title: Case T-83/10: Action brought on 19 February 2010 — Riva Fire SpA v European Commission

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/65

         Action brought on 19 February 2010 — Riva Fire SpA v European Commission
   (Case T-83/10)
   2010/C 100/96
   Language of the case: Italian

      Parties

      Applicant: Riva Fire SpA (Milan, Italy) (represented by: M. Merola, avvocato, M. Pappalardo, avvocato, T. Ubaldi, avvocato)

      Defendant: European Commission

      Form of order sought

   As a principal claim

               —

               Annulment in its entirety of the Decision if it emerges from the investigation in the case that all the matters of fact and law underlying the Decision were not put before the College of Commissioners for the purposes of its adoption;

               —

               Annulment, in any event, of Article 1 of the Decision in so far as it declares that the applicant participated in a cartel and/or concerted practices regarding concrete reinforcing bar in bars or coils with the object or effect of fixing prices and limiting and/or controlling output or sales in the common market;

               —

               Annulment, in consequence, of Article 2 of the Commission Decision in so far as it imposes a fine of EUR 26.9 million on the applicant;

         In the alternative:

               —

               Reduction of the amount of the fine of EUR 26.9 million imposed on the applicant by Article 2 of the Decision and re-setting of the fine.

         And, in any event,

               —

               An order that the Commission pay the costs of these proceedings.

      Pleas in law and main arguments

   The applicant seeks annulment of the Decision of the Commission of the European Communities C(2009) 7492 fin. of 30 September 2009 relating to a proceeding under Article 65 of the ECSC Treaty (COMP/37.956 — reinforcing bars, re-adoption), as supplemented and amended by the Decision of the European Commission C(2009) 9912 fin. of 8 December 2009. In support of its application the company relies on eight pleas.
   By its  the applicant argues that the Commission has no authority to declare an infringement of Article 65(1) CS in relation to facts falling within the scope of that provision after the ECSC Treaty ceased to be in force and to impose a penalty on the basis of Articles 7(1) and 23(2) of Regulation No 1/2003 (1) although those provisions refer solely to infringements of Articles 81 and 82 EC (now, Articles 101 and 102 TFEU).
   By its  the applicant asserts that the contested decision breaches Article 10(3) and (5) of Regulation (EEC) No 17/62 (2) and Article 14(1) and (3) of Regulation (EC) No 1/2003 because it is not apparent from the Decision whether the Commission undertook the required consultation of the Advisory Committee as required by those articles and whether that committee obtained all the necessary information for a full assessment of the substance of the infringement imputed to the undertakings to which the Decision was addressed.
   By its  the applicant maintains that the Commission breached Article 36(1) CS in that, by refusing to disclose the criteria it used to determine the fines to be imposed, it limited the opportunity for the addressees of the objections to submit observations.
   By its  the applicant argues that the contested decision breaches Articles 10 and 11 of Commission Regulation No 773/2004, (3) as fully amended by the Commission, and the rights of defence of the undertakings concerned because, following the annulment of the Commission’s original decision by the General Court, the Commission went on to re-adopt the contested decision without sending to the undertakings any further statement of objections.
   By its  the applicant complains of shortcomings and inconsistencies in the grounds for the decision, in so far as, on the one hand, the relevant geographical market is defined as the Italian Republic and, on the other hand, it is maintained that the alleged agreement is liable to have an effect on Community trade for the purposes of the application of the principle of lex mitior.
   By its  the applicant argues that the Commission’s analysis, as set out in the Decision, is vitiated by certain errors of assessment of the facts, resulting in misapplication of Article 65 CS in relation to various aspects of the contested infringement, including, in particular, the parts of the agreement regarding the fixing of the basic price of the bars, the fixing of the price supplement for larger dimensions and the limitation or control of output and/or sales.
   By its  the applicant argues that the contested decision is erroneous and states insufficient grounds (inter alia as a result of inadequate investigation) as regards the imputation of the infringement as a whole to the applicant.
   By its  the applicant alleges a breach of Article 23(2) of Regulation (EC) No 1/2003, of the 1996 Leniency Notice of the Commission and of the Commission’s 1998 Guidelines on the method of setting fines.

      (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).

      (2)  EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, I, 1959-1962, p. 87).

      (3)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).


title: Case C-323/02: Action brought on 16 September 2002 by the Commission of the European Communities against Hydrowatt SARL ("Hydrowatt")

text:
23.11.2002              EN                    Official Journal of the European Communities                                       C 289/11
1.     Do Paragraphs 16 and 18 of the Sozialgesetzbuch (Code             group with turbine and generator adapted for low heads’,
       of Social Law) relating to statutory sickness insurance           which was terminated by Commission under Article 8. The
       (‘SGB V’), which in this country make reimbursement of            contract is governed by French law and the parties have agreed
       the costs of dental treatment carried out by a dentist in         to submit any disputes to the Court of Justice of the European
       another Member State subject to authorisation based on            Communities.
       the merits of the case by the insured person’s social
       security institution, infringe Articles 59 and 60 of the
       EC Treaty, even where the national statutory sickness
       insurance scheme is based on the benefit-in-kind principle
       (and not, as in Case C-158/96 Kohll v Union des caisses
       de maladie (1), on the cost-reimbursement principle)?
2.     If, depending on the answer to Question 1, the defendant          Appeal brought on 18 September 2002 (faxed on 12 Sep-
       were to be required, for reasons connected with Com-              tember 2002) by SAT.1 SatellitenFernsehen GmbH
       munity law, to reimburse the costs of the dental treatment        against the judgment delivered on 2 July 2002 by the
       (in this case provided in the Republic of Austria), is the        Second Chamber of the Court of First Instance of the
       amount of the claim for reimbursement governed by the             European Communities in Case T-323/00 between SAT.1
       costs actually incurred or is that amount restricted to the       SatellitenFernsehen GmbH and the Office for Harmonis-
       rates applicable under the national sickness insurance                              ation of the Internal Market
       scheme (in this case that of the Federal Republic of
       Germany)?
                                                                                (Case C-329/02 P)
( 1) European Court Reports 1998, page I-01931.                                                   (2002/C 289/19)
                                                                         An appeal against the judgment delivered on 2 July 2002 by
                                                                         the Second Chamber of the Court of First Instance of the
                                                                         European Communities in Case T-323/00 between SAT.1
                                                                         SatellitenFernsehen GmbH and the Office for Harmonisation
Action brought on 16 September 2002 by the Com-
                                                                         of the Internal Market (Trademarks and Designs) was brought
mission of the European Communities against Hydrowatt
                                                                         before the Court of Justice of the European Communities on
                       SARL (‘Hydrowatt’)
                                                                         18 September 2002 (faxed on 12 September 2002) by
                                                                         SAT.1 SatellitenFernsehen GmbH, represented by Reinhard
                          (Case C-323/02)                                Schneider, Rechtsanwalt, Büsing, Müffelmann and Theye,
                                                                         Marktstraße 3, D-28195 Bremen, with an address for service
                          (2002/C 289/18)                                in Luxembourg.
                                                                         The appellant claims that the Court should:
An action against Hydrowatt Sarl (‘Hydrowatt’) was brought
before the Court of Justice of the European Communities on               1.    set aside the contested judgment ( 1), in so far as it
16 September 2002 by the Commission of the European                            dismissed the action (2) as formulated in the form of order
Communities, represented by H. Støvlbæk, acting as Agent and                   sought;
E. Cabau, lawyer, with an address for service in Luxembourg.
                                                                         2.    order the Office to pay the costs.
The Commission of the European Communities claims that
the Court should order Hydrowatt to:
                                                                         Pleas in law and main arguments
—      pay to the Commission the principal sum of
       25 109 euros, together with default interest of
       23 422,91 euros, making a total of 48 531,91 euros;               —     Infringement of Article 7(1)(b) of Council Regulation
                                                                               No 40/94 on the Community trade mark (‘the Regu-
—      pay the Commission’s costs in these proceedings.                        lation’): the Court erred in law in finding that
                                                                               Article 7(1)(b) of the Regulation also pursues the general
                                                                               interest objective of allowing signs covered by that
                                                                               provision to be used freely by everyone. There is,
Pleas in law and main arguments                                                however, no evident reason to assume that indications
                                                                               which are merely not suitable for distinguishing goods or
                                                                               services according to their origin must be available for
The action seeks reimbursement of the part of a subsidy                        free use. In the present case it was therefore necessary for
awarded under a contract for the completion of a project ‘New                  the Court to examine whether the compound sign ‘SAT.2’


title: Case T -371/05: Order of the Court of First Instance of 24 July 2006 — AITEC and Others v Commission

text:
               30.9.2006

               EN

               Official Journal of the European Union

               C 237/14

         Order of the Court of First Instance of 24 July 2006 — AITEC and Others v Commission
   (Case T -371/05) (1)

