title: Case C-23/01: Reference for a preliminary ruling by the Hof van Beroep te Brussel by order of 15 January 2001 in the case of NV Robelco and NV Robeco Groep

text:
10.3.2001              EN                  Official Journal of the European Communities                                        C 79/19
Reference for a preliminary ruling by the Hof van Beroep              The Applicant claims that the Court should:
te Brussel by order of 15 January 2001 in the case of NV
               Robelco and NV Robeco Groep                            —     declare that by failing to notify the laws, regulations
                                                                            and administrative provisions necessary to comply with
                                                                            European Parliament and Council Directive 98/4/EC (1) of
                         (Case C-23/01)                                     16 February 1998 amending Directive 93/38/EEC (2)
                                                                            coordinating the procurement procedures of entities
                                                                            operating in the water, energy, transport and telecom-
                         (2001/C 79/34)                                     munications sectors or by failing to adopt the measures
                                                                            to comply with it, the United Kingdom has failed to fulfil
                                                                            its obligations under Article 2(1) of the said Directive;
Reference has been made to the Court of Justice of the
European Communities by order of 15 January 2001 by the
                                                                      —     order the United Kingdom to pay the costs.
Hof van Beroep te Brussel (Court of Appeal, Brussels), which
was received at the Court Registry on 22 January 2001, for a
preliminary ruling in the case of NV Robelco and NV Robeco
Groep on the following questions:                                     Pleas in law and main arguments
—    Must Article 5(5) of First Council Directive 89/104/EEC          Article 249 EC (ex Article 189 of the EC Treaty), under which
     of 21 December 1988 to approximate the laws of the               a directive shall be binding, as to the result to be achieved,
     Member States relating to trade marks be interpreted             upon each Member State carries by implication an obligation
     as meaning that the possibility laid down therein for            on the Member States to observe the period for compliance
     protection by Member States can be afforded only against         laid down in the directive. That period expired on 16 February
     the use of a sign which is identical to the trade mark or        1999 without the United Kingdom having enacted the pro-
     can it also be afforded in that case against the use of a        visions necessary to comply with the directive referred to in
     sign similar to the trade mark?                                  the conclusions of the Commission.
—    If that protection can also be afforded against a sign           (1) OJ L 101, 1.4.1998, p. 1.
     similar to the trade mark, does unlawful similarity within       (2) OJ L 199, 9.8.1993, p. 84.
     the meaning of the abovementioned article require that
     confusion can arise as a consequence or is likelihood of
     association sufficient, in the sense that in the minds of
     those confronted by the trade mark and the sign one
     will suggest the other without any confusion resulting
     therefrom, or must no likelihood of association at all
     exist in this respect?
                                                                      Reference for a preliminary ruling by the Corte Suprema
                                                                      di Cassazione — Sezione Tributaria by order of that court
                                                                      of 12 July 2000 in the case of Enirisorse SpA against
                                                                                Ministero delle Finanze
                                                                                (Case C-34/01 to C-38/01)
                                                                                (2001/C 79/36)
Action brought on 24 January 2001 by the Commission of
the European Communities against the United Kingdom                   Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Corte Suprema di
                                                                      Cassazione — Sezione Tributaria (Supreme Court of Cassation,
                         (Case C-31/01)                               Tax Chamber) of 12 July 2000, which was received at the
                                                                      Court Registry on 25 January 2001, for a preliminary ruling
                                                                      in the case of Enirisorse SpA against Ministero delle Finanze
                         (2001/C 79/35)                               on the following questions:
                                                                      1.    Does allocation to a public undertaking — operating in
An action against the United Kingdom was brought before the                 the market for dockside unloading and loading of goods
Court of Justice of the European Communities on 24 January                  — of a significant proportion of a charge (port charge on
2001 by the Commission of the European Communities,                         loading and unloading goods) paid to the State by
represented by Mr Richard Wainwright, Principal Legal                       operators which have not obtained any services from that
Adviser, acting as Agent, with an address for service in                    undertaking, constitute a special or exclusive right or a
Luxembourg at the office of Mr Carlos Gómez de la Cruz,                    measure contrary to the rules of the Treaty, in particular
member of the Legal Service of the Commission, Centre                       the rules on competition, within the meaning of Article
Wagner.                                                                     90(1) of the Treaty?


title: Case T-352/15: Action brought on 29 June 2015 — DEI v Commission

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/10

         Action brought on 29 June 2015 — DEI v Commission
   (Case T-352/15)
   (2015/C 328/09)
   Language of the case: Greek

      Parties

      Applicant: Dimosia Epikhirisi Ilektrismou SA (DEI) (Athens, Greece) (represented by: E. Bourtzalas, D. Waelbroeck, K. Tagaras, K. Sinodinos, and E. Salaka, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision (C(2015)1942 final) of 25 March 2015 of the European Commission in Case SA.38101, in so far as that decision finds that State aid was not granted to Aluminium SA and, consequently, the Commission should not open the formal investigation procedure provided for by Article 108(2) TFEU;

               —

               annul the decision (C(2015)1942 final) of 25 March 2015 of the European Commission in Case SA.34991, in so far as that decision finds that DEI’s complaint concerning State Aid which was created by means of Decision 346/2012 of the Greek Regulatory Authority for Energy (RAE), has become without object as a result of Decision 1/2013 of the Arbitration Tribunal, and

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               The first plea in law is a claim of an infringement of an essential procedural requirement, in that the contested act does not satisfy the procedural requirements which are necessary for the adoption of such a decision.

               2.

               The second plea in law is a claim of absence of a sufficient statement of reasons, contradiction and breach of the obligation to examine all relevant matters of fact and law with respect to the finding that the Arbitration Agreement set ‘clear and objective parameters’ which ‘limited the discretion of the arbitrators’ and had as a ‘logical consequence’ the finally determined electricity tariff.

               3.

               The third plea in law is a claim of a manifest error of law in the interpretation and application of the principle of the prudent private investor and of Article 107(1) and Article 108(2) TFEU, as concerns the finding that the electricity tariff determined by the decision of the Arbitration Tribunal is ‘the logical consequence of properly defined parameters in the Arbitration Agreement’.

               4.

               The fourth plea in law is a claim of a manifest error of law in the interpretation and application of Articles 107 and 108 TFEU with respect to the finding that the Commission did not have to engage in complex economic assessments and a manifest error of law and a manifest error of assessment of the factual circumstances in so far as the Commission failed to examine crucial issues with respect to finding whether or not there was State Aid.

               5.

               The fifth plea in law is a claim of a manifest error of law in the application of Article 107(1) and Article 108(2) TFEU, and a manifest error of assessment of the factual circumstances as concerns the application of the test of the prudent private market economy operator.

               6.

               The sixth plea in law is a claim of a manifest error of law in the interpretation and application of Article 107(1) TFEU, infringement of the obligation to state sufficient reasons and a manifest error of assessment of the factual circumstances as regards the decision by the Commission not to further investigate the complaint made by DEI in 2012 pursuant to Article 108(2) TFEU, on the basis of the finding that that complaint ‘has become without object’ following the delivery of Decision 1/2013 of the Arbitration Tribunal.


title: Case T-512/12: Judgment of the General Court of 10 December 2015 — Front Polisario v Council (External relations — Agreement in the form of an Exchange of Letters between the European Union and Morocco — Reciprocal liberalisation of agricultural products, processed agricultural products, fish and fishery products — Application of the Agreement to the territory of Western Sahara — Front Polisario — Action for annulment — Capacity to bring proceedings — Direct and individual concern — Admissibility — Compliance with international law — Obligation to state reasons — Rights of the defence)

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/26

         Judgment of the General Court of 10 December 2015 — Front Polisario v Council
   (Case T-512/12) (1)

   ((External relations - Agreement in the form of an Exchange of Letters between the European Union and Morocco - Reciprocal liberalisation of agricultural products, processed agricultural products, fish and fishery products - Application of the Agreement to the territory of Western Sahara - Front Polisario - Action for annulment - Capacity to bring proceedings - Direct and individual concern - Admissibility - Compliance with international law - Obligation to state reasons - Rights of the defence))
   (2016/C 068/33)
   Language of the case: French

      Parties

      Applicant: Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) (represented initially by C.-E. Hafiz and G. Devers, and subsequently by G. Devers, lawyers)

      Defendant: Council of the European Union (represented by: S. Kyriakopoulou, A. Westerhof Löfflerová and N. Rouam, acting as Agents)

      Intervener in support of the defendant: European Commission (represented initially by F. Castillo de la Torre, E. Paasivirta and D. Stefanov, and subsequently by F. Castillo de la Torre and E. Paasivirta, acting as Agents)

      Re:

   Action for annulment of Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (OJ 2012 L 241, p. 2).

