title: Action brought on 23 December 1996 by Massalombarda Colombani SpA against the Commission of the European Communities (Case T-216/96)

text:
No C 94/18             EN                  Official Journal of the European Communities                                          22 . 3 . 97
in the Italy weighting of 81,7% , with retroactive effect as          were unjustifiable . In particular these were that specific
from 1 July 1995, pursuant to Council Regulation ( EC,                purchases and work had already been completed before
Euratom, ECSC ) No 2963/95 of 18 December 1995                        the date when the Commission received the request for
adjusting the remuneration and pensions of officials and              assistance, and the alleged forgery of the contract of
other servants of the European Communities and the                    purchase of a Tetra Pak packing machine with the purpose
weightings applied thereto ( 1 ).                                     of disguising the fact that the machine had already been
                                                                      installed in the establishment before the date on which the
The pleas and main arguments are analogous to those                   request for assistance was received .
relied on in Case T-2 12/96 Palermo v. Commission .
                                                                      The applicant alleges infringement of the second
0 ) OJ No L 310, 22 . 12 . 1995 , p. 1 .                              paragraph of Article 15 and Article 24 ( 2 ) of Council
                                                                      Regulation ( EEC ) No 4253/88 (4 ), breach of the principles
                                                                      of legitimate expectations, proportionality and legality,
                                                                      breach of essential procedural requirements and misuse of
                                                                      powers . It claims in particular that all the contested
                                                                      invoices bear a date not earlier than six months before the
Action brought on 23 December 1996 by Massalombarda                   start of the measure and are, therefore, eligible for
Colombani SpA against the Commission of the European                  subsidies. Only five of the invoices bear a date earlier than
                           Communities                                six months, that is equivalent to 2,9% of the amount of
                        ( Case T-2 16/96 )                            the aid . None the less, those invoices should be considered
                                                                      valid since it is not the expenditure but the date stamp
                           ( 97/C 94/39 )                             which is six months earlier. The applicant considers that
                                                                      the purchase of the Tetra Pak machine falls within the
                 (Language of the case: Italian)                      scope of 'Working Document' No VI/1216/b6.IT of the
                                                                      European Commission — Agriculture DG VI — F II 1 .
An action against the Commission of the European                      First of all, the machine was not acquired prior to the
Communities was brought before the Court of First                     start of the period of the operation, so that paragraph Bl ,
Instance of the European Communities on 23 December                   point 5 , of the 'Working Document' is not applicable. It is
1996 by Massalombarda Colombani SpA, whose                            true that the machine was installed at the establishment
registered office is at Massa Lombarda (Italy ), represented          prior to the period of the operation, although not under
by Marina Averani and Andrea Pisaneschi, of the Siena                 the purchase contract but under a hire contract. Secondly,
Bar, and by Paolo De Caterini, of the Rome Bar, with an               the hirer acquired the asset in question after the date on
address for service in Luxembourg at the Chambers of                  which financing was granted and before the subsequent
Charles Turk, 13B avenue Guillaume.                                   five years, as laid down in paragraph B.l , point 12 , of the
                                                                      'Working Document'.
The applicant claims that the Court should:
                                                                      The applicant points out that, in any event, the project in
— annul Commission Decision C(96 ) 2760 of 3 October                  this case has not been carried out in any way other than
     1996 ( ] ), pursuant to the second paragraph of                  that approved by the Commission. It therefore considers
    Article 173 of the EC Treaty and, accordingly, to                 that the principle of proportionality has been breached in
     render without effect all other measures based thereon,          that the whole of the assistance was withdrawn . The
    coordinated therewith or related thereto, as                      defendant should have dealt with partial irregularity by
     appropriate,                                                     adopting a decision reducing the aid . From that point of
                                                                      view, the adoption of a punitive penalty is contrary to
— order the defendant to pay the costs of the                         Community law which describes reduction as a 'measure',
    proceedings.                                                      which may thus be assimilated to a claim for recovery of
                                                                      overpayment, rather than as a 'penalty', which may be
Pleas in law and main arguments adduced in support:                   assimilated to a deterrent penalty. The Commission would
                                                                      be misusing its powers if its intention is to impose a
The main purpose of this action is the annulment of the               penalty.
Commission's decision to withdraw the assistance granted
to the applicant company by way of Decision C(90 ) 950/               (') Not published .
356 of 29 June 1990 (2 ), adopted in the context of Project           ( 2 ) Not published .
90.41.IT.109.0 under Council Regulation ( EEC ) No 355/               ( 3 ) Council Regulation (EEC) No 355/77 of 15 February 1977 on
77 (3 ) entitled ' Support to Horticulture and Fruitgrowing                 common measures to improve the conditions under which
in Massa Lombarda' ( Ravenna ), and demanding the                           agricultural products are processed and marketed ( OJ No L 51 ,
repayment thereof. That assistance had been requested in                    23 . 2 . 1977, p. 1 ).
                                                                      ( 4 ) Council Regulation ( EEC ) No 4253/88 of 19 December 1988
order to support the rationalization and technological                      laying down provisions for implementing Regulation (EEC)
updating of the fruit juice, semi-processed fruit and frozen                No 2052/88 as regards coordination of the activities of the
products departments, the general services and testing                      different Structural Funds between themselves and with the
laboratory of an establishment specializing in preserved                    operations of the European Investment Bank and the other
foods .                                                                     existing financial instruments ( OJ No L 374, 31 . 12 . 1988 ,
                                                                            p. 1 ).
In the contested decision, the Commission considered that
a number of facts which emerged during the inspection


title: Case T-401/16: Action brought on 29 July 2016 — Spain v Commission

text:
               17.10.2016

               EN

               Official Journal of the European Union

               C 383/16

         Action brought on 29 July 2016 — Spain v Commission
   (Case T-401/16)
   (2016/C 383/22)
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: S. Centeno Huerta and M. García-Valdecasas Dorrego, Agents)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the notice of open competition EPSO/AD/323/16 — Investigators (AD 7) and EPSO/AD/324/16 — Investigators (AD 9): Team leaders;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Articles 1 and 2 of Regulation 1/58, Article 22 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 1d of the Staff Regulations, by restricting the system of communication between EPSO and the applicant, which extends to the application form.

               2.

               Second plea in law, alleging infringement of Articles 1 and 6 of Regulation 1/58, Article 22 of the Charter, Articles 1d(1) and (6), 27 and 28(f) of the Staff Regulations and Article 1 of Annex III to the Staff Regulations because the choice of second language is improperly restricted to solely three languages, namely English, French and German, to the exclusion of the other official languages of the European Union.

               3.

               Third plea in law, alleging discrimination on the ground of language prohibited by Article 1 of Regulation 1/58, Article 22 of the Charter, Articles 1d(1) and (6), 27 and 28(f) of the Staff Regulations and Article 1 of Annex III to the Staff Regulations, since the choice of English, French and German was arbitrary.

         The applicant states, in that regard, that those grounds of challenge must be read in the light of the judgment of the Court of Justice of 27 November 2012 in Case C-566/10 P, Italy v Commission, and of the judgments of the General Court of 24 September 2015, in the Joined Cases Spain v Commission and Italy v Commission (T-191/13 and T-124/13), and 17 December 2015 (T-275/13, T-295/13 and T-510/13, Italy v Commission), which have become final, since they have not been appealed by the Commission, and the implementation of which is not reflected in the present notice.


title: Case T-60/05: Action brought on 2 February 2005 by Union française de l'express (UFEX) and Others against the Commission of the European Communities

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/39

         Action brought on 2 February 2005 by Union française de l'express (UFEX) and Others against the Commission of the European Communities
   (Case T-60/05)
   (2005/C 93/71)
   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 2 February 2005 by Union française de l'express (UFEX), having its registered office at Roissy Charles de Gaulle (France), DHL International SA, having its registered office at Roissy Charles de Gaulle (France), Federal Express International (France) SNC, having its registered office at Gennevilliers (France), and CRIE, having its registered office at Asnières (France), represented by Eric Morgan de Rivery and Jacques Derenne, lawyers.
   The applicants claim that the Court should:

               —

               annul Commission decision SG-Greffe (2004) D/205294 of 19 November 2004;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The present application seeks annulment of the decision rejecting the complaint lodged in December 1990 by UFEX, then called SFEI, against la Poste as a result of cross-subsidies allegedly amounting to an abuse of a dominant position to the benefit of Société Française de Messagerie Internationale (SFMI). That decision is the consequence of a request to reopen the procedure before the Commission following annulment by the Community Court of the Commission's decision of 30 December 1994, which rejected the initial complaint. (1)