   (2006/C 237/25)

      Language of the case: Italian

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

      (1)  OJ C 296, 26.11.2005.


title: Case T-320/13: Action brought on 13 June 2013 — DelSolar (Wujiang) v Commission

text:
               27.7.2013

               EN

               Official Journal of the European Union

               C 215/19

         Action brought on 13 June 2013 — DelSolar (Wujiang) v Commission
   (Case T-320/13)
   2013/C 215/27
   Language of the case: English

      Parties

      Applicant: DelSolar (Wujiang) Ltd (Wujiang City, China) (represented by: L. Catrain González, lawyer, E. Wright and H. Zhu, Barristers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Commission Regulation (EU) No 513/2013 (1), in so far as it applies to the applicant;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the European Commission has made a manifest error of law by amplifying the scope of third indent of Article 2(7)(c) of the Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) (the ‘Basic Regulation’) and reviewing alleged significant distortions which, because they have not been carried over from the former non-market economy system, they clearly fell outside the scope of the third indent of Article 2(7)(c) of the Basic Regulation

               2.

               Second plea in law, alleging that the the European Commission has wrongly concluded that the production costs and overall financial situation of the applicant were subject to significant distortions carried over from the former non-market economy system as provided in the third indent of the Basic Regulation.

               3.

               Third plea in law, alleging that the European Commission has made an error of assessment in light of the fact that neither the negligible subsidies received nor the preferential tax regime received by the applicant and its affiliate Delta Greentech (China) Co. Ltd. (jointly referred as ‘DelSolar Group’) were ‘carried over from the former non-market economy system’.

               4.

               Fourth plea in law, alleging that the decision of the European Commission to reject the applicant's market economy treatment (‘MET’) request on the sole basis of a preferential tax regime and negligible subsidies is disproportionate and unnecessary.

      (1)  Commission Regulation (EU) No 513/2013 of 4 June 2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5)


title: Case C-457/04: Action brought on 29 October 2004 by the Commission of the European Communities against the Portuguese Republic

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/30

         Action brought on 29 October 2004 by the Commission of the European Communities against the Portuguese Republic
   (Case C-457/04)
   (2005/C 6/55)
   An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 29 October 2004 by the Commission of the European Communities, represented by António Caeiros and Gregorio Valero Jordana, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               principally, declare that, by having failed to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/17/EC (1) of the European Parliament and of the Council of 3 March 2003 amending Directive 98/70/EC relating to the quality of petrol and diesel fuels, the Portuguese Republic has failed to fulfil its obligations under the first paragraph of Article 2 of Directive 2003/17/EC;

               —

               as an ancillary matter, declare that by not having informed the Commission of such provisions forthwith, the Portuguese Republic has failed to fulfil its obligations under the first paragraph of Article 2 of Directive 2003/17/EC;

               —

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for the transposition into national law of Directive 2003/17/EC expired on 30 June 2003.

      (1)  OJ 2003 L 76, p. 10.


title: Case C-472/15 P: Appeal brought on 4 September 2015 by Servizi assicurativi del commercio estero SpA (SACE) and Sace BT SpA against the judgment delivered by the General Court (Seventh Chamber) on 25 June 2015 in Case T-305/13 SACE and Sace BT v Commission

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/19

         Appeal brought on 4 September 2015 by Servizi assicurativi del commercio estero SpA (SACE) and Sace BT SpA against the judgment delivered by the General Court (Seventh Chamber) on 25 June 2015 in Case T-305/13 SACE and Sace BT v Commission
   (Case C-472/15 P)
   (2015/C 381/23)
   Language of the case: Italian

      Parties

      Appellants: Servizi assicurativi del commercio estero SpA (SACE), Sace BT SpA (represented by: M. Siragusa and G. Rizza, avvocati)

      Other parties to the proceedings: European Commission, Italian Republic

      Form of order sought

   SACE claims that, in granting the present appeal, the Court of Justice should set aside the decision of the General Court as set out in the operative part of the judgment under appeal and, without there being any need to refer the case back to the General Court, grant the forms of order sought by the applicants at first instance and, accordingly:

               —

               Annul in its entirety Decision C (2013) 1501 final of the European Commission of 20 March 2013 on measure SA.23425 implemented by Italy in 2004 and 2009 in favour of SACE BT SpA;

               —

               in the alternative, annul that decision in part, only in so far as concerns the plea/s in law upheld; and

               —

               order the Commission to pay the costs of the proceedings, including the costs of the application for interim measures in Case T-305/13 R.

      Pleas in law and main arguments

      First ground of appeal, concerning whether the measures at issue may be imputed to the Italian State: breach of Article 107(1) TFEU, as interpreted by the Court in its judgment in ‘Stardust Marine’ (Case C-482/99); clear misinterpretation of paragraph 177(b)(i) of the grounds of the contested decision; substantive inaccuracy of the findings of fact, as is apparent from the documents submitted to the General Court, and distortion of the content of the contested decision; illogical reasoning; improper substitution of the grounds of the contested decision; misapplication of the principle that the question whether a decision on State aid is lawful must be assessed in the light of the information available to the Commission at the time it adopted the decision, with regard to the two letters from MEF to SACE SpA produced by the Italian Government as an annex to its statement in intervention.

               —

               The judgment under appeal established the following principle: the fact that the operation at issue might pursue the interests of the public undertaking that coincide with a general-interest objective does not necessarily meant that such an undertaking was able to adopt its decision without taking account of the requirements of the public authorities. According to the General Court, there is nothing to prevent the State from requiring a public undertaking to carry out an operation of a commercial nature which, although it might potentially satisfy the private investor operating in a market economy (‘PIME’) test, will in any event remain imputable to the State. Accordingly, the Commission was not requested, for the purpose of satisfying the requirements of imputability, to show that the conduct of the public undertaking would have been different if it had acted autonomously. Adopting that line of reasoning, the General Court departed from the principles laid down in ‘Stardust Marine’. It follows from its ruling that the mere fact that a public undertaking is controlled by the State and is subject to particular rules as to its mode of organisation is, in itself, sufficient for it to be concluded that public authorities are always, and in any event by definition, involved in the adoption of decisions to intervene in favour of the subsidiaries of such an undertaking. In a case such as the present, imputability to the State may be ruled out only where it is proved that the administrative board of the parent company has taken a decision from which it is apparent that it is not possible also to pursue, in parallel, interests of a general nature. In the present case, that decision could have been only the decision to wind up SACE BT, to which the Commission would not, by definition, have objected. Where, on the other hand, the measure adopted by the public undertaking may, in the abstract, also pursues a general-interest objective or has been adopted also taking such an interest into account, it must be assumed that the administrative board so decided because, in adopting such a decision, it could not but take account of the requirements of the public authorities, and it is neither permissible nor possible to adduce evidence to the contrary.