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, in so far as it approves the application of the Agreement to the territory of Western Sahara;

               2.

               Orders the Council of the European Union and the European Commission to each bear their own costs and to pay those incurred by the Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario).

      (1)  OJ C 55, 23.2.2013.


title: Case T-603/14: Action brought on 11 August 2014  — Drex Technologies v Council

text:
               13.10.2014

               EN

               Official Journal of the European Union

               C 361/21

         Action brought on 11 August 2014 — Drex Technologies v Council
   (Case T-603/14)
   2014/C 361/31
   Language of the case: French

      Parties

      Applicant: Drex Technologies SA (Tortola, British Virgin Islands) (represented by: E. Ruchat and C. Cornet d'Elzius, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Declare the applicant’s action admissible and well founded;

               —

               In consequence, order the European Union to compensate the applicant for the total loss suffered, up to EUR 10  000;

               —

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

      Pleas in law and main arguments

   In support of the action, the applicant relies on three pleas in law which are, in essence, identical or similar to those raised in Case T-592/14 Makhlouf v Council.


title: Case C-72/06: Action brought on  7 February 2006  by the Commission of the European Communities against the Hellenic Republic

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/12

         Action brought on 7 February 2006 by the Commission of the European Communities against the Hellenic Republic
   (Case C-72/06)
   (2006/C 74/24)
   Language of the case: Greek
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 7 February 2006 by the Commission of the European Communities, represented by Maria Kondou Durande and Carmel O'Reilly, Legal Advisers, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/9/EC (1) of 27 January 2003 laying down minimum standards for the reception of asylum seekers and in any event by failing to inform the Commission thereof, the Hellenic Republic has failed to fulfil its obligations under Article 26 of that directive;

               2.

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposing the directive into national law expired on 6 February 2005.

      (1)  OJ L 31 of 6.2.2003, p. 18.


title: Case T-334/10: Judgment of the General Court of 12 July 2012 — Leifheit v OHIM — Vermop Salmon (Twist System) (Community trade mark — Invalidity proceedings — Community word mark Twist System — Earlier Community word marks TWIX and TWIXTER — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/18

         Judgment of the General Court of 12 July 2012 — Leifheit v OHIM — Vermop Salmon (Twist System)
   (Case T-334/10) (1)

   (Community trade mark - Invalidity proceedings - Community word mark Twist System - Earlier Community word marks TWIX and TWIXTER - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)
   2012/C 258/30
   Language of the case: German

      Parties

      Applicant: Leifheit AG (Nassau, Germany) (represented by: G. Hasselblatt and V. Töbelmann, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Vermop Salmon GmbH (Gilching, Germany) (represented by: W. von der Osten-Sacken, O. Sude and M. Ring, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 12 May 2010 (Joined Cases R 924/2009-1 and R 1013/2009-1), relating to invalidity proceedings between Vermop Salmon GmbH and Leifheit AG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Leifheit AG to pay the costs.

      (1)  OJ C 288, 23.10.2010.


title: Case T-300/03: Action brought on 29 August 2003 by Moser Baer India Limited against the Council of the European Union

text:
1.11.2003               EN                          Official Journal of the European Union                                      C 264/35
The applicant claims that the Court should:                                 Action brought on 29 August 2003 by Nuova Fa.U.Di. s.r.l.
                                                                            against the Commission of the European Communities
—     annul the contested refusal.
                                                                                (Case T-299/03)
—     order the Commission to pay the costs.
                                                                                (2003/C 264/62)
Pleas in law and main arguments                                                                 (Language of the case: Italian)
The pleas in law and main arguments are similar to those
advanced in Case T-139/03 Nuova Agricast v Commission (1).
                                                                            An action against the Commission of the European Communi-
                                                                            ties was brought before the Court of First Instance of the
(1) OJ C 146 of 21.6.2003, p. 43.                                           European Communities on 29 August 2003 by Nuova Fa.U.Di.
                                                                            s.r.l., represented by M.A. Calabrese, lawyer.
                                                                            The applicant claims that the Court should:
                                                                            —       annul the contested refusal.
Action brought on 29 August 2003 by Lavorazione Cuoio                       —       order the Commission to pay the costs.
e Pelli Bieffe s.r.l. against the Commission of the European
                            Communities
                          (Case T-298/03)                                   Pleas in law and main arguments
                          (2003/C 264/61)                                   The pleas in law and main arguments are similar to those
                                                                            advanced in Case T-139/03 Nuova Agricast v Commission (1).
                    (Language of the case: Italian)
                                                                            (1) OJ C 146 of 21.6.2003, p. 43.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 29 August 2003 by Lavorazione
Cuoio e Pelli Bieffe s.r.l., represented by M.A. Calabrese, lawyer.
The applicant claims that the Court should:                                 Action brought on 29 August 2003 by Moser Baer India
                                                                                Limited against the Council of the European Union
—     annul the contested refusal.
                                                                                (Case T-300/03)
—     order the Commission to pay the costs.
                                                                                (2003/C 264/63)
Pleas in law and main arguments                                                                (Language of the case: English)
The pleas in law and main arguments are similar to those
advanced in Case T-139/03 Nuova Agricast v Commission (1).
                                                                            An action against the Council of the European Union was
                                                                            brought before the Court of First Instance of the European
(1) OJ C 146 of 21.6.2003, p. 43.
                                                                            Communities on 29 August 2003 by Moser Baer India
                                                                            Limited, New Delhi (India), represented by P. Bently, QC,
                                                                            K. Adamantopoulos, lawyer, R. MacLean and J. Branto, Solici-
                                                                            tors, with an address for service in Luxembourg.
 ---pagebreak--- C 264/36               EN                         Official Journal of the European Union                                             1.11.2003
The applicant claims that the Court should:                               —     In determining the injury caused by another known
                                                                                injurious factor, namely imports from Taiwan were
                                                                                not attributed to the subsidised imports, the Council
—     annul the Council Regulation (EC) 960/2003 of 2 June,                     committed a manifest error of assessment in the appli-
      insofar as it applies to the Applicant; and                               cation of Articles 8(6) and (7) of the Basic Anti-Cubsidy
                                                                                Regulation.
—     order the Council to pay the legal costs and expenses of
      the procedure.                                                      —     In determining that injury caused by another known
                                                                                injurious factor, namely the alleged anti-competitive
                                                                                discrimantory pricing by the Community supplier of
                                                                                technology, was not attributed to the subsidied imports,
                                                                                the Council did not follow the correct procedures for the
                                                                                application of Articles 8(6) and (7) of the Basic anti-
Pleas in law and main arguments                                                 Subsidy Regulation.
The applicant in the present case is a company formed under               (1) Council Regulation (EC) No 960/2003 of 2 June 2003 imposing
the laws of India manufacturing recordable compact disks                      a definitive countervailing duty on imports of recordable compact
(CD-Rs), rewritable compacts disks (CD-RWs) and read only                     disks originating in India (OJ L 138 of 5.6.2003, p. 1).
memory compact disks (CD-ROMs). In addition, it manufac-
tures other forms of storage media, and notably micro-
diskettes, in an export processing zone (EPZ).
Following a complaint lodged by the Community producers
of CD-Rs, grouped in Association CECMA, pursuant to which
the Commission announced the initiation of parallel anti-
dumping and anti-subsidy proceedings against imports into
the European Community of CD-Rs originating in India. The                 Action brought on 4 September 2003 by PTV Planung
anti-dumping proceedings having been terminated without the               Transport Verkehr AG against the Office for Harmonis-
adoption of measures, the present procedure concerns only                 ation in the Internal Market (Trade Marks and Designs)
the countervailing proceedings against CD-Rs that culminated                                              (OHIM)
in the contested Regulation, imposing countervailing duties of
7,3 % on imports of recordable compact disks originating in
India. (1).                                                                                (Case T-302/03)
                                                                                (2003/C 264/64)
In support of its application the applicant submits that:
—     In determining 4,2 years as the period over which the                                   (Language of the case: German)
      alleged subsidy should be allocated, the Council made a
      manifest error of assessment in the determination of
      the normal depreciation of the applicant’s plant and
      machinery, and infringed Articles 5, 7(3) and 11(1) of the
      Basic Anti-Subsidy Regulation and Article 253 EC.                   An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) (OHIM) was brought before
—     The contested Regulation should be invalid because                  the Court of First Instance of the European Communities on
      during the administrative procedure, an incomprehen-                4 September 2003 by PTV Planung Transport Verkehr AG,
      sible explanation of the calculation of the 4.2 years was           Karlsruhe (Germany), represented by F. Nielsen, lawyer.
      provided to the applicant in violation of the rights of
      defence, or, alternatively, in violation of Article 253.
                                                                          The applicant claims that the Court should:
—     In analysing the consequent impact of imports from India
      into the Community industry and also the question as to             —     annul the decision of 1 July 2003 of the Second Board of
      whether such imports were causing injury to this industry                 Appeal of the Office for Harmonisation in the Internal
      the Council failed to carry out an objective examination                  Market (Case R 1046/2001-2);
      of all the relevant evidence as required by Articles 8(2)
      and (6) of the Basic Anti-Subsidy Regulation and/or
      committed a series of manifests errors of assessment.               —     order the defendant to pay the costs of the proceedings.