   The main issue raised in the present case is still the same as that which was the subject of the judgments of the Court of Justice and the Court of First Instance cited above, namely whether the defendant complied with its obligations in the context of the examination of the complaint. The applicants submit that, in rejecting the complaint on the ground of an alleged lack of Community interest, the contested decision infringes the legal rules relating to assessment of Community interest, is vitiated by a contradiction in the grounds and contains a number of errors of law, as regards the rejection of that part of the complaint based on Articles 86 EC, 82 EC, 3(g) EC and 10 EC.
   Specifically, the applicants claim in particular that the Commission made errors in assessing the elements which necessarily make up the definition of Community interest, since, in order to give reasons for its finding that there is no Community interest, it must assess the seriousness and duration of the infringements alleged in the complaint. Consequently, it is not sufficient to establish whether anti-competitive effects still exist and, in the absence of such effects, that there is no Community interest in continuing the examination of the complaint.
   As regards the duration of the infringement, the applicants criticise the fact that the Commission merely examined whether the incidental effects of the alleged infringements still existed (development of market shares, competitors leaving the market, price sensitivity of demand, absence of persistent effects in terms of price, etc), without paying attention to the main effect of a structural nature, namely having placed SFMI-Chronopost in a position of market leader and having maintained it there.
   As far as reasoning is concerned, it is pointed out that, in the contested decision, the Commission asserts, on the one hand, that it is perfectly able to check the level to which la Poste covers costs, which in the light of both Article 82 EC and Article 87 EC would be the only calculation making it possible to ascertain the existence of cross-subsidies, and, on the other hand, that the reason for not checking the level to which la Poste covers costs in the light of Article 82 EC is that this would have amounted to a duplication of the work which it is required to undertake itself for the State aid part of the complaint.
   The applicants also contest the Commission's assertion that the benefits granted to Chronopost in terms of customs clearance and franking come within the scope of the action of the French State in the field of its public authority and do not fall within the scope of Article 82 EC in conjunction with Article 86 EC.

      (1)  Case C-119/97 P UFEX and Others v Commission [1999] ECR I-1341, and Case T-77/95 REV UFEX and Others v Commission [2000] ECR II-2167.


title: Action brought on 25 November 1998 by Compañía Internacional de Pesca y Derivados, S.A. (INPESCA) against Commission of the European Communities (Case T-186/98)

text:
C 20/32             EN                 Official Journal of the European Communities                                   23.1.1999
Action brought on 25 November 1998 by CompanÄía                   The applicant considers it proved that those budgetary
Internacional de Pesca y Derivados, S.A. (INPESCA)                headings were left largely unused as a result of repayments
    against Commission of the European Communities                and reductions or a shortage of applications and in
                                                                  addition that, because of the cancellation and repayment
                      (Case T-186/98)
                                                                  of considerable amounts of aid improperly granted for the
                       (1999/C 20/57)                             construction or modernisation of fishing vessels, sufficient
                                                                  credit remains available to cover the project at issue in
                                                                  these proceedings.
              (Language of the case: Spanish)
                                                                  Nor, in the applicant's view, is it permissible for the
An action against the Commission of the European                  contested decision to refer to Article 37 of Regulation
Communities was brought before the Court of First                 (EEC) No 4028/86 (1), which appears to limit the
Instance on 25 November 1998 by CompanÄía                         reconsideration of projects that have not been financed for
International de Pesca y Derivados, S.A. (INPESCA),               lack of financial resources. In its view, the Commission
whose registered office is in Bermeo (Spain), represented         itself, in Article 6(2) of its Proposal for a Council
by María Iciar Angulo Fuertes and BegonÄa Angulo                  Regulation (EC) on structural measures in the fisheries
Fuertes, of the Bizkaia Bar, with an address for service in       sector (2), stated that sums committed as assistance for
Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue             projects by the Commission between 1 January 1989 and
Mathias Hardt.                                                    31 December 1993 for which no final application for
                                                                  payment had been submitted would be released by the
                                                                  Commission on its own initiative, without prejudice to
                                                                  projects which had been suspended on legal grounds: this
The applicant claims that the Court of First Instance
                                                                  means that projects which are the subject of an
should:
                                                                  application for judicial review, as in this case, must be
                                                                  taken into consideration. Also, the Court of Auditors of
                                                                  the European Communities, in its Annual Report for
Ð Annul contested decision;                                       1990, found that applications for financial aid of the kind
                                                                  provided for in Regulation (EEC) No 4028/86 were
                                                                  considered over a period of more than two financial years.
Ð Hold, in accordance with the second paragraph of
    Article 176 of the EC Treaty, in conjunction with
    Article 178 and the second paragraph of Article 215           The applicant concludes by alleging that the contested
    thereof, that CompanÄía Internacional de Pesca y              decision involves a misuse of powers and breach of the
    Derivados, S.A. (INPESCA) is entitled to receive, as          principle of non-discrimination.
    compensation for the damage caused to it by the issue
    of the contested decision, the sum of ESP 216 886 200,
    together with default interest in respect of the              (1) Council Regulation (EEC) No 4028/86 of 18 December 1986
                                                                      on Community measures to improve and adapt structures in
    withholding of such Community financial aid, from
                                                                      the fisheries and aquaculture sector (OJ L 376, 31.12.1986,
    12 March 1992 until the date on which it is received,             p. 7).
    in accordance with the legal principles common to the         (2) OJ C 176, 9.6.1998, p. 44.
    Member States;
Ð Order the Commission to pay the costs.
Pleas in law and main arguments adduced in support:               Action brought on 25 November 1998 by Pascual Juan
                                                                  Cubero Vermurie against the Commission of the European
                                                                                Communities
In this action the applicant, whose objects include the
                                                                                (Case T-187/98)
building, purchase, management, chartering, repair and
operation of ships, seeks annulment of the Commission's                                    (1999/C 20/58)
decision of 16 September 1998 refusing to grant the
Community financial aid applied for in relation to the
building of a vessel for the catching and freezing of tuna                         (Language of the case: French)
(No ES/0002/90 and ES/0224/91).
                                                                  An action against the Commission of the European
By decisions of 18 December 1990 and 8 November 1991              Communities was brought before the Court of First
the Commission declared that, despite meeting all the             Instance of the European Communities on 25 November
requirements laid down for the grant of aid at issue, the         1998 by Pascual Juan Cubero Vermurie, residing in
abovementioned project could not qualify for such aid             Brussels, represented by Eric Boigelot, of the Brussels Bar,
because the budgetary resources under the relevant                with an address for service in Luxembourg at the
headings for 1991 and 1992 were insufficient.                     Chambers of Louis Schiltz, 2, Rue du Fort Rheinsheim.


title: ORDER OF THE COURT (Third Chamber) of 25 June 1998 in Case C-312/97 P: Augusto Fichtner v. Commission of the European Communities (Officials - Action manifestly inadmissible before the Court of First Instance - Appeal manifestly unfounded or inadmissible)