               —

               The general indicators of imputability relied on by the Commission and endorsed by the General Court have no bearing on the degree of autonomy with which the administrative board of SACE SpA managed and manages the undertaking; that applies not only if those indicators are considered individually but also if they are considered as a whole. Those indications serve to prove nothing other than the fact that, in 2009, the Italian State controlled SACE SpA because it owned all the shares in that company. However, the judgment in Stardust Marine requires that the indicators used should demonstrate that State involvement is closely connected to the measure in question, having regard to the compass of the measure, its content or the conditions which it contains. The judgment under appeal expressly acknowledges that the indicators of imputability used in the contested decision — all of which, with one exception, relate to SACE’s activities in non-market risk insurance, a sector in which SACE BT is not present — relate in fact to the general context in which SACE SpA operates as well as the individual circumstances of the present case and the context in which the contested measures were adopted. Notwithstanding that acknowledgment, the General Court omitted to state that those indicators cannot, by their nature, provide direct justification for the presumption that the State was actually involved in the adoption of the measures in question. In so doing, the General Court shifted the focus of the examination of imputability to the whole network of the relations between the State and undertakings corresponding to the organisational model of undertakings in public ownership — expressly categorised under Italian law as public limited liability companies — and as a result deprived the specific subject-matter, the specific nature and the specific content of the measures in question and the actual reasons for their adoption of any relevance whatsoever. In fact, the indicators used by the Commission indicate that it is highly unlikely that there was any State involvement in the adoption of the disputed measures.

               —

               On the other hand, in examining the requirements of imputability, the General Court failed to have regard to the accepted fact that, by law, the MEF [Ministry of Economy and Finance] does not have powers of management or coordination over the activities of investee companies, as SACE argued in the proceedings, citing the relevant provisions. Moreover, the General Court misapplied the principle that the question whether a decision on State aid is lawful must be assessed in the light of the information available to the Commission at the time it adopted the decision, with regard to the two letters from MEF to SACE SpA produced by the Italian Government as an annex to its statement in intervention. Indeed, those letters simply confirm the principle that the relationship between MEF and SACE SpA is characterised by autonomous management, which the Commission was well aware of, if for no other reason than the fact that this was illustrated on a number of occasions by the Italian Government to the Commission in the course of the detailed investigation procedure under Article 108(2) TFEU. The two documents were therefore put forward simply to confirm what had already argued and do not entail any significant change to the essential elements of the measures under consideration.

      Second ground of appeal, relating to the absence of the advantage allegedly conferred on SACE BT by the second contested measure; breach of Article 107(1) TFEU and misapplication of the PIME test; substantive inaccuracy of the findings of fact, as is apparent from the documents submitted to the General Court; distortion of the argument that SACE SpA actually benefited from an implicit 5/12 increase in the rate of commission received by comparison with that paid by SACE BT to private reinsurers; incorrect categorisation of that argument as an inadmissible ‘new plea in law’.

               —

               The General Court — demonstrating, as did the Commission before it, the clear limits of its knowledge and understanding of the dynamics of the insurance industry, with particular reference to Excess of Loss (XoL) reinsurance — made serious and manifest errors, making findings of fact the substantive inaccuracy of which is apparent from the documents submitted to it. The reinsurer’s exposure to risk in excess of the claim does not increase where the reinsurer’s participation in the risk coverage is very high; this is because the higher participation in the XoL treaty is reflected in proportionately higher commission payments received. Moreover, for the reinsurer there is no increase of the risk where the ceding insurer finds itself in financial difficulty since, under a XoL treaty, the main risk of loss for the reinsurer in not connected with the difficulties of the ceding company but rather the risk of insolvency on the part of the purchasers of the insured parties. It should be added that there was absolutely no risk of default on the part of the ceding company SACE BT, even in the event of financial difficulty, given that the payment to the parent company of the commission for subscribing to the reinsurance treaty was in the form of a single advance payment and, if that payment had not been made, there would simply have been no reinsurance coverage. The XoL treaty in question did not relate only to 25 % of the risks reinsured by SACE BT and it is therefore incorrect to claim that a second treaty under which provision was made for a different rate of commission could have been negotiated with SACE SpA in so far as concerns the outstanding balance of the reinsurance coverage, as stated in the judgment under appeal. Lastly, the General Court totally distorted the argument that — as SACE SpA entered into the treaty and therefore had risk reinsurance only from 5 June 2009, even though it received in return a commission calculated on an annual basis — that company actually benefited from an implicit 5/12 increase in the rate of commission received by comparison with the commission paid by SACE BT to private reinsurers in respect of the risk period already elapsed without any claims being made. Given that those circumstances are apparent from the contested decision, the General Court erred in law in stating that they were not brought to the Commission’s attention during the administrative procedure. As SACE simply put forward — in the context of its second plea in law in support of its action and by way of amplification — a further argument that the substantive requirement for a finding that there was an advantage was not fulfilled, the General court incorrectly classified the argument in question as an inadmissible new plea in law.

      Third ground of appeal, concerning the absence of the advantage allegedly conferred on SACE BT by the third and fourth contested measures; breach of Article 107(1) TFEU and misapplication of the PIME test; improper substitution of the grounds of the contested decision.

               —

               The Administrative Board of SACE SpA operated in exactly the same way as the management of other private operators, which, given the very high level of uncertainty and urgency that prevailed on the market in 2009, gave similar capital injections to companies controlled by them, notwithstanding the absence of any future cash flows forecasts providing evidence in the accounts that such companies were expected to have an adequate level of profitability, at least in the long term. That objective finding, which was apparent from simple observation of the dynamics of the market at that particular moment in time, should have prevailed over any theoretical or speculative consideration on the part of the Commission when applying the PIME test. Moreover, the contested decision does not refer to a single specific case of a private company operating under normal market conditions which, faced with serious difficulties brought about by the crisis, was wound up by its shareholders rather than being recapitalised. It is not evident and, in any event, the General Court did not explain, why SACE was none the less required to assess, ex ante, the future profitability of SACE BT and to provide the Commission with the appropriate preliminary assessment factors, in spite of the fact that it was apparent from market data that private investors had not done so. Lastly, given that the Commission considered in the course of its detailed investigation that it was not required to assess with all due attention the arguments raised by SACE concerning the application of the empirical criterion in connection with the PIME test, the General Court erred in stating that the Commission was entitled to reject those arguments, given the abstract possibility that the capital transactions carried out by private operators might, in turn, considered not to satisfy the PIME test since they entailed elements of aid.


title: Judgment of the Court of First Instance of 20 September 2001 in Case T-95/01: Gérald Coget and Others v Court of Auditors of the European Communities (Officials — Post of Secretary General — Appeal for candidacies — "High level" experience — Wide measure of discretion of the institution — Call to interview)

text:
5.1.2002                 EN                     Official Journal of the European Communities                                                C 3/31
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 20 September 2001
                                                                                of 20 September 2001
in Case T-171/00: Peter Spruyt v Commission of the
                    European Communities (1)
                                                                           in Case T-95/01: Gérald Coget and Others v Court of
(Officials — Protection against the risk of accident and of                          Auditors of the European Communities (1)
occupational disease — Entitlement to benefits provided for
under Article 73 of the Staff Regulations — Hang-gliding
                              accident)
                                                                           (Officials — Post of Secretary General — Appeal for
                                                                           candidacies — ‘High level’ experience — Wide measure of
                            (2002/C 3/53)
                                                                                discretion of the institution — Call to interview)
                     (Language of the case: French)
                                                                                (2002/C 3/54)
In Case T-171/00: Peter Spruyt, an official of the Commission
of the European Communities, residing in Arolo di Leggiuno                                     (Language of the case: French)
(Italy), represented by E. Boigelot, avocat, with an address for
service in Luxembourg, against Commission of the European
Communities (Agent: J. Currall) — application for annulment
of the decision of the Commission of 13 September 1999
whereby it refused to apply to the applicant Article 73 of the
Staff Regulations of Officials of the European Communities —
the Court of First Instance (Third Chamber), composed of                   In Case T-95/01: Gérald Coget, an official of the Court of
J. Azizi, President, K. Lenaerts and M. Jaeger, Judges; J. Palacio         Auditors of the European Communities, residing in Hettange-
González, Administrator, for the Registrar, gave a judgment               Grande (France), Pierre Hugé, an official of the Court of
on 20 September 2001 in which it:                                          Auditors of the European Communities, residing in Bonnevoie
                                                                           (Luxembourg), Emmanuel Gabolde, an official of the Court of
                                                                           Auditors of the European Communities, residing in Metz
1.    annuls the decision of the Commission of 13 September 1999           (France), represented by A. Soulier, avocat, with an address for
      refusing to apply to the applicant Article 73 of the Staff           service in Luxembourg, against Court of Auditors of the
      Regulations of Officials of the European Communities,                European Communities (Agents: J.-M. Stenier, P. Giusta,
                                                                           B. Schäfer and D. Waelbroeck) — application for annulment
2.    orders the Commission to reimburse to the applicant all the          of the decision of the Court of Auditors of 22 February 2001
      medical expenses connected with the hang-gliding accident            to appoint Michel Hervé to the post of Secretary General of
      sustained by him on 9 May 1999 other than those which have           the institution with effect from 1 July 2001 — the Court of
      been reimbursed to him under Article 72 of the Staff                 First Instance (Third Chamber), composed of J. Azizi, President,
      Regulations, together with default interest at the annual rate of    K. Lenaerts and M. Jaeger, Judges; J. Plingers, Administrator,
      6,25 % as from 13 September 1999,                                    for the Registrar, gave a judgment on 20 September 2001, in
                                                                           which it:
3.    orders the Commission to bear the cost of paying the benefits
      referable to total and partial temporary incapacity and partial
      permanent incapacity of the applicant, linked to the accident,       1.    dismisses the application;
      under the conditions laid down in Article 73 of the Staff
      Regulations and by the Rules on the insurance of officials of the
      European Communities against the risk of accident and of
                                                                           2.    orders the parties to bear their own costs, including those arising
      occupational disease.
                                                                                from the application for interim relief.
4.    orders the Commission to pay the costs.
                                                                           (1) OJ C 186 of 30.6.2001.
(1) OJ C 247 of 26.8.2000.


