     No C 9 / 7
Commission to one of its officials on the ground of                  part — the Court ( Sixth Chamber), composed of: J. L.
occupational illness by virtue of Article 73 of the Staff            Murray, President of the Fourth Chamber, acting for the
Regulations of officials of the European Communities —               President of the Sixth Chamber, C. N. Kakouris, P. J. G.
the Court ( Sixth Chamber ), composed of: G. F. Mancini,             Kapteyn ( Rapporteur ). G. Hirsch and H. Ragnemalm,
President of the Chamber, C. N. Kakouris and P. J. G.                Judges; F. G. Jacobs, Advocate-General; R. Grass,
Kapteyn ( Rapporteur), Judges; A. La Pergola, Advocate-              Registrar, has given a judgment on 24 October 1996, in
General; H. von Holstein, Deputy Registrar, for the                  which it:
Registrar, has given a judgment on 24 October 1996, in
which it:
                                                                     1 . Dismisses the appeal.
1 . Orders Royal Belge SA, Assurances Générales de
     France SA, Caisse Nationale de Prévoyance, Les                  2 . Orders the appellants to pay the costs.
     Mutuelles du Mans, Assurantie van de Belgische
     Boerenbond SA, Hannover SA, Securitas AG and
                                                                     0 ) OJ No C 189, 22 . 7. 1995, p . 6 .
     Condor to pay the Commission the sum of Bfrs
     25 794 194, plus interest at the rate of 8 % from 6 May
     1994.
2 . Orders Royal Belge SA, Assurances Générales de
     France SA, Caisse Nationale de Prévoyance, Les
     Mutuelles du Mans, Assurantie van de Belgische
     Boerenbond SA, Hannover SA, Securitas AG and                                  JUDGMENT OF THE COURT
     Condor to pay the costs.                                                                (Sixth Chamber)
                                                                                of 7 November 1996
(') OJ No C 159, 24 . 6 . 1995 , p. 13 .
                                                                     in    Case C-221/94: Commission of the European
                                                                           Communities v. Grand Duchy of Luxembourg (')
                                                                     (Failure of a Member State to fulfil its obligations —
                                                                     Non-transposition of Directive 91/263/EEC —
                                                                     Telecommunications        —     Telecommunications     terminal
                                                                         equipment — Mutual recognition of their conformity)
              JUDGMENT OF THE COURT                                                             ( 97/C 9/ 13
                        ( Sixth Chamber)
                      of 24 October 1996                                             (Language of the case: French)
in Case C-91/95 P: Roger Tremblay, Harry Kestenberg
and Syndicat des Exploitants de Lieux de Loisirs ( SELL ) v.
       Commission of the European Communities ( J )                    (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
(Appeal — Competition — Rejection of a complaint —
              Absence of Community interest)
                            ( 97/C 9/12 )                            In Case C-221 /94 : Commission of the European
                                                                     Communities (Agents: Anders C. Jessen and Jean-Francis
                                                                     Pasquier) v. Grand Duchy of Luxembourg ( Agent: Nicolas
               (Language of the case: French)                        Schmit) — application for a declaration that, by not
                                                                     adopting within the period laid down the laws, regulations
                                                                     and administrative provisions necessary to comply with
                                                                     Council Directive 91/263/EEC of 29 April 1991 on the
  (Provisional translation; the definitive translation will be       approximation of the laws of the Member States
         published in the European Court Reports)                    concerning telecommunications terminal equipment,
                                                                     including the mutual recognition of their conformity (2 ),
                                                                     and, in any event, by not immediately informing the
In Case C-91/95 P: Roger Tremblay, Harry Kestenberg                  Commission of such measures, the Grand Duchy of
and Syndicat des Exploitants de Lieux de Loisirs ( SELL )            Luxembourg has failed to fulfil its obligations pursuant to
( Counsel: Jean-Claude Fourgoux ), the other party to the            the Directive and in particular pursuant to Article 17
proceedings being: Commission of the European                        thereof — the Court ( Sixth Chamber ), composed of: G. F.
Communities ( Agents : Giuliano Marenco and Géraud de                Mancini , President of the Chamber ( Rapporteur), J. L.
Bergues ) — appeal against the judgment of the Court of              Murray, C. N. Kakouris, P. J. G. Kapteyn and H.
First Instance ( Second Chamber ) of 24 January 1995 in              Ragnemalm, Judges; C. O. Lenz, Advocate-General; H. A.
Case T-5/93 Tremblay and Others v. Commission [ 1995]                Rühl, Principal Administrator, for the REgistrar, has given
ECR 11-185 , seeking to have that judgment set aside in              a judgment on 7 November 1996, in which it:
 ---pagebreak--- No C 9/8              LJN                     Official Journal of the European Communities                                           . . 97
1 . Declares that, by failing to adopt within the period                 person who undertakes, as an unremunerated activity, the
      laid down the laws, regulations and administrative                 care of his or her handicapped spouse, whatever the extent
      provisions necessary to comply with Council Directive              of that activity and the competence required in order to
      91 /263/EEC of 29 April 1991 on the approximation                  perform it, where the person in question did not, in order
      of the laws of the Member States concerning                        to do so, abandon an occupational activity or interrupt
      telecommunications terminal equipment, including the               efforts to find employment.
      mutual recognition of their conformity, the Grand
      Duchy of Luxembourg has failed to fulfil its                       (') OJ No C 174, 8 . 7. 1995 , p . 2 .
      obligations pursuant to the Directive and in particular            ( 2 ) OJ No L 6 , 10 . 1 . 1979, p . 24 .
      under Article 1 7 thereof.
2 . Orders the Grand Duchy of Luxembourg to pay the
      costs.
f 1 ) OJ No C 254, 10 . 9 . 1994, p . 10 .
( 2 ) OJ No L 128 , 23 . 5 . 1991 , p . 1 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Sixth Chamber)
                                                                                of 7 November 1996
                                                                         in      Case C-262/95 : Commission of the European
                JUDGMENT OF THE COURT                                             Communities v. Federal Republic of Germany ( J )
                            (Fifth Chamber)
                                                                         (Failure to fulfil obligations — Transposition of Directives
                        of 7 November 1996                               82/1 76/EEC, 83/513/EEC, 84/156/EEC, 84/491/EEC and
in Case C-77/95 (reference for a preliminary ruling from                 86/280ZEEC on the discharge of certain dangerous
the Hanseatisches Oberlandesgericht, Bremen): Bruna                                  substances into the aquatic environment)
Alessandra Ziichner v. Handelskrankenkasse (Ersatzkasse )                                                ( 97/C 9/ 15 )
                                Bremen ( 1 )
(Equal treatment for men and women in matters of social
    security — Directive 79/7ZEEC — Working population)                                    (Language of the case: German)
                               ( 97/C 9/ 14 )
                                                                            (Provisional translation; the definitive translation will be
                 (Language of the case: German)                                      published in the European Court Reports)
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)                      In      Case    C-262/95 :        Commission   of the    European
                                                                         Communities         (Agent:       Gotz zur Hausen )   v.   Federal
                                                                         Republic of Germany ( Agent: Ernst Roder) — application
In Case C-77/95 : reference to the Court pursuant to                     for a declaration that, by not adopting the necessary
Article 177 of the EC Treaty from the Hanseatisches                      measures to comply with:
Oberlandesgericht ( Higher Regional Court), Bremen
( Germany ), for a preliminary ruling in the proceedings
pending before that court between Bruna-Alessandra                       — Council Directive 82/ 1 76/EEC of 22 March 1982 on
Ziichner v. Handelskrankenkasse ( Ersatzkasse ) Bremen —                        limit values and quality objectives for mercury
on the interpretation of Council Directive 79/7/EEC of                          discharges by the chlor-alkali electrolysis industry ( 2 ),
 19 December 1978 on the progressive implementation of
the principle of equal treatment for men and women in
matters of social security ( 2 ), and of the principles of               — Council Directive 83/513/EEC of 26 September 1983
Community law governing the liability of public                                 on limit values and quality objectives for cadmium
authorities — the Court ( Fifth Chamber), composed of: L.                       discharges ( 3 ),
Sevon, President of Chamber, acting for the President of
the Fifth Chamber ( Rapporteur ), C. Gulmann, D. A. O.
Edward, J. -P. Puissochet and P. Jann, Judges; D. Ruiz                  — Council Directive 84/ 156/EEC of 8 March 1984 on
Jarabo Colomer, Advocate-General; H. A. Riihl, Principal                        limit values and quality objectives for mercury
Administrator, for the Registrar, has given a judgment on                       discharges by sectors other than the chlor-alkali
7 November 1996 , in which it has ruled :
                                                                                electrolysis industry (4 ),
Article 2 of Council Directive 79/7/EEC of 19 December
 1978 on the progressive implementation of the principle                 — Council Directive 84/491 /EEC of 9 October 1984 on
of equal treatment for men and women in matters of                              limit values and quality objectives for discharges of
social security must be interpreted as not covering a                           hexachlorocyclohexane ( 5 ), and


