title: Judgment of the Court (Fifth Chamber) of 8 May 2003 in Case C-269/00 (Reference for a preliminary ruling from the Bundesfinanzhof): Wolfgang Seeling v Finanzamt Starnberg, (Sixth VAT Directive — Articles 6(2)(a) and 13B(b) — Private use by the taxable person of a dwelling in a building forming, in its entirety, part of the assets of the business — Such use not equivalent to the leasing or letting of immovable property)

text:
C 146/4                   EN                          Official Journal of the European Union                                               21.6.2003
                   JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Sixth Chamber)                                                               (Fifth Chamber)
                            of 3 April 2003                                                               of 8 May 2003
in Case C-144/00 (Reference for a preliminary ruling from                     in Case C-269/00 (Reference for a preliminary ruling from
        the Bundesgerichtshof): Matthias Hoffmann ( 1)                        the Bundesfinanzhof): Wolfgang Seeling v Finanzamt
                                                                                Starnberg, (1)
(VAT — Sixth Directive — Exemptions for certain activities
in the public interest — Body — Meaning — Services                            (Sixth VAT Directive — Articles 6(2)(a) and 13B(b) —
performed by a natural person — Cultural services by a                        Private use by the taxable person of a dwelling in a building
                                soloist)                                      forming, in its entirety, part of the assets of the business —
                                                                              Such use not equivalent to the leasing or letting of immovable
                                                                                property)
                            (2003/C 146/05)
                                                                                (2003/C 146/06)
                     (Language of the case: German)
                                                                                (Language of the case: German)
(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-144/00: Reference to the Court under Article 234
EC by the Bundesgerichtshof (Germany) for a preliminary
ruling in the criminal proceedings before that court against                  In Case C-269/00: Reference to the Court under Article 234
Matthias Hoffmann, on the interpretation of Article 13A(1)(n)                 EC by the Bundesfinanzhof (Germany) for a preliminary
of the Sixth Council Directive 77/388/EEC of 17 May 1977                      ruling in the proceedings pending before that court between
on the harmonisation of the laws of the Member States relating                Wolfgang Seeling and Finanzamt Starnberg, on the interpret-
to turnover taxes — Common system of value added tax:                         ation of Articles 6(2)(a), 13B(b) and 17(2)(a) of Sixth Council
uniform basis of assessment (OJ 1977 L 145, p. 1), the Court                  Directive 77/388/EEC of 17 May 1977 on the harmonisation
(Sixth Chamber), composed of: J.-P. Puissochet (Rapporteur),                  of the laws of the Member States relating to turnover taxes —
President of the Chamber, R. Schintgen, V. Skouris, F. Macken                 Common system of value added tax: uniform basis of assess-
and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed, Advocate                     ment (OJ 1977 L 145, p. 1), the Court (Fifth Chamber),
General; H.A. Rühl, Principal Administrator, for the Registrar,               composed of: M. Wathelet, President of the Chamber,
has given a judgment on 3 April 2003, in which it has ruled:                  C. W. A. Timmermans, D. A. O. Edward, P. Jann and S. von
                                                                              Bahr (Rapporteur), Judges; F. G. Jacobs, Advocate General;
                                                                              H. A. Rühl, Principal Administrator, for the Registrar, has
1.    Article 13A(1)(n) of the Sixth Council Directive 77/388/EEC             given a judgment on 8 May 2003, in which it has ruled:
      of 17 May 1977 on the harmonisation of the laws of the
      Member States relating to turnover taxes — Common system
      of value added tax: uniform basis of assessment, is to be               Articles 6(2)(a) and 13B(b) of the Sixth Council Directive 77/388/
      interpreted to the effect that the expression ‘other [recognised]       EEC of 17 May 1977 on the harmonisation of the laws of the
      cultural bodies’ does not exclude soloists performing individu-         Member States relating to turnover taxes — Common system of
      ally.                                                                   value added tax: uniform basis of assessment, must be interpreted as
                                                                              precluding national legislation which treats as an exempt supply of
                                                                              services, on the basis that it constitutes a leasing or letting of
2.    The heading of Article 13A of that directive does not, of itself,       immovable property within the meaning of Article 13B(b), the
      entail restrictions on the possibilities of exemption provided for      private use by a taxable person of part of a building which is treated
      by that provision.                                                      as forming, in its entirety, part of the assets of his business.
( 1) OJ C 176 of 24.6.2000.                                                   (1 ) OJ C 259 of 9.9.2000.


title: Reference for a preliminary ruling by the Pretura Circondariale di Pavia by order of that court of 17 October 1996 in the criminal proceedings pending before that court against Luigi Bazzan, Adriano Filippo Calvini and Agostino Traverso (Case C-359/96)

text:
No C 9/ 10             1 EN                  Official Journal of the European Communities                                    11 . 1 . 97
Ragnemalm, Judges; D. Ruiz-Jarabo Colomer, Advocate-                    Bravo-Ferrer Delgado, Abodago del Estado ), the
General; R. Grass, Registrar, has given a judgment on                   Commission of the European Communities (Agent:
7 November 1996, in which it:                                           Nicholas Khan ), and the Kingdom of Belgium (Agent: Jan
                                                                        Devadder) — application for the annulment of Council
1 . Declares that, by not adopting and bringing into force              Directive 93/ 104/EC of 23 November 1993 concerning
      within the prescribed periods the laws, regulations and           certain aspects of the organization of working time (2 )
      administrative provisions necessary to comply with:               and, in the alternative, of Article 4, the first and second
      — Commission Directive 93/48/EEC of 23 June 1993                  sentences of Article 5 , Article 6 (2 ) and Article 7 of that
          setting out the schedule indicating the conditions            Directive — the Court, composed of: G. C. Rodriguez
          to be met by fruit plant propagating material and             Iglesias, President, G. F. Mancini , J. C. Moitinho de
          fruit plants intended for fruit production, pursuant          Almeida ( Rapporteur), J. L. Murray and L. Sevón
          to Council Directive 92/34/EEC,                               ( Presidents of Chambers ), C. N. Kakouris, P. J. G.
                                                                        Kapteyn, C. Gulmann, D. A. O. Edward, J. -P. Puissochet,
      — Commission Directive 93/49/EEC of 23 June 1993                  G. Hirsch, P. Jann and H. Ragnemalm, Judges; P. Leger,
          setting out the schedule indicating the conditions            Advocate-General ; L. Hewlett, Administrator, for the
          to be met by ornamental plant propagating                     Registrar, has given a judgment on 12 November 1996 , in
          material and ornamental plants pursuant to                    which it:
          Council Directive 91 /682/EEC,
      — Council Directive 93/52/EEC of 24 June 1993                     1 . Annuls the second sentence of Article 5 of Council
          amending Directive 89/556/EEC on animal health                      Directive 93/104/EC of 23 November 1993
          conditions governing intra- Community trade in                      concerning certain aspects of the organization of
          and importation from third countries of embryos                     working time.
          of domestic animals of the bovine species,
                                                                        2 . Dismisses the remainder of the application.
      — Commission Directive 93/61 /EEC of 2 July 1993
          setting out the schedules indicating the conditions
                                                                        3 . Orders the United Kingdom of Great Britain and
          to be met by vegetable propagating and planting
                                                                              Northern Ireland to pay the costs.
          material, other than seed pursuant to Council
          Directive 92/33/EEC,
                                                                        4 . Orders the Kingdom of Belgium, the Kingdom of
      the Italian Republic has failed to fulfil its obligations               Spain and the Commission of the European
      pursuant to Article 10 of Directive 93/48/EEC,                          Communities to bear their own costs.
      Article 8 of Directive 93/49/EEC, Article 2 of
      Directive 93/52/EEC and Article 7 of Directive 93/61 /            0 ) OJ No C 120 , 30 . 4 . 1994 , p. 13 .
      EEC.                                                              ( 2 ) OJ No L 307, 13 . 12 . 1993 , p . 18 .
2 . Orders the Italian Republic to pay the costs.
0)    OJ No  C 315 , 25 . 11 . 1995 , p . 11
(2 )  OJ No L 250, 7. 10. 1993 , p . 1 .
(3 )  OJ No L 250, 7. 10 . 1993 , p. 9.
(4 )  OJ No L 175, 19 . 7. 1993 , p. 21 .                               Reference for a preliminary ruling by the Pretura
(5 )  OJ No L 250, 7. 10 . 1993 , p. 19 .                               Circondariale di Pavia by order of that court of
(6 )  OJ No L 259, 18 . 10 . 1993 , p . 1 .                             17 October 1996 in the criminal proceedings pending
                                                                        before that court against Luigi Bazzan, Adriano Filippo
                                                                                Calvini and Agostino Traverso
                                                                                ( Case C-359/96 )
                                                                                ( 97/C 9/18 )
                JUDGMENT OF THE COURT
                        of 12 November 1996
                                                                        Reference has been made to the Court of Justice of
in Case C-84/94: United Kingdom of Great Britain and                    the European Communities by order of the Pretura
     Northern Ireland v. Council of the European Union ( ' )            Circondariale di Pavia ( Pavia District Court) of 17 October
(Council Directive 93/104/EC concerning certain aspects                 1996, which was received at the Court Registry on
of the organization of working time — Action for                        4 November 1996 , for a preliminary ruling in the criminal
                               annulment)                               proceedings pending before that court against Luigi
                                                                        Bazzan, Adriano Filippo Calvini and Agostino Traverso on
                               ( 97/C 9/17)                             the questions whether Article 1 ( 1 ) of Law No 1369 of
                 (Language of the case: English)                        23 October 1960, in conjunction with Article 11 ( 1 ) of
                                                                        Law No 264 of 29 April 1949, is compatible with the
In Case C-84/94 : United Kingdom of Great Britain and                   Community principles enshrined in Articles 48 , 49, 54 and
Northern Ireland (Agent: John E. Collins, assisted by                   90 of the EC Treaty and whether those principles are
Michael J. Beloff and Eleanor Sharpston) v. Council of the              directly applicable, with the result that the Italian
European Union (Agents: Antonio Sacchettini, Jill Aussant               legislation must be disapplied.
and Sophia Kyriakopoulou), supported by the Kingdom of
Spain (Agents : Alberto Navarro Gonzalez and Miguel