title: Case C-274/01: Information Action brought on 12 July 2001 by the Commission of the European Communities against the Kingdom of Belgium

text:
1.9.2001               EN                    Official Journal of the European Communities                                       C 245/15
Information Action brought on 12 July 2001 by the                       Appeal brought on 13 July 2001 by European Parliament
Commission of the European Communities against the                      against the judgment delivered on 3 May 2001 by the
                      Kingdom of Belgium                                Fourth Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-99/00 between Ignacio
                                                                                Samper and European Parliament
                         (Case C-274/01)
                                                                                (Case C-277/01 P)
                         (2001/C 245/27)
                                                                                (2001/C 245/28)
An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 12 July             An appeal against the judgment delivered on 3 May 2001 by
2001 by the Commission of the European Communities,                     the Fourth Chamber of the Court of First Instance of the
represented by M. Wolfcarius, acting as Agent.                          European Communities in case T-99/00 between Ignacio
                                                                        Samper and European Parliament was brought before the
                                                                        Court of Justice of the European Communities on 13 July
                                                                        2001 by European Parliament, represented by H. Von Herzen
The applicant claims that the Court should:                             and D. Moor, with an address for service in Luxembourg.
1.    Declare that, by failing to adopt and bring into force            The appellant claims that the Court should:
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with
      Council Directive 98/76/EC of 1 October 1998 amending             —     set aside the judgment of the Court of First Instance;
      Directive 96/26/EC on admission to the occupation of
      road haulage operator and road passenger transport
                                                                        —     give a final decision on the dispute by dismissing
      operator and mutual recognition of diplomas, certificates
                                                                              the action for annulment brought by Mr Samper as
      and other evidence of formal qualifications intended to
      facilitate for these operators the right to freedom of                  unfounded;
      establishment in national and international transport
      operations (1), the Kingdom of Belgium has failed to fulfil       —     in the alternative, refer the case back to the Court of First
      its obligations under that directive; and                               Instance for it to adjudicate anew on the action for
                                                                              annulment brought by Mr Samper;
2.    Order the Kingdom of Belgium to pay the costs.
                                                                        —     make an appropriate order as to costs.
Pleas in law and main arguments                                         Pleas and main arguments
                                                                        The Parliament claims that the Court of First Instance distorted
Article 2(1) of the directive in question provides that Member          the clear sense of the evidence and overstepped the limits of
States are to bring into force the laws, regulations and                judicial review.
administrative provisions necessary to comply with this Direc-
tive no later than 1 October 1999 and are forthwith to inform
the Commission thereof.
                                                                        Distortion of the clear sense of the evidence:
The necessary measures have not yet been adopted by Belgium.            The Court of First Instance wrongly found, in paragraph 40 of
                                                                        the judgment, that, for 1997, the ‘decisive’ criterion should be,
                                                                        according to the decision of the appointing authority, the level
                                                                        of responsibility deployed, personal investment made and the
                                                                        consistency of effort vis-à-vis his responsibilities. The decision
(1) OJ 1998 L 277, p. 17.                                               in question does not, however, make mention of any factors
                                                                        other than those appearing in the staff reports and refers to a
                                                                        comparison between the various duties only to justify its
                                                                        decision to depart from the Promotions Committee’s pro-
                                                                        posals.


title: Case T-131/12: Action brought on 23 March 2012 — Spa Monopole v OHIM — Orly International (SPARITUAL)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/24

         Action brought on 23 March 2012 — Spa Monopole v OHIM — Orly International (SPARITUAL)
   (Case T-131/12)
   2012/C 165/41
   Language in which the application was lodged: French

      Parties

      Applicant: Spa Monopole compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and É. De Gryse, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Orly International, Inc (Van Nuys, USA)

      Form of order sought

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 January 2012 in Case R 2396/2010-1;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: Word mark ‘SPARITUAL’ for goods in Class 3 — Community trade mark applied for No 3631884

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

      Mark or sign cited in opposition: Benelux registrations of the word marks ‘SPA’ and ‘Les Thermes de Spa’ for goods and services in Classes 3, 32 and 42

      Decision of the Opposition Division: Rejection of the application for a Community trade mark

      Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition

      Pleas in law: Infringement of Article 8(5) of Regulation No 207/2009 in the assessment of the reputation of the word mark ‘SPA’ in Class 32 and infringement of Article 8(5) of Regulation No 207/2009 in the assessment of the likelihood that unfair advantage would be taken of the repute of the mark ‘SPA’.


title: Case T-483/10: Action brought on 8 October 2010 — The Pukka Luggage Company v OHIM — Jesus Miguel Azpiroz Arruti (PUKKA)

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/50

         Action brought on 8 October 2010 — The Pukka Luggage Company v OHIM — Jesus Miguel Azpiroz Arruti (PUKKA)
   (Case T-483/10)
   ()
   2010/C 328/78
   Language in which the application was lodged: English

      Parties

      Applicant: The Pukka Luggage Company Ltd (London, United Kingdom) (represented by: K. E. Gilbert and M. H. Blair, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: Jesús Miguel Azpiroz Arruti (San Sebastián, Spain)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2010 in case R 1175/2008-4;

               —

               In the alternative, annul the contested decision in respect of its finding that the opposition should succeed against ‘luggage’;

               —

               Or in the alternative, annul the contested decision in respect of its finding that the opposition should succeed against ‘hard suitcases, hard trolley cases’;

               —

               Order the defendant and the other party to the proceedings before the Board of Appeal to bear their costs of the proceedings as well as those incurred by the applicant.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘PUKKA’, for goods in class 18 — Community trade mark application No 4061545

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited: Spanish trade mark registration No 1570450 of the figurative mark ‘PUKAS’, for goods in class 18; Community trade mark registration No 19802 of the figurative mark ‘PUKAS’, for goods and services in classes 25, 28 and 39

      Decision of the Opposition Division: Upheld the opposition partially

      Decision of the Board of Appeal: Rejected the appeal

      Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in its assessment of the similarity of the goods and in its assessment of the similarity of the contested trade mark in relation to the earlier trade mark.


title: Case T-233/08: Action brought on 16 June 2008 — MPDV Mikrolab v OHIM (ROI ANALYZER)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/49

         Action brought on 16 June 2008 — MPDV Mikrolab v OHIM (ROI ANALYZER)
   (Case T-233/08)
   (2008/C 223/86)
   Language of the case: German
   Parties

      Applicant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (Mosbach, Germany) (represented by: W. Göpfert, lawyer)

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

               —

               Annul the decision of the Fourth Board of Appeal of OHIM of 15 April 2008 in Case R 1525/2006-4;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘ROI ANALYZER’ for goods and services in Classes 9, 35 and 42 (Application No 4 866 042).