title: Case C-454/11: Reference for a preliminary ruling from the Latvijas Republikas Augstākās tiesas Senāta Adminsitratīvo (Republic of Latvia) lodged on 1 September 2011 — Gunārs Pusts v Lauku atbalsta dienests

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/12

         Reference for a preliminary ruling from the Latvijas Republikas Augstākās tiesas Senāta Adminsitratīvo (Republic of Latvia) lodged on 1 September 2011 — Gunārs Pusts v Lauku atbalsta dienests
   (Case C-454/11)
   2011/C 331/19
   Language of the case: Latvian

      Referring court

   Augstākās tiesas Senāts

      Parties to the main proceedings

      Applicant: Gunārs Pusts

      Defendant: Lauku atbalsta dienests

      Questions referred

               1.

               Are the European Union rules governing repayment of aid to be understood to mean that payment of the aid may be considered undue in cases where, although the beneficiary of the aid continued to fulfil the undertakings, he did not comply with the established payment application procedure?

               2.

               Is a rule under which the undertakings made by the aid beneficiary are suspended, without giving the beneficiary of the aid the opportunity to be heard and where that suspension is deduced solely from the fact that an application has not been submitted, compatible with European Union law governing repayment of aid?

               3.

               Is a rule under which, where it is no longer possible to carry out a control in situ (because a year has elapsed) and where it is therefore deduced that the undertakings made by the beneficiary have been suspended, that beneficiary must repay the entire amount of the aid funds already paid during the commitment period, even if those funds have been granted and paid for several years, compatible with European Union law governing repayment of aid?


title: Case C-199/04: Action brought on 4 May 2004 by the Commission of the European Communities against the United Kingdom

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/4

         Action brought on 4 May 2004 by the Commission of the European Communities against the United Kingdom
   (Case C-199/04)
   (2004/C 179/09)
   An action against the United Kingdom was brought before the Court of Justice of the European Communities on 4 May 2004 by the Commission of the European Communities, represented by Ms Claire-Françoise Durand and Ms Florence Simonetti, acting as agents, assisted by Miss Anneli Howard, Barrister, with an address for service in Luxembourg.
   The Applicant claims that the Court should declare that:

               1)

               the United Kingdom of Great Britain and Northern Ireland has failed to take all the measures necessary to ensure the complete and correct implementation of Articles 2, 3, 4, 5, 6, 8 and 9 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (1) as amended by Council Directive 97/11/EC of 3 March 1997 (2).

               2)

               the United Kingdom of Great Britain and Northern Ireland are liable to pay the costs.

         Pleas in law and main arguments:
   It is not disputed that the UK has adopted the necessary legislation to implement Directive 85/337 as well as the amendments introduced by Directive 97/11. This application concerns the manner in which the UK authorities have interpreted and applied the relevant provisions which, the Commission asserts, fails to ensure the correct and complete implementation into national law of the Directive, both in its unamended and amended form.
   In this application the Commission puts forward two main heads of infringement, namely:

               a)

               that the use by the UK authorities of the domestic ‘material change of use’ test in relation to the approval of the planning application, coupled with the narrow interpretation of ‘project’, operates to exclude certain projects and modifications of existing projects from the legitimate scope of the Directive with the result that the Environmental Impact |Assessment procedures are not applied to such projects; and

               b)

               that the UK government has failed to integrate its planning and pollution controls adequately so as to ensure compliance with all of the obligations in Article 3 and 8 of the Directive.

      (1)  OJ L 175, 5.7.1985, p. 40.

      (2)  OJ L 73, 14.3.1997, p. 5.


title: Case C-506/08 P: Appeal brought on 14 November 2008 by the Kingdom of Sweden against the judgment of the Court of First Instance (Third Chamber, Extended Composition) delivered on 9 September 2008 in Case T-403/05 MyTravel Group plc v Commission of the European Communities

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/6

         Appeal brought on 14 November 2008 by the Kingdom of Sweden against the judgment of the Court of First Instance (Third Chamber, Extended Composition) delivered on 9 September 2008 in Case T-403/05 MyTravel Group plc v Commission of the European Communities
   (Case C-506/08 P)
   (2009/C 55/09)
   Language of the case: English
   Parties

      Appellant: Kingdom of Sweden (represented by: K. Petkovska, A. Falk, and S. Johannesson, Agents)

      Other parties to the proceedings: MyTravel Group plc, Commission of the European Communities
   Form of order sought
   The appellant claims that the Court should:

               —

               set aside paragraph 2 of the operative part of the judgment of the Court of First Instance of 9 September 2008 (1) in Case T-403/05,

               —

               annul the Commission Decision of 5 September 2005 (D(2005) 8461), in accordance with the form of order sought by MyTravel Group plc in the Court of First Instance, in so far as concerns the refusal of access to the Commission's report and other working documents,

               —

               annul the Commission Decision of 12 October 2005 (D(2005) 9763), in accordance with the form of order sought by MyTravel Group plc in the Court of First Instance, in so far as concerns the refusal of access to the Commission's other internal documents, and

               —

               order the Commission to reimburse the Kingdom of Sweden with its legal costs at the Court of Justice.

         Pleas in law and main arguments

               1.

               The principle of openness and access to the institutions' documents is of great importance in all the institutions' activities, and thus also in the administrative procedure within an institution. Article 2(3) of the transparency regulation also provides that the regulation is to apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union. However, the reasoning of the Court of First Instance on the main issues implies that there should be a general requirement of confidentiality in respect of internal documents in administrative matters. That is not consistent with the principle of the greatest possible openness.

               2.

               In the appellant's view, the reasoning of the Court of First Instance in the matter of the first Decision — regarding the report and the documents relating to it — implies that it was not necessary for the Commission to examine the question of disclosure in relation to the content of each individual document and to assess the sensitivity of the information in the report and the other documents but that, on the contrary, it was correct to refuse disclosure on the ground that officials would otherwise not be able to present their opinions freely. On the basis of the general reasoning of the Court of First Instance as regards the protection of document authors' freedom of opinion, it is not possible to decide when internal documents could be disclosed at all.

               3.

               The appellant considers that the Court of First Instance also fails in the second decision — regarding other documents in the file — to uphold the fundamental requirement of an examination to determine whether the content of each individual document is so sensitive that disclosure would seriously undermine the decision-making process. The general reasoning of the Court of First Instance is essentially that it would be impossible for officials in the Commission to communicate freely if information not appearing in the final decision were to become public. On the basis of such reasoning, no examination is necessary to determine whether the content of the documents in question is so sensitive that disclosure would prejudice the decision-making process.

               4.