title: Case C-538/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (The Netherlands) lodged on 4 December 2008 — X Holding BV v Minister van Financiën

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/8

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (The Netherlands) lodged on 4 December 2008 — X Holding BV v Minister van Financiën
   (Case C-538/08)
   (2009/C 55/12)
   Language of the case: Dutch
   Referring court
   Hoge Raad der Nederlanden
   Parties to the main proceedings

      Appellant: X Holding BV

      Respondent: Minister van Financiën
   Questions referred

               1.

               Must Article 11(4) of the Second Directive (1) and Article 17(6) of the Sixth Directive (2) be interpreted as meaning that a Member State wishing to take advantage of the possibility for which those provisions provide of (retaining) the exclusion of deduction with respect to categories of expenditure which are described as ‘providing the opportunity for private transport’ has satisfied the condition of designating a category of adequately definable goods and services?

               2.

               If the answer to the first question is in the affirmative, do Article 6(2) and Article 17(2) and (6) of the Sixth Directive leave room for national legislation such as that at issue in the proceedings, which was adopted before that Directive entered into force and under which a taxable person may not deduct in full the VAT paid on the acquisition of certain goods and services which are used partly for business purposes and partly for private purposes of the staff, but may do so only to the extent that the VAT is attributable to use for business purposes?

      (1)  Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ L 8, p. 17).

      (2)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1).


title: Case T-696/14 P: Judgment of the General Court of 27 January 2016 — Montagut Viladot v Commission (Appeal — Staff cases — Recruitment — Competition to constitute a reserve from which to recruit grade AD 5 administrators — Decision of the selection board not to place the applicant’s name on the reserve list — Diploma which does not satisfy the conditions in the notice of competition — Dismissal of the action at first instance)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/42

         Judgment of the General Court of 27 January 2016 — Montagut Viladot v Commission
   (Case T-696/14 P) (1)

   ((Appeal - Staff cases - Recruitment - Competition to constitute a reserve from which to recruit grade AD 5 administrators - Decision of the selection board not to place the applicant’s name on the reserve list - Diploma which does not satisfy the conditions in the notice of competition - Dismissal of the action at first instance))
   (2016/C 098/55)
   Language of the case: Spanish

      Parties

      Appellant: Bernat Montagut Viladot (Schaerbeek, Belgium) (represented by: F.A. Rodríguez-Gigirey Pérez and J.A. Simón Sánchez, lawyers)

      Other party to the proceedings: European Commission (represented by: I. Galindo Martín and G. Gattinara, acting as Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 15 July 2014 in Montagut Viladot v Commission (F-160/12, ECR-SC, EU:F:2014:190), seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Bernat Montagut Viladot to pay the costs.

      (1)  OJ C 409, 17.11.2014.


title: Case C-164/11: Action brought on 5 April 2011 — European Commission v French Republic

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/13

         Action brought on 5 April 2011 — European Commission v French Republic
   (Case C-164/11)
   2011/C 186/22
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: W. Mölls, acting as Agent)

      Defendant: French Republic

      Form of order sought

               —

               declare that, by failing to take the necessary measures to adapt its electricity taxation system to the provisions provided for by Directive 2003/96/EC (1), despite the expiry of the transitional period provided for in the second subparagraph of Article 18(10) of that directive, the French Republic has failed to fulfil its obligations under that directive;

               —

               order the French Republic to pay the costs.

      Pleas in law and main arguments

   By its application, the Commission submits that, despite the expiry of the transitional period granted to the defendant, namely on 1 January 2009, it has still not adapted all the elements of its electricity taxation system to the provisions of the directive. According to the French authorities, Law No 2010-1488 of 7 December 2010, which was adopted and entered into force after the expiry of the period laid down in the reasoned opinion, transposes the provisions of that directive into domestic law. According to the Commission, the present action must be upheld by reference to the situation under national law which was applicable at the time when the period laid down in the reasoned opinion expired.
   The Commission submits that, in any event, France has still not adapted all the elements of its electricity taxation system to comply with the provisions of the directive. The applicant therefore rejects the argument of the national authorities that the directive does not prohibit adjustments to the increase in excise duties according to the geographical areas concerned. On the contrary, the directive sets out the principle of a single tax for all electricity consumption which takes place in the same Member State and exhaustively lists the derogations to that principle in Articles 5, 14, 15 and 17.
   Furthermore, the Commission rejects the argument defended by the French authorities that the ‘differentiation in tariffs applied’ does not lead to any risk of evasion, does not imply any additional burden for operators and does not constitute a barrier to the entry on the market of foreign providers.

      (1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).


title: Case C-7/15: Request for a preliminary ruling from the Landgericht Essen (Germany) lodged on 12 January 2015 — Criminal proceedings against Kanapathippilai Kanageswaran

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/9

         Request for a preliminary ruling from the Landgericht Essen (Germany) lodged on 12 January 2015 — Criminal proceedings against Kanapathippilai Kanageswaran
   (Case C-7/15)
   (2015/C 127/13)
   Language of the case: German

      Referring court

   Landgericht Essen

      Party to the main proceedings

   Kanapathippilai Kanageswaran

      Question referred

   Is the inclusion of the Liberation Tigers of Tamil Eelam in the list referred to in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (1) for the period from 9 September 2007 to 24 May 2009 inclusive, in particular on the basis of the Council Decisions of 29 May 2006 (2006/379/EC) (2), 28 June 2007 (2007/445/EC) (3), 20 December 2007 (2007/868/EC) (4), 15 July 2008 (2008/583/EC) (5), and 26 January 2009 (2009/62/EC) (6), invalid?

      (1)  OJ 2001 L 344, p. 70.

      (2)  OJ 2006 L 144, p. 21.

      (3)  OJ 2007 L 169, p. 58.

      (4)  OJ 2007 L 340, p. 100.