text:
C 278/10             EN                 Official Journal of the European Communities                                       5.9.98
by the Hellenic Republic (Agents: I. Chalkias and                  By orders of 25 May 1998, the Court (Second Chamber)
I.    Galani-Maragkoudaki)       and    by    Koinopraktiki        ordered:
Tyrokomikon Monadon Ioanninon Pindos AEBE, the seat
of which is at Ioannina (Greece), represented by N.
Korojiannakis, of the Athens Bar, with an address for              The Court has no jurisdiction to answer the questions
service in Luxembourg at the office of Brown Holding SA,           referred by the ASVG-Landesberufungskommission für
310 Route d'Esch, L-1471 Luxembourg Ð application for              das Burgenland.
annulment of Commission Regulation (EC) No 1107/96 of
12 June 1996 on the registration of geographical
indications and designations of origin under the procedure
laid down in Article 17 of Council Regulation (EEC)
No 2081/92 (OJ L 148, 21.6.1996, p. 1) in so far as it
concerns registration of the name feta' as a protected
designation of origin Ð the Court, composed of: G. C.
Rodríguez Iglesias, President, C. Gulmann, H.                                        ORDER OF THE COURT
Ragnemalm, M. Wathelet and R. Schintgen (Rapporteur),
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de                                 (Third Chamber)
Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward,                                 of 25 June 1998
J.-P. Puissochet, G. Hirsch, P. Jann, L. Sevón and K. M.
Ioannou, Judges; A. La Pergola, Advocate-General; R.               in Case C-312/97 P: Augusto Fichtner v. Commission of
Grass, Registrar, made an order on 25 May 1998, the                                the European Communities (1)
operative part of which is as follows:
                                                                   (Officials Ð Action manifestly inadmissible before the
                                                                   Court of First Instance Ð Appeal manifestly unfounded or
                                                                                inadmissible)
1. Case C-82/97 is referred to the Court of First Instance.
                                                                                (98/C 278/18)
2. The costs are reserved.
                                                                                (Language of the case: Italian)
( ) OJ C 108, 5.4.1997.
 1
                                                                     (Provisional translation; the definitive translation will be
                                                                            published in the European Court Reports)
                                                                   In Case C-312/97 P: Augusto Fichtner, an official of the
References for a preliminary ruling from the ASVG-Lan-             Commission of the European Communities, represented
desberufungskommission für das Burgenland by decisions             by Vincenzo Salvatore, of the Pavia Bar, with an address
of that tribunal in the cases of Rouhollah Nour, Margarita         for service at 6 Via Orrigoni, Varese Ð appeal against the
Karner and Arthur Lindau v. Burgenländische Gebiets-               order of the Court of First Instance of the European
                        krankenkasse                               Communities (Fourth Chamber) of 9 July 1997 in Case
         (Cases C-361/97, C-362/97 and C-363/97)                   T-63/96 Fichtner v. Commission [1997] ECR-SC II-563,
                                                                   seeking to have that order set aside, the other party to the
                        (98/C 278/17)                              proceedings being the Commission of the European
                                                                   Communities (Agent: Gianluigi Valsesia, assisted by
                                                                   Alberto Dal Ferro) Ð the Court (Third Chamber),
               (Language of the case: German)                      composed of: C. Gulmann, President of the Chamber, J. C.
                                                                   Moitinho de Almeida and J.-P. Puissochet (Rapporteur),
                                                                   Judges; G. Cosmas, Advocate-General; R. Grass, Registrar,
                                                                   made an order on 25 June 1998, the operative part of
Reference was made to the Court of Justice of the
                                                                   which is as follows:
European Communities on 21 October 1997 by three
decisions of the ASVG-Landesberufungskommission für
das Burgenland (Social Security Appeals Board for
Burgenland), Austria, for preliminary rulings under                1. The appeal is dismissed.
Article 177 of the EC Treaty in the proceedings pending
before that tribunal between Rouhollah Nour (Case
C-361/97), Margarita Karner (Case C-362/97) and Arthur             2. The appellant is ordered to pay the costs.
Lindau (Case C-363/97) and Burgenländische Gebietskran-
kenkasse, concerning essentially the method of calculating
the remuneration of the President of the Landesberufungs-          (1) OJ C 331, 1.11.1997.
kommission and the relationship between the Paritätische
Schiedskommission as first-instance institution and the
Landesberufungskommission as appellate body.


title: Judgment of the Court (Grand Chamber) of 12 July 2005 in Case C-304/02: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Fisheries — Control obligations placed on the Member States — Judgment of the Court establishing a breach of obligations — Non-compliance — Article 228 EC — Payment of a lump sum — Imposition of a penalty payment)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/3

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 12 July 2005
   in Case C-304/02: Commission of the European Communities v French Republic (1)

   (Failure of a Member State to fulfil obligations - Fisheries - Control obligations placed on the Member States - Judgment of the Court establishing a breach of obligations - Non-compliance - Article 228 EC - Payment of a lump sum - Imposition of a penalty payment)
   (2005/C 217/06)
   Language of the case: French
   In Case C-304/02, Commission of the European Communities (Agents: M. Nolin, H. van Lier and T. van Rijn) v French Republic (Agents: G. de Bergues and A. Colomb), action under Article 228 EC for failure to fulfil obligations brought on 27 August 2002, the Court (Grand Chamber), composed of V. Skouris, President, P. Jann (Rapporteur) and C.W.A. Timmermans, Presidents of Chambers, C.Gulmann, J.P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed, Advocate General; M. Múgica Arzamendi, Principal Administrator, subsequently M.F. Contet, Principal Administrator, and H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 12 July 2005, in which it:

               1.

               Declares that:

                           —

                           by failing to carry out controls of fishing activities in accordance with the requirements laid down by the Community provisions, and

                           —

                           by failing to ensure that action is taken in respect of infringements of the rules governing fishing activities in accordance with the requirements laid down by the Community provisions,

                     the French Republic has not implemented all the necessary measures to comply with the judgment of 11 June 1991 in Case C-64/88 Commission v France and has accordingly failed to fulfil its obligations under Article 228 EC;

               2.

               Orders the French Republic to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a penalty payment of EUR 57 761 250 for each period of six months from delivery of the present judgment at the end of which the judgment in Case C-64/88 Commission v France has not yet been fully complied with;

               3.

               Orders the French Republic to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a lump sum of EUR 20 000 000;

               4.

               Orders the French Republic to pay the costs.

      (1)  OJ C 247 of 12.10.2002.


title: Action brought on 28 July 1998 by the Commission of the European Communities against the Republic of Austria (Case C-290/98)