title: Case C-10/04: Action brought on 13 January 2004 by the Commission of the European Communities against the Republic of Austria

text:
C 47/26                EN                       Official Journal of the European Union                                           21.2.2004
Action brought on 9 January 2004 by the Commission of                   The applicant claims that the Court should:
the European Communities against the Federal Republic
                           of Germany                                   1.    declare that, by failing to adopt or in any event to
                                                                              inform the Commission of the laws, regulations and
                                                                              administrative provisions necessary in order to comply
                          (Case C-5/04)                                       fully with Council Directive 1999/63/EC (1) of 21 June
                                                                              1999 concerning the Agreement on the organisation of
                         (2004/C 47/44)                                       working time of seafarers concluded by the European
                                                                              Community Shipowners’ Association (ECSA) and the
                                                                              Federation of Transport Workers’ Unions in the European
                                                                              Union (FST) — Annex: European Agreement on the
An action against the Federal Republic of Germany was                         organisation of working time of seafarers, the Republic
brought before the Court of Justice of the European Communi-                  of Austria has failed to fulfil its obligations under Article 3
ties on 9 January 2004 by the Commission of the European                      of that directive; and
Communities, represented by Karen Banks and Dr Claudia
Schmidt, Agents, with an address for service in Luxembourg.             2.    order the Republic of Austria to pay the costs of the case.
The Commission claims that the Court should:                            Pleas in law and main arguments
1.    declare that, by failing to adopt, or to communicate to
      the Commission, the laws, regulations and administrative          The period within which the directive was to be implemented
      provisions necessary to implement Directive 98/44/EC (1)          expired on 30 June 2002.
      of the European Parliament and the Council of 6 July
      1998 on the legal protection of biotechnological inven-
                                                                        (1) OJ 1999 L 167, p. 33.
      tions, the Federal Republic of Germany has failed to fulfil
      its obligations under that directive; and
2.    order the Federal Republic of Germany to pay the costs
      of the case.
                                                                               Removal from the register of Case C-376/99 (1)
Pleas in law and main arguments                                                                   (2004/C 47/46)
The period within which the directive was to be implemented
expired on 30 July 2000.                                                By order of 17 September 2003 the President of the Court of
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-376/99: Federal Republic of
(1) OJ 1998 L 213, p. 13.                                               Germany v Commission of the European Communities.
                                                                        (1) OJ C 352, 4.12.1999.
Action brought on 13 January 2004 by the Commission
of the European Communities against the Republic of
                             Austria                                           Removal from the register of Case C-101/03 (1)
                                                                                (2004/C 47/47)
                         (Case C-10/04)
                         (2004/C 47/45)                                 By order of 21 October 2003 the President of the Court of
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-101/03: Commission of the
                                                                        European Communities v Italian Republic.
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 13 January 2004 by the Commission of the European                    (1) OJ C 118, 18.5.2002.
Communities, represented by G. Rozet and H. Kreppel, Agents,
with an address for service in Luxembourg.


title: Case C-359/06: Judgment of the Court (Seventh Chamber) of 24 May 2007 — Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil its obligations — Directive 2001/45/EC — Social policy — Worker protection — Use of work equipment — Minimum health and safety requirements)

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/5

         Judgment of the Court (Seventh Chamber) of 24 May 2007 — Commission of the European Communities v Republic of Austria
   (Case C-359/06) (1)

   (Failure by a Member State to fulfil its obligations - Directive 2001/45/EC - Social policy - Worker protection - Use of work equipment - Minimum health and safety requirements)
   (2007/C 155/07)
   Language of the Case: German
   Parties

      Applicant: Commission of the European Communities (represented by: V. Kreuschitz and I. Kaufmann-Bühler, acting as Agents)

      Defendant: Republic of Austria (represented by: C. Pesendorfer, Agent)
   Re:
   Failure by a Member State to fulfil its obligations — Failure to adopt, within the period prescribed, all the necessary provisions to comply with Directive 2001/45/EC of the European Parliament and of the Council of 27 June 2001, amending Council Directive 89/655/EC concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16 (89/391/EEC)) (OJ 1989 L 393, p. 46)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, all the necessary laws, regulations and administrative provisions to comply with Directive 2001/45/EC of the European Parliament and of the Council of 27 June 2001, amending Council Directive 89/655/EEC concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16 (89/391/EEC)) regarding Burgenland and the Land of Carinthia, and with regard to the Land of Lower Austria, by not, at the very least, informing the Commission of the European Communities of those provisions within that period, the Republic of Austria has failed to fulfil its obligations under that directive;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 249 of 14.10.2006.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/48

         Action brought on 4 February 2004 by Sunplus Technology Co. Ltd., against the office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-38/04)
   (2004/C 94/132)
   Language of the case: to be determined pursuant to article 131(2) of the Rules of Procedure language in which the case was submitted: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 4 February 2004 by Sunplus Technology Co. Ltd., Hsin-Chu, Taiwan, represented by Dr H. Eichmann, Mr G. Barth, Dr U. Blumenröder, Ms C. Niklas-Falter, Dr M. Kinkeldey, Dr K. Brandt, Ms A. Franke, Ms U. Stephani, Dr B. Allekotte, Dr E.Pfrang, Ms K. Lochner, Ms B. Ertle, Ms Christine Neuhierl and Ms Sabine Prückner, lawyers.
   Sun Microsystems, Inc., was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 642/2000-4 of 7 October 2003;

               —

               order the costs of the proceedings to be borne by the defendant.