      (5)  OJ 2008 L 188, p. 21.

      (6)  OJ 2009 L 23, p. 25.


title: Case C-33/12: Reference for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 24 January 2012 — Körös-Vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

text:
               28.4.2012

               EN

               Official Journal of the European Union

               C 126/4

         Reference for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 24 January 2012 — Körös-Vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve
   (Case C-33/12)
   2012/C 126/07
   Language of the case: Hungarian

      Referring court

   Fővárosi Törvényszék

      Parties to the main proceedings

      Applicant: Körös-Vidéki Környezetvédelmi és Vízügyi Igazgatóság

      Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

      Question referred

   In the case of use as permanent grassland, do dykes constitute utilised agricultural areas within the meaning of Article 143b(4) of Regulation (EC) No 1782/2003 (1) although their agricultural use is not the primary one but they are also used for water management and flood prevention purposes?

      (1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).


title: Judgment of the Court of First Instance of 26 September 2002 in Case T-199/99: Sgaravatti Mediterranea Srl v Commission of the European Communities (EAGGF — Cancellation of financial assistance — Article 24 of Regulation (EEC) No 4253/88 — Prior hearing of the beneficiary — Appropriate examination of the case by the Commission — Rights of the defence — Manifest error of assessment — Statement of reasons — Principle of protection of legitimate expectations — Principle of legality of penalties — Principle of proportionality)

text:
C 305/20                EN                        Official Journal of the European Communities                                      7.12.2002
                                                           COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 25 September 2002
                      of 26 September 2002
                                                                             in Joined Cases T-201/00 and T-384/00: Agnès Ajour and
in Case T-199/99: Sgaravatti Mediterranea Srl v Com-                            others v Commission of the European Communities (1)
           mission of the European Communities (1)
                                                                             (Officials — Remuneration — Weighting for Ireland —
                                                                             Cost of living in Dublin — Articles 64 and 65 of the Staff
(EAGGF — Cancellation of financial assistance —                                                           Regulations)
Article 24 of Regulation (EEC) No 4253/88 — Prior hearing
of the beneficiary — Appropriate examination of the case by
the Commission — Rights of the defence — Manifest error                                                 (2002/C 305/43)
of assessment — Statement of reasons — Principle of
protection of legitimate expectations — Principle of legality
           of penalties — Principle of proportionality)                                           (Language of the case: French)
                          (2002/C 305/42)
                                                                             In Joined Cases T-201/00 and T-384/00: Agnès Ajour, residing
                                                                             in Dublin, and 128 other officials and agents of the Com-
                                                                             mission of the European Communities, represented by
                    (Language of the case: Italian)
                                                                             J.-N. Louis and V. Peere, avocats, with an address for service in
                                                                             Luxembourg, against Commission of the European Communi-
                                                                             ties (Agent: J. Currall), supported by Council of the European
                                                                             Union (Agents A. Pilette and F. Anton) — application for the
                                                                             annulment of the decisions of the Commission drawing up the
                                                                             pay slips of the applicants in respect of September and
In Case T-199/99, Sgaravatti Mediterranea Srl, established in                December 1999 and of the decisions of the Commission
Capoterra (Italy), represented by M. Merola and P.A.M. Ferrari,              drawing up, pursuant to Council Regulation (EC, ECSC,
lawyers, with an address for service in Luxembourg, v Com-                   Euratom) No 2700/1999 of 17 December 1999 adjusting
mission of the European Communities (Agents: initially                       with effect from 1 July 1999 the remuneration and pensions
F.P. Ruggeri Laderchi, J. Guerra Fernández, L. Visaggio, and                 of officials and other servants of the European Communities
M. Moretto, and, subsequently, C. Cattabriga and M. Moretto):                and the weightings applied thereto (OJ 1999 L 327, p. 1), back
Application for annulment of Commission Decision C(1999)                     pay for the applicants in respect of the period from 15 May to
1502 of 4 June 1999 cancelling financial assistance previously               31 December 1999 and the pays slips drawn up in respect of
granted to the applicant by the European Agricultural Guid-                  the applicant since January 2000 — the Court of First Instance
ance and Guarantee Fund, Guidance Section (EAGGF Guidance                    (Second Chamber), composed of R.M. Moura Ramos, President,
Section), the Court of First Instance (Fifth Chamber), composed              J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator,
of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh,                for the Registrar, gave a judgment on 25 September 2002, the
Judges; J. Palacio González, Administrator, for the Registrar,               operative part of which is as follows:
has given a judgment on 26 September 2002, in which it:
                                                                             1.     There is no need to adjudicate on Case T-201/00 with regard
1.     Dismisses the action;                                                        to Mr Kienersberger and his dependants.
                                                                             2.     The applications are dismissed.
2.     Orders the applicant to pay all the costs.
                                                                             3.     The parties shall bear their own costs.
( 1) OJ C 333 of 20.11.1999.
                                                                             (1 ) OJ C 285 of 7.10.2000 and OJ C 45 of 10.2.2001.


title: Case C-361/10: Judgment of the Court (Seventh Chamber) of 9 June 2011 (reference for a preliminary ruling from the Conseil d’État — Belgium) — Intercommunale Intermosane SCRL, Fédération de l’industrie et du gaz v État belge (Internal market — Technical standards and regulations — Procedure for the provision of information in the field of technical standards and regulations and rules on Information Society services — Minimum safety requirements for certain old electrical installations at places of work)

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/8

         Judgment of the Court (Seventh Chamber) of 9 June 2011 (reference for a preliminary ruling from the Conseil d’État — Belgium) — Intercommunale Intermosane SCRL, Fédération de l’industrie et du gaz v État belge
   (Case C-361/10) (1)

   (Internal market - Technical standards and regulations - Procedure for the provision of information in the field of technical standards and regulations and rules on Information Society services - Minimum safety requirements for certain old electrical installations at places of work)
   2011/C 226/13
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Intercommunale Intermosane SCRL, Fédération de l’industrie et du gaz

      Defendant: État belge

      Re:

   Reference for a preliminary ruling — Conseil d’État — Interpretation of Article 1(11) and the first subparagraph of Article 8(1) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37) — Procedure for the provision of information and rules on information society services — Obligation to notify draft technical regulations — Minimum safety requirements for certain old electrical installations at places of work

      Operative part of the judgment

   Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that national provisions such as those at issue in the main proceedings do not amount to technical regulations, within the meaning of that provision, the drafts of which must be the subject of the communication provided for in the first subparagraph of Article 8(1) of that directive.

      (1)  OJ C 274, 9.10.2010.


title: Case C-305/13: Request for a preliminary ruling from the Cour de cassation (France) lodged on 4 June 2013 — Haeger & Schmidt GmbH v Mutuelles du Mans assurances Iard SA (MMA Iard), Jacques Lorio, Dominique Miquel, in his capacity as liquidator of Safram intercontinental SARL, Ace Insurance SA NV, Va Tech JST SA, Axa Corporate Solutions SA

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/35

         Request for a preliminary ruling from the Cour de cassation (France) lodged on 4 June 2013 — Haeger & Schmidt GmbH v Mutuelles du Mans assurances Iard SA (MMA Iard), Jacques Lorio, Dominique Miquel, in his capacity as liquidator of Safram intercontinental SARL, Ace Insurance SA NV, Va Tech JST SA, Axa Corporate Solutions SA
   (Case C-305/13)
   2013/C 207/58
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicant: Haeger & Schmidt GmbH

      Defendants: Mutuelles du Mans assurances Iard SA (MMA Iard), Jacques Lorio, Dominique Miquel, in his capacity as liquidator of Safram intercontinental SARL, Ace Insurance SA NV, Va Tech JST SA, Axa Corporate Solutions SA

      Questions referred

               1.