text:
C 299/18             EN                  Official Journal of the European Communities                                     26.9.98
   opportunity of expressing their views before the                     of the motorway to be built, to be regarded as a
   project is initiated, contrary to the requirements of                project to which the Directive does not apply?
   Article 6(2), the Directive not having been fully
   transposed into national law despite the expiry of the           (1) OJ L 175, 5.7.1985, p. 40.
   period laid down for that purpose, or does such a
   finding involve an appraisal of the direct effect of the
   Directive, so that the court is required to refer a
   question on the matter to the Court of Justice of the
   European Communities?
                                                                    Action brought on 28 July 1998 by the Commission of the
                                                                       European Communities against the Republic of Austria
2. If the Court of Justice, in reply to the first question,                                (Case C-290/98)
   holds that the court against whose decisions there is
   no judicial remedy under national law is under an                                         (98/C 299/29)
   obligation to seek a preliminary ruling from the Court
   of Justice, then the question referred is as follows.
                                                                    An action against the Republic of Austria was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 28 July 1998 by the Commission of the European
   May the abovementioned Directive be applied to a                 Communities, represented by Christina Tufvesson and
   dispute concerning the expropriation on grounds of               Viktor Kreuschitz, of its Legal Service, acting as Agents,
   public utility of immovable property belonging to a              with an address for service in Luxembourg at the office of
   private individual and may the court called on to                Carlos Gómez de la Cruz, a member of the European
   examine the legality of the expropriation procedure              Commission's Legal Service, Wagner Centre C 254,
   find that, contrary to Articles 5(1) and 6(2), no                Kirchberg, Luxembourg.
   environmental impact assessment has been carried out
   and that the information obtained in accordance with
                                                                    The applicant claims that the Court should:
   Article 5 has not been made available to the public
   and that the members of the public concerned have
   not had an opportunity of expressing their views                 1. declare that by
   before the construction of a motorway, a project of
   the kind referred to in Article 4(1), is initiated?                  Ð limiting the prohibition on money laundering
                                                                            contained in paragraph 165 of the Strafgesetzbuch
                                                                            (penal code) to assets having a value of over ATS
                                                                            100 000,
3. Does the act of national legislation mentioned in
   Article 1(5) of the abovementioned Directive have an
   independent meaning in Community law or must it be                   Ð not requiring customer identification when a
   characterised in accordance with domestic law?                           securities account is opened as from 1 January
                                                                            1994 (the date on which the Treaty on the
                                                                            European Economic Area entered into force), but
                                                                            as from 1 August 1996,
4. If the term specific act of national legislation' has an
   independent meaning in Community law, is a measure                   Ð not requiring customer identification for all
   adopted by the parliament after public parliamentary                     transactions into or out of an existing securities
   debate to be regarded as an act of national legislation                  account, but only, under paragraph 40(5) of the
   within the meaning of Article 1(5) of the Directive?                     Bankwesengesetz (bank law), requiring that the
                                                                            customer's identity be established for deposits and
                                                                            purchases of securities for a securities account,
5. Does the term project' as used in Article 1(5) of the               Ð not requiring customer identification whenever a
   abovementioned Directive, the details of which are                       savings account is opened on or after 1 January
   adopted by a specific act of national legislation, have                  1994,
   an independent meaning in Community law or must it
   be characterised in accordance with domestic law?                    Ð not requiring customer identification for all
                                                                            operations relating to a savings account book,
                                                                            whether opened before or after 1 January 1994,
6. If the term project' as used in Article 1(5) of the
   Directive, the details of which are adopted by a                     the Republic of Austria has failed to fulfil its
   specific act of national legislation, has an independent             obligations under the EC Treaty and Articles 2, 3(1),
   meaning in Community law, is the project adopted by                  3(5) and 3(6) of Council Directive 91/308/EEC of
   decision of the parliament after public parliamentary                10 June 1991 on prevention of the use of the financial
   debate to construct a motorway in order to establish a               system for the purpose of money laundering (1) (the
   link with two other roads, without settling the route                Directive');
 ---pagebreak--- 26.9.98              EN                  Official Journal of the European Communities                                  C 299/19
2. order the Republic of Austria to pay the costs.                  transactions) opened or effected before 1 August 1996 if
                                                                    the identity of the customer is established beforehand and
Pleas in law and main arguments adduced in support:                 paragraph 40(2) complied with. However, that provision
                                                                    still infringes paragraphs (5) and (6) of Article 3 of the
                                                                    Directive because it does not cover the eventuality of the
Pursuant to the mandatory requirements of paragraph 3 of            proprietor of such a securities deposit account selling
Article 189 and paragraph 1 of Article 5 of the EC Treaty,          securities held in those accounts, if the securities are
Member States are under an obligation to transpose the              repaid or redeemed.
provisions of a directive addressed to them into national
law so that those provisions become fully effective on the
expiry of the deadline for effecting transposition. That            (1) OJ L 166, 28.6.1991, p. 77.
deadline laid down in Article 16 of the Directive which, in
Austria's case, due to the entry into force of the Treaty on
the European Economic Area, expired on 1 January 1994,
passed without adequate measures to effect transposition
having been taken in respect of the following two areas of
regulation:
                                                                    Appeal brought on 28 July 1998 by Sarrió SA against the
Ð limitation of the scope of the Directive: paragraph 165           judgment delivered on 14 May 1998 by the Third
    of the Strafgesetzbuch makes money laundering a                 Chamber, extended composition, of the Court of First
    criminal offence only where a threshold of ATS                  Instance of the European Communities in Case T-334/94
    100 000 is exceeded. The reference to the anti-money            between Sarrió SA and the Commission of the European
    laundering rules provided for in paragraph 278(a)(2)                                     Communities
    of the Strafgesetzbuch does nothing to allay the                                      (Case C-291/98 P)
    Commission's doubts about the incompatibility of
    paragraph 165 with Community law,                                                       (98/C 299/30)
Ð disclosure of customers' identity: the fact that
    paragraph 40 of the bank law expressly allows                   An appeal against the judgment delivered on 14 May
    anonymous savings account books contradicts                     1998 by the Third Chamber, extended composition, of the
    Article 3(1) of the Directive which requires credit and         Court of First Instance of the European Communities in
    financial institutions to establish the identity of their       Case T-334/94 between Sarrió SA and the Commission of
    customers when entering into business relations,               the European Communities was brought before the Court
    particularly when opening an account or savings                 of Justice of the European Communities on 28 July 1998
    account'.                                                       by Sarrió SA, whose company seat is in Barcelona (Spain),
                                                                    represented by Alberto Mazzoni, of the Milan Bar, Mario
                                                                    Siragusa, of the Rome Bar, and Francesco Maria Moretti,
Paragraph 40(2) of the bank law also infringes Article 3(5)         of the Venice Bar, with an address for service in
of the Directive, which requires credit and financial               Luxembourg at the Chambers of Elvinger, Hoss &
institutions to take reasonable measures in the event of            Prussen, 2, place Winston Churchill.
doubt as to whether their customers are acting on their
own behalf or, where it is certain that they are not acting
on their own behalf, to obtain information as to the real
                                                                    The appellant claims that the Court should:
identity of the person on whose behalf the customers are
acting.
                                                                    1. set aside the judgment of the Court of First Instance of
Paragraph 40(1) (1) of the bank law also infringes                       14 May 1998 in Case T-334/94 Sarrió v. Commission
Article 3(6) of the Directive because in transactions in                 in so far as the Court of First Instance:
connection with an anonymous savings account book,
establishing the identity of the customer carrying out the
transaction is of no practical use and does not in any                   Ð declares that the Commission decision did not
event enable any inferences to be drawn as to the actual                     impute to Sarrió an infringement concerning
economic relations. The duty of identification laid down                     transaction prices and holds that there is no need
in subparagraphs (1), (2) and (3) of paragraph 40 of the                     to evaluate Sarrió's conduct as regards the prices
bank law in relation to specific situations cannot be                        actually applied,
applied meaningfully and in the spirit of the Directive to
transactions connected with anonymous savings account                    Ð declares that the mere fact of having participated
books.                                                                       in the PG Paperboard meetings implicates Sarrió in
                                                                             collusion on market shares and downtime; or, in
Finally, the duty of identification only took effect in                      the alternative, in so far as it does not regard
relation to securities accounts on 1 August 1996, placing                    Sarrió's non-implementation of the agreed
Austria in breach of the Directive up to that point. It is                   strategies as mitigating the seriousness of its
true that under paragraph 40(5) of the bank law, securities                  misconduct      by     comparison     with   other
may only be deposited or purchased for securities accounts                   undertakings and dismisses the evidence adduced
(and, under paragraph 12 of the deposit law, business                        by Sarrió to that effect; or, in the further


title: Case T-614/15: Judgment of the General Court of 24 November 2016 — Azur Space Solar Power v EUIPO (Representation of black lines and bricks) (EU trade mark — International registration designating the European Union — Figurative mark representing black lines and bricks — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/28

         Judgment of the General Court of 24 November 2016 — Azur Space Solar Power v EUIPO (Representation of black lines and bricks)
   (Case T-614/15) (1)

   ((EU trade mark - International registration designating the European Union - Figurative mark representing black lines and bricks - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 022/37)
   Language of the case: English

      Parties

      Applicant: Azur Space Solar Power GmbH (Heilbronn, Germany) (represented by: J. Nicodemus and S. Stöcker, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: A. Folliard-Monguiral, acting as Agent)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 2 September 2015 (Case R 3233/2014-4), concerning the international registration designating the European Union of a figurative mark representing black lines and bricks.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Azur Space Solar Power GmbH to pay the costs.

      (1)  OJ C 38, 1.2.2016


title: Case C-210/17 P: Appeal brought on 21 April 2017 by NM against the order of the General Court (First Chamber, Extended Composition) delivered on 28 February 2017 in Case T-257/16: NM v European Council

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/14

         Appeal brought on 21 April 2017 by NM against the order of the General Court (First Chamber, Extended Composition) delivered on 28 February 2017 in Case T-257/16: NM v European Council
   (Case C-210/17 P)
   (2017/C 231/18)
   Language of the case: English

      Parties

      Appellant: NM (represented by: P. O’Shea, BL, I. Whelan, BL, B. Burns, Solicitor)

      Other party to the proceedings: European Council

      Form of order sought

   The applicant claims that the Court should:

               —

               Set aside the whole of the order of the General Court of 28 February 2017 by which the General Court held that the action be dismissed on the ground of the General Court’s lack of jurisdiction to hear and determine it;

               —

               Give a final judgment in the matter that is the subject of this appeal and hold that the General Court was wrong in law to decline jurisdiction and order the respondent in case T-257/16 to pay the costs of the appellant in respect of the order of the General Court and of the Court of Justice of the European Union in this appeal;

               —

               Remit the issues raised in these proceedings for adjudication back to the General Court with a direction that it should accept jurisdiction.

      Pleas in law and main arguments

               1.

               Failure to give reasons;

               2.

               Failure to properly consider whether the challenged agreement was in reality a decision of the respondent;

               3.

               Ignoring relevant factual issues;

               4.

               Failure to consider evidence that was before it;

               5.

               Failure to fully investigate and assess material issues;

               6.

               Failure to make further relevant enquiries;

               7.

               Making a decision without the benefit of sufficient information;

               8.