         Pleas in law and main arguments:

               Applicant for the Community trade mark:

               Sunplus Technology Co. Ltd.

               The Community trade mark sought:

               The figurative mark ‘SUNPLUS’ for certain goods in class 9 (Chips; semi-conductors; micro-processing chips; program cards;...) (trade mark application No 214346)

               Proprietor of mark or sign cited in the opposition proceedings:

               Sun Microsystems Inc.

               Mark or sign cited in opposition:

               The national verbal and figurative marks ‘SUN’ for goods in class 9 (computers; magnetic and electronic data carriers;...)

               Decision of the Opposition Division:

               Rejection of the trade mark application

               Decision of the Board of Appeal (1):

               Dismissal of the appeal brought by the applicant

               Pleas in law:

               Infringement of Article 8(1) (b) of Council Regulation (EC) No 40/94 (2) in that there is no likelihood of confusion.

      (1)   Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 642/2000-4 of 7 October 2003

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


title: Case T-839/14: Action brought on 22 December 2014 — Alnapharm v OHIM — Novartis (Alrexil)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/49

         Action brought on 22 December 2014 — Alnapharm v OHIM — Novartis (Alrexil)
   (Case T-839/14)
   (2015/C 065/66)
   Language in which the application was lodged: English

      Parties

      Applicant: Alnapharm GmbH & Co. KG (Hamburg, Germany) (represented by: H. Heldt, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Novartis AG (Basel, Switzerland)

      Details of the proceedings before OHIM

      Applicant: The other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community word mark ‘Alrexil’ — Application for registration No 10 306 249

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 23 October 2014 in Case R 1723/2013-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and refer the case back to the Board of Appeal of OHIM;

               —

               order OHIM to pay the costs.

      Plea in law

               —

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


title: Case C-318/17: Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 30 May 2017 — Mahmud Ibrahim and Others v Federal Republic of Germany

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/23

         Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 30 May 2017 — Mahmud Ibrahim and Others v Federal Republic of Germany
   (Case C-318/17)
   (2017/C 309/29)
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicants: Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, Mohammad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim, Ahmad Ibrahim, legally represented by Fadwa and Mahmud Ibrahim

      Defendant: Federal Republic of Germany

      Questions referred

               1.

               Does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32/EU (1) preclude the application of national legislation which, in transposition of the power conferred in Article 33(2)(a) of Directive 2013/32/EU, which is more extensive than that conferred in the directive that preceded it, provides that an application for international protection is inadmissible if the applicant has been granted subsidiary protection in another Member State, in so far as the national legislation, in the absence of any national transitional provisions, is applicable even to applications lodged before 20 July 2015?
               In particular, does the transitional provision contained in the first paragraph of Article 52 of Directive 2013/32/EU allow the Member States, in particular, to transpose the extended power conferred in Article 33(2)(a) of Directive 2013/32/EU retroactively, with the result that even applications which were lodged before that extended power was transposed into national law but which were not yet the subject of a final decision at the time of transposition are inadmissible?

               2.

               Does Article 33 of Directive 2013/32/EU confer on the Member States a right to choose whether to reject an application for asylum as inadmissible either on the ground that responsibility lies with another Member State (the Dublin Regulation) or under Article 33(2)(a) of Directive 2013/32/EU?

               3.

               If the answer to Question 2 is in the affirmative, does EU law prevent a Member State from rejecting an application for international protection as inadmissible on the ground that subsidiary protection has been granted in another Member State, in transposition of Article 33(2)(a) of Directive 2013/32/EU, where

                           a)

                           the applicant seeks to have the subsidiary protection granted to him in another Member State enhanced (by the award of refugee status) and the asylum procedure in the other Member State was (and continues to be) vitiated by systemic flaws, or

                           b)

                           the form which the international protection takes, that is to say the living conditions of those benefiting from subsidiary protection, in the other Member State which has already granted the applicant subsidiary protection,

                                       —

                                       infringes Article 4 of the Charter and Article 3 ECHR or

                                       —

                                       does not satisfy the requirements of Article 20 et seq. of Directive 2011/95/EU but does not in and of itself infringe Article 4 of the Charter or Article 3 ECHR?

               4.

               If Question 3b is to be answered in the affirmative, is this also the case where, although the persons benefiting from subsidiary protection do not receive any subsistence benefits at all or those which they do receive are very limited by comparison with those available in other Member States, they are to this extent not treated any differently from nationals of that Member State?

               5.

               If Question 2 is answered in the negative:

                           a)

                           Is the Dublin III Regulation applicable in a procedure for the grant of international protection if the asylum application was lodged before 1 January 2014 but the take back request was not lodged until after 1 January 2014 and the applicant had previously (in February 2013) been granted subsidiary protection in the requested Member State itself?

                           b)

                           Do the Dublin provisions support the inference of an — unwritten — transfer of responsibility to the Member State which has requested that an applicant be taken back, where the requested responsible Member State has refused to grant a take back request made, within the prescribed time limit, under the Dublin provisions and has instead referred to an international readmission agreement?

      (1)  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ L 180, 2013, p. 60).


title: Action brought on 31 January 1997 by Kesko Oy against the Commission of the European Communities (Case T-22/97)