               The appellant questions whether the hearing officer's report and the note from the Directorate-General for Competition to the advisory committee can really be regarded as documents prepared for internal use which can therefore be kept confidential under the provisions on the protection of the internal decision-making procedure.

               5.

               In the appellant's view, the reasoning of the Court of First Instance in the matter of opinions of the legal service is at variance with the judgment of the Court in the Turco case. Even if the present case does not concern legislation, clearly an examination must also take place in this instance on the basis of the content of the opinions. The fact that the lawfulness of a previous decision could be called into question does not of itself constitute a reason for not disclosing the document — rather the contrary. The absence of information can in itself give rise to doubt as to the lawfulness of a certain decision and the legitimacy of the decision-making process as a whole. The risk of doubt could also be averted if the Commission clearly stated in the decision the reasons why it had opted for a solution which the legal service had advised against. The claim that the legal service would be more reticent and cautious lacks any basis, in the same way as the Court's reasoning regarding other documents. Besides, the appellant considers that the argument that it would be difficult for the legal service to defend a different position in court is stated in terms which are too general to show that there is a risk which is reasonably foreseeable and not purely hypothetical.

               6.

               The appellant does not question that a large part of the content of the documents in question may be so sensitive and that it must remain confidential. Such a conclusion must, however, be based, according to case-law, on a specific and individual examination to determine whether disclosure of the content of the document would result in the interest to be protected being seriously undermined.

               7.

               As regards the freedom of opinion of officials, the appellant wishes to point out that it is incumbent on an official to perform the duties which arise from the service and in accordance with the staff regulations of officials employed in the Community institutions. The fact that the public have a legal right to scrutinise the activity does not constitute an acceptable reason for him to neglect the proper performance of his duties.

               8.

               An undertaking which is party to a concentration of undertakings, in common with any Union citizen or business with its seat in the European Union whatsoever, has a right to be informed about a document even if the information in the document is confidential in order to protect the internal decision-making procedure, if there is nevertheless an overriding public interest in the disclosure of the document. The considerations which MyTravel has put forward could, in the appellant's view, quite plausibly constitute such a public interest and cannot be dismissed without further examination — as the Court of First Instance has done — solely with reference to the applicant's private interests. The applicant is under no obligation either to plead or to prove anything in that regard; rather, it is for the institutions to ascertain whether there is an overriding public interest.

               9.

               The appellant submits that, by its decision, the Court of First Instance has disregarded Community law and failed to apply the second indent of Article 4(2) and the second subparagraph of Article 4(3) of the transparency regulation correctly.

               10.

               In any event there are probably parts of the documents which it should be possible to disclose pursuant to the provisions on partial disclosure in Article 4(6) of the transparency regulation.

      (1)  OJ C 272, p. 18.


title: Case T-866/16: Action brought on 22 December 2016 — SilverTours v EUIPO (billiger-mietwagen.de)

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/33

         Action brought on 22 December 2016 — SilverTours v EUIPO (billiger-mietwagen.de)
   (Case T-866/16)
   (2017/C 053/41)
   Language of the case: German

      Parties

      Applicant: SilverTours GmbH (Freiburg im Breisgau, Germany) (represented by: P. Neuwald, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘billiger-mietwagen.de’ — Application No 14 343 099

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 3 November 2016 in Case R 206/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of the first sentence of Article 76(1) of Regulation No 207/2009;

               —

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

               —

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


title: Case T-321/04: Action brought on 29 July 2004 by Air Bourbon against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/48

         Action brought on 29 July 2004 by Air Bourbon against the Commission of the European Communities
   (Case T-321/04)
   (2004/C 262/91)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 29 July 2004 by Air Bourbon, a company established in Sainte-Marie, La Réunion (France), represented by Sauveur Vaisse, lawyer.
   The applicant claims that the Court should:

               —

               annul Decision C (2003) 4708 final of 16 December 2003 by which the Commission authorised the French State to grant aid to Air Austral;

               —

               order the Commission and the French State to take the measures necessary to ensure that Air Austral repays the aid unduly received;

               —

               order the Commission to pay Air Bourbon the sum of EUR 10 000 in respect of costs pursuant to Article 87(2) of the Rules of Procedure.

         Pleas in law and main arguments:
   The applicant seeks the annulment of Decision C(2003) 4708 of 16 December 2003 by which the Commission considered, on the basis of Article 87(3) of the Treaty, that the aid granted to AIR AUSTRAL was compatible with the common market. Specifically it was an operating aid in the sum of EUR 1 950 536 in the form of a tax allowance in favour of taxpayers who invest in the refitting of two type B 777-2000 aircraft to be used to open the route between Paris and La Réunion and which, operating as a general partnership, will lease those aircraft to AIR AUSTRAL for five years and then transfer them to that company for an unknown sum.
   The contested decision is based on the consideration that the aid in question is an operating aid which, under the Guidelines on national regional aid, may be authorised to offset part of the additional transport costs in the outermost regions, including La Réunion.
   The applicant considers that the aid in question must be considered incompatible with the common market for the following reasons:

               —

               the aid is an investment aid intended for the purchase of transport equipment, which is prohibited under those guidelines;

               —

               the aid is solely intended for AIR AUSTRAL and creates an imbalance between the distortions of competition and the benefits in terms of regional development;

               —

               the aid fails to comply with the principle of the non-aggregation of public funds, since AIR AUSTRAL has received public funds from the Region and Département of La Réunion which do not correspond to an investment made by a private investor operating under normal market conditions. Those funds moreover gave rise to excess supply on the air route between Paris and Saint Denis;

               —

               that aid upsets the balance which must exist between the benefits arising from the aid for the development of the region and the distortions to the conditions of competition between AIR AUSTRAL and the applicant.

         AIR BOURBON also submits that there has been an infringement of its rights of defence as guaranteed by Article 88(3) of the Treaty.


title: Removal from the register of C-189/96

text:
No C 199/20              EN                   Official Journal of the European Communities                                   28 . 6 . 97
            Removal from the register of C-6/96 (')                                Removal from the register of C-34/96 (')
                             ( 97/C 199/47)                                                       ( 97/C 199/51
By order of 7 March 1997, the President of the Court of                  By order of 7 March 1997, the President of the Court of
Justice of the European Communities ordered the removal                  Justice of the European Communities ordered the removal
from the register of Case C-6/96 ( Reference for a                       from the register of Case C-34/96 (Reference for a
preliminary ruling from the Pretura Circondariale di                     preliminary ruling from the Pretura Circondariale di
Roma, Sezione Distaccata di Tivoli ( Rome District                       Roma, Sezione Distaccata di Tivoli ( Rome District
Magistrates' Court, Tivoli Division )): criminal proceedings             Magistrates' Court, Tivoli Division )): criminal proceedings
against Sandro Gallotti .                                                against Maria Paolantoni .
H OJ No C 64, 2 . 3 . 1996 .                                             H OJ No C 95 , 30 . 3 . 1996 .
             Removal from the register of C-7/96 (')                     Removal from the register of Joined Cases C-165/96,
                             ( 97/C 199/48 )                                   C-166/96, C-167/96, C-168/96 and C-169/96 (M
                                                                                ( 97/C 199/52 )
By order of 7 March 1997, the President of the Court of
Justice of the European Communities ordered the removal                  By order of 13 March 1997 the President of the Fifth
from the register of Case C-7/96 ( Reference for a                       Chamber of the Court of Justice of the European
preliminary ruling from the Pretura Circondariale di                     Communities has ordered the removal from the register of
Roma, Sezione Distaccata di Tivoli ( Rome District                       Joined Cases C-165/96, C-166/96 , C-167/96, C-168/96
Magistrates' Court, Tivoli Division )): criminal proceedings             and C-169/96 : Commission of the European Communities
against Francesco Palermo.                                               v. Portuguese Republic .
(') OJ No C 64, 2 . 3 . 1996 .                                           (') OJ No C 210, 20 . 7. 1996 .
            Removal from the register of C-24/96 (')                               Removal from the register of C-189/96 (')
                              ( 97/C 199/49                                                        ( 97/C 199/53 )
 By order of 7 March 1997, the President of the Court of                 By order of 7 March 1997, the President of the Court of
Justice of the European Communities ordered the removal                  Justice of the European Communities ordered the removal
 from the register of Case C-24/96 ( Reference for a                      from the register of Case C-189/96 ( Reference for a
 preliminary ruling from the Pretura Circondariale di                    preliminary ruling from the Pretura Circondariale di
 Roma, Sezione Distaccata di Tivoli ( Rome District                       Roma, Sezione Distaccata di Tivoli ( Rome District
 Magistrates' Court, Tivoli Division )): criminal proceedings             Magistrates' Court, Tivoli Division )): criminal proceedings
 against Vittorio Iannilli .                                              against Rosalinda Marchionne .
 ( 1 ) OJ No C 77, 16 . 3 . 1996 .                                        O OJ No C 210, 20 . 7 . 1996 .
            Removal from the register of C-25/96 H                                 Removal from the register of C- 190/96 (')
                              ( 97/C 199/50 )                                                      ( 97/C 199/54 )
 By order of 7 March 1997, the President of the Court of                  By order of 7 March 1997, the President of the Court of
 Justice of the European Communities ordered the removal                  Justice of the European Communities ordered the removal
 from the register of Case C-25/96 ( Reference for a                      from the register of Case C-190/96 ( Reference for a
 preliminary ruling from the Pretura Circondariale di                     preliminary ruling from the Pretura Circondariale di
 Roma, Sezione Distaccata di Tivoli ( Rome District                       Roma, Sezione Distaccata di Tivoli ( Rome District
 Magistrates' Court, Tivoli Division )): criminal proceedings             Magistrates' Court, Tivoli Division )): criminal proceedings
 against Francesco Cannizzaro .                                           against Amerigo Alari .
  H OJ No C 77, 16 . 3 . 1996 .                                           O OJ No C 210, 20 . 7. 1996 .