      Decision of the Examiner: Application rejected in part.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) in that the trade mark applied for does not lack distinctive character and no requirement of availability exists for it.

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


title: Case F-129/15: Order of the Civil Service Tribunal of 17 December 2015 — Morin v Commission

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/102

         Order of the Civil Service Tribunal of 17 December 2015 — Morin v Commission
   (Case F-129/15) (1)

   (2016/C 048/121)
   Language of the case: French
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 414, 14/12/2015, p. 44.


title: Order of the Court of First Instance of 11 December 2002 in Case T-82/02: Wolf-Dieter Yorck von Wartenburg v Commission of the European Communities (Officials — Period within which an action must be brought — Manifest inadmissibility)

text:
C 70/22                  EN                         Official Journal of the European Union                                            22.3.2003
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                Rechtsanwalt, against Commission of the European Communi-
                                                                            ties (Agent: J. Currall) and European Parliament (Agents:
                         of 23 January 2003                                 U. Rösslein and L. G. Knudsen) — application for the
                                                                            annulment of the Parliament’s decision of 28 May 2001
in Case T-181/01: Chantal Hectors v European Parlia-                        refusing to apply to the applicant’s pension the coefficient
                                ment ( 1)                                   applicable to recipients of a Community pension resident in
                                                                            Germany pursuant to Article 82 of the Staff Regulations —
(Officials — Temporary staff — Recruitment — Grounds                        the Court of First Instance (First Chamber), composed of:
— Manifest error of assessment — Equal treatment of men                     B. Vesterdorf, President, R. M. Moura Ramos and H. Legal,
                             and women)                                     Judges; H. Jung, Registrar, has made an order on 11 December
                                                                            2002, the operative part of which is as follows:
                           (2003/C 70/35)
                                                                            1.    The application is dismissed as being manifestly inadmissible.
                     (Language of the case: French)
                                                                            2.    Each party shall bear its own costs.
In Case T-181/01: Chantal Hectors, residing in Brussels,                    (1 ) OJ C 156 of 29.6.02.
represented by G. Vandersanden and L. Levi, avocats, against
European Parliament (Agents: H. von Hertzen and J. F. de
Wachter) — application, in the first place, for annulment of
the decisions taken by the authority empowered to conclude
contracts of employment appointing Mr B to the post of
Dutch-language administrator in the European People’s Party                        ORDER OF THE COURT OF FIRST INSTANCE
(Christian Democrats) and European Democrats Group within
the European Parliament and rejecting the applicant’s candi-
dature for that post and, second, for an order that the                                             of 16 January 2003
Parliament pay compensation in respect of the material and
non-material damage which the applicant claims to have                      in Case T-201/02: Pierre Tomarchio v Court of Auditors
suffered — the Court of First Instance (Fifth Chamber),                                    of the European Communities ( 1)
composed of: J. D. Cooke, President, R. García-Valdecasas and
P. Lindh, Judges; J. Palacio González, Principal Administrator,             (Officials — Refusal by the parent institution of an official
for the Registrar, has given a judgment on 23 January 2003,                 to reclassify him — Action for annulment brought against
the operative part of which is as follows:                                  the institution to which he was transferred — Inadmissible)
1.     The application is dismissed;                                                                  (2003/C 70/37)
2.     The parties shall bear their own costs.
                                                                                (Language of the case: French)
( 1) OJ C 303 of 27.10.01.
                                                                            In Case T-201/02: Pierre Tomarchio, a former official of the
                                                                            European Communities, residing in Nancy (France), represent-
                                                                            ed by N. Lhoëst, avocat, with an address for service in
                                                                            Luxembourg, against Court of Auditors of the European
                                                                            Communities (Agents: J.-M. Stenier and P. Giusta) — appli-
       ORDER OF THE COURT OF FIRST INSTANCE                                 cation for annulment of the measure adopted by the Court of
                                                                            Auditors on 26 February 2002 in connection with the
                       of 11 December 2002                                  applicant’s request for reclassification — the Court of First
                                                                            Instance (First Chamber), composed of: B. Vesterdorf, Presi-
in Case T-82/02: Wolf-Dieter Yorck von Wartenburg v                         dent, R. M. Moura Ramos and H. Legal, Judges; H. Jung,
        Commission of the European Communities ( 1)                         Registrar, has made an order on 16 January 2003, the operative
                                                                            part of which is as follows:
(Officials — Period within which an action must be brought
                    — Manifest inadmissibility)                             1.    The application is dismissed as being inadmissible.
                           (2003/C 70/36)                                   2.    The applicant’s request for joinder of Cases T-173/02 and
                                                                                T-201/02 is rejected.
                    (Language of the case: German)
                                                                            3.    Each party shall bear its own costs.
In Case T-82/02: Wolf-Dieter Yorck von Wartenburg, a former                 (1 ) OJ C 233 of 28.9.02.
temporary agent of the European Parliament, residing in
Wittibreut (Germany), represented by H.-H. R. Heyland,


title: Case C-150/00: Action brought on 19 April 2000 by the Commission of the European Communities against the Republic of Austria