text:
26 . 4 . 97            EN                   Official Journal of the European Communities                                 No C 131 / 17
               ORDER OF THE PRESIDENT                                  England and Wales, with an address for service in
           OF THE COURT OF FIRST INSTANCE                              Luxembourg at the Chambers Loesch & Wolter, 11 , rue
                      of 17 December 1996                              Goethe, Luxembourg.
in Case T-164/96 R: Moccia Irme SpA v. Commission of                   The applicant claims that the Court should:
                   the European Communities
(ECSC — State aid — Single decision refusing to authorize              — annul the Commission decision of 20 November 1996
the grant of State aid to a steel undertaking — Suspension                   in Kesko/Tuko (IV/M.784 ),
of operation of a measure — Necessary interim measures
— Interest in obtaining the interim measures requested —
                  Rejection of the application)                        — order the Commission to pay the costs of the
                                                                             applicant.
                          ( 97/C 131 /42 )
                                                                       Pleas in law and main arguments adduced in support:
                 (Language of the case: Italian)
                                                                       The applicant is a leading wholesale company in Finland.
                                                                       It distributes both daily consumer goods ( food, beverages,
In Case T-164/96 R: Moccia Irme SpA, established in                    tobacco products and household consumables forming
Naples ( Italy ), represented by Emilio Cappelli, Paolo De             part of a basket of goods which consumers expect to find
Caterini and Andrea Bandini, of the Rome Bar, with an                  in supermarkets ) and specialty goods ( shoes, clothes,
address for service in Luxembourg at the Chambers of                   sports articles, home electronics and agricultural and
Charles Turk, 13b Avenue Guillaume, against Commission                 builders' supplies ). On 27 May 1996 Kesko acquired
of the European Communities ( Agents : Paul E Nemitz,                  exclusive control of Tuko Oy, a company active as a
Laura Pignataro and Massimo Moretto ) — application                    wholesaler and retailer in the field of daily consumer
brought under Article 39 of the ECSC Treaty requesting                 goods and specialty goods. On 26 June 1996 the
the President of the Court of First Instance to make an                Commission received from the Finnish Office of Free
order suspending the operation of the Commission                       Competition ( OFC ) a request based on Article 22 ( 3 ) of
Decision C(96)2385 final of 30 July 1996, together with                Council Regulation ( EEC ) No 4064/89 (the Merger
previous acts, and to decide that the Commission is to                 Regulation). The Commission initiated proceedings in
request the Italian authorities to suspend until the                   respect of the transaction and, on 20 November 1996 ,
substance of the case is dealt with payment of the aid for             adopted the contested decision, declaring the
closure referred to in Decree Law No 396 of 20 June                    concentration between Kesko Oy and Tuko Oy to be
1994, now Law No 481 of 3 August 1994, and, in the                     incompatible with the common market and the
alternative, that the Commission should reopen the inter               functioning of the EEA Agreement.
partes procedure to investigate the aid to the applicant —
the President of the Court of First Instance made an order
on 17 December 1996 , the operative part of which is as                The applicant seeks the annulment of this decision on the
follows :                                                              following grounds:
                                                                       ( a ) The Commission failed to verify adequately the basis
1 . The application for interim measures is dismissed.                       of its competence despite the fact that its competence
                                                                             was challenged by the applicant on the ground that
                                                                             OFC was not empowered to make a request under
2.   The costs are reserved.                                                 Article 22 ( 3 ) of the Merger Regulation . The
                                                                             Commission also failed to state the reasons for which
                                                                             it assumed competence and rejected the applicant's
                                                                             arguments .
                                                                             These errors constitute infringements of Article 22 ( 3 )
                                                                             of the Merger Regulation, Article 190 of the EC
Action brought on 31 January 1997 by Kesko Oy against
                                                                             Treaty and the principle of good administration .
        the Commission of the European Communities
                         ( Case T-22/97)
                                                                       ( b ) In finding that the concentration in question may have
                           ( 97/C 131 /43 )                                  an effect upon trade between Member States, the
                                                                             Commission made a manifest error in its assessment of
                                                                             the relevant facts and its application of the law.
                (Language of the case: English)
                                                                             This error constitutes an infringement of Article 22 ( 3 )
                                                                             of the Merger Regulation and Article 190 of the EC
An action against the Commission of the European
Communities was brought before the Court of First                            Treaty.
Instance of the European Communities on 31 January
1997 by Kesko Oy, represented by Gerwin Van Gerven, of                 (c ) In finding that the applicant and independent K
the Brussels Bar, and Sarah Beeston, of the Law Society of                   retailers ( and T-retailers ) should be regarded as
 ---pagebreak--- No C 131 /18            EN                   Official Journal of the European Communities                                  26 . 4 . 97
    vertically integrated, the Commission made a manifest               complaint it lodged, of the adoption and implementation,
    error in its assessment of the relevant facts and its               in France, of aid measures for French producers of liqueur
    application of the law.                                             wines, such measures having been taken by the
                                                                        Government without the duty to notify having been
    This error constitutes an infringement of Articles 2,               complied with.
    3 ( 3 ), 8 ( 3 ), 22 ( 3 ) and 22 (4 ) of Merger Regulation
    and Article 190 of the EC Treaty.                                   Those measures involve the allocation of subsidies in
                                                                        1994, 1995 , 1996 and 1997 of FF 24 million, FF 28
                                                                        million, FF 32 million and FF 37 million respectively.
                                                                        The applicant points out in particular that, following the
Action brought on 3 February 1997 by AEVP — Associa                    complaint lodged by the AEVP, the Commission should,
gao das Empresas de Vinho do Porto against the                          within two months, or within a reasonable time, have
          Commission of the European Communities                        adopted one of two decisions: either to approve the
                                                                        measures in issue, in the event that it had been
                            Case T-23/97)
                                                                        immediately certain that such measures are compatible
                            ( 97/C 131/44 )                             with the common market, after giving the French
                                                                        authorities the opportunity to submit their comments and
              (Language of the case: Portuguese)                        possibly subsequently having discussed the matter with
                                                                        AEVP, if necessary in order to clarify completely the status
                                                                        of the measures in issue; or to initiate the review
An action against the Commission of the European                        procedure provided for in Article 93 ( 2 ) in the event that
Communities was brought before the Court of First                       it cannot, on the basis of a mere preliminary analysis,
Instance of the European Communities on 3 February                      consider the measures in question compatible with the
1997 by AEVP — Associagao das Empresas de Vinho do                      common market.
Porto, whose registered office is at 413 Rua Barao de For
rester, 4400 Vila Nova de Gaia, represented by Carlos Bo
telho Moniz and Ana Santos Reis, of the Bar of Portugal,                The Commission did neither the one nor the other and has
with an address for service in Luxembourg at the                        been analysing the situation at a preliminary level for
Chambers of Aloyse May, 31 Grand-Rue, Luxembourg.                       almost two years . The applicant insists that, whatever
                                                                        criterion is deemed applicable, the period for a
The applicant claims that the Court should:                             preliminary assessment expired a long time ago without
                                                                        the Commission having adopted a position in accordance
                                                                        with the Treaty.
— find and declare that the Commission of the European
     Communities, the defendant, failed, contrary to the
    provisions of Articles 92 and 93 and in breach of the               The fact that the Commission has not adopted a position
     principles of legality, care and impartiality, in its duty         at the preliminary stage impairs the rights of the
    to take a decision on whether to initiate the procedure             applicant, which is prevented from obtaining judicial
     provided for in Article 93 (2 ) as requested by the                protection under Community law in order to protect its
     applicant by way of complaint No 95/4342 SG(95 ) A/                legitimate interests .
     5925/2 with regard to the aid granted by the French
     Government to domestic liqueur wine producers,
                                                                        The applicant points out the fact that such action by the
— order the Commission to pay all the costs.                             Commission is necessary particularly since national courts
                                                                        do not have jurisdiction to decide whether the aid is
                                                                        compatible with the common market, since that power is
Pleas in law and main arguments adduced in support:                      conferred by the Treaty exclusively to the Commission.
The applicant brought an action for a declaration that the
 Commission, disregarding the provisions of Articles 92                  Thus, national courts must restrict themselves to ensuring
 and 93 of the EC Treaty, failed to fulfil its obligation to             the effectiveness of the prohibition until the Commission
 adopt an act defining its position on the complaint lodged              takes a final decision .
 with it by the applicant on 24 March 1995 , No 95/4342
 SG(95 ) A/5925 , denouncing a system of financial
 compensation set up by the Government of the French                     It is evident from this system that the Commission has the
 Republic for the benefit of French producers of liqueur                 obligation to take a decision as to the compatibility with
                                                                         the common market of aid measures which have not been
 wines, with the aim of nullifying the difference between
 the charge payable for that category of wine and natural                notified but of which it has meanwhile been apprised, in
 sweet wines in the context of the special consumption                   particular where it has been informed of their existence by
 duties .                                                                means of a complaint submitted by competitors of the
                                                                         beneficiaries of the aid granted.
 The applicant asserts in this regard that, in the instant
 case, the Commission was informed, by way of the


title: Case C-482/12: Reference for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 29 October 2012 — Peter Macinský, Eva Macinská v Getfin s.r.o., Financreal s.r.o.

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/32

         Reference for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 29 October 2012 — Peter Macinský, Eva Macinská v Getfin s.r.o., Financreal s.r.o.
   (Case C-482/12)
   2013/C 9/54
   Language of the case: Slovak

      Referring court

   Okresný súd Prešov

      Parties to the main proceedings

      Applicants: Peter Macinský, Eva Macinská

      Defendants: Getfin s.r.o., Financreal s.r.o.

      Question referred

               1.

               Is Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘Directive 93/13/EEC’) to be interpreted as precluding legislation of a Member State, such as Paragraph 151j(1) of the Občianský zákonník (Civil Code) in conjunction with the other provisions of legislation at issue in the present case, which enables a creditor to enforce the fulfilment of unfair contract terms by enforcing a lien by the sale of immovable property despite the objections of the consumer and a dispute regarding the matter and without an assessment of the contract terms by a court or other independent tribunal ?

      (1)  OJ 1993 L 95, p. 29.


title: Case T-497/07: Action brought on 20 December 2007 — Compañía Española de Petróleos (Cepsa) v Commission

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/50

         Action brought on 20 December 2007 — Compañía Española de Petróleos (Cepsa) v Commission
   (Case T-497/07)
   (2008/C 64/81)
   Language of the case: Spanish
   Parties

      Applicant: Compañía Española de Petróleos (Cepsa) (Madrid, Spain) (represented by: P. Pérez-Llorca Zamora, O.Armengol i Gasull and A. Pascual Morillo, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Articles 1 to 4 of the Commission Decision [C(2007) 4441] to the extent that they declare respectively that Compañía Española de Petróleos SA has infringed Article 81 EC, impose a fine on it, order it immediately to cease the infringement and include it as an addressee of the Decision

               —

               Alternatively, reduce the fine imposed on Compañía Española de Petróleos SA, and

               —

               Order the Commission to pay the costs of these proceedings.