               May a commission contract for the carriage of goods by which a principal entrusts an agent, acting in his own name and under his own responsibility, with the organisation of the carriage of goods, which the agent will arrange to have carried out by one or more carriers on behalf of the principal, have as its main purpose the carriage of goods within the meaning of the last sentence of Article 4(4) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations and (1) and, if so, under what conditions?

               2.

               If a commission contract for the carriage of goods may be regarded as a contract for the carriage of goods for the purpose of Article 4(4) of the Rome Convention but the special presumption for the determination of the relevant law laid down by that provision is not applicable — since the requirement in the provision that the country in which the carrier has his principal place of business must also be the country in which the place of loading or the place of discharge or the principal place of business of the consignor is situated is not fulfilled — is the first sentence of that provision, to the effect that a contract for the carriage of goods is not subject to the general presumption laid down in Article 4(2), to be interpreted as meaning that the court is invited in such circumstances to ascertain the law applicable, not on the basis of that presumption, which has been definitively ruled out, but in accordance with the general principle of determination laid down in Article 4(1), namely by identifying the country with which the contract is most closely connected, without specific regard for the country in which the party which effected the performance which is characteristic of the contract is established?

               3.

               On the assumption that a commission contract for the carriage of goods is subject to the general presumption in Article 4(2), is it possible, where the initial contractor concluded an agreement with the first agent, who subsequently arranged for his replacement by a second agent, to allow the law applicable to the contractual relationship between the contractor and that second agent to be determined on the basis of the place of establishment of the first agent, the law of the country thus designated being deemed generally applicable to the carriage of goods transaction as a whole?

      (1)  Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1).


title: Case T-116/16: Action brought on 18 March 2016 — Port autonome du Centre et de l’Ouest and Others v Commission

text:
               17.5.2016

               EN

               Official Journal of the European Union

               C 175/23

         Action brought on 18 March 2016 — Port autonome du Centre et de l’Ouest and Others v Commission
   (Case T-116/16)
   (2016/C 175/27)
   Language of the case: French

      Parties

      Applicants: Port autonome du Centre et de l’Ouest SCRL (La Louvière, Belgium), Port autonome de Namur (Namur, Belgium), Port autonome de Charleroi (Charleroi, Belgium), Port autonome de Liège (Liège, Belgium) and Région wallonne (Jambes, Belgium) (represented by: J. Vanden Eynde, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare the application admissible as regards each of the applicants and consequently annul the Commission decision with reference SA.38393(2015/E) — taxation of ports in Belgium;

               —

               declare the present action admissible and well-founded;

               —

               consequently, annul the decision of the Commission to regard as State aid incompatible with the internal market the fact that the economic activities of Belgian ports, and in particular Walloon ports, are not subject to corporation tax;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on ten pleas in law.

               1.

               First plea in law, alleging, generally, that the Commission’s assertions are neither supported by the facts nor justified in law.

               2.

               Second plea in law, alleging that the Commission has not justified its apparent departure from previous case-law with regard to its decision of 20 October 2004 (N520/2003).

               3.

               Third plea in law, alleging that the activities of ports are subsidised since otherwise they would not be viable given the Belgian economic context, and further alleging that charges determined unilaterally, which do not cover investments made, do not suffice to characterise them as economic activities.

               4.

               Fourth plea in law, alleging that the assertion that the Belgian reference system is corporation tax is not justified in law.

               5.

               Fifth plea in law, alleging that the claim that the tax on legal persons, to which ports are subject, amounts to an advantage since any auxiliary economic activities in which they may engage are not charged to tax, has not been established. Moreover, the Commission has not identified which activities should, in its view, be charged to tax or those activities which form services of general interest.

               6.

               Sixth plea in law, alleging that the particular circumstances of the case must permit the tax on legal persons to be charged, in view of the logic of the Belgian legislative framework, which distinguishes the tax treatment of services of general interest and commercial activities.

               7.

               Seventh plea in law, alleging that the Commission neglected to take into account Member States’ prerogatives over:

                           —

                           the definition of non-economic activities;

                           —

                           the definition of direct taxation;

                           —

                           the obligation to ensure the proper functioning of services of general interest necessary for social and economic cohesion;

                           —

                           the organisation at their discretion of services of general interest.

               8.

               Eighth plea in law, alleging that the essential activities of the Walloon inland ports are services of general interest that are not governed, in accordance with European legislation, by the competition rules laid down by Article 107 TFEU.

               9.

               Ninth plea in law, put forward in the alternative, alleging that if the essential activities of the Walloon inland ports fall within the scope of services of general economic interest, they are governed by the rules of Articles 93 and 106(2) TFEU and the competition rules are not applicable to them.

               10.

               Tenth plea in law, put forward in the further alternative, alleging that the European criteria for the definition of State aid are not met.


title: Case C-90/15 P: Appeal brought on 24 February 2015 by Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH against the judgment of the General Court (Third Chamber) of 12 December 2014 in Case T-544/08 Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH v European Commission

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/26

         Appeal brought on 24 February 2015 by Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH against the judgment of the General Court (Third Chamber) of 12 December 2014 in Case T-544/08 Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH v European Commission

   (Case C-90/15 P)
   (2015/C 146/32)
   Language of the case: German

      Parties

      Appellants: Hansen & Rosenthal KG, H & R Wax Company Vertrieb GmbH (represented by: J. L. Schulte, M. Dallmann and K. M. Künstner, Rechtsanwälte)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside, in full or in part, the judgment of the General Court of 12 December 2014 in Case T-544/08 Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH v European Commission;

               —

               on the basis of the information at its disposal, annul in so far as they concern the appellants Articles 1 and 2 of the Commission’s decision of 1 October 2008 in Case COMP/39181 — Candle Waxes;

               —

               annul or reduce the fine pursuant to Article 261 TFEU;

               —

               order the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court;

               —

               in the alternative, set aside the judgment of the General Court and refer the case back to the General Court for it to be reheard in the light of the issues of law settled by the Court of Justice; annul or reduce the fine pursuant to Article 261 TFEU; and order the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court.