text:
C 163/22               EN                    Official Journal of the European Communities                                     10.6.2000
— The Commission also makes the following criticisms of                 The appellants claim that the Court should:
     France:
                                                                        1. annul the order made on 9 February 2000 by the Court of
     — it calculated by an incorrect method the net cost of                 First Instance in Case T-111/97;
         ‘non-profitable zones’;
                                                                        2. refer the case back to the Court of First Instance in
                                                                            order that that court, having followed the corresponding
     — it did not take account of the intangible benefits
                                                                            procedure, may determine the substance of the action;
         accruing to France Télécom as a result of providing the
         universal service;
                                                                        3. reserve the decision on costs.
     — it infringed the rule that ‘Revenues shall be taken into
         account in calculating the net costs. Costs and revenues       Pleas in law and main arguments
         should be forward-looking’ (Annex III to Directive
         97/33/EC) by refusing to correct the figures forecast
         for 1998 because it would be ‘a delicate matter to             Infringements of the law: the appellants maintain their alle-
         integrate [the methodological progress achieved] in the        gation that the decision of 7 February 1996 (published in the
         definitive evaluation for 1998 having regard to the            Administrative Notices of 27 March 1996) constituted a new
         requirement of a degree of stability in the evaluation         fact justifying the fixing of a new time-limit for contesting the
         methods for a given year.’                                     Commission’s decisions classifying the appellants in grade at
                                                                        the time of their establishment as officials of the Commission.
— Article 5(5), second subparagraph, of Directive 97/33/EC
     has not been completely transposed into French domestic            The appellants further consider that, for the purposes of
     law and, in any event, has not been applied in a compliant         assessing whether their request was submitted within the
     manner by the French authorities as regards the publication        prescribed period, the Commission, and thereafter the Court
     of individual contributions by the operators involved in           of First Instance, should have taken into account the duty
     financing the universal service.                                   incumbent on the Community institutions to have regard for
                                                                        the welfare and interests of officials. The contested order does
                                                                        not deal with that argument put forward by the appellants.
(1) OJ L 192 of 24 July 1990, p. 10.
(2) OJ L 74 of 22.3.1996, p. 13.
(3) OJ L 199 of 26.7.1997, p. 32.
                                                                        Action brought on 19 April 2000 by the Commission
                                                                        of the European Communities against the Republic of
                                                                                Austria
                                                                                (Case C-150/00)
Appeal brought on 19 April 2000 by G. Valero Jordana                                             (2000/C 163/40)
and S. Vadé against the order made on 9 February 2000
by the First Chamber of the Court of First Instance of the
                                                                        An action against the Republic of Austria was brought before
European Communities in Case T-111/97 between
                                                                        the Court of Justice of the European Communities on 19 April
G. Valero Jordana and S. Vadé and the Commission of the
                                                                        2000 by the Commission of the European Communities,
                     European Communities
                                                                        represented by Josef Christian Schieferer, of its Legal Service,
                                                                        acting as Agent, with an address for service in Luxembourg at
                        (Case C-149/00 P)                               the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                        Wagner Centre C 254, Kirchberg.
                         (2000/C 163/39)
                                                                        The applicant claims that the Court should:
An appeal against the order made on 9 February 2000 by the              1. declare that, by classifying vitamin and mineral nutrient
First Chamber of the Court of First Instance of the European                preparations as medicinal products where they contain
Communities in Case T-111/97 between G. Valero Jordana                      vitamins A, D and K or mineral nutrients of the chromate
and S. Vadé and the Commission of the European Communi-                     group and where they exceed the daily dose or generally,
ties was brought before the Court of Justice of the European                without explaining that, by reason of the addition of extra
Communities on 19 April 2000 by G. Valero Jordana and                       vitamins or because of their vitamin or mineral content,
S. Vadé, represented by C. Amo Quiñones, lawyer, with an                   they constitute a serious risk to health, the Republic of
address for service at 23 Avenue Jacques Pasteur, B-1180                    Austria has infringed its obligations under Article 28 EC
Brussels.                                                                   (formerly Article 30 of the EC Treaty);
 ---pagebreak--- 10.6.2000              EN                     Official Journal of the European Communities                                     C 163/23
2. order the defendant to pay the costs.                                        Removal from the register of Case C-218/99 (1)
Pleas in law and main arguments                                                                  (2000/C 163/43)
In the Commission’s view, the practice followed in Austria
does not accord with the principle of proportionality (Article           By order of 15 March 2000 the President of the Court of
30 EC). That practice fails to take account of the fact that             Justice of the European Communities has ordered the removal
vitamins and mineral nutrients may be harmful to a greater or            from the register of Case C-218/99: Commission of the
lesser degree. It would be less restrictive to fix a limit for each      European Communities v Grand-Duchy of Luxembourg.
individual mineral nutrient and to require any preparation
with a nutrient content in excess of that limit to be classified         (1) OJ C 266 of 7.8.1999.
as a medicinal product. It seems too sweeping, therefore, to
take the daily dose alone as the determining criterion.
At the same time, the practice referred to fails to take account
of the fact that the Member State concerned is required to
state, in relation to each individual product, that it constitutes
a serious health risk. It is unacceptable to require the applicant
to prove that a substance is not harmful, since it is for the                   Removal from the register of Case C-361/99 (1)
Member State itself to show that a higher concentration
presents a health risk where the critical limits accepted by the                                 (2000/C 163/44)
scientific bodies are not reached.
                                                                         By order of 16 March 2000 the President of the Court of
                                                                         Justice of the European Communities has ordered the removal
                                                                         from the register of Case C-361/99 (reference for a preliminary
       Removal from the register of Case C-406/99 (1)                    ruling from the Landesgericht für Zivilrechtssachen Wien):
                         (2000/C 163/41)                                 Silveria Gäng v Republic of Austria.
By order of 13 March 2000 the President of the Court of
Justice of the European Communities has ordered the removal              (1) OJ C 6 of 8.1.2000.
from the register of Case C-406/99: Commission of the
European Communities v Federal Republic of Germany.
(1) OJ C 366 of 18.12.1999.
                                                                                Removal from the register of Case C-438/98 (1)
       Removal from the register of Case C-221/98 (1)                                            (2000/C 163/45)
                         (2000/C 163/42)
                                                                         By order of 20 March 2000 the President of the First Chamber
By order of 14 March 2000 the President of the Fifth Chamber             of the Court of Justice of the European Communities has
of the Court of Justice of the European Communities has                  ordered the removal from the register of Case C-438/98:
ordered the removal from the register of Case C-221/98:                  Commission of the European Communities v Grand-Duchy of
Commission of the European Communities v French Republic.                Luxembourg.
(1) OJ C 278 of 14.3.2000.
                                                                         (1) OJ C 20 of 23.1.1999.


title: Case C-504/12: Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Uwe Schönefeld v Land Berlin

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/29

         Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 8 November 2012 — Uwe Schönefeld v Land Berlin
   (Case C-504/12)
   2013/C 26/56
   Language of the case: German

      Referring court

   Verwaltungsgericht Berlin

      Parties to the main proceedings

      Applicant: Uwe Schönefeld

      Defendant: Land Berlin

      Questions referred

               1.

               Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land civil servants?

               2.

               If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a civil servant on establishment of the status of civil servant is substantially dependent on his age and also, in particular, rises according to the duration of civil servant status constitutes direct or indirect age discrimination?

               3.

               If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

               4.

               If the above questions are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law — under which existing civil servants are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated solely according to the periods of experience attained since the entry into force of the transitional law, irrespective of the civil servant’s absolute period of experience — constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case?

               5.

               If Question 4 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing discrimination by the legislative aim whereby the transitional law is to protect not (only) the acquired rights existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?
               Can the continuing discrimination against existing civil servants be justified by the fact that the regulatory alternative (individual placement also of existing civil servants according to periods of experience) would involve increased administrative expenditure?

               6.

               If such justification is rejected in Question 5: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing civil servants, permit a legal consequence other than retrospective and continuing remuneration of existing civil servants at the highest pay step in their pay grade?
               Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Judgment of the Court (Sixth Chamber) 30 January 2002 in Case C-107/99: Italian Republic v Commission of the European Communities (Structural funds — Financing of Community initiatives — Alteration of indicative allocations)

text:
C 84/2                   EN                       Official Journal of the European Communities                                           6.4.2002
      No 3559/91 of 6 December 1991, where it has not informed               amendments to the indicative allocation of Community initiat-
      the undertaking of that requirement within the period prescribed       ives, communicated to the Italian Republic by letter of
      by Article 3(2) of that regulation. Exceeding the time-limit           19 January 1999 from the Secretary-General of the Com-
      may be permissible where the competent national authority,             mission, and of all measures underlying or linked to that
      without negligence on its part, did not know the details of the        decision, the Court (Sixth Chamber), composed of: N. Colneric,
      undertaking’s sugar production and where that lack of knowl-           President of the Second Chamber, acting for the President of
      edge may reasonably be attributed to the undertaking, because          the Sixth Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur),
      it has not acted in good faith and has not complied with all the       R. Schintgen and V. Skouris, Judges, Advocate General:
      relevant provisions.                                                   J. Mischo, Registrar: H.A. Rühl, Principal Administrator, has
                                                                             given a judgment on 30 January 2002, in which it:
3.    The competent national authority may, without infringing
      Articles 3 and 4 of Commission Regulation (EEC)
      No 3665/87 of 27 November 1987 laying down common                      1.    Annuls the Commission’s decision of 16 December 1998
      detailed rules for the application of the system of export refunds           approving amendments to the indicative allocation of Com-
      on agricultural products or the general principles of Community              munity initiatives, communicated to the Italian Republic by
      law, refuse to accept retrospectively an export declaration                  letter of 19 January 1999 from the Secretary-General of the
      presented for the purpose of obtaining export refunds and of                 Commission;
      extending the period allowed for supplying proof of export
      where, because the undertaking has applied for and obtained            2.    Orders the Commission of the European Communities to pay
      from that authority a C sugar export licence for sugar which it              the costs;
      was impossible to regard as C sugar, the undertaking has
      neither applied for nor obtained the export refunds to which it        3.    Orders Ireland and United Kingdom of Great Britain and
      would have been entitled if the sugar had been exported as A or              Northern Ireland to bear their own costs.
      B sugar.
                                                                             (1) OJ C 188 of 3.7.1999.
(1) OJ C 160 of 5.6.1999.
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Sixth Chamber)                                                            (Sixth Chamber)
                           30 January 2002
                                                                                24 January 2002
in Case C-107/99: Italian Republic v Commission of the
                    European Communities (1)                                 in Case C-118/99: French Republic v Commission of the
                                                                                European Communities (1)
(Structural funds — Financing of Community initiatives —
               Alteration of indicative allocations)                         (Clearance of accounts — EAGGF — 1995 financial year
                                                                                — Arable crops)
                            (2002/C 84/02)
                                                                                (2002/C 84/03)
                     (Language of the case: Italian)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-107/99, Italian Republic (Agent: U. Leanza, assisted
by I. M. Braguglia), v Commission of the European Communi-
ties (Agents: E. de March, K. Simonsson and H. Speyart)                      In Case C-118/99, French Republic (agents: J.-F. Dobelle,
supported by Ireland (Agent: J. Payne, assisted by D. McGuin-                K. Rispal-Bellanger and C. Vasak), Republic of Finland
ness, SC, and E. Kent, solicitor) and by United Kingdom of                   (agent:T. Pynnä) v Commission of the European Communities
Great Britain and Northern Ireland (Agent: J. E. Collins, assisted           (agent: P. Oliver): Application for partial annulment of Com-
by D. Wyatt, QC,): Application for the annulment of the                      mission Decision 1999/187/EC of 3 February 1999 on the
Commission’s decision of 16 December 1998 approving                          clearance of the accounts presented by the Member States in


title: Case C-522/07: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 22 November 2007 — Dinter GmbH v Hauptzollamt Düsseldorf

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/10

         Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 22 November 2007 — Dinter GmbH v Hauptzollamt Düsseldorf
   (Case C-522/07)
   (2008/C 37/13)
   Language of the case: German
   Referring court
   Finanzgericht Düsseldorf
   Parties to the main proceedings

      Applicant: Dinter GmbH

      Defendant: Hauptzollamt Düsseldorf
   Questions referred

               1.