title: Case T-419/09: Action brought on 16 October 2009 — Cybergun v OHIM — Umarex Sportwaffen (AK 47)

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/37

         Action brought on 16 October 2009 — Cybergun v OHIM — Umarex Sportwaffen (AK 47)
   (Case T-419/09)
   2009/C 312/60
   Language in which the application was lodged: French

      Parties

      Applicant: Cybergun (Bondoufle, France) (represented by: S. Guyot, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Umarex Sportwaffen GmbH & Co. KG (Arnsberg, Germany)

      Form of order sought

               —

               annul the decision of the First Board of Appeal of OHIM of 5 August 2009 declaring the mark AK 47 to be invalid because of its descriptive character on the basis of Article 51(1)(a), a legal basis not referred to in the action,

               —

               order, in accordance with Articles 87(2) and 91 of the Rules of Procedure, OHIM to pay the costs, including costs incurred by the applicant for the present proceedings, in particular the costs of translation of documents, lawyer’s fees, and, if costs of travel and accommodation are appropriate; the Court is asked to assess that sum at EUR 20 000.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought:‘AK 47’ for goods in Class 28 — Community trade mark No 4 528 378.

      Proprietor of the Community trade mark: the applicant

      Applicant for the declaration of invalidity: Umarex Sportwaffen GmbH & Co. KommanditGesellschaft

      Decision of the Cancellation Division: rejection of the application for a declaration of invalidity of the mark concerned

      Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and declaration of invalidity of the Community trade mark

      Pleas in law:

   The legal basis, namely Article 51(1)(a) of Regulation (EC) No 40/94 [now article 52(1) (a) of Regulation (EC) No 207/2009] on which the annulment of the mark was founded because of its descriptive character, was never referred to in the pleadings before the First Board of Appeal and in any event the assessment of the descriptive character of the mark is incorrect.


title: Case C-31/08: Order of the President of the Court of 6 June 2008 — Commission of the European Communities v Italian Republic

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/13

         Order of the President of the Court of 6 June 2008 — Commission of the European Communities v Italian Republic
   (Case C-31/08) (1)

   (2008/C 236/22)

      Language of the case: Italian

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

      (1)  OJ C 79, 29.3.2008.


title: Case C-657/13: Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 12 December 2013 — Verder LabTec GmbH & Co. KG v Finanzamt Hilden

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/8

      Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 12 December 2013 — Verder LabTec GmbH & Co. KG v Finanzamt Hilden
      (Case C-657/13)
      (2014/C 71/13)
      Language of the case: German

         Referring court

      Finanzgericht Düsseldorf

         Parties to the main proceedings

         Applicant: Verder LabTec GmbH & Co. KG

         Defendant: Finanzamt Hilden

         Question referred

      Is it consistent with the freedom of establishment under Article 49 of the Treaty on the Functioning of the European Union if, upon the transfer of an asset from a domestic to a foreign permanent establishment of the same undertaking, a national rule stipulates that there is a withdrawal for non-business purposes, with the result that the disclosure of hidden reserves leads to a profit upon the withdrawal, and another national rule provides the possibility of distributing that profit equally over five or ten financial years?


title: Case T-281/08: Action brought on 15 July 2008 — Austria v Commission

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/16

         Action brought on 15 July 2008 — Austria v Commission
   (Case T-281/08)
   (2008/C 247/30)
   Language of the case: German
   Parties

      Applicant: Republic of Austria (represented by: C. Pesendorfer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Commission Decision C(2008) 1625 Final of 30 April 2008 on State aid No C 56/2006 (ex NN 77/2006) of Austria for the privatisation of Bank Burgenland;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant challenges Commission Decision C(2008) 1625 Final of 30 April 2008 in which the Commission decided that the State aid implemented by Austria in breach of Article 88(3) EC for the insurance company Grazer Wechselseitige Versicherung AG and to GW Beteiligungserwerbs- und -verwaltungs-GmbH in connection with the privatisation of HYPO Bank Burgenland AG is incompatible with the common market.
   With regard to the grounds of the application, reference is made to the summary of pleas in law relating to Case T-268/08 Land Burgenland v Commission.


title: Case C-22/09: Action brought on 15 January 2009 — Commission of the European Communities v Grand Duchy of Luxembourg

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/13

         Action brought on 15 January 2009 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-22/09)
   (2009/C 82/24)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Schima and L. de Schietere de Lophem, acting as Agents)

      Defendant: Grand Duchy of Luxembourg
   Form of order sought

               —

               Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (1), or, in any event, by failing to notify them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

               —

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposition of Directive 2002/91/EC expired on 4 January 2006. At the time the present action was brought, the defendant had not yet adopted all the measures necessary to transpose the Directive or, in any event, had not notified those measures to the Commission.

      (1)  OJ 2003 L 1, p. 65.


title: Order of the President of the Court of First Instance of 14 August 2002 in Case T-198/02 R: N v Commission of the European Communities (Procedure for interim relief — Suspension of operation of a measure — Disciplinary procedure — Removal from post)