      Grounds of appeal and main arguments

   The appellants rely on five grounds of appeal.
   By their first ground of appeal, the appellants submit that the General Court has infringed the principles of the presumption of innocence and the right to a fair trial. The appellants challenge the view of the General Court that the Commission’s decision to impose the fine was correct from the outset and definitive, with the result that the appellants could contest the findings of the Commission only if they could prove beyond all reasonable doubt that the Commission’s decision was erroneous. According to the appellants, this infringes both Article 48(1) of the Charter of Fundamental Rights (‘the Charter’), in conjunction with Article 52(3) thereof and Article 6(2) of the European Convention on Human Rights (ECHR), and Article 47(2) of the Charter, in conjunction with Article 52(3) of the Charter and Article 6(1) of the ECHR.
   By their second ground of appeal, the appellants submit that the General Court erred in applying Article 81 of the EC Treaty (now Article 101 TFEU). In their view, the General Court considered, in the judgment under appeal, as falling under the prohibition of agreements which distort competition conduct which does not satisfy the necessary criteria of that prohibition. In addition, the General Court considered, contrary to the rules on the burden of proof and on the assessment of the evidence, that the alleged conduct of the appellants fell under Article 81 of the EC Treaty (now Article 101 TFEU). To that extent, in several respects the General Court erred in law in that it made incorrect findings, distorted the evidence, wrongly qualified in law certain items of evidence and infringed the right of the appellants to a fair trial.
   By their third ground of appeal, the appellants maintain that the General Court infringed the fundamental principles that offences must have a statutory basis and that that essential decisions require the legislature’s approval (Wesentlichkeitsvorbehalt). Since both the Court of Justice and the General Court consider that the figure of 10 % laid down in the second subparagraph of Article 23 of Regulation No 1/2003 (1) is an absolute limit rather than an indicative limit, EU law does not contain any framework for calculating the amount of fines for infringements of Article 81 of the EC Treaty (now Article 101 TFEU). However, it is for the legislature alone to establish the framework for setting fines, not the Commission.
   By their fourth ground of appeal, the appellants rely on further infringements of the principle that offences must have a statutory basis and also that of non-retroactivity. The appellants also maintain that the General Court cannot, without erring in law, set a fine without a framework for calculating its amount. In addition, the appellants consider that the mere act of ensuring that the Commission followed its own guidelines constitutes a failure to exercise its discretion and thereby an infringement of Article 31 of Regulation No 1/2003. Finally, the appellants submit that the General Court infringed the principle of non-retroactivity in that it approved the application of guidelines for the setting of fines established in 2006 to conduct which had already ceased in 2005.
   By their fifth and final ground of appeal, the appellants submit that the General Court infringed the principle of proportionality. According to the appellants, the General Court infringed Article 49(3) of the Charter in that it determined a coefficient of 17 % in relation to the appellants for both the severity of the infringement and the entry-fee. As a result of its error in relation to the qualification of the appellants’ conduct as an infringement of Article 81 of the EC Treaty (now Article 101 TFEU), the General Court further erred in law by miscalculating the duration of the alleged infringement.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).


title: Joined Cases T-510/14 and T-536/14: Judgment of the General Court of 2 June 2016 — Staywell Hospitality Group and Sheraton International IP v EUIPO — Sheraton International IP and Staywell Hospitality Group (PARK REGIS) (European Union trade mark — Opposition proceedings — Application for European Union figurative mark PARK REGIS — Earlier European Union figurative mark ST. REGIS — Partial refusal to register — Article 64(1) of Regulation No 207/2009 — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009)

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/23

         Judgment of the General Court of 2 June 2016 — Staywell Hospitality Group and Sheraton International IP v EUIPO — Sheraton International IP and Staywell Hospitality Group (PARK REGIS)
   (Joined Cases T-510/14 and T-536/14) (1)

   ((European Union trade mark - Opposition proceedings - Application for European Union figurative mark PARK REGIS - Earlier European Union figurative mark ST. REGIS - Partial refusal to register - Article 64(1) of Regulation No 207/2009 - Likelihood of confusion - Article 8(1)(b) of Regulation No 207/2009))
   (2016/C 251/24)
   Language of the case: English

      Parties

      Applicants: Staywell Hospitality Group Pty Ltd (Sydney, Australia) (represented by: D. Farnsworth, Solicitor, and A. Bryson, Barrister) (Case T-510/14); and Sheraton International IP, LLC (Stamford, Connecticut, United States) (represented by: E. Armijo Chávarri, lawyer) (Case T-536/14)

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

      Other parties to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Sheraton International IP, LLC (Case T-510/14); and Staywell Hospitality Group Pty Ltd (Case T-536/14)

      Re:

   Actions brought against the decision of the Fifth Board of Appeal of the EUIPO of 30 April 2014 (Joined Cases R 240/2013-5 and R 303/2013-5) relating to opposition proceedings between Sheraton International IP and Staywell Hospitality Group.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions in Cases T-510/14 and T-536/14;

               2.

               In Case T-510/14, orders Staywell Hospitality Group Pty Ltd to pay the costs;

               3.

               In Case T-536/14, orders Sheraton International IP, LLC to pay the costs.

      (1)  OJ C 303, 8.9.2014.


28.8.1999             EN                     Official Journal of the European Communities                                   C 246/45
In the applicant’s view, Directive 92/12/EEC is contrary to:                   Removal from the register of Case T-538/93 (1)
— the Community principle of the rule of law, inasmuch as
    it contains contradictory and unclear rules;                                               (1999/C 246/90)
— the Treaty objectives in the establishment of the internal
    market under Article 14 EC (ex Article 7a);                                           (Language of the case: English)
— the prohibition under Article 25 EC (ex Article 12) of
    customs duties and charges having equivalent effect;                By order of 30 March 1999 the President of the Fourth
                                                                        Chamber, Extended Composition of the Court of First Instance
— the prohibitions under Article 28 EC (ex Article 30) and              of the European Communities has ordered the removal from
    Article 29 EC (ex Article 34);                                      the register of Case T-538/93: Joh Harris v Council of the
                                                                        European Union and Commission of the European Communi-
— Article 93 EC (ex Article 99), authorising harmonisation              ties.
    of indirect taxation;
— the principle of proportionality, inasmuch as it is not
                                                                        (1) OJ C 319 of 26.11.1993.
    suited to the internal market;
— the principle of protection of legitimate expectations;
— a series of fundamental rights and freedoms, such as
    freedom to exercise a profession, right of ownership, and
    commercial and economic freedom.
                                                                               Removal from the register of Case T-548/93 (1)
                                                                                (1999/C 246/91)
       Removal from the register of Case T-278/93 (1)
                        (1999/C 246/88)                                                   (Language of the case: English)
                  (Language of the case: English)                       By order of 1 March 1999 the President of the First Chamber,
                                                                        Extended Composition of the Court of First Instance of the
By order of 10 March 1999 the President of the Fourth                   European Communities has ordered the removal from the
Chamber, Extended Composition of the Court of First Instance            register of Case T-548/93: Ladbroke Racing Ltd v Council of
of the European Communities has ordered the removal from                the European Communities.
the register of Case T-278/93: David Alwyn Jones and
Mary Bridget Jones v Council of the European Union and
Commission of the European Communities.                                 (1) OJ C 319 of 26.11.1993.
(1) OJ C 165 of 2.7.1992.
Partial removal from the register of Joined Cases                              Removal from the register of Case T-72/95 (1)
            T-294/934, T-392/93 and T-413/93 (1)
                                                                                (1999/C 246/92)
                        (1999/C 246/89)
                  (Language of the case: English)                                         (Language of the case: English)
By order of 30 March 1999 the President of the Fourth
Chamber, Extended Composition of the Court of First Instance            By order of 17 May 1999 the President of the Fifth Chamber
of the European Communities has ordered the removal from                of the Court of First Instance of the European Communities
the register of Cases T-294/93: Sean Coughlan v Council                 has ordered the removal from the register of Case T-72/95:
of the European Union and Commission of the European                    Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. v
Communities and T-413/93: Patrick Heffernan v Council of                Commission of the European Communities.
the European Communities.
                                                                        (1) OJ C 268 of 14.10.1995.
(1) OJ C 158 of 10.6.1993 and C 197 of 21.7.1993.