               Is additional note 5(b) to Chapter 20 of the Combined Nomenclature (1) to be interpreted as meaning that the term ‘fruit juices with added sugar’ also refers to fruit juices to which no sugar has actually been added, but whose added sugar content is calculated mathematically in accordance with additional note 5(a) to Chapter 20 of the Combined Nomenclature?

               2.

               Is additional note 5(b) to Chapter 20 of the Combined Nomenclature to be interpreted as meaning that the term ‘fruit juices in their natural state’ is merely clarified by the words ‘obtained from fruits or by dilution of concentrated juice’, but in fact applies to all types of fruit juices (not cooked and without added alcohol) in the state in which they are presented?

               3.

               If both the preceding questions are answered in the affirmative, is additional note 5(b) to Chapter 20 of the Combined Nomenclature valid?

      (1)  Commission Regulation (EC) No 1810/2004 of 7 September 2004 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2004 L 327, p. 1).


title: Order of the Court of Justice (Third Chamber) of 18 March 2004 in Case C–45/03 (Request for a preliminary ruling by the Tribunale di Catania): Oxana Dem'Yanenko (‘Reference for a preliminary ruling — Free movement for persons — Situation falling outside the scope of Directive 64/221/EEC — Fundamental rights — European Convention on Human Rights — Expulsion of a third country national without family or matrimonial ties with a national of a Member State — Validation procedure for the order for the forcible removal of a third country national — Definition of“court of a Member State” — Court with jurisdiction, for the purpose of Article 68 EC, to make a reference to the Court for a preliminary ruling — Lack of jurisdiction of the Court’)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/16

      ORDER OF THE COURT OF JUSTICE

   (Third Chamber)
   of 18 March 2004
   in Case C–45/03 (Request for a preliminary ruling by the Tribunale di Catania): Oxana Dem'Yanenko
       (1)

   (‘Reference for a preliminary ruling - Free movement for persons - Situation falling outside the scope of Directive 64/221/EEC - Fundamental rights - European Convention on Human Rights - Expulsion of a third country national without family or matrimonial ties with a national of a Member State - Validation procedure for the order for the forcible removal of a third country national - Definition of “court of a Member State” - Court with jurisdiction, for the purpose of Article 68 EC, to make a reference to the Court for a preliminary ruling - Lack of jurisdiction of the Court’)
   (2004/C 106/28)
   Language of the case: Italian
   In Case C-45/03: Reference to the Court under Article 234 EC by the Tribunale di Catania, in the context of proceedings for the validation of an order for forcible removal against Oxana Dem'Yanenko, for a preliminary ruling on, first, Articles 7, 8 and 9 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ 1964, English special edition: Series I Chapter 1963-1964 p. 117 ) and second, fundamental rights, the observance of which is ensured by the Court, as enshrined, in particular, in the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, the Court of Justice (Third Chamber), composed of: A. Rosas (Rapporteur), President, N. Colneric and K. Schiemann, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 18 March 2004, the operative part of which is as follows:
   The Court of Justice of the European Communities clearly lacks jurisdiction to answer the questions referred by the Tribunale di Catania by the order of 19 January 2003.

      (1)  OJ C 83 of 5. 4. 2003


title: Case T-102/11: Action brought on 22 February 2011 — American Express Marketing & Development v OHIM (IP ZONE)

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/15

         Action brought on 22 February 2011 — American Express Marketing & Development v OHIM (IP ZONE)
   (Case T-102/11)
   2011/C 130/27
   Language of the case: English

      Parties

      Applicant: American Express Marketing & Development Corp. (New York, United States) (represented by: V. Spitz, A. Gaul, T. Golda and S. Kirschstein-Freund, lawyers)

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

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2010 in case R 1125/2010-2;

               —

               In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2010 in case R 1125/2010-2, and rule that the appeal is justified;

               —

               Order the defendant to pay the costs of the appeal proceedings and of the proceedings before the Court.

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘IP ZONE’ for services in class 42

      Decision of the Examiner: Refused the application for a Community trade mark

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal found that the trade mark lacks the necessary distinctiveness and is descriptive with respect to the services in question.


title: Case C-383/15 P: Order of the Court (Second Chamber) of 20 January 2016 — Skype Ultd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Sky plc, formerly British Sky Broadcasting Group plc, Sky IP International Ltd (Appeal — Community trade mark — No need to adjudicate)

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/5

         Order of the Court (Second Chamber) of 20 January 2016 — Skype Ultd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Sky plc, formerly British Sky Broadcasting Group plc, Sky IP International Ltd
   (Case C-383/15 P) (1)

   ((Appeal - Community trade mark - No need to adjudicate))
   (2016/C 136/07)
   Language of the case: English

      Parties

      Appellant: Skype Ultd (represented by: A. Carboni and M. Browne, Solicitors)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: P. Bullock, acting as Agent), Sky plc, formerly British Sky Broadcasting Group plc, Sky IP International Ltd (represented by: D. Rose and J. Curry, Solicitors)

      Operative part of the order

               1.

               There is no need to rule on the appeal.

               2.

               Skype Ultd shall pay the costs of the present proceedings.

      (1)  OJ C 354, 26.10.2015.


title: Case C-264/01: Reference for a preliminary ruling by the Oberlandesgericht Düsseldorf by order of that court of 18 May 2001 in the case of 1. AOK Bundesverband, 2. Bundesverband der Betriebskrankenkassen, 3. Bundesverband der Innungskrankenkassen,4. Bundesverband der landwirtschaftlichen Krankenkassen, 5. Verband der Angestelltenkrankenkassen e.V., 6. Verband der Arbeiter-Ersatzkassen, 7. Bundesknappschaft and 8. See-Krankenkasse against Ichthyol-Gesellschaft Cordes, Hermani & Co