         Pleas in law and main arguments
   The action is directed against Commission Decision C(2007) 4441 final of 3 October 2007in the Case COMP/38710 — Bitumen Spain. In the contested decision, the Commission declared that the applicant, together with other companies, had infringed Article 81 EC by having taken part, over a certain period, in a set of agreements and concerted practices in the market for penetration bitumen, namely agreements for sharing the market and coordinating prices. In respect of those infringements the Commission imposed a fine for which the applicant and another company are jointly and severally liable.
   In support of its claims, the applicant alleges first that there is an error of law in attributing to the applicant the infringement committed by another company by applying the case-law on ‘economic unit’. Further the applicant considers that the Commission made a manifest error of assessment of the facts by rejecting the evidence produced by the applicant in proof of the independence of the company which committed the infringement and by considering that there were many factors indicating that the latter company was not autonomous. In that context, the applicant also considers that the Commission infringed the obligation to state reasons by rejecting without foundation the arguments of the applicant on the independence of the company which committed the infringement.
   Alternatively, in respect of the amount of the fine, the applicant complains that the Commission infringed the principle of sound administration and the right of the applicant to a procedure without undue delays by not adopting the statement of objections in a reasonable time in light of the information available, infringed the principle of proportionality and made a manifest error of assessment by not taking into account that the applicant implemented a programme of compliance.


title: Case C-113/14: Action brought on 10 March 2014  — Federal Republic of Germany v European Parliament, Council of the European Union

text:
               28.4.2014

               EN

               Official Journal of the European Union

               C 129/15

         Action brought on 10 March 2014 — Federal Republic of Germany v European Parliament, Council of the European Union
   (Case C-113/14)
   2014/C 129/19
   Language of the case: German

      Parties

      Applicant: Federal Republic of Germany (represented by: T. Henze, A. Wiedemann, Agents)

      Defendants: European Parliament, Council of the European Union

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Article 7 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/01 and (EC) No 1234/2007 (1);

               —

               annul Article 2 of Council Regulation (EU) No 1370/2013 of 16 December 2013 determining measures on fixing certain aids and refunds related to the common organisation of the markets in agricultural products, (2) which refers to Article 7 of Regulation (EU) No 1308/2013;

               —

               rule that the effects of the aforementioned legal provisions be considered definitive until provisions adopted on the correct legal basis enter into force;

               —

               order the European Parliament and the Council of the European Union to pay the costs.

      Pleas in law and main arguments

   The Federal Republic of Germany seeks annulment of Article 7 of Regulation (EU) No 1308/2013. Regulation (EU) No 1308/2013 which establishes the common organisation of agricultural markets, was adopted in its entirety on the legal basis of Article 43(2) TFEU.
   However, according to the Federal Government, Article 7 of Regulation (EU) No 1308/2013 constitutes a ‘measure on fixing prices’ within the meaning of Article 43(3) TFEU. The Federal Government therefore takes the view that Article 7 of Regulation (EU) No 1308/2013 should not have been adopted on the legal basis of Article 43(2) TFEU but on the legal basis of Article 43(3) TFEU. According to the Federal Government, Article 7 of Regulation (EU) No 1308/2013 therefore uses an incorrect legal basis.
   The Federal Government claims that, for reasons of legal certainty and clarity, Article 2 of Regulation (EU) No 1370/2013, which refers to Article 7 of Regulation (EU) No 1308/2013, must also be annulled. By referring to Article 7 of Regulation (EU) No 1308/2013, which must, in its view, be annulled, Article 2 contributes to giving the false impression that it uses the correct legal basis and is lawful.
   In the Federal Government's opinion, the effects of the aforementioned legal provisions must be considered definitive until provisions adopted on the correct legal basis enter into force, in order to protect overriding interests, on grounds of the protection of legitimate expectations for agricultural holdings and on grounds of legal certainty, in accordance with the second paragraph of Article 264 TFEU.

      (1)  OJ 2013 L 347, p. 671.

      (2)  OJ 2013 L 346, p. 12.


title: Case C-587/11 P: Appeal brought on 24 November 2011 by Omnicare, Inc. against the judgment of the General Court (First Chamber) delivered on 9 September 2011 in Case T-289/09: Omnicare, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Astellas Pharma GmbH

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/40

      Appeal brought on 24 November 2011 by Omnicare, Inc. against the judgment of the General Court (First Chamber) delivered on 9 September 2011 in Case T-289/09: Omnicare, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Astellas Pharma GmbH
      (Case C-587/11 P)
      (2012/C 25/76)
      Language of the case: English

         Parties

         Appellant: Omnicare, Inc. (represented by: M. Edenborough QC)

         Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Astellas Pharma GmbH

         Form of order sought

      The appellant seeks an Order that the judgment under appeal be annulled. Further, the Appellant seeks an Order for its costs of this appeal and before the General Court.

         Pleas in law and main arguments

      The Appellant relies upon a single plea in law, namely that the General Court wrongly applied Article 8(1)(b) of Council Regulation (EC) № 207/2009 (1) (the ‘New Regulation’). This case involves an opposition brought by Astellas Pharma GmbH (formerly Yamanouchi Pharma GmbH) (the ‘Opponent’) based upon the Opponent's German trade mark registration № 394 01348 and an allegation of the existence of confusion pursuant to Article 8(1)(b) of the Council Regulation (EC) № 40/94 (2) (‘the Old Regulation’) (but which is identical to the pertinent parts of the New Regulation). As the earlier mark had been registered for more than five years before the Opposition was commenced, it was necessary for the Opponent to prove that the mark has been put to genuine use in order for it to be used as a basis for the Opposition.
      It is submitted that the General Court wrongly held that the earlier trade mark upon which the Opponent relied had, as a matter of law, been put to genuine use. It is not disputed that the mark in question had actually been used in the course of trade by or with the consent of the Opponent in relation to the services for which it was registered. However, that use was in relation to the provision of services for which no charge was levied. Accordingly, as a matter of law, such use cannot be invoked to establish that the mark had been put to genuine use. This point has been the subject of some case law, which the Appellant submits (a) was mis-applied by the General Court, and (b) is inconsistent in any event. Accordingly, the matter of the legal consequences that ought to be drawn in such a factual scenario needs to be resolved by this Court.

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

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


title: Case C-402/11 P: Appeal brought on 28 July 2011 by Jager & Polacek GmbH against the judgment of the General Court (Seventh Chamber) delivered on 12 May 2011 in Case T-488/09 Jager & Polacek GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/2

         Appeal brought on 28 July 2011 by Jager & Polacek GmbH against the judgment of the General Court (Seventh Chamber) delivered on 12 May 2011 in Case T-488/09 Jager & Polacek GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-402/11 P)
   2012/C 6/02
   Language of the case: German

      Parties

      Appellant: Jager & Polacek GmbH (represented by: A. Renck, Rechtsanwalt)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the judgment of the General Court (Seventh Chamber) of 12 May 2011 in Case T-488/09;

               —

               Order the defendant at first instance to pay the costs.