title: Case C-456/04: Judgment of the Court (Second Chamber) of  6 April 2006  (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia) — Agip Petroli SpA v Capitaneria di porto di Siracusa, Capitaneria di porto di Siracusa — Sezione staccato di Santa Panagia, Ministero delle Infrastrutture e dei Trasporti (Maritime cabotage — Regulation (EEC) No 3577/92 — Law applicable to the manning of vessels over 650 gt carrying out island cabotage — Meaning of  voyage which follows or precedes  a voyage to or from another State)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/15

         Judgment of the Court (Second Chamber) of 6 April 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia) — Agip Petroli SpA v Capitaneria di porto di Siracusa, Capitaneria di porto di Siracusa — Sezione staccato di Santa Panagia, Ministero delle Infrastrutture e dei Trasporti
   (Case C-456/04) (1)

   (Maritime cabotage - Regulation (EEC) No 3577/92 - Law applicable to the manning of vessels over 650 gt carrying out island cabotage - Meaning of ‘voyage which follows or precedes’ a voyage to or from another State)
   (2006/C 143/26)
   Language of the case:Italian
   Referring court
   Tribunale Amministrativo Regionale per la Sicilia
   Parties to the main proceedings

      Applicant: Agip Petroli SpA

      Defendants: Capitaneria di porto di Siracusa, Capitaneria di porto di Siracusa — Sezione staccato di Santa Panagia, Ministero delle Infrastrutture e dei Trasporti
   Re:
   Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Secilia — Interpretation of Article 3(3) of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) — Law applicable to the manning of vessels over 650 gt carrying out island cabotage –Meaning of voyage which follows or precedes a voyage to or from another Member State
   Operative part of the judgment
   A ‘voyage which follows or precedes’ the cabotage voyage, as referred to in Article 3(3) of Council Regulation (EEC) No 3577/92 of 7 December applying the principle of freedom to provide services to maritime transport within Member States (maritme cabotoge), means in principle any voyage to or from another State, whether or not the vessel has cargo on board. However, sham voyages without cargo on board carried out to circumvent Regulation (EC) No 3577/92 cannot be permitted. Such an abuse can be found to exist only if, first, notwithstanding that technically the conditions laid down by Article 3(3) of the regulation apply, the result of the international voyage in ballast is that the shipowner benefits, in respect of all matters relating to manning from the application of the law of the flag State, frustrating the aim of Article 3(2) of the regulation, which is to allow the application of the law of the host State to all matters relating to manning in the case of island cabotage. Second, there must also be objective evidence to show that the essential aim of the international voyage in ballast is to avoid the application of Article 3(2) of Regulation (EC) No 3577/92, in favour of Article 3(3).

      (1)  OJ C 19, 22.1.2005.


title: Case F-116/10: Judgment of the Civil Service Tribunal (First Chamber) of 20 July 2011 — Gozi v Commission (Staff case — Officials — Duty to provide assistance — Article 24 of the Staff Regulations — Reimbursement of lawyer’s fees incurred in legal proceedings before a national court)

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/50

         Judgment of the Civil Service Tribunal (First Chamber) of 20 July 2011 — Gozi v Commission
   (Case F-116/10) (1)

   (Staff case - Officials - Duty to provide assistance - Article 24 of the Staff Regulations - Reimbursement of lawyer’s fees incurred in legal proceedings before a national court)
   2011/C 282/93
   Language of the case: Italian

      Parties

      Applicant: Sandro Gozi (Rome, Italy) (represented by: G. Passalacqua, lawyer)

      Defendant: European Commission (represented by: J. Currall and J. Baquero Cruz, agents)

      Re:

   Annulment of the decision rejecting the request for reimbursement of the costs incurred by the applicant in criminal proceedings before a court of a Member State.

      Operative part of the judgment

   The Tribunal:

               1.

               dismisses the action;

               2.

               orders Mr Gozi to pay all the costs.

      (1)  OJ C 55 of 19.02.11, p. 38.


title: Case C-340/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Bundesfinanzgericht — Austria) — Christine Nigl and Others v Finanzamt Waldviertel ((Reference for a preliminary ruling — Taxation — Value added tax — Sixth Directive 77/388/EEC — Article 4(1) and (4) — Directive 2006/112/EC — Articles 9 and 11 — Concept of ‘taxable person’ — Civil-law partnerships selling their products under a common trade mark and through a limited company — Concept of ‘independent undertaking’ — Refusal of the status of taxable person — Retroactivity — Sixth Directive 77/388 — Article 25 — Directive 2006/112 — Articles 272 and 296 — Flat-rate scheme for farmers — Exclusion from the flat-rate scheme — Retroactivity)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/8

         Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Bundesfinanzgericht — Austria) — Christine Nigl and Others v Finanzamt Waldviertel
   (Case C-340/15) (1)

   (((Reference for a preliminary ruling - Taxation - Value added tax - Sixth Directive 77/388/EEC - Article 4(1) and (4) - Directive 2006/112/EC - Articles 9 and 11 - Concept of ‘taxable person’ - Civil-law partnerships selling their products under a common trade mark and through a limited company - Concept of ‘independent undertaking’ - Refusal of the status of taxable person - Retroactivity - Sixth Directive 77/388 - Article 25 - Directive 2006/112 - Articles 272 and 296 - Flat-rate scheme for farmers - Exclusion from the flat-rate scheme - Retroactivity))
   (2016/C 462/11)
   Language of the case: German

      Referring court

   Bundesfinanzgericht

      Parties to the main proceedings

      Applicants: Christine Nigl, Gisela Nigl sen., Gisela Nigl jun., Josef Nigl, Martin Nigl

      Defendant: Finanzamt Waldviertel

      Operative part of the judgment

               1.

               Article 4(1) and the first subparagraph of Article 4(4) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2004/66/EC of 26 April 2004, on the one hand, and the first subparagraph of Article 9(1) and Article 10 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, on the other, must be interpreted as meaning that multiple civil-law partnerships, such as those at issue in the main proceedings, which conduct themselves outwardly as such and independently in relation to their suppliers, public authorities and, to a certain extent, their customers, and each of which carries out its own production by using for the most part its means of production, but which market a large proportion of their products under a common trade mark through a limited company the shares in which are held by members of those civil-law partnerships and by other members of the family in question, must be regarded as independent undertakings which are taxable persons for value-added-tax purposes.

               2.

               Article 25 of Sixth Directive 77/388, as amended by Directive 2004/66, and Article 296 of Directive 2006/112 must be interpreted as not excluding the possibility of refusing the application of the common flat-rate scheme for farmers, laid down in those articles, to multiple civil-law partnerships, such as those at issue in the main proceedings, regarded as independent undertakings which are taxable persons for value-added-tax purposes and which cooperate with each other, on the ground that a limited company, an association of persons made up of that limited company and members of the civil-law partnerships in question could not be subject to that scheme, on account of the size of its operation or its legal form, even if those civil-law partnerships do not belong to a category of producers excluded from that flat-rate scheme, in so far as they are, owing to their links with that company or one of those associations, materially capable of assuming the administrative burden of the tasks arising from the application of the normal arrangements or the simplified scheme, this being a matter for the referring court to verify.

               3.

               In the event that the common flat-rate regime for farmers has, in principle, to be excluded for civil-law partnerships such as those at issue in the main proceedings, such an exclusion would apply to the period prior to the date on which the appraisal on which it is based took place, provided that that appraisal occurs within the limitation period for action on the part of the tax authority and its effects do not apply retroactively to a date earlier than that on which the legal and factual elements on which it is based occurred.