text:
26.10.2002              EN                      Official Journal of the European Communities                                     C 261/15
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               berg (Luxembourg), represented by G. Bounéou, lawyer, with
                              INSTANCE                                     an address for service in Luxembourg, against Commission of
                                                                           the European Communities (Agent: J. Currall) — application
                           of 12 July 2002                                 for suspension of operation of the decision of the Commission
                                                                           of 5 December 2001 by which, amongst other things, it resiled
                                                                           from the framework agreement of 20 September 1974
in Case T-163/02 R: Montan Gesellschaft Voss mbH
Stahlhandel and Others v Commission of the European                        concerning relations between the Commission and trade union
                            Communities                                    and professional organisations and adopted the operational
                                                                           rules concerning the levels, process and procedures of consul-
                                                                           tation agreed between the Commission and the majority of
(Application for interim measures — Regulation (EC)                        trade union and professional organisations on 19 January
 No 560/2002 — Admissibility of main action — Urgency)                     2000 — the President of the Court of First Instance has made
                                                                           an order on 31 July 2002, in which he:
                          (2002/C 261/27)
                   (Language of the case: German)                          1.    Dismisses the application for interim measures;
In Case T-163/02 R: Montan Gesellschaft Voss mbH Stahlhan-                 2.    Orders that costs are reserved.
del, established in Planegg (Germany), Jepsen Stahl GmbH,
established in Nittendorf (Germany), LNS — Lothar Niemeyer
Stahlhandel GmbH & Co. KG, established in Essen (Germany),
Metal Traders Stahlhandel GmbH, established in Düsseldorf
(Germany), represented by K. Friedrich, lawyer, with an
address for service in Luxembourg, against Commission of the
European Communities (Agents: J. Forman and R. Raith) —
application for, first, suspension of the operation of Com-
mission Regulation (EC) No 560/2002 of 27 March 2002
imposing provisional safeguard measures against imports of
certain steel products (OJ 2002 L 85, p. 1), and, secondly, any
                                                                           ORDER OF THE PRESIDENT OF THE COURT OF FIRST
other interim measures deemed necessary — the President of
                                                                                INSTANCE
the Court of First Instance, has made an order on 12 July
2002, the operative part of which is as follows:
1.    The application for interim measures is dismissed.                                           of 14 August 2002
2.    The costs are reserved.
                                                                           in Case T-198/02 R: N v Commission of the European
                                                                                Communities
                                                                           (Procedure for interim relief — Suspension of operation of a
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                measure — Disciplinary procedure — Removal from post)
                              INSTANCE
                           of 31 July 2002                                                           (2002/C 261/29)
in Case T-191/02 R: Giorgio Lebedef v Commission of the
                     European Communities                                                     (Language of the case: French)
(Procedure for interim relief — Framework agreement of
1974 between the Commission and trade union and pro-
fessional organisations — Repudiation — Admissibility —
                          prima facie case)
                                                                           In Case T-198/02 R: N, a former official of the Commission
                          (2002/C 261/28)                                  of the European Communities, residing in Asse (Belgium),
                                                                           represented by N. Lhoëst, lawyer, with an address for service
                                                                           in Luxembourg, against Commission of the European Com-
                    (Language of the case: French)                         munities (Agent: J. Currall) — application for suspension of
                                                                           operation of the decision of 25 February 2002 by which the
                                                                           appointing authority imposed on the applicant the disciplinary
In Case T-191/02 R: Giorgio Lebedef, official of the Com-                  measure of removal from post without reduction or with-
mission of the European Communities, residing in Senningen-                drawal of entitlement to retirement pension, provided for by
 ---pagebreak--- C 261/16                EN                      Official Journal of the European Communities                                    26.10.2002
Article 86(2)(f) of the Staff Regulations for officials of the             Action brought on 29 June 2002 by José Lloris Maeso
European Communities — the President of the Court of First                     against Commission of the European Communities
Instance has made an order on 14 August 2002, in which he:
                                                                                (Case T-165/02)
1.    Dismisses the application for interim measures;
                                                                                (2002/C 261/31)
2.    Orders that costs are reserved.                                                         (Language of the case: Spanish)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 29 June 2002 by José Lloris Maeso,
                                                                           residing in Valencia (Spain), represented by Julián Bosch
                                                                           Abarca, lawyers.
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               The applicant claims that the Court should:
                             INSTANCE
                                                                           —     annul the decision of the selection board for competition
                                                                                COM/A/10/01 (Law) of 2 May 2002, and that he be
                          of 16 July 2002                                        admitted to the next stage of that competition.
in Case T-207/02 R: Nicoletta Falcone v Commission of                      Pleas in law and main arguments
                  the European Communities
                                                                           The applicant in the present case is challenging the decision of
(Procedure for interim relief — Competition procedure —                    the selection board for COM/A/10/01 (Law), notified by letter
            Interim measures — Urgency — None)                             dated 2 May 2002, awarding him in respect of one of the
                                                                           selection tests in that competition, specifically test (a), marks
                                                                           below the minimum required to be admitted to the remainder
                         (2002/C 261/30)                                   of the tests for that competition.
                                                                           In support of his claim, the applicant alleges error in the
                   (Language of the case: Italian)                         marking of the abovementioned test (a).
In Case T-207/02 R: Nicoletta Falcone, residing in Florence
(Italy), represented by M. Condinanzi, lawyer, against Com-
mission of the European Communities (Agents: J. Currall and                Action brought on 14 August 2002 by Sunrider Corpor-
A. Dal Ferro) — application for an interim measure requiring               ation against the Office for Harmonisation in the Internal
the Commission to invite the applicant to complete her                                                  Market
application for admission to the second set of tests in general
competition COM/A/10/01, in the field of law, fixed for
19 July 2002, from which she was excluded by decision of the                                        (Case T-242/02)
jury of 2 May 2002 informing her that she had not been
admitted to the written tests in the said competition — the                                         (2002/C 261/32)
President of the Court of First Instance has made an order on
16 July 2002, in which he:
                                                                                (Language of the case: Greek)
1.    Dismisses the application;
                                                                           An action against the Office for Harmonisation in the Internal
                                                                           Market was brought before the Court of First Instance of the
2.    Orders that costs are reserved.                                      European Communities on 14 August 2002 by Sunrider
                                                                           Corporation, whose registered office is in Torrance, California
                                                                           (USA), represented by Nikolaos Dontas and Maria Bra, Lawyers,
                                                                           with an address for service in Luxembourg.


title: Action brought on 2 December 1997 by Pierre-Alexis Feral against the Committee of the Regions (Case T-301/97)

text:
24.1.98               EN                Official Journal of the European Communities                                   C 26/9
Action brought on 26 November 1997 by Dimitrios                    Action brought on 28 November 1997 by David T.
Coussios against the Commission of the European                    Keeling against the Office for Harmonization in the
                          Communities                                      Internal Market (Trade Marks and Designs)
                       (Case T-295/97)                                                   (Case T-297/97)
                          (98/C 26/16)                                                     (98/C 26/17)
                                                                                (Language of the case: English)
                (Language of the case: Greek)
                                                                   An action against the Office for Harmonization in the
                                                                   Internal Market (Trade Marks and Designs) was brought
An action against the Commission of the European                   before the Court of First Instance of the European
Communities was brought before the Court of First                  Communities on 28 November 1997 by David T. Keeling,
Instance of the European Communities on 26 November                represented by Professor A. A. Dashwood, with an address
1997 by Dimitrios Coussios, resident in Brussels, Belgium,         for service in Luxembourg at the offices of ArseÁne
living temporarily in Athens, Greece, represented by               Kronshagen, 22, rue Marie-Adelaïde.
Georgios Sakellaropoulos of the Athens Bar, with an
address for service in Luxembourg at the chambers of               The applicant claims that the Court should:
Aloyse May, 31 Grand-Rue.
                                                                   Ð annul Decision ADM-97-3 of the President of the
                                                                       Office of 21 February 1997 concerning the
The applicant claims that the Court should:                            organization of the Boards of Appeal, as revised on
                                                                       27 February 1997, and in particular Article 2 thereof,
Ð find that the action for annulment of Decision                   Ð order the office to pay the costs of the action.
     No 5458/26.9.1997 (R/403/97) of the appointing
     authority is admissible,
                                                                   Pleas in law and main arguments adduced in support:
Ð declare that the applicant is entitled to an invalidity          The pleas in law and main arguments are the same as
     pension at a rate of 29 % (4 % + 25 %) payable from           those raised in Case T-148/97 (OJ C 199, 28.6.1997,
     1 December 1993,                                              p. 39). The present application, based on Article 179 of
                                                                   the EC Treaty, is being lodged as a precautionary measure,
                                                                   lest the action for annulment in Case T-148/97
Ð classify the applicant's case under Article 78 of the            commenced by the applicant pursuant to Article 173 of
     Staff Regulations, so that he receives an invalidity          the EC Treaty is declared inadmissible by the Court.
     pension equal in amount to the retirement pension to
     which he would have been entitled if he had been in
     service on reaching 65 years of age, that is to say 70 %
     of the basic salary,
                                                                   Action brought on 2 December 1997 by Pierre-Alexis
Ð order the Commission to pay the costs.                                   Feral against the Committee of the Regions
                                                                                (Case T-301/97)
                                                                                (98/C 26/18)
Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: French)
The contested decision is unlawful because the appointing
authority arbitrarily set the applicant's invalidity rate at       An action against the Committee of the Regions was
15,5 %, without the Medical Committee provided for                 brought before the Court of First Instance of the European
under the Staff Regulations having first given an opinion,         Communities on 2 December 1997 by Pierre-Alexis
when the rate applicable to him is in reality much higher.         Feral, residing in Brussels, represented by Georges
                                                                   Vandersanden, of the Brussels Bar, with an address for
                                                                   service in Luxembourg at the offices of Fiduciaire Myson
                                                                   Sarl, 30 Rue de Cessange.
The statement of reasons for the contested decision is
faulty because it wrongly proceeds on the basis that
Articles 73 and 78 of the Staff Regulations pursue                 The applicant claims that the Court should:
different objectives when, as is acknowledged, application
of one of those articles does not affect application of the        Ð annul the decision of 2 September 1997 of the
other.                                                                 Secretary-General of the Committee of the Regions
                                                                       refusing to pay the applicant daily allowances for a
                                                                       period of 10 months by virtue of his status as a
                                                                       probationer official,
 ---pagebreak--- C 26/10              EN               Official Journal of the European Communities                                   24.1.98
Ð consequently, order the further payment of those                        Removal from the register of T-181/95 (1)
    allowances for a period of 6 months, the applicant                                    (98/C 26/19)
    having already received his allowances in respect of a
    period of 4 months,
                                                                                (Language of the case: French)
Ð order the defendant to pay all the costs.
Pleas in law and main arguments adduced in support:              By order of 25 November 1997          the President of  the
                                                                 Second Chamber of the Court of        First Instance of the
The pleas in law and main arguments are the same as in           European Communities has ordered      the removal from  the
Case T-132/97 (1).                                               register of Case T-181/95: P v.        Commission of    the
                                                                 European Communities.
(1) OJ C 199, 28.6.1997, p. 35.
                                                                 (1) OJ C 333, 9.12.1995.