      Pleas in law and main arguments

   The requirement for effective legal protection demands that the disputed communication of the Office for Harmonisation in the Internal Market, by which the appellant’s opposition was declared admissible, be regarded as a decision and that the opposition proceedings be continued. The contrary view of the General Court is legally incorrect and based on judgments of the Court of Justice which do not apply to the present case.
   Furthermore, the General Court erred in stating that a communication cannot be a decision. What is correct is, rather, that a decision may also be contained in a communication.
   Lastly, the General Court provided insufficient grounds as to why the international registration of the disputed mark is irrelevant as regards the present case.


title: Case T-560/10 R: Order of the President of the Court of First Instance of 16 February 2011 — Nencini v Parliament (Interim measures — Member of the European Parliament — Recovery of allowances for parliamentary assistance and travel — Application for suspension of operation — No urgency)

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/14

         Order of the President of the Court of First Instance of 16 February 2011 — Nencini v Parliament
   (Case T-560/10 R)
   (Interim measures - Member of the European Parliament - Recovery of allowances for parliamentary assistance and travel - Application for suspension of operation - No urgency)
   2011/C 113/29
   Language of the case: Italian

      Parties

      Applicant: Riccardo Nencini (Barberino di Mugello, Italy) (represented by: F. Bertini, lawyer)

      Defendant: European Parliament (represented by: N. Lorenz, A. Caiola and D. Moore, Agents)

      Re:

   Application for suspension of operation of various decisions of the European Parliament ordering the recovery of parliamentary allowances allegedly unduly paid

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case T-79/12: Judgment of the General Court of 11 December 2013 — Cisco Systems and Messagenet v Commission (Competition — Concentrations — European markets for internet communications services — Decision declaring the concentration compatible with the internal market — Manifest errors of assessment — Obligation to state reasons)

text:
               1.2.2014

               EN

               Official Journal of the European Union

               C 31/9

         Judgment of the General Court of 11 December 2013 — Cisco Systems and Messagenet v Commission
   (Case T-79/12) (1)

   (Competition - Concentrations - European markets for internet communications services - Decision declaring the concentration compatible with the internal market - Manifest errors of assessment - Obligation to state reasons)
   2014/C 31/15
   Language of the case: English

      Parties

      Applicants: Cisco Systems, Inc. (San Jose, California, United States) and Messagenet SpA (Milan, Italy) (represented by: L. Ortiz Blanco, J. Buendía Sierra, A. de Pablo and K. Jörgens, lawyers)

      Defendant: European Commission (represented by: N. Khan, S. Noë and C. Hödlmayr, Agents)

      Intervener in support of the defendant: Microsoft Corp. (Seattle, Washington, United States) (represented by: G. Berrisch, lawyer)

      Re:

   Application for annulment of Commission Decision C(2011) 7279 final of 7 October 2011 declaring compatible with the internal market the merger transaction involving the acquisition of control of Skype Global Sàrl by Microsoft Corp. (Case COMP/M.6281 — Microsoft/Skype).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Cisco Systems Inc. and Messagenet SpA to bear their own costs and to pay those incurred by the European Commission and Microsoft Corp.

      (1)  OJ C 109, 14.4.2012.


title: Case T-412/14: Action brought on 6 June 2014  — Larko v Commission

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/47

         Action brought on 6 June 2014 — Larko v Commission
   (Case T-412/14)
   2014/C 292/58
   Language of the case: Greek

      Parties

      Applicant: Larko Geniki Metalleftiki kai Metallourgiki AE (Athens, Greece) (represented by: Ι. Drullerakes, Ε. Τriandafyllou, G. Psaroudakis, Ε. Randos, Ν. Korogiannakis, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               uphold this action in its entirety;·

               —

               declare to be null and void the Commission Decision of 27/03/2014 [SG-Greffe (2014) D/4628/28/03/2014] in relation to the sale of certain assets of the applicant (No. SA.37954 (2013/N) and,

               —

               order the defendant to pay the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               The first plea in law is based on the infringement by the Commission of Article 41 of the Charter of Fundamental Rights. The applicant maintains that due to the failure first to hear the applicant it is evident that the adoption of the contested decision was vitiated by an infringement of an essential procedural requirement for its adoption.

               2.

               The second plea in law is based on the infringement by the Commission of Article 108(2) TFEU and Article 14 of Regulation (ΕC) No 659/99. (1) The applicant maintains that the Commission committed a manifest error of assessment in considering that there was economic continuity between the applicant and the purchaser of its assets in the context of the ‘privatisation programme’.

               3.

               The third plea in law is based on the infringement of Article 296(2) TFEU. The applicant maintains that the statement of reasons in the contested decision is insufficient as regards the lack of economic continuity, and particularly as regards (a) the scope of the assets which were sold, (b) the non-transfer of employment contracts and (c) the economic logic of the sale.

      (1)  Council Regulation (ΕC) No 659/1999 of 22 March1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case T-394/13: Judgment of the General Court of 18 November 2014  — Photo USA Electronic Graphic v Council (Dumping — Imports of ceramic tableware and kitchenware originating in China — Definitive anti-dumping duty — Definition of the product concerned)

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/34

         Judgment of the General Court of 18 November 2014 — Photo USA Electronic Graphic v Council
   (Case T-394/13) (1)

   ((Dumping - Imports of ceramic tableware and kitchenware originating in China - Definitive anti-dumping duty - Definition of the product concerned))
   (2015/C 007/38)
   Language of the case: English

      Parties

      Applicant: Photo USA Electronic Graphic, Inc. (Beijing, China) (represented by: K. Adamantopoulos, lawyer)

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

      Interveners in support of the defendant: European Commission (represented by: J.-F. Brakeland and M. França, Agents); Ancàp SpA (Sommacampagna, Italy); Cerame-Unie AISBL (Brussels, Belgium); Confindustria Ceramica (Sassuolo, Italy); and Verband der Keramischen Industrie eV (Selb, Germany) (represented by: R. Bierwagen, lawyer)

      Re:

   Application for annulment of Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2013 L 131, p. 1) in so far as it imposes an anti-dumping duty on the applicant.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Photo USA Electronic Graphic, Inc. to bear its own costs and to pay those incurred by the Council of the European Union and by Ancàp SpA, Cerame-Unie AISBL, Confindustria Ceramica and Verband der Keramischen Industrie eV;

               3)

               Orders the European Commission to bear its own costs.

      (1)  OJ C 274, 21.9.2013.


title: Case C-389/05: Action brought on  27 October 2005  by the Commission of the European Communities against the French Republic

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/12

         Action brought on 27 October 2005 by the Commission of the European Communities against the French Republic
   (Case C-389/05)
   (2006/C 10/23)
   Language of the case: French
   An action against the French Republic was brought before the Court of Justice of the European Communities on 27 October 2005 by the Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               declare that, by allowing only ‘centres de mise en place’ authorised in France to carry out activities related to the artificial insemination of cattle, the French Republic has failed to fulfil its obligations under Articles 43 and 49 EC;

               2.

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   Articles 43 and 49 EC respectively lay down the right of establishment and freedom to provide services. Article 46 also provides that the provisions of those Articles and the measures taken in pursuance thereof shall not prejudice the applicability of the domestic provisions of a Member State providing for special treatment for foreign nationals on grounds of public policy, public security, or public health. However, that latter provision is not at issue here, as the Commission's challenge does not concern special treatment for foreign nationals who wish to provide artificial insemination services in France, but the impossibility, in law and in fact, of Community nationals performing that activity because of the monopoly granted in France to ‘insemination centres’ by means of, inter alia, two provisions of French legislation.
   Artificial insemination services in France, in fact and in law, are subject to a monopoly in favour of ‘centres de mise en place’, which prevents providers of those services from other Member States from performing those activities, either by means of the right of establishment or by that of freedom to provide services. The French authorities put forward health considerations which, they submit, may justify adopting or retaining domestic measures so restrictive as to nullify those two Treaty freedoms for practical purposes. The Commission disputes the validity of those justifications, however, considering that, by their very nature, those restrictions are in any event disproportionate to the health and safety objectives put forward as the main grounds for them.


title: Case T-29/15: Judgment of the General Court of 2 February 2017 — International Management Group v Commission (Development cooperation — Annual Action Programme in favour of Myanmar/Burma to be financed from the general budget of the European Union — Budget implementing decision — Modification — Action for annulment — Challengeable act — Admissibility — Obligation to state reasons — Principle of sound financial management — Principle of good administration — Transparency — Remedy — Legitimate expectations)

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/22

         Judgment of the General Court of 2 February 2017 — International Management Group v Commission
   (Case T-29/15) (1)

   ((Development cooperation - Annual Action Programme in favour of Myanmar/Burma to be financed from the general budget of the European Union - Budget implementing decision - Modification - Action for annulment - Challengeable act - Admissibility - Obligation to state reasons - Principle of sound financial management - Principle of good administration - Transparency - Remedy - Legitimate expectations))
   (2017/C 078/29)
   Language of the case: English

      Parties

      Applicant: International Management Group (Brussels, Belgium) (represented by: M. Burgstaller, C. Farrell, Solicitors, and E. Wright, Barrister)

      Defendant: European Commission (represented by: J. Baquero Cruz and S. Bartelt, acting as Agents)

      Re:

   Action on the basis of Article 263 TFEU seeking the annulment of Commission Implementing Decision C(2014) 9787 final of 16 December 2014, amending Implementing Decision C(2013) 7682 final on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders International Management Group to pay the costs.