               Disregarding the principles established by the Court in case C-294/83.


title: Removal from the register of C-184/95

text:
C 295/26                 EN                  Official Journal of the European Communities                                  27 . 9 . 97
removal from the register of Case C-58/96 : Kingdom of                           Removal from the register of C-330/96 (')
Belgium v. Commission of the European Communities,                                                  ( 97/C 295/50 )
supported by French Republic and United Kingdom of
Great Britain and Northern Ireland .
                                                                        By order of 25 June 1997 the President of the Court of
(') OJ C 108 , 13 . 4 . 1996 .                                          Justice of the European Communities has ordered the
                                                                        removal from the register of Case C-330/96 : Commission
                                                                        of the European Communities v. Hellenic Republic .
                                                                        (') OJ C 370, 7. 12 . 1996 .
         Removal from the register of C-2 17/96 (')
                            ( 97/C 295/47)
By order of 13 May 1997 the President of the Court of                            Removal from the register of C-331/96 (')
Justice of the European Communities has ordered the
removal from the register of Case C-2 17/96 : Kingdom of                                            ( 97/C 295/51 )
Belgium v. Commission of the European Communities ,
supported by French Republic and United Kingdom of
Great Britain and Northern Ireland .                                    By order of 25 June 1997 the President of the Court of
                                                                        Justice of the European Communities has ordered the
H OJ C 269, 14 . 9 . 1996 .                                             removal from the register of Case C-331/96 : Commission
                                                                        of the European Communities v. Hellenic Republic.
                                                                        (') OJ C 370, 7. 12 . 1996 .
          Removal from the register of C-3 96/95 (')
                            ( 97/C 295/48 )
                                                                                Removal from the register of C-281/94 ( 1 )
By order of 19 June 1997 the President of the Court of                                               ( 97/C 295/52 )
Justice of the European Communities has ordered the
removal from the register of Case C-396/95 : Federal
Republic of Germany v. Commission of the European                       By order of 26 June 1997 the President of the Court of
Communities, supported by French Republic and United                    Justice of the European Communities has ordered the
Kingdom of Great Britain and Northern Ireland .                         removal from the register of Case C-281/94: Commission
                                                                        of the European Communities v. Hellenic Republic.
 w OJ C 64, 2 . 3 . 1996 .
                                                                         H OJ C 351 , 10 . 12 . 1994 .
          Removal from the register of C-l 84/95 (')
                             ( 97/C 295/49 )                                       Removal from the register of C-97/97 (')
                                                                                ( 97/C 295/53 )
 By order of 24 June 1997 the President of the Court of
Justice of the European Communities has ordered the
 removal from the register of Case C-l 84/95 ( reference for             By order of 1 July 1997 the President of the Court of
 a preliminary ruling from the Juzgado do lo Social No 2,               Justice of the European Communities has ordered the
 Santiago do Compostela ): Mercedes Lores Guillfn v. Insti              removal from the register of Case C-97/97 ( reference for a
 tute Nacional de Empleo and Instituto Nacional de la                    preliminary ruling from the Retten i Arhus ): Elly Bach v.
 Seguridad Social .                                                      Arhus Amtskommune.
 (') OJ C 189, 22 . 7. 1995 .                                            (') OJ C 131 , 26 . 4 . 1997.


title: Judgment of the Court (Fifth Chamber) of 10 May 2001 in Case C-463/98 (reference for a preliminary ruling from the Appeal Commissioners): Cabletron Systems Ltd v The Revenue Commissioners (Common customs tariff — Tariff headings — Tariff classification of equipment used in local area networks — Classification in the Combined Nomenclature — Validity of Regulations (EC) No 1638/94 and No 1165/95)

text:
C 200/12               EN                       Official Journal of the European Communities                                          14.7.2001
                 JUDGMENT OF THE COURT                                           Nomenclature is invalid inasmuch as it classifies the adapter
                                                                                cards described in item 4 of its annex under heading No 8517
                                                                                of the Combined Nomenclature.
                         (Fifth Chamber)
                                                                           3.    Items of computer network equipment which are connectable to
                                                                                the central processing unit either directly or through one or
                                                                                more other units, which are specifically designed as part of a
                         of 10 May 2001
                                                                                data-processing system, which are able to accept or deliver data
                                                                                in a form which can be used by the system and which have no
                                                                                function that they would be capable of performing without the
in Case C-463/98 (reference for a preliminary ruling from                        assistance of an automatic data-processing machine must be
the Appeal Commissioners): Cabletron Systems Ltd v The                           classified under heading No 8471 of the Combined Nomencla-
                  Revenue Commissioners (1)                                      ture both before and after 1 January 1996.
(Common customs tariff — Tariff headings — Tariff                          (1) OJ C 71 of 13.3.1999.
classification of equipment used in local area networks —
Classification in the Combined Nomenclature — Validity of
        Regulations (EC) No 1638/94 and No 1165/95)
                         (2001/C 200/21)
                                                                                JUDGMENT OF THE COURT
                   (Language of the case: English)                                                    (Fifth Chamber)
In Case C-463/98: reference to the Court under Article 177                                            of 10 May 2001
of the EC Treaty (now Article 234 EC) from the Appeal
Commissioners (Ireland) for a preliminary ruling in the                    in Case C-144/99: Commission of the European Communi-
proceedings pending before them between Cabletron Systems                                ties v Kingdom of the Netherlands (1)
Ltd and The Revenue Commissioners — on the validity of
Commission Regulation (EC) No 1638/94 of 5 July 1994
                                                                           (Failure by a Member State to fulfil its obligations —
concerning the classification of certain goods in the Combined
                                                                           Directive 93/13/EEC — Unfair terms in consumer contracts
Nomenclature (OJ 1994 L 172, p. 5) and Commission
                                                                           — Incomplete transposition of the directive into national
Regulation (EC) No 1165/95 of 23 May 1995 concerning the
                                                                                law)
classification of certain goods in the Combined Nomenclature
(OJ 1995 L 117, p. 15), and on the interpretation of the
Combined Nomenclature of the Common Customs Tariff, set                                               (2001/C 200/22)
out in Annex I to Council Regulation (EEC) No 2658/87 of
23 July 1987 on the tariff and statistical nomenclature and on
the Common Customs Tariff (OJ 1987 L 256, p. 1), as                                             (Language of the case: Dutch)
amended by Commission Regulation (EEC) No 2505/92 of
14 July 1992 (OJ 1992 L 267, p. 1), by Commission Regulation
(EEC) No 2551/93 of 10 August 1993 (OJ 1993 L 241, p. 1),                  (Provisional translation; the definitive translation will be published
by Commission Regulation (EC) No 3115/94 of 20 December                                        in the European Court Reports)
1994 (OJ 1994 L 345, p. 1) and by Commission Regulation
(EC) No 3009/95 of 22 December 1995 (OJ 1995 L 319, p. 1)
— the Court (Fifth Chamber), composed of: A. La Pergola,                   In Case C-144/99: Commission of the European Communities
President of the Chamber, M. Wathelet, D.A.O. Edward                       (Agents: P. van Nuffel, assisted by M. van der Woude and
(Rapporteur), P. Jann and L. Sevón, Judges; F.G. Jacobs,                  L. Dommering-van Rongen) v Kingdom of the Netherlands
Advocate General; H.A. Rühl, Principal Administrator, for the              (Agents: M.A. Fierstra and J. van Bakel) — application for a
Registrar, has given a judgment on 10 May 2001, in which it                declaration that, by failing to adopt the laws, regulations and
has ruled:                                                                 administrative provisions necessary for the full transposition
                                                                           into Netherlands law of Articles 4(2) and 5 of Council Directive
                                                                           93/13/EEC of 5 April 1993 on unfair terms in consumer
1.    Commission Regulation (EC) No 1638/94 of 5 July 1994                 contracts (OJ 1993 L 95, p. 29), the Kingdom of the
      concerning the classification of certain goods in the Combined       Netherlands has failed to fulfil its obligations under Article 189
      Nomenclature is invalid inasmuch as it classifies the adapters,      of the EC Treaty (now Article 249 EC) and under that Directive
      link adapters and transceivers described in items 1 to 3 of its      — the Court (Fifth Chamber), composed of: A. La Pergola,
      annex under heading No 8517 of the Combined Nomenclature.            President of the Chamber, M. Wathelet, D.A.O. Edward, P. Jann
                                                                           (Rapporteur) and L. Sevón, Judges; A. Tizzano, Advocate
2.    Commission Regulation (EC) No 1165/95 of 23 May 1995                 General; R. Grass, has given a judgment on 10 May 2001, in
      concerning the classification of certain goods in the Combined       which it:


title: Case T-98/00: Action brought on 21 April 2000 by Linde AG against the Commission of the European Communities