title: Joined Cases T-333/04 and T-334/04: Judgment of the Court of First Instance of 18 April 2007 — House of Donuts International v OHIM — Panrico (House of Donuts) (Community trade mark — Opposition proceedings — Applications for Community figurative marks House of donuts — Earlier national word marks DONUT and earlier figurative marks donuts — Relative ground for refusal — Likelihood of confusion)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/33

         Judgment of the Court of First Instance of 18 April 2007 — House of Donuts International v OHIM — Panrico (House of Donuts)
   (Joined Cases T-333/04 and T-334/04) (1)

   (Community trade mark - Opposition proceedings - Applications for Community figurative marks ‘House of donuts’ - Earlier national word marks ‘DONUT ’and earlier figurative marks ‘donuts’ - Relative ground for refusal - Likelihood of confusion)
   (2007/C 96/68)
   Language of the case: English
   Parties

      Applicant: House of Donuts International (George Town, Grand Cayman) (represented by: N. Decker, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Panrico, SA (Barcelona, Spain) (represented by: D. Pellisé Urquiza, lawyer)
   Re:
   Two actions brought against the decisions of the Fourth Board of Appeal of OHIM of 12 May 2004 (Cases R 1034/2001-4 and R 1036/2001-4) concerning opposition proceedings between Panrico, SA and House of Donuts International
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and of the intervener.

      (1)  OJ C 300, 4.12.2004.


title: Joined Cases C-400/13 and C-408/13: Judgment of the Court (Third Chamber) of 18 December 2014 (requests for a preliminary ruling from the Amtsgericht Düsseldorf and the Amtsgericht Karlsruhe — Germany) — Sophia Marie Nicole Sanders represented by Marianne Sanders v David Verhaegen (C-400/13), Barbara Huber v Manfred Huber (C-408/13) (Reference for a preliminary ruling — Area of freedom, security and justice — Cooperation in civil matters — Regulation No 4/2009 — Article 3 — Jurisdiction to rule on an action relating to a maintenance obligation in respect of a person resident in another Member State — National legislation establishing a centralisation of jurisdiction)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/8

         Judgment of the Court (Third Chamber) of 18 December 2014 (requests for a preliminary ruling from the Amtsgericht Düsseldorf and the Amtsgericht Karlsruhe — Germany) — Sophia Marie Nicole Sanders represented by Marianne Sanders v David Verhaegen (C-400/13), Barbara Huber v Manfred Huber (C-408/13)
   (Joined Cases C-400/13 and C-408/13) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Cooperation in civil matters - Regulation No 4/2009 - Article 3 - Jurisdiction to rule on an action relating to a maintenance obligation in respect of a person resident in another Member State - National legislation establishing a centralisation of jurisdiction))
   (2015/C 065/11)
   Language of the case: German

      Referring courts

   Amtsgericht Düsseldorf, Amtsgericht Karlsruhe

      Parties to the main proceedings

      Applicants: Sophia Marie Nicole Sanders represented by Marianne Sanders (C-400/13), Barbara Huber (C-408/13)

      Defendants: David Verhaegen (C-400/13), Manfred Huber (C-408/13)

      Operative part of the judgment

   Article 3(b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, must be interpreted as precluding national legislation such as that at issue in the main proceedings which establishes a centralisation of judicial jurisdiction in matters relating to cross-border maintenance obligations in favour of a first instance court which has jurisdiction for the seat of the appeal court, except where that rule helps to achieve the objective of a proper administration of justice and protects the interests of maintenance creditors while promoting the effective recovery of such claims, which is, however, a matter for the referring courts to verify.

      (1)  OJ C 274, 21.9.2013.


title: Judgment of the Court (Second Chamber) of 13 July 2004 in Case C-82/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Article 10 EC — Cooperation with the Community institutions — Failure to forward information to the Commission)

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/11

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 13 July 2004
   in Case C-82/03: Commission of the European Communities v Italian Republic (1)

   (Failure of a Member State to fulfil obligations - Article 10 EC - Cooperation with the Community institutions - Failure to forward information to the Commission)
   (2004/C 228/20)
   Language of the case: Italian
   In Case C-82/03: Commission of the European Communities (Agent: A. Aresu) v Italian Republic (Agent: I.M. Braguglia, assisted by A. Cingolo and P. Gentili) — application for a declaration that, by failing genuinely to cooperate with the Commission in a case concerning the health and safety of workers, the Italian Republic has failed to fulfil its obligations under Article 10 EC — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.N. Cunha Rodrigues, F. Macken and N. Colneric (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 13 July 2004, in which it:

               1.

               Declares that, by failing genuinely to cooperate with the Commission of the European Communities in a case concerning the health and safety of workers in a waste water treatment plant situated in the commune of Mandello del Lario in Lombardy (Italy), the Italian Republic has failed to fulfil its obligations under Article 10 EC;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 101, 26.4.2003


title: Case C-264/10: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 28 May 2010 — Criminal proceedings against Gheorghe Kita

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/30

         Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 28 May 2010 — Criminal proceedings against Gheorghe Kita
   (Case C-264/10)
   ()
   2010/C 209/41
   Language of the case: Romanian

      Referring court

   Înalta Curte de Casație și Justiție

      Parties to the main proceedings

   Gheorghe Kita

      Question referred

   Is Article 5(3) of Council Framework Decision 2002/584/JHA (1) of 13 June 2002 to be interpreted as meaning that the return (transfer) of the sentenced person, surrendered earlier in accordance with a European arrest warrant for the purposes of criminal proceedings, to the State of which he is a national takes place automatically, even without his consent, consent that is a condition imposed by the European Convention on the Transfer of Sentenced Persons?