      (1)  OJ C 328, 5.10.2015.


title: Case C-320/14 P: Appeal brought on 3 July 2014 by Asos plc against the judgment of the General Court (Seventh Chamber) delivered on 29 April 2014 in Case T-647/11: Asos plc v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/6

         Appeal brought on 3 July 2014 by Asos plc against the judgment of the General Court (Seventh Chamber) delivered on 29 April 2014 in Case T-647/11: Asos plc v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-320/14 P)
   (2015/C 127/09)
   Language of the case: English

      Parties

      Appellant: Asos plc (represented by: P. Kavanagh, Solicitor, A. Lykiardopoulos QC, A. Edwards-Stuart, Barrister)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Roger Maier
   By order of 13 January 2015 the Court of Justice (Sixth Chamber) has dismissed the appeal and ordered Asos plc to bear its own costs.


title: Case T-16/05: Action brought on 20 January 2005 by Viasat Broadcasting UK Ltd against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/33

         Action brought on 20 January 2005 by Viasat Broadcasting UK Ltd against the Commission of the European Communities
   (Case T-16/05)
   (2005/C 82/62)
   Language of the case: Danish
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 January 2005 by Viasat Broadcasting UK Ltd, West Drayton (United Kingdom), represented by Simon Evers Hjelmborg, lawyer.
   The applicant claims that the Court should:

               1.

               annul point 55 of the Commission decision of 6 October 2004 in State Aid Case No N 313/2004 – Denmark (C(2004)3632 final) concerning the recapitalisation of TV 2/DANMARK A/S;

               2.

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments:
   The contested decision relates to a recapitalisation plan for the State-owned public service television broadcasting company TV 2/DANMARK A/S. The recapitalisation, which comprises a capital injection by the Danish State and conversion of debt into equity, was deemed to be necessary as a result of the Commission's decision of 19 May 2004 (1) whereby the Commission required Denmark to recover unlawfully granted State aid from TV 2/DANMARK A/S, which would, however, have resulted in technical bankruptcy of the company.
   According to the contested decision, the Commission was unable to discount the possibility that the recapitalisation of TV 2 under consideration might contain elements of State aid under Article 87(1) EC. In point 55 of the contested decision, however, the Commission found that any element of State aid that might be linked to the planned recapitalisation of TV 2 would be compatible with the common market under Article 86(2) EC.
   In support of the form of order which it seeks, the applicant submits that the Commission erred in law in not holding that the recapitalisation plan was incompatible with Article 87(1) EC. That submission is based inter alia on the following grounds:

               —

               the reason why TV 2/DANMARK A/S is seeking recapitalisation lies in the demand for reimbursement of illegal State aid. Consequently, authorisation to provide new aid (recapitalisation) would mean that Article 87(1) EC and the Commission's decision of 19 May 2004 will be deprived of their independent meaning;

               —

               recapitalisation under which equity is increased to the optimal capital structure cannot be regarded as being compatible with the market investor principle;

               —

               TV 2/DANMARK A/S generated a profit in 2003 without State aid; this would suggest that the company is itself in a position to build up its desired equity; and

               —

               an optimal capital structure is not necessary to enable TV 2/DANMARK A/S to perform its public-service obligations.

         The applicant further submits that the Commission erred in law in finding that any element of State aid which might be linked to recapitalisation would be compatible with the common market under Article 86(2) EC. In support of its plea in law, the applicant submits inter alia as follows:

               —

               the scope of Article 86(2) EC is limited to compensation for the net supplementary costs connected with the provision of services of general economic interest (public service). That provision therefore does not cover State investments in companies which are required to provide those services;

               —

               the Danish State's investment in TV 2/DANMARK A/S (recapitalisation) is not compensation for the public-service related services which it has purchased and is therefore not compensation for the net supplementary costs arising from the public-service obligations;

               —

               TV 2/DANMARK A/S is not considered to have net supplementary costs connected with its public-service obligations;

               —

               the Commission did not check the definition of public service and thereby accepted a very wide definition of that term, under which the entire programme schedule of TV 2/DANMARK A/S constitutes a public service, with the result that the proportionality test under Article 86(2) EC is voided of substance; and

               —

               Article 86(2) EC cannot establish an exemption for State aid which was granted with a view to making State companies attractive as a step in the State's sale of those companies.

         The applicant also submits that the Commission was limited to appraising the planned recapitalisation under Article 87(2) EC and 87(3) EC, in particular Article 87(3)(c) EC, and the Community guidelines on State aid for rescuing and restructuring firms in difficulty, (2) and that the planned recapitalisation does not meet the conditions for exemption under those provisions.

      (1)  Commission Decision C(2004)1814 final of 19 May 2004 in Case C 2/2003 (ex NN 22/2002) on Danish measures benefiting TV 2/DANMARK.

      (2)  Communication from the Commission, OJ C 244 of 1 October 2004, p. 2.


title: Case T-471/07: Judgment of the Court of First Instance of 15 September 2009 — Wella v OHIM (TAME IT) (Community trade mark — International registration — Request for territorial extension of protection — Word mark TAME IT — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/25

         Judgment of the Court of First Instance of 15 September 2009 — Wella v OHIM (TAME IT)
   (Case T-471/07) (1)

   (Community trade mark - International registration - Request for territorial extension of protection - Word mark TAME IT - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009)
   2009/C 256/46
   Language of the case: English

      Parties

      Applicant: Wella AG (Darmstadt, Germany) (represented by: B. Klingberg and K. Sandberg, lawyers)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 24 October 2007 (Case R 713/2007-2), relating to a territorial extension, to the European Community, of the protection in respect of the international registration of the word mark TAME IT

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Wella AG to pay the costs.

      (1)  OJ C 51, 23.2.2008.


title: Case T-53/05: Judgment of the Court of First Instance of 16 January 2007 — Calavo Growers v OHIM — Calvo Sanz (Calvo) (Community trade mark — Opposition proceedings — Application for figurative mark CALVO — Earlier Community word mark CALAVO — Admissibility of the opposition — Grounds of the opposition lodged in a language other than the language of the proceedings — Article 74(1) of Regulation (EC) No 40/94 — Rule 20(3) of Regulation (EC) No 2868/95)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/27

         Judgment of the Court of First Instance of 16 January 2007 — Calavo Growers v OHIM — Calvo Sanz (Calvo)
   (Case T-53/05) (1)

   (Community trade mark - Opposition proceedings - Application for figurative mark CALVO - Earlier Community word mark CALAVO - Admissibility of the opposition - Grounds of the opposition lodged in a language other than the language of the proceedings - Article 74(1) of Regulation (EC) No 40/94 - Rule 20(3) of Regulation (EC) No 2868/95)
   (2007/C 56/54)
   Language of the case: Spanish
   Parties

      Applicant: Calavo Growers Inc. (Santa Ana, United States) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Luis Calvo Sanz SA (Carballo, Spain) (represented by J. Rivas Zurdo and E. López Leiva, lawyers)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 8 November 2004 (Case R 159/2004-1), relating to opposition proceedings between Calavo Growers Inc. and Luis Calvo Sanz SA.
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 8 November 2004 (Case R 159/2004-1);

               2.

               Orders OHIM to bear its own costs and to pay those incurred by the applicant;

               3.

               Orders the intervener to bear its own costs.