text:
24.6.2000             EN                      Official Journal of the European Communities                                         C 176/27
Action brought on 19 April 2000 by Danielle Dubigh                       Pleas in law and main arguments
  against the Commission of the European Communities
                                                                         The subject-matter of the contested decision is an investment
                         (Case T-96/00)
                                                                         subsidy of DEM 9 million granted by the Bundesanstalt für
                                                                         vereinigungsbedingte Sonderaufgaben (‘BvS’), alternatively by
                        (2000/C 176/46)                                  its subsidiary Leuna-Werke GmbH, to Linde AG in connection
                                                                         with the construction of a new carbon monoxide plant
                                                                         in Leuna (Saxony-Anhalt). In the contested decision, the
                   (Language of the case: French)                        Commission accepted 35 % of the total investment costs as
                                                                         being permissible State regional aid for Saxony-Anhalt. The
                                                                         applicant contests that part of the decision in which the
An action against the Commission of the European Communi-
                                                                         Commission declares the remainder of the investment subsidy
ties was brought before the Court of First Instance of the
                                                                         to be incompatible with the common market and requires the
European Communities on 19 April 2000 by Danielle Dubigh,
                                                                         Federal Republic of Germany to demand that it be repaid.
residing in Brussels, represented by Jean-Noël Louis and
Véronique Peere, of the Brussels Bar.
                                                                         In support of its claim, the applicant asserts that the investment
The applicant claims that the Court should:                              subsidy does not constitute State aid within the meaning of
                                                                         Article 87 EC. Instead, what is involved is a measure based
— annul the decision of the selection board in competition               solely on commercial considerations which has been taken by
    COM/C/2/99 rejecting the application submitted by the                the BvS in the context of negotiations following on from
    applicant;                                                           a privatisation agreement concluded in 1993 between its
                                                                         predecessor, the Treuhandanstalt, and UCB Chemie GmbH.
— order the defendant to pay the costs.                                  Consequently, on the basis of the relevant findings made by
                                                                         the Commission with regard to the ‘Treuhand scheme’, the
                                                                         subsidy cannot be categorised as State aid.
Pleas in law and main arguments
                                                                         Moreover, the Commission has made no findings, or no
The pleas in law and main arguments are the same as in Case              adequate findings, regarding the incompatibility of the alleged
T-95/00 Zaur-Gora v Commission.                                          aid with the common market. The assumption that any grant
                                                                         of aid to the applicant for the construction of a new carbon
                                                                         monoxide plant is liable to distort competition is based on an
                                                                         erroneous assessment of the market concerned. In addition,
                                                                         no relevant findings have been made with regard to any
                                                                         adverse effect on trade between Member States.
Action brought on 21 April 2000 by Linde AG against the
         Commission of the European Communities
                         (Case T-98/00)
                        (2000/C 176/47)
                                                                         Action brought on 20 April 2000 by Franco Campoli
                                                                           against the Commission of the European Communities
                  (Language of the case: German)
An action against the Commission of the European Communi-                                         (Case T-100/00)
ties was brought before the Court of First Instance of the
European Communities on 21 April 2000 by Linde AG, of
Wiesbaden (Federal Republic of Germany), represented by                                           (2000/C 176/48)
Hans-Jürgen Rabe, Rechtsanwalt, of Messrs Gaedertz Rechtsan-
wälte, Brussels.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
— annul Articles 2 and 3 of Decision K(2000) 64 final of                 An action against the Commission of the European Communi-
    18 January 2000 concerning State aid granted by Germany              ties was brought before the Court of First Instance of the
    in favour of Linde AG;                                               European Communities on 20 April 2000 by Franco Campoli,
                                                                         residing in Brussels, represented by Sergio Diana, of the
— order the defendant to pay the costs.                                  Brussels Bar.


title: Case C-398/13 P: Appeal brought on 12 July 2013 by Inuit Tapiriit Kanatami and others against the judgment of the General Court (Seventh Chamber) delivered on 25 April 2013 in Case T-526/10: Inuit Tapiriit Kanatami and others v European Commission, Council of the European Union, European Parliament

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/12

         Appeal brought on 12 July 2013 by Inuit Tapiriit Kanatami and others against the judgment of the General Court (Seventh Chamber) delivered on 25 April 2013 in Case T-526/10: Inuit Tapiriit Kanatami and others v European Commission, Council of the European Union, European Parliament
   (Case C-398/13 P)
   2013/C 274/20
   Language of the case: English

      Parties

      Appellants: Inuit Tapiriit Kanatami, Nattivak Hunters and Trappers Association, Pangnirtung Hunters' and Trappers' Association, Jaypootie Moesesie, Allen Kooneeliusie, Toomasie Newkingnak, David Kuptana, Karliin Aariak, Canadian Seal Marketing Group, Ta Ma Su Seal Products, Inc., Fur Institute of Canada, NuTan Furs, Inc., GC Rieber Skinn AS, Inuit Circumpolar Council, Johannes Egede, Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK), William E. Scott & Son, Association des chasseurs de phoques des Îles-de-la-Madeleine, Hatem Yavuz Deri Sanayi iç Ve Diș Ticaret Ltd Șirketi, Northeast Coast Sealers' Co-Operative Society, Ltd (represented by: H. Viaene, avocat, J. Bouckaert, advocaat)

      Other parties to the proceedings: European Commission, Council of the European Union, European Parliament

      Form of order sought

   The appellants claim that the Court should:

               —

               Annul the judgment under appeal of the General Court, declare Regulation 1007/2009 (1) illegal and inapplicable pursuant to Article 277 TFEU and annul Regulation 737/2010 (2) pursuant to Article 263 TFEU, should the Court of Justice consider that all elements required to decide on the substance of the action for annulment of the contested Regulation are present;

               —

               In the alternative, annul the judgment under appeal and refer the case back to the General Court;

               —

               Order the European Commission to pay the Appellants’ costs.

      Pleas in law and main arguments

   The Appeal is based on two main grounds, namely the conviction that: 1) the General Court erred in law in the application of Article 95 of the EC Treaty, and 2) the General Court erred in law in the interpretation and application of fundamental rights principles.
   In the First Ground of Appeal, the Appellants allege that the General Court erred in law by not assessing whether the conditions for recourse to Article 95 EC as a legal basis were fulfilled at the relevant time. The Appellants demonstrate that it is at the time of the Commission proposal that the conditions for recourse to Article 95 EC as a legal basis have to be met. The Appellants also consider that the non-fulfilment of the conditions for recourse to Article 95 EC as a legal basis cannot be remedied at the judicial review stage. The Appellants also maintain that the General Court erred in law by applying the wrong criterion when assessing whether existing differences between the national provisions governing trade in seal products were such as to justify the intervention of the Union legislature on the basis of Article 95 EC. In the contested judgment, the General Court applied a threshold based on the criterion of the non-negligible nature of the trade in the products concerned between the Member States. However, the non-negligible character of the trade in a given product is quite different from the ‘relatively sizeable’ character of that trade i.e., the criterion applied by the Court of Justice in its relevant case-law.
   In the Second Ground of Appeal, the Appellants submit that the General Court erred in law by referring to the provisions of the Charter only. The Appellants consider that the mere fact that the protection conferred by the Articles of the ECHR relied on by the Appellants is implemented in Union law by articles 17, 7, 10 and 11 respectively of the Charter of Fundamental Rights of the European Union does not waive the General Court’s obligation to take into account the ECHR provisions as general principles of law. The Appellants also submit that the General Court erred in law by excluding commercial interests from the scope of the right to property, by concluding that ‘the right to property cannot be extended to protect mere commercial interests’ and by depriving the Appellants from the guarantees laid down in Article 1 of Protocol No. 1 to the ECHR. The Appellants also allege that the General Court erred in law by not examining the Basic Regulation in the light of Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples. Given that the Union must respect international law in the exercise of its powers and that the Basic Regulation must therefore be interpreted in the light of Article 19 of the UNDRIP, the General Court was obliged to examine whether the EU institutions had obtained the free, prior and informed consent of the Appellants before adopting the Basic Regulation.