text:
27.10.2001            EN                     Official Journal of the European Communities                                      C 303/5
Reference for a preliminary ruling from the Hof van                     5.   If the answer to question 4 is in the negative, does
Beroep Antwerpen, by orders of that Court of 28 June                         Community law then permit the persons owing the
2001, in the cases of Belgian State v, respectively,                         contributions, as the beneficiaries of the aid, to raise a
(1) E. Van Calster and (2) F. Cleeren (Case C-261/01) and                    plea of lack of competence with regard to the Com-
          NV Openbaar Slachthuis (Case C-262/01)                             mission’s act whereby authorisation was given to
                                                                             implement the aid measures from which they benefit?
                (Cases C-261/01 and C-262/01)                           6.   If it is accepted that the respondents, as persons owing
                                                                             the contributions and/or as beneficiaries of the aid, are
                                                                             directly and individually concerned by the Commission’s
                       (2001/C 303/06)                                       act and may therefore lawfully raise a plea of lack of
                                                                             competence, has the Commission exceeded the limits of
                                                                             its competence in adopting its decision of 30 July 1996
                                                                             and infringed Article 88(3) (formerly Article 93(3)) of the
Reference has been made to the Court of Justice of the                       EC Treaty?
European Communities by orders of the Hof van Beroep
Antwerpen (Court of Appeal, Antwerp) of 28 June 2001,
received at the Court Registry on 5 July 2001, for a preliminary
ruling in the cases of Belgian State v, respectively, (1) E. Van
Calster and (2) F. Cleeren (Case C-261/01) and NV Openbaar
Slachthuis (Case C-262/01), on the following questions:
1.   In the circumstances outlined above is a system of aid             Reference for a preliminary ruling by the Oberlandesge-
     measures compatible with Community law, in particular              richt Düsseldorf by order of that court of 18 May 2001 in
     with Article 88(3) (formerly Article 93(3)) of the EC              the case of 1. AOK Bundesverband, 2. Bundesverband der
     Treaty, which, after its notification, is considered by the        Betriebskrankenkassen, 3. Bundesverband der Innungs-
     Commission on 30 July 1996 to be compatible with the               krankenkassen,4. Bundesverband der landwirtschaftli-
     common market and under which the Member State                     chen Krankenkassen, 5. Verband der Angestellten-
     imposes in the general interest, with retroactive effect,          krankenkassen e.V., 6. Verband der Arbeiter-Ersatzkassen,
     contributions or charges:                                          7. Bundesknappschaft and 8. See-Krankenkasse against
                                                                               Ichthyol-Gesellschaft Cordes, Hermani & Co
     —     to finance an animal health and production fund,
                                                                                (Case C-264/01)
     —     on natural and legal persons whose characteristics                                    (2001/C 303/07)
           are set out in Articles 14, 15 and 16 of the
           abovementioned law of 23 March 1998, as amended
           by the Arbitragehof (Court of Arbitration) in its            Reference has been made to the Court of Justice of the
           judgment of 9 February 2000 in Cases Nos 1414,               European Communities by order of the Oberlandesgericht
           1450, 1452, 1453, and 1454,                                  Düsseldorf of 18 May 2001, received at the Court Registry on
                                                                        5 July 2001, for a preliminary ruling in the case of 1. AOK
                                                                        Bundesverband, 2. Bundesverband der Betriebskrankenkassen,
     —     because of the activities described in those articles        3. Bundesverband der Innungskrankenkassen, 4. Bundesver-
           which took place in the period from 1988 until               band der landwirtschaftlichen Krankenkassen, 5. Verband der
           21 May 1996 in which those aid measures had not              Angestelltenkrankenkassen e.V., 6. Verband der Arbeiter-
           yet been approved?                                           Ersatzkassen, 7. Bundesknappschaft and 8. See-Krankenkasse
                                                                        against Ichthyol-Gesellschaft Cordes, Hermani & Co. on the
                                                                        following questions:
2.   (Solely in Case C-262/01) Has the Commission, by
     approving the aid measures established by the law of               1.   Is Article 81(1) EC to be interpreted as meaning that the
     23 March 1998, also approved their retroactive effect?                  leading associations of statutory sickness funds of a
                                                                             Member State are to be regarded as associations of
                                                                             undertakings or, where a leading association is also
3.   Is the Commission’s Decision of 30 July 1996 merely in                  a direct provider of statutory sickness insurance, as
     the nature of an individual authorisation to a Member                   undertakings within the meaning of Article 81(1) EC
     State to implement the planned aid measures?                            when they jointly determine the applicable level of
                                                                             uniform fixed amounts for medicinal products in the
                                                                             Member State, where such amounts constitute the highest
4.   Are the persons owing the contributions directly and                    price at which the statutory sickness funds, who are
     individually concerned by the Commission’s act within                   required to provide benefits in kind to insured persons,
     the meaning of Article 230 (formerly Article 173) of the                will purchase and pay for medicinal products and thereby
     EC Treaty?                                                              limit their liability to insured persons?
 ---pagebreak--- C 303/6               EN                    Official Journal of the European Communities                                      27.10.2001
2.  If the answer to the first question is in the affirmative:         Reference for a preliminary ruling by the Oberste Ge-
                                                                       richtshof by order of 11 June 2001 in the case of Jaroslav
                                                                                Nyvlt v Flughafen Wien AG
    (a)   are determinations of fixed amounts as described in
          1 above to be regarded as agreements (or decisions)                                    (Case C-267/01)
          of the leading associations of statutory sickness
          funds which restrict competition, in particular
          within the meaning of Article 81(1)(a) EC, and are                                     (2001/C 303/08)
          prohibited by Article 81(1) EC?
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 11 June 2001 of the
    (b) is question 2(a) to be answered in the affirmative at          Oberste Gerichtshof (Supreme Court), which was received at
          least where the object of the regulation concerning          the Court Registry on 6 July 2001, for a preliminary ruling in
          fixed amounts is, inter alia, to exploit all reserves        the case of Jaroslav Nyvlt v Flughafen Wien on the following
          of medicinal product manufacturers in terms of               questions:
          economy as regards sale price, and the application
          of the regulation concerning fixed amounts in the
          Member State so far has had the effect that, of the          1.   Is Paragraph 145.35 of JAR-145, which forms an annex
          finished medicinal product packages offered on the                to Council Regulation (EEC) No 3922/91 of 16 December
          market that fall within the regulations concerning                1991 on the harmonisation of technical requirements
          fixed amounts, approximately 93 % do not now                      and administrative procedures in the field of civil aviation
          exceed the amount fixed for them?                                 (OJ 1991 L 373, p. 4), having regard, if necessary, to the
                                                                            explanation given by the Joint Aviation Authorities (JAA),
                                                                            to be interpreted as requiring the owner of a maintenance
                                                                            organisation to maintain records of his staff authorised
3.  If the answer to either or both of the questions in 2 above             to certify aircraft fit for service in such detail that it is
    is in the affirmative:                                                  possible to infer from those records not only the area of
                                                                            responsibility but also the specific jobs performed on
                                                                            certain aircraft types in a certain period of time (year)?
    Can a system of fixed amounts as described in questions 1
    and 2 be exempted from Article 81(1) EC under                      2.   Is Paragraph 145.35 of JAR-145, which forms an annex
    Article 86(2), first sentence, EC, even though when they                to Council Regulation (EEC) No 3922/91 of 16 December
    determine fixed amounts the leading associations of                     1991, having regard, if necessary, to the explanation
    statutory sickness funds represent the biggest purchasers               given by the Joint Aviation Authorities (JAA), to be
    on the medicinal product market, who when taken                         interpreted as meaning that
    together dominate the market, and it would be possible,
    as a solution to the problem of trying to reduce costs in
    the health sector, to grant power to determine such fixed               a)    it requires the owner of the maintenance organis-
    amounts to an institution other than a participant in the                     ation to hand over those records to staff authorised
    medicinal product market, in particular to the Federal                        to certify aircraft fit for service upon termination of
    Government or a Federal Minister?                                             their employment,
                                                                            b)    it is sufficient to hand over copies in order to satisfy
4.  If the answer to question 3 is also in the affirmative:                       that obligation, or
                                                                            c)    such copies must be confirmed by the employer by
    a)    what conditions must be set forth and proved by                         signature?
          the leading associations of statutory sickness funds
          so that they may be exempted under Article 86(2),            3.   On whom do the obligations which may exist within the
          first sentence, EC in relation to determinations of               meaning of Question 2 fall where the employer of the
          fixed amounts?; or                                                employee authorised to certify aircraft fit for service is
                                                                            not the owner of the maintenance organisation, but a
                                                                            third party who has hired the employee from that owner
    b)    is the grant of an exemption under Article 86(2), first           on the basis of a group relationship or a separate contract
          sentence, EC precluded in any case by Article 86(2),              to provide work services?
          second sentence, EC owing to the effects the system
          of fixed amounts has on trade?                               4.   Do the obligations which may exist in accordance with
                                                                            the answers to Questions 1 to 3 preclude more extensive
                                                                            national provisions?


title: Case T-710/16: Order of the General Court of 21 March 2017 — La Patrouille v EUIPO — Alpha Industries (AEROBATIX)

text:
               6.6.2017

               EN

               Official Journal of the European Union

               C 178/34

         Order of the General Court of 21 March 2017 — La Patrouille v EUIPO — Alpha Industries (AEROBATIX)
   (Case T-710/16) (1)

   (2017/C 178/53)
   Language of the case: French
   The President of the Ninth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 462, 12.12.2016.