      (1)  OJ C 81, 9.3.2015.


title: Action brought on 23 February 1995 by Castle Cement Ltd against the Commission of the European Communities (Case T-56/95)

text:
3 . 6 . 95               EN                  Official Journal of the European Communities                                 No C 137/23
Action brought on 17 February 1995 by Syndicat National                  Action brought on 21 February 1995 by Van Megen Sports
de l'lndustrie Cimentiere ( SFIC ) v. Commission of the                  Group BV against the Commission of the European
                       European Communities                                                          Communities
                           ( Case T-36/95 )                                                       ( Case T-49/95 )
                             ( 95/C 137/57 )                                                        ( 95/C 137/58 )
                    (Language of the case: French                                         (Language of the case: Dutch)
An action against the Commission of the European                         An action against the Commission of the European
Communities was brought before the Court of First                        Communities was brought before the Court of First
Instance of the European Communities on 17 February                      Instance of the European Communities on 21 February
1995 by the Syndicat National de l'lndustrie Cimentiere                  1995 by Van Megen Sports Group BV, whose registered
( SFIC ), whose registered office is in Paris, represented by            office is in Eindhoven (Netherlands ), represented by A. W.
Edouard Didier and Jean-Claude Rivalland, of the Paris Bar,              Willems, Boskamp & Willems Chambers, Eindhoven, with
with an address for service in Luxembourg at the Chambers                an address for service in Luxembourg at the Registry of the
of Carlos Zeyen, 67 Rue Ermesinde.                                       Court of First Instance .
The applicant claims that the Court should :                             The applicant claims that the Court should :
— annul in whole or in part, Articles 1 , 2 , 3 ( 2 ), 4 ( 1 ), 4 ( 2 ), declare null and void the Commission's Decision of
      5 and 9 of the Commission 's Decision of 30 November
                                                                         21 December 1994 relating to a proceeding pursuant to
      1994 in so far as those articles concern the SFIC,                 Article 85 of the EC Treaty ( IV/32.948 — IV/34.590 :
                                                                         Tretorn and others ) (*).
— order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:                      Pleas in law and main arguments adduced in support:
In support of its application the applicant puts forward the             Breach of essential procedural requirements and/or of a rule
following pleas in law:                                                  of law which must be complied with when applying the
                                                                         Treaty.
  I. Breaches of formal and procedural requirements :
                                                                         In its abovementioned decision the Commission imposed a
       1 . During the administrative procedure prior to the              fine on the applicant on the ground that it infringed
           adoption of the Decision: the applicant maintains in          Article 85 ( 1 ) by participating in the implementation in the
           particular that the statement of objections failed to         Netherlands of the reporting and investigation of parallel
           comply with the obligation to specify individually            imports in order to enforce Tretorn Sports Ltd's policy of
           the objections raised and the evidence tendered               preventing parallel imports and exports .
           against it and also that it was unable to obtain full
           access to the file .                                          The applicant considers that the conclusion reached by the
                                                                         Commission in its decision cannot be supported by the
       2 . As regards the adoption of the Decision: the                  evidence available to it, that that conclusion is insufficiently
           applicant considers that the Decision contains                reasoned by the Commission and that insufficient
           several defects relating to the circumstances of its          arguments are given justifying ( the level of the ) actual
           adoption, to its form and to the procedure                    penalty ( in proportion to that of the other parties
           followed :                                                    concerned ).
            ( a ) breach of the principle of collegiality;                (') OJ No L 378 , 31 . 12 . 1994 , p . 45 .
            ( b ) use of excluded documents :
            ( c ) condemnation of the applicant on the basis of
                  objections not expressly mentioned in the
                  statement of objections;                                Action brought on 23 February 1995 by Castle Cement Ltd
                                                                            against the Commission of the European Communities
            ( d ) use of new evidence ;
                                                                                ( Case T-56/95 )
            ( e ) defective statement of reasons .                                                   ( 95/C 137/59 )
 II . Inadequate evidence : as regards both the charge of an
       agreement to respect home markets and the other                                    (Language of the case: English)
       infringements charged, the Commission has not proved
       to the requisite legal standard that the applicant, as             An action against the Commission of the European
       such, was involved , or that the conduct at the factual            Communities was brought before the Court of First
       level that was attributable to it exceed the lawful bounds         Instance of the European Communities on 23 February
       of its functions as a trade association and/or approved            1995 by Castle Cement Ltd represented by Mr Nicholas
       statistical body .                                                 Forwood , Mr John Cook, with an address for service in
                                                                          Luxembourg at the chambers of Arendt & Medernach,
                                                                          Boite Postale 39 , L-2010 Luxembourg.
 ---pagebreak--- No C 137/24            EN                   Official Journal of the European Communities                                         3 . 6 . 95
The applicant claims that the Court should :                           The applicant claims that the Court should :
— annul        Commission          Decision    94/815/EC      of       — annul the Commission decision of 30 November 1994
    30 November 1994 ( l ) wholly or alternatively in part in               ( IV/33.126 and 33.322 — Cement) in its entirety so far
    so far as it relates to the applicant,                                  as it concerns the applicant, and consequently annul the
                                                                            fine imposed on the applicant,
— cancel, or alternatively reduce , the fine imposed by
    Article 9 , and                                                    — reduce the fine imposed on CIMPOR, should it decide
                                                                           that it is inappropriate to annul the Commission
— award to the applicant the costs of the application .                    decision in its entirety so far as it concerns the
                                                                           applicant,
Pleas in law and main arguments adduced in support:
                                                                       — order the Commission to pay the whole of the costs .
The Castle submits that the Decision is based upon an
erroneous theory of a ' single and continuous agreement'
which enables the Commission to sew together distinct                  Pleas in law and main arguments adduced in support:
infringements covering different cement associations and
undertakings, different time periods, different markets and            The applicant claims that the legality of the contested
Member States and having different characteristics and                 decision is vitiated by the following defects :
which has led the Commission into a number of manifest
errors of reasoning, inference , and procedure with respect to          I. Defects relating to infringement of the rights of the
proof and economic analysis and to disregard the customary                     defence, arising from :
procedural protection recognized under Community law for
undertakings accused of infringing Article 85 .                                1 . partial notification      of   the    statement       of
                                                                                objections;
The Commission 's theory has also led it to impose a fine on
Castle which is wholly disproportionate to its role and
responsibility.                                                               2 . general and non-specific nature of the charges ;
Castle contests that there was a Cembureau Agreement as                        3 . limited access to the documents collected by the
alleged by the Commission and denies any participation in                          Commission or used by it in the preliminary
any form of collusion between the UK producers ( Blue                              procedure and in the grounds of its decision;
Circle, Castle and Rugby ) and that its participation to the
European Export Committee was motivated by any                                4 . failure in those parts of the statement of objections
anti-competitive intent or did produce such effects .                              directed against the applicant to identify the
                                                                                documents      on which the     final decision was
(M OJ No L 343 , 30 . 12 . 1994 .                                                  based;
                                                                              5 . unjustified restriction of the right to a fair hearing,
                                                                                as a result of the manner in which the hearing of the
                                                                                parties concerned was organized;
                                                                              6 . use of incomplete documentation as evidence of the
Action brought on 23 February 1995 by CIMPOR —                                     infringements with which the applicant is
Cimentos de Portugal SA against the Commission of the                              charged ;
                    European Communities
                         ( Case T-61/95 )
                                                                              7. impairment of the right to reply orally and in
                           ( 95/C 137/60 )                                         writing and confusion in the administrative
                                                                                procedure between the preliminary examination
            (Language of the Case: Portuguese)                                     and the statement of their case by the parties .
                                                                       II . Defects relating to the classification of, and evidence
An action against the Commission of the European                              for, the infringements with which the applicant is
Communities was brought before the Court of First                             charged , arising from:
Instance of the European Communities on 23 February
1995 by CIMPOR — Cimentos de Portugal SA, whose
registered office is at 35 Rua Alexandre Herculano, Lisbon,                    1 . breach of Article 85 of the EC Treaty, as a result of
represented by Carlos Botelho Moniz, Adelino Duarte,                               the threefold charge in respect of the same
Teresa Mendes and Amadeu Brandao Cola^o, all members                               infringement;
of the Portuguese Bar, whose Chambers are at 63/6 Rua
Castilho , 1250 Lisbon, with an address for service in                        2 . an error in the grounds of the decision, as a result of
Luxembourg at the Chambers of Aloyse May, 31                                       the inadequate definition and classification of the
Grand-Rue .                                                                        market;