      (1)  Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products, OJ L 286, p. 36

      (2)  Commission Regulation (EU) NO 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products, OJ L 216, p. 1


title: Case T-199/99: Action brought on 8 September 1999 by Sgaravatti Mediterranea S.r.l. against the Commission of the European Communities

text:
20.11.1999             EN                       Official Journal of the European Communities                                     C 333/31
Action brought on 8 September 1999 by Sgaravatti Medit-                    under Article 24(2) of Regulation (EEC) No 4253/88. Never-
erranea S.r.l. against the Commission of the European                      theless, the Commission does not have the power to withdraw
                            Communities                                    the contribution on merely being notified that there have been
                                                                           infringements — it must first examine any evidence brought
                          (Case T-199/99)                                  to light. In the present case, however, there is no mention
                                                                           whatsoever in the reasons for the contested decision of any
                                                                           independent examination of the information gleaned from the
                          (1999/C 333/70)                                  Guardia di Finanza report, in view also of the documents
                                                                           submitted by the applicant.
                    (Language of the case: Italian)
                                                                           Finally, the applicant also claims that the principle that
An action against the Commission of the European Communi-                  legitimate expectations should be protected was breached and
ties was brought before the Court of First Instance of the                 that the statement of reasons was inadequate.
European Communities on 8 September 1999 by Sgaravatti
Mediterranea S.r.l., represented by Massimo Merola and Piero
A.M. Ferrari, of the Rome Bar, with an address for service in
Luxembourg at the Chambers of Alain Lorang, 51 Rue Albert
1er.
The applicant claims that the Court should:
                                                                           Action brought on 9 September 1999 by Alberto Marti-
— annul Commission Decision C (1999) 1502 of 4 June                        nelli against the Commission of the European Communi-
     1999, or, in the alternative, reduce the amount of the                                              ties
     subsidy to be repaid to the Commission to as low an
     amount as the Court may deem appropriate;
                                                                                (Case T-200/99)
— in any event, order the Commission to pay the costs.
                                                                                (1999/C 333/71)
Pleas in law and main arguments
The applicant company in the present case contests Com-                                      (Language of the case: Italian)
mission Decision C (1999) 1502 of 4 June 1999 withdrawing
the financial contribution granted by way of Commission                    An action against the Commission of the European Communi-
Decision No C(92) 2435 of 12 October 1992, on the granting                 ties was brought before the Court of First Instance of the
of EAGGF (Guidance Section) contribution within the meaning                European Communities on 9 September 1999 by Alberto
of Council Regulation (EEC) No 4256/88, in the context of                  Martinelli, represented by Giuseppe Marchesini, of the Vicenza
Project No 92.IT.06.015 entitled ‘Pilot project on techniques              Bar, with an address for service in Luxembourg at the
for returning areas to their natural state and nature-sensitive            Chambers of Ernst Arendt, Rue Mathias Hardt.
engineering in Mediterranean areas (Sardinia, Italy)’.
                                                                           The applicant claims that the Court should:
In support of its arguments, the applicant claims that the
following were infringed:
                                                                           — declare that the failure to draw up the applicant’s reports
— its right to a fair hearing, inasmuch as the defendant did                   for the periods 1993-1995 and 1995-1997 constitutes a
     not allow the applicant to submit its own comments on                     breach of administrative duty on the grounds set out in
     the evidence proving, in its view, that it had failed to fulfil           the application;
     its obligations under the decision to grant the contribution;
     and                                                                   — order the Commission to pay the official EUR 20 000 by
                                                                               way of making good the non-material damage suffered by
— the principle of proportionality. The applicant maintains                    him as specified in the pre-litigation procedure;
     in this respect that it is clear from the applicable legislation
     that withdrawal of the contribution is justified only where           — order the defendant to pay the costs.
     a breach is of such seriousness that completion of the
     project is jeopardised or involves substantial changes
     regarding the nature itself of the project. However, in the           Pleas in law and main arguments
     present case, the irregularities concern essentially the costs
     relating to the staff employed in the relevant work. In any
     event, according to the applicant, the irregularities are of a        The official, a former official in the scientific and technical
     merely formal nature from which it may not be inferred                services of the Commission, has lodged a complaint in respect
     that fraud was intended.                                              of the failure to draw up and communicate reports for the
                                                                           periods 1993-1995 and 1995-1997.
The applicant states, inter alia, that the defendant has based
the contested decision to withdraw the subsidy mainly on the               In support of his arguments the applicant alleges infringement
finding by the Guardia di Finanza of evidence which ‘could                 of Article 43 of the Staff Regulations and of its implementing
amount to irregularities’, and withdrawn the contribution                  provisions.


title: Case T-270/01: Action brought on 22 October 2001 by Confederación Empresarial Vasca against Commission of the European Communities

text:
5.1.2002               EN                     Official Journal of the European Communities                                            C 3/43
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant contests Commission Decision C(2001) 1763                  The applicant contests Commission Decision C(2001) 1761
final of 11 July 2001 declaring incompatible with the common             final of 11 July 2001 declaring incompatible with the common
market the tax reductions under Article 26 of Norma Foral                market the tax reductions under Article 26 of Norma Foral
(Regional Law) No 3/1996 of 26 June 1996 on corporation                  (Regional Law) No 7/1996 of 4 July 1996 on corporation tax
tax, which provides for a reduction of 99 %, 75 %, 50 % and              (Boletı́n Oficial del Territorio Histórico de Guipúzcoa of 10 July
25 % of the taxable basis for the aforementioned tax applicable          1996), which provides for a reduction of 99 %, 75 %, 50 %
during the first four tax years for undertakings which set up            and 25 % of the taxable basis for the aforementioned tax
business in the Territorio Histórico de Vizcaya with effect from        applicable during the first four tax years for undertakings
the entry into force of the Law, provided that they have                 which set up business in the Territorio Histórico de Guipúzcoa
disbursed capital amounting to more than PTA 20 million                  with effect from the entry into force of the Law, provided
(EUR 120 202), invest more than PTA 80 million                           that they have disbursed capital amounting to more than
(EUR 430 810) and create more than 10 new jobs.                          PTA 20 million (EUR 120 202), invest more than
                                                                         PTA 80 million (EUR 430 810) and create more than 10 new
                                                                         jobs.
The pleas in law and main arguments put forward by the
applicant are identical with those put forward in Case
T-225/01.                                                                The pleas in law and main arguments put forward by the
                                                                         applicant are identical with those put forward in Case
                                                                         T-225/01.
Action brought on 22 October 2001 by Confederación
Empresarial Vasca against Commission of the European                     Action brought on 22 October 2001 by Confederación
                           Communities                                   Empresarial Vasca against Commission of the European
                                                                                Communities
                          (Case T-269/01)
                                                                                (Case T-270/01)
                           (2002/C 3/74)
                                                                                (2002/C 3/75)
                   (Language of the case: Spanish)
                                                                                (Language of the case: Spanish)
An action against the Commission of the European Communi-
                                                                         An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                         ties was brought before the Court of First Instance of the
European Communities on 22 October 2001 by Confedera-
                                                                         European Communities on 22 October 2001 by the Confeder-
ción Empresarial Vasca, whose registered office is at Bilbao
                                                                         ación Empresarial Vasca, whose registered office is in Bilbao
(Spain), represented by Marcos Araujo Boyd, lawyer.
                                                                         (Spain), represented by Marcos Araujo Boyd, lawyer.
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul the defendant’s decision of 11 July 2001 on the              —     annul the defendant’s decision of 11 July 2001 regarding
      system of State aid applied by Spain to certain newly                    State aid granted by Spain to undertakings in Guipúzcoa
      created undertakings in Guipúzcoa (Spain);                              in the shape of a tax credit of 45 % of the amount
                                                                               invested;
—     in the alternative, annul Articles 3 and 4 of the defendant’s
      decision of 11 July 2001 on the system of State aid                —     in the alternative, annul Articles 3 and 4 of the defendant’s
      applied by Spain to certain newly created undertakings in                decision of 11 July 2001 regarding State aid granted by
      Guipúzcoa, inasmuch as the obligation to recover the                    Spain to undertakings in Guipúzcoa in the shape of a tax
      amounts not levied by the regional revenue authorities of                credit of 45 % of the amount invested inasmuch as the
      Guipúzcoa pursuant to the disputed tax legislation is                   obligation to recover the amounts not levied by the
      unjustified;                                                             regional revenue authorities of Guipúzcoa is unjustified;
—     order the Commission to pay the costs.                             —     order the Commission to pay the costs.
 ---pagebreak--- C 3/44                EN                      Official Journal of the European Communities                                        5.1.2002
Pleas in law and main arguments                                          —     order the defendant to pay damages in the form of default
                                                                               interest on the percentage of tax abatement and the
                                                                               percentage of the expatriation allowance, at the rate of
The applicant contests Commission Decision C(2001) 1764                        6,75 % per annum from November 2000 until such time
final of 11 July 2001 declaring incompatible with the common                   as the amounts due are fully paid;
market the tax reductions arising from the tenth addendum to
Norma Foral (Regional Law) No 7/1997 of 22 December
1997, which provides for a tax credit of 45 % of the investment          —     order the defendant to pay all the costs.
in new fixed material assets in excess of PTA 2 500 million
(EUR 15 025 303) made by undertakings in the Territorio
Histórico de Guipúzcoa.
The pleas in law and main arguments put forward by the                   Pleas in law and main arguments
applicant are identical with those put forward in Case
T-225/01.
                                                                         Until the adoption of the contested decision, the applicant was
                                                                         in receipt of dependent child and education allowances in
                                                                         respect of his four children. Those allowances were paid in his
                                                                         name and on his behalf to his wife, an official of the European
                                                                         Parliament whom he is in the process of divorcing. Custody of
                                                                         the children has been awarded to his wife, who receives
                                                                         alimony payments from him.
Action brought on 23 October 2001 by José Manuel
López Cejudo against Commission of the European Com-
                            munities
                                                                         In October 2000, the applicant learned from his monthly
                        (Case T-271/01)                                  salary statement that the Commission refused to grant him
                                                                         dependent child and education allowances in respect of his
                                                                         four children and, consequently, to take into account such
                         (2002/C 3/76)                                   family allowances for purposes of tax abatement and expatri-
                                                                         ation allowance as from July 1999.
                   (Language of the case: French)
                                                                         As a result of the complaint lodged in July 2001 by the
                                                                         applicant against that decision, the Commission acknowledged
An action against the Commission of the European Communi-                that he shared in the actual maintenance of the children and,
ties was brought before the Court of First Instance of the               accordingly, decided to grant him, as from August 2001,
European Communities on 23 October 2001 by José Manuel                   dependent child and education allowances, with full effects
López Cejudo, residing in Brussels, represented by Georges              with regard to tax abatement and expatriation allowances, to
Vandersanden and Laure Levi, lawyers.                                    be shared with his wife, in accordance with an allocation
                                                                         formula which the defendant has to agree with the European
                                                                         Parliament. Accordingly, entitlement to the allowances in issue
The applicant claims that the Court should:                              was not granted to the applicant for the period from October
                                                                         2000 to July 2001.
—     annul the decision contained in the applicant’s salary
      statement for October 2000, refusing him entitlement to
      dependent child and education allowances in respect of
                                                                         The applicant takes the view that the contested decision:
      his four children and, consequently, to take into account
      such family allowances for purposes of tax abatement
      and expatriation allowance since July 1999, including in
                                                                         —     infringes the principle of legality, inasmuch as the
      respect of the period October 2000 to September 2001,
                                                                               Commission itself acknowledged that the arguments put
      and, in so far as necessary, annul the decision of 16 July
                                                                               forward by the applicant challenging his salary statement
      2001 taken as a result of the complaint;
                                                                               for October 2000 were well founded, but only made a
                                                                               decision regarding the future;
—     order the defendant to pay damages in the form of default
      interest on the amounts improperly withheld by the
      defendant pursuant to the salary statement for October             —     infringes the principle that reasons for decisions must be
      2000, at the rate of 6,75 % per annum from November                      stated, inasmuch as the Commission does not explain the
      2000 until such time as full payment is effected;                        reason why it limited the effects of its positive decision;