      (1)  Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).


title: Case C-164/03: Action brought on 9 April 2003 by the Commission of the European Communities against the Republic of Austria

text:
21.6.2003                EN                        Official Journal of the European Union                                         C 146/31
      —     in the call for applications for the position of               Action brought on 9 April 2003 by the Commission
            Secretary to the General Administration, as con-               of the European Communities against the Republic of
            dition No 9: ‘Thorough knowledge of English and                                               Austria
            French would be an asset, as well as a satisfactory
            knowledge of other Community languages’.
                                                                                (Case C-164/03)
      —     in the call for applications for the position of IT-
            informatics expert (webmaster) of the European
            judicial network, as condition No 6: ‘Good know-                                        (2003/C 146/51)
            ledge of English is essential; in particular, the ability
            to speak at least two additional official European
            Community languages, including French, would be
            an asset’.
                                                                           An action against the Republic of Austria was brought before
2.    order the defendant body to pay the costs.                           the Court of Justice of the European Communities on 9 April
                                                                           2003 by the Commission of the European Communities,
                                                                           represented by Dr Ulrich Wölker, Commission Legal Adviser,
                                                                           and Florence Simonetti, a national civil servant available to the
                                                                           Commission Legal Service under an exchange scheme, with an
                                                                           address for service in Luxembourg.
Pleas in law and main arguments
—     Breach of the Staff Regulations and of the Conditions
      of Employment of Other Servants of the European                      The Commission claims that the Court should:
      Communities
                                                                           1.    declare that, by failing to adopt, or to communicate to
      According to Article 30 of Council Decision 2002/                          the Commission, the laws, regulations and administrative
      187/JHA of 28 February 2002 establishing Eurojust to                       provisions necessary in order to implement Council
      strengthen the fight against serious forms of crime ( 1),                  Directive 97/11/EC of 3 March 1997 amending Directive
      Eurojust staff are to be subject to the rules and regulations              85/337/EEC on the assessment of the effects of certain
      applicable to the officials and other servants of the                      public and private projects on the environment (1) in the
      European Communities.                                                      provinces of Burgenland and Salzburg, the Republic of
                                                                                Austria has failed to fulfil its obligations under that
      Under Article 12 of the Conditions of Employment,                          directive;
      candidates are only required to have a thorough know-
      ledge of one language and a satisfactory knowledge of
      another.                                                             2.    order the Republic of Austria to pay the costs.
—     Breach of the linguistic rules of Eurojust
      Article 31 of Council Decision 2002/187/JHA provides
      that the official linguistic arrangements of the Union are           Pleas in law and main arguments
      to apply to Eurojust proceedings. No provision of the
      decision expressly states that the working languages of
      Eurojust are to be English and French.
                                                                           In accordance with the third paragraph of Article 249 EC,
                                                                           which provides that a directive is binding as to the result to be
—     Breach of the principle of non-discrimination                        achieved upon each Member State, the Member States are
                                                                           obliged to comply with the time-limit for implementation laid
      The requirement that part of the documents to be                     down in directives. The period for implementation laid down
      submitted should be drawn up in English and, most of                 in Article 3(1) of Directive 97/11/EC expired on 14 March
      all, the requirement of excellent knowledge of English               1999 without the Republic of Austria having adopted the
      and French amounts to clear discrimination grounds of                necessary provisions for the provinces of Burgenland and
      nationality, prohibited by Article 12 EC.                            Salzburg.
( 1) OJ 2002 L 63, p. 1.                                                   (1 ) OJ L 73, 14.3.1997, p. 5.


title: Case C-46/13: Order of the President of the Court of 27 May 2014 (request for a preliminary ruling from the Datenschutzbehörde (formerly Datenschutzkommission) — Austria) — H v E

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/17

         Order of the President of the Court of 27 May 2014 (request for a preliminary ruling from the Datenschutzbehörde (formerly Datenschutzkommission) — Austria) — H v E
   (Case C-46/13) (1)

   2014/C 261/27
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 147, 25.5.2013.


title: Case C-304/06 P: Appeal brought on 13 July 2006 by Eurohypo AG against the judgment delivered on 3 May 2006 in Case T-439/04 Eurohypo AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/22

         Appeal brought on 13 July 2006 by Eurohypo AG against the judgment delivered on 3 May 2006 in Case T-439/04 Eurohypo AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-304/06 P)
   (2006/C 224/43)
   Language of the case: German
   Parties

      Appellant: Eurohypo AG (represented by C. Rohnke and M. Kloth, Rechtsanwälte)

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

               —

               set aside the judgment of the Court of First Instance of 3 May 2006 in Case T-439/04;

               —

               annul Decision R 829/2002-4 of the Board of Appeal of 6 August 2004;

               —

               order the respondent to pay the costs.

         Pleas in law and main arguments
   The appellant argues as follows in support of its appeal against the above judgment of the Court of First Instance:
   The Court of First Instance misinterpreted the requirements of the Office's duty to examine of its own motion under the first sentence of Article 74(1) of Regulation No 40/94. According to the case-law, the examination by the competent authority for trade marks must be stringent and full, in order to prevent, for reasons of legal certainty and good administration, both unjustified registrations of marks and unjustified objections to marks eligible for registration. The Office's examination must be thorough enough for the Office to be able to ascertain with certainty, on the basis of that examination, whether there are grounds for refusing registration under Article 7 of Regulation No 40/94. However, neither the judgment nor the preceding decisions of the respondent contained findings of fact as to the allegedly descriptive character of ‘EUROHYPO’. Instead, the findings were confined to possible descriptive meanings of the individual components ‘EURO’ and ‘HYPO’. No other findings of fact were made on the descriptive character of the designation ‘EUROHYPO’ as a whole.
   The Court of First Instance misinterpreted the requirement of distinctive character under Article 7(1)(b) of Regulation No 40/94 and wrongly refused to register the mark applied for. In the case of a mark composed of words, possible distinctive character can indeed be examined partially for each concept or component separately, but must in every case depend on an examination of the totality they form. Even if it is the case that none of the components has distinctive character on its own, that does not exclude the possibility that the combination of them may have distinctive character. In the present case, however, the respondent confined itself, in the contested appeal decision, to finding that the components ‘EURO’ and ‘HYPO’ were descriptive and the overall concept did not convey an overall impression that went beyond the sum of its parts, without explaining why the compound word EUROHYPO as a whole could not distinguish the services of the appellant from those of other undertakings.
   The judgment of the Court of First Instance was also based on the use of a criterion according to which a mark made up of descriptive components may be capable of registration if the compound word has entered general linguistic use and has acquired a meaning of its own, it then being necessary to examine whether that word is not itself descriptive. That criterion is relevant in the context of Article 7(1)(c) of Regulation No 40/94 for the question of a possible need to leave the mark free, but it is not the criterion that applies to the interpretation of Article 7(1)(b) on ascertaining distinctive character. By the use of that criterion, relevant in the context of Article 7(1)(c) of Regulation No 40/94, as a basis of its decision to dismiss the action, the Court of First Instance erred in law in its interpretation of Article 7(1)(b) of Regulation No 40/94.


title: Case C-533/11: Action brought on 19 October 2011 — European Commission v Kingdom of Belgium

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/29

      Action brought on 19 October 2011 — European Commission v Kingdom of Belgium
      (Case C-533/11)
      (2012/C 25/51)
      Language of the case: French

         Parties

         Applicant: European Commission (represented by: S. Pardo Quintillán and A. Marghelis, Agents)

         Defendant: Kingdom of Belgium

         Form of order sought

                  —

                  Declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 260(1) of the Treaty on the Functioning of the European Union, since it has failed to take all the measures necessary to comply with the judgment of the Court of Justice of 8 July 2004 in Case C-27/03;

                  —

                  order the Kingdom of Belgium to pay to the Commission the proposed penalty payment of EUR 55 836 for each day of delay in complying with the judgment in Case C-27/03, from delivery of the judgment in the present case until the date on which the judgment in Case C-27/03 has been complied with;

                  —

                  order the Kingdom of Belgium to pay to the Commission the daily lump sum of EUR 6 204, from 8 July 2004, the date on which the judgment in Case C-27/03 was delivered, until delivery of the judgment in the present case or until the date on which the judgment in Case C-27/03 has been complied with, if earlier;

                  —

                  order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments

      In support of its action, the Commission submits that, in the case of the Bruxelles-Capitale (Brussels-Capital) agglomeration and six agglomerations with a with a p.e. (population equivalent) of more than 10 000 in the Walloon Region, the collecting systems for urban waste water still fail to comply with the requirements of Article 3(1) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment. (1)

      In addition, in the case of the Bruxelles-Capitale agglomeration, one agglomeration of more than 10 000 p.e. in the Flemish Region and 19 agglomerations of more than 10 000 p.e. in the Walloon Region, the systems for treating the urban waste water discharged into sensitive areas still fail to comply with the requirements laid down in Article 5(2) and (3) of Directive 91/271/EEC.
      The Commission thereby concludes that Belgium has not yet taken the measures necessary to comply fully with the judgment of the Court of 8 July 2004.

         (1)  OJ 1991 L 135, p. 40.