title: Case T-554/12: Judgment of the General Court of 27 March 2014  — Oracle America v OHIM — Aava Mobile (AAVA MOBILE) (Community trade mark — Opposition proceedings — Application for the Community word mark AAVA MOBILE — Earlier Community word mark JAVA — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — No likelihood of association — Link between the signs — Reputation — No similarity of the signs — Article 8(5) of Regulation No 207/2009)

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/19

         Judgment of the General Court of 27 March 2014 — Oracle America v OHIM — Aava Mobile (AAVA MOBILE)
   (Case T-554/12) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community word mark AAVA MOBILE - Earlier Community word mark JAVA - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - No likelihood of association - Link between the signs - Reputation - No similarity of the signs - Article 8(5) of Regulation No 207/2009))
   2014/C 151/24
   Language of the case: English

      Parties

      Applicant: Oracle America, Inc. (Wilmington, Delaware, United States) (represented by: M. Graf and T. Heydn, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by F. Mattina, and subsequently by P. Bullock, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Aava Mobile Oy (Oulu, Finland)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM (Case R 1205/2011-2) of 9 October 2012, concerning opposition proceedings between Oracle Amercia, Inc. and Aava Mobile Oy.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Oracle America, Inc. to pay the costs.

      (1)  OJ C 63, 2.3.2013.


title: Case C-199/13 P: Appeal brought on 16 April 2013 by Polyelectrolyte Producers Group, SNF SAS, Travetanche Injection SPRL against the judgment of the General Court (Seventh Chamber) delivered on 1 February 2013 in Case T-368/11: Polyelectrolyte Producers Group, SNF SAS, Travetanche Injection SPRL v European Commission

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/21

         Appeal brought on 16 April 2013 by Polyelectrolyte Producers Group, SNF SAS, Travetanche Injection SPRL against the judgment of the General Court (Seventh Chamber) delivered on 1 February 2013 in Case T-368/11: Polyelectrolyte Producers Group, SNF SAS, Travetanche Injection SPRL v European Commission
   (Case C-199/13 P)
   2013/C 171/42
   Language of the case: English

      Parties

      Appellants: Polyelectrolyte Producers Group, SNF SAS and Travetanche Injection SPRL (represented by: K. Van Maldegem, avocat, R. Cana, avocat)

      Other parties to the proceedings: European Commission, Kingdom of the Netherlands

      Form of order sought

   The Appellants claim that the Court should:

               —

               set aside the judgment of the General Court in case T-368/11; and

               —

               annul the Commission Regulation (EU) No 366/2011 (the ‘Contested Regulation’) amending Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) as regards Annex XVII (acrylamide) (1); or

               —

               alternatively, refer the case back to the General Court to rule on the Appellant's Application for annulment; and

               —

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

      Pleas in law and main arguments

   The Appellants submit that, in dismissing their application for annulment in respect of the Contested Regulation, the General Court breached Community law. In particular, the Appellants contend that the General Court committed a number of errors in its interpretation of the facts and of the legal framework as applicable to the Appellants' situation. That resulted in the General Court making a number of errors in law; in particular it:

               —

               misinterpreted Regulation 1488/94 (2) when it concluded that the Commission did not commit a manifest error of assessment by not taking into account all the relevant facts and circumstances;

               —

               misinterpreted Regulation 1488/94 when it concluded that the Commission did not commit a manifest error of assessment in relation to the evaluation of the exposure data taken into account;

               —

               erred in law and misinterpreted REACH when it concluded that the Commission did not commit a manifest error of assessment by adopting the Contested Regulation on the basis of information related to a different product than the product subjected to restrictions by the Contested Regulation;

               —

               erred in law in holding that the Commission did not infringe the principle of proportionality;

               —

               erred in law in holding that the Commission did not infringe its obligation to state reasons; and

               —

               misinterpreted the Contested Regulation in finding that it also covers NMA grouts containing acrylamide.

         For these reasons the Appellants claim that the judgment of the General Court in Case T-368/11 should be set aside and the Contested Regulation should be annulled.

      (1)  OJ L 101, p. 12

      (2)  Commission Regulation (EC) No 1488/94 of 28 June 1994 laying down the principles for the assessment of risks to man and the environment of existing substances in accordance with Council Regulation (EEC) No 793/93, OJ L 161, p. 3


title: Case T-348/13: Action brought on 3 July 2013 — Kadhaf Al Dam v Council and Commission

text:
               12.10.2013

               EN

               Official Journal of the European Union

               C 298/8

         Action brought on 3 July 2013 — Kadhaf Al Dam v Council and Commission
   (Case T-348/13)
   2013/C 298/13
   Language of the case: French

      Parties

      Applicant: Ahmed Mohammed Kadhaf Al Dam (Cairo, Egypt) (represented by: H. de Charette, lawyer)

      Defendants: European Commission and Council of the European Union

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare inapplicable to the applicant:

                           —

                           the Decision to maintain 2013/182 of 22 April 2013 amending Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya, in so far as it did not remove the applicant’s name from Annex II and Annex IV to Decision 2011/137/CFSP;

                           —

                           Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya in so far as Annexes II and IV thereto include the applicant’s name;

                           —

                           Regulation of the Council of the European Union 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya in so far as Annex III thereto includes the applicant’s name;

               —

               order the Council and the Commission to pay the symbolic amount of EUR 1 as compensation for damage suffered;

               —

               order the Council and the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of fundamental rights, is in four parts based on:

                           —

                           an infringement of the applicant’s rights of the defence, since the applicant was not given a hearing prior to the adoption of the restrictive measures against him;

                           —

                           the failure to notify the applicant of the contested measures, notwithstanding the fact that his address was known to the authorities;

                           —

                           a failure to state reasons, since the statement of reasons set out in the contested measures in support of the restrictive measures taken against the applicant bears no relation either to the situation in Libya at that time or to the objectives pursued;

                           —

                           the failure to hold a hearing.

               2.

               Second plea in law, alleging infringement of the right to property, is in two parts based on:

                           —

                           there being no public benefit from or public interest in the restrictive measures taken against the applicant, since the applicant has officially broken off relations with the Libyan government;

                           —

                           a lack of legal certainty.