      (1)  OJ C 82, 2.4.2005.


title: Case C-240/12: Order of the Court (First Chamber) of 14 March 2013 — (request for a preliminary ruling from the Rechtbank te Rotterdam — Netherlands) — Criminal proceedings against EBS Le relais Nord Pas De Calais (Request for a preliminary ruling — Inadmissibility)

text:
               4.5.2013

               EN

               Official Journal of the European Union

               C 129/4

         Order of the Court (First Chamber) of 14 March 2013 — (request for a preliminary ruling from the Rechtbank te Rotterdam — Netherlands) — Criminal proceedings against EBS Le relais Nord Pas De Calais
   (Case C-240/12) (1)

   (Request for a preliminary ruling - Inadmissibility)
   2013/C 129/07
   Language of the case: Dutch

      Referring court

   Rechtbank te Rotterdam

      Criminal proceedings against

   EBS Le relais Nord Pas De Calais

      Re:

   Request for a preliminary ruling — Rechtbank te Rotterdam — Netherlands — Interpretation of Articles 15 and 26(1) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1) and of Article 2(32) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1) — Concept of transit — Shipment of waste by vessel from one Member State towards a State which does not fall within the scope of application of the OECD Decision — Passage, during the journey, in a port of another Member State

      Operative part of the order

   Request for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands), made by decision of 4 May 2012, is manifestly inadmissible.

      (1)  OJ C 243, 11.8.2012.


title: Case T -342/05: Action brought on  14 September 2005  — Henkel v OHIM

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/28

         Action brought on 14 September 2005 — Henkel v OHIM
   (Case T -342/05)
   (2005/C 296/62)
   Language in which the application was lodged: German
   Parties

      Applicant(s): Henkel KGaA (Düsseldorf, Germany) (represented by: C. Osterrieth, lawyer)

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

      Other party or parties to the proceedings before the Board of Appeal of OHIM: Serra Y Roca S.A. (Barcelona, Spain)
   Form of order sought
   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 14 July 2005 in the appeal proceedings R 0556/2003-1 regarding the application for Community trade mark No 1 284 470, served on 19 July 2005;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: SERRA Y ROCA, S.A.

      Community trade mark concerned: The word mark ‘COR’ for goods in Class 3 — application No 1 284 470

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: The national mark ‘Dor’ for goods in Classes 3, 5 and 21

      Decision of the Opposition Division: Rejection of the opposition in respect of the goods ‘scouring and abrasive preparations; soaps’ in Class 3

      Decision of the Board of Appeal: Dismissal of the applicant's appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 because of likelihood of confusion of the marks in question due to visual and aural similarity. In addition the applicant's mark has above average distinctive character due to intensive use.


title: Case T-247/03: Judgment of the Court of First Instance of 11 July 2006 — Torres v OHIM — Bodegas Muga (Torre Muga) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Torre Muga — Earlier national and international word marks TORRES — Likelihood of confusion — Breach of the rights of the defence)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/34

         Judgment of the Court of First Instance of 11 July 2006 — Torres v OHIM — Bodegas Muga (Torre Muga)
   (Case T-247/03) (1)

   (Community trade mark - Opposition proceedings - Application for figurative Community trade mark Torre Muga - Earlier national and international word marks TORRES - Likelihood of confusion - Breach of the rights of the defence)
   (2006/C 224/74)
   Language of the case: Spanish
   Parties

      Applicant: Miguel Torres (Vilafranca del Penedés, Spain) (represented by: E. Armijo Chávarri, M.A. Baz de San Ceferino and A. Castán Pérez-Gómez, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero and S. Laitinen, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Bodegas Muga, SA (Haro, Spain) (represented by: L.M. Polo Flores and F. Porcuna de la Rosa, lawyers)
   Re:
   Action brought against the decision of the First Board of Appeal of Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 April 2003 (Case R 998/2001-1) concerning opposition proceedings between Miguel Torres, SA, and Bodegas Muga, SA
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

               3.

               Orders the intervener to bear its own costs.

      (1)  OJ C 213, 6.9.2003.


title: NOTICE OF OPEN COMPETITION

text:
6.11.96     | EN |               Official Journal of the European Communities                          No C 331 / 13
                                                        III
                                                      (Notices)
                             EUROPEAN PARLIAMENT
                                    COURT OF JUSTICE
                                       NOTICE OF OPEN COMPETITION
                                                  (96 /C 331 /09 )
        The Court of Justice of the European Communities and the General Secretariat of the
        European Parliament are publishing in the Official Journal of the European Communities
        NoC331Aof6 November 1996 the following open competition :
        Swedish edition
        EUR/C/ 113 — Typists of Swedish mother tongue
        To obtain this Official Journal please contact the Personnel Division of the Court of Justice of
        the European Communities, L-2925 Luxembourg.
        The final date for receipt of applications is 6 December 1996.


title: Case C-52/05 P: Appeal brought on 9 February 2005 by Maurizio Turco against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/14

         Appeal brought on 9 February 2005 by Maurizio Turco against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities
   (Case C-52/05 P)
   (2005/C 106/28)
   Language of procedure: English
   An appeal against the judgment delivered on 23 November 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-84/03 (1) between Maurizio Turco, supported by Republic of Finland, Kingdom of Denmark and Kingdom of Sweden and Council of the European Union, supported by United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities, was brought before the Court of Justice of the European Communities on 9 February 2005 by Maurizio Turco, residing in Pulsano (Italy), represented by O. W. Brouwer and C. E. Schillemanns, lawyers,
   The Appellant claims that the Court should:

               —

               set aside the judgment of the Court of First Instance of 23 November 2004 by which it:

                           a)

                           dismissed the action brought by the Appellant in so far as it concerns the refusal of access to Document No 9077/02, containing an opinion of the Council legal service concerning a proposal for a Council Directive laying down minimum standards for the reception of Appellants for asylum in Member States;

                           b)

                           ordered the Appellant and the Council each to bear half of the costs of the proceedings

               —

               when necessary, refer the case back to the Court of First Instance for judgment;

               —

               order the Council to pay the costs, including the costs incurred by eventual intervening parties.

         Pleas in law and main arguments:
   The Appellant submits that the judgment of the Court of First Instance contains errors of law in its interpretation and application of Article 4(2) of Regulation (EC) No 1049/2001 (2) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (the Regulation).
   The grounds of appeal and legal arguments on which the Appellant relies are that the Court of First Instance in the present case:

               (i)

               did not give the correct interpretation and application of the term ‘legal advice’ in Article 4(2) of the Regulation;

               (ii)

               wrongly qualified the legal opinion as ‘legal advice’ within the meaning of Article 4(2) of the Regulation and contravened the scope and content of Articles 4(2) and 4(3) and the inherent set up and structure of the Regulation;

               (iii)

               wrongly interpreted and applied (the Community case-law establishing) the principle that widest possible access should be granted to documents held by the Community institutions and that derogations from this principle should be construed as restrictively as possible;

               (iv)

               misinterpreted and misapplied (the Community case-law establishing) the principle that requests for access to documents should be assessed on a case-by-case basis;

               (v)

               misinterpreted and misapplied the concept of ‘overriding public interests’ and committed an error in law by placing the burden of proof in this respect on the Appellant;

               (vi)

               violated the Community law principle that the Community's legal order is based on the rule of law; and

               (vii)

               did not provide sufficient reasoning and omitted to respond to specific arguments put forward by the Appellant.

      (1)  OJ C 112, 10/05/2003, p. 38.

      (2)  OJ L 145, 31/05/2001, p. 43.