title: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien by order of that court of 13 August 1997 in the case of Klaus Konle v. Republic of Austria (Case C-302/97)

text:
18 . 10 . 97             EN                  Official Journal of the European Communities                                      C 318/9
Reference for a preliminary ruling from the Landesgericht                     federal structure lays down that in the case of
für Zivilrechtssachen Wien by order of that court of                          infringements imputable to a part of the State, the
13 August 1997 in the case of Klaus Konle v. Republic of                      injured party may claim only against the part State,
                                Austria                                       not the State as a whole ?
                          ( Case C-302/97)
                            ( 97/C 318/15 )
Reference has been made to the Court of Justice of the                  Reference for a preliminary ruling from the Bundes
European Communities by an order of the Landesgericht                   gerichtshof by order of that court of 26 June 1997 in
für Zivilrechtssachen Wien ( Regional Civil Court, Vienna )             the case of Verbraucherschutzverein e.V. v. Sektkellerei
of 13 August 1997, which was received at the Court                                         G. C. Kessler GmbH & Co.
Registry on 22 August 1997, for a preliminary ruling in                                              ( Case C-303/97
the case of Klaus Konle v. Republic of Austria on the
following questions :                                                                                ( 97/C 318/ 16 )
1 . Does it follow from the interpretation of Articles 6, 52            Reference has been made to the Court of Justice of the
     et seq. ( Part Three, Title III, Chapter 2 ) and Article 73b       European Communities by an order of the Bundesgerichts
     et seq. ( Part Three, Title III, Chapter 4 ) of the EC             hof ( Federal Court of Justice ) of 26 June 1997, which was
     Treaty and Article 70 of the Act of Accession ( Act                received at the Court Registry on 25 August 1997, for a
     concerning the conditions of accession of [...] the                preliminary ruling in the case of Verbraucherschutz
                                                                        verein e.V. v. Sektkellerei G. C. Kessler GmbH & Co .
     Republic of Austria [...] and the adjustments to the
     treaties on which the European Union is founded )                  on the following questions on the interpretation of
     that:                                                              Article 13 ( 2 ) ( b ) of Council Regulation ( EEC ) No 2333/
                                                                        92 of 13 July 1992 laying down general rules for the
                                                                        description and presentation of sparkling wines and
     ( a ) in that, while the Tiroler Grundverkehrsgesetz               aerated sparkling wines ('):
           ( TGVG ) 1993 was in force, the plaintiff was
           required to prove that he would not establish a              ( a ) Does it suffice for the prohibition in Article 13 ( 2 ) ( b )
           holiday residence, whereas in the case of an
                                                                              of the said Regulation to be applicable that a word in
           acquisition by an Austrian a mere declaration
                                                                              a brand name used to describe the sparkling wine ( in
           under Paragraph 10 ( 2 ) would have sufficed to
           obtain    the   consent   of  the  land    transactions
                                                                              this case 'Hochgewächs') may be confused with part
                                                                              of the description of a wine ( in this case ' Riesling-
           authority, and he was refused consent, and                         Hochgewächs') not used for constituting the cuvée of
                                                                              the sparkling wine, even if it is not the case that a
     ( b ) in that, under the TGVG 1996 , the plaintiff, even                 substantial proportion of consumers form mistaken
           before his property right is entered in the land                   impressions as to the composition of the cuvée which
           register, must — as Austrians now also must —                      influence their purchases, and there is no intent to
           undergo a consent procedure, the possibility of                    deceive on the part of the owner of the brand ?
           making an effective declaration that no holiday
           residence is being created no longer existing for            ( b ) If so, may the industrial property which the owner of
           Austrians either,                                                  the brand has acquired by reason of the traditional
                                                                              undisturbed use of his description in Germany, as a
     Community law was infringed and the plaintiff injured                    higher-ranking interest deserving protection, preclude
     in respect of a fundamental freedom guaranteed by                        the application of the prohibition of descriptions in
     provisions of Community law ?                                            Article 13 ( 2 ) ( b ) of the said Regulation ?
                                                                        O OJ L 231 , 13 . 8 . 1992, p . 9 .
2 . If so, is it for the Court of Justice, in proceedings
     under Article 177 of the EC Treaty, also to decide
     whether a breach of Community law is 'sufficiently
     serious' ( as the phrase is used, for example, in the
     judgment in Joined Cases C-46/93 and C-48/93
     Brasserie du Pêcheur and Factortame )?                             Appeal brought on 26 August 1997 by Fernando . Carbajo
                                                                        Ferrero against the judgment delivered on 12 June 1997
                                                                        by the First Chamber of the Court of First Instance of the
3 . If Questions 1 and 2 are answered in the affirmative,
                                                                        European Communities in Case T-237/95 between
     is the breach ' sufficiently serious'?
                                                                           Fernando Carbajo Ferrero and the European Parliament
                                                                                ( Case C-304/97 P)
4 . Is the principle of the liability of Member States for
                                                                                ( 97/C 318/ 17 )
     the damage caused to an individual by breaches
     of Community law complied with, on a proper
     interpretation of Article 5 of the EC Treaty, if the               An appeal against the judgment delivered on 12 June 1997
     national law on liability of a Member State with a                 by the First Chamber of the Court of First Instance of