title: Case C-508/07 P: Appeal brought on 21 November 2007 by Cain Cellars, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 12 September 2007 in Case T-304/05 Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/32

         Appeal brought on 21 November 2007 by Cain Cellars, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 12 September 2007 in Case T-304/05 Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-508/07 P)
   (2008/C 22/57)
   Language of the case: German
   Parties

      Appellant: Cain Cellars, Inc. (represented by: J. Albrecht, lawyer)

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

               —

               Annul the contested judgment of the Court of First Instance of 12 September 2007 in Case T-304/05;

               —

               Declare that the ground for refusal in Article 7(1)(b) CTR does not preclude registration of the trade mark sought;

               —

               Order OHIM to pay the costs of the proceedings before the Board of Appeal of OHIM, before the Court of First Instance and of this appeal.

         Pleas in law and main arguments
   Summary of the grounds of appeal raised by the appellant in the appeal against the judgment of the Court of First Instance of the European Communities of 12 September 2007 in Case T-304/05
   First ground of appeal
   Breach of Article 7(1)(b) of Regulation (EC) No 40/94:
   The appellant complains that in its examination of the facts material to the assessment of the distinctiveness of the device of a pentagon as a trade mark, the Court of First Instance did not have regard to essential circumstances and the relevant legal viewpoints and principles, in that it assessed the appellant's device of a pentagon on a purely theoretical and abstract basis and ignored the factually-oriented bases of assessment of the question of the distinctiveness of the representation of a pentagon, in particular its uniqueness in the extensive wine sector. The Court classified the sign as a simple ‘geometric shape’ and inferred a priori and in an abstract manner the lack of any distinctiveness of this category of simple signs.
   Second ground of appeal
   Breach of Article 67(3) of the Rules of Procedure of the Court of First Instance:

               (a)

               Under Article 67(3) of the Rules of Procedure of the Court of First Instance, the Court takes into consideration only documents which have been made available to the lawyers and agents of the parties and on which they have been given an opportunity of expressing their views. In paragraph 34, the judgment under appeal refers to documents which were submitted by OHIM for the first time with its response and on which the applicant had no opportunity of expressing its views (the written procedure was closed after submission of the response). The judgment is thus based on inadmissible evidence. The appellant's lack of opportunity of giving its views constitutes a breach of the principle of the right to a fair hearing.

               (b)

               Finally, the appellant alleges that the illustrations of goods produced in the oral procedure, to which OHIM consented, to prove the distinctiveness of the mark, which were particularly important to the question of the distinctiveness of the mark applied for, were not mentioned in the judgment under appeal and were not referred to in the findings of the Court regarding the question of distinctiveness. This also constitutes a breach of the principle of the right to a fair hearing.


title: Case F-30/11: Order of the Civil Service Tribunal of 21 October 2011 — Torijano Montero v Council

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/40

         Order of the Civil Service Tribunal of 21 October 2011 — Torijano Montero v Council
   (Case F-30/11) (1)

   2012/C 138/104
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 179, 18.6.2011, p. 21.


title: Case C-214/11: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gdańsku (Republic of Poland), lodged on 9 May 2011 — Grand Sp. z o.o. v Dyrektor Izby Celnej w Gdyni

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/6

         Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gdańsku (Republic of Poland), lodged on 9 May 2011 — Grand Sp. z o.o. v Dyrektor Izby Celnej w Gdyni
   (Case C-214/11)
   2011/C 219/07
   Language of the case: Polish

      Referring court

   Wojewódzki Sąd Administracyjny w Gdańsku

      Parties to the main proceedings

      Applicant: Grand Sp. z o.o.

      Defendant: Dyrektor Izby Celnej w Gdyni

      Question referred

   Must Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (1) and of rules on Information Society services be interpreted as meaning that the term ‘technical regulation’, the draft of which must be communicated to the Commission pursuant to Article 8(1) of that directive, includes a legislative measure which prohibits the extension of authorisations to carry on an activity involving gaming on low-value-prize machines?

      (1)  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 217, p. 18).


title: Case C-325/07: Action brought on 11 July 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/28

         Action brought on 11 July 2007 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-325/07)
   (2007/C 211/52)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet, acting as Agent)

      Defendant: Grand Duchy of Luxembourg
   Form of order sought
   The applicant claims that the Court should:

               —

               declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/18/EC of the European Parliament and of the Council of 27 March 2003 amending Council Directive 83/477/EEC on the protection of workers from the risks related to exposure to asbestos at work (1) or, in any event, by not communicating them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 2(1) of that directive;

               —

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   The period for transposing Directive 2003/18/EC expired on 14 April 2006.

      (1)  OJ 2003 L 97, p. 48.


title: Case C-234/09: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 26 June 2009 — Skatteministeriet v DSV Road A/S

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/27

         Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 26 June 2009 — Skatteministeriet v DSV Road A/S
   (Case C-234/09)
   2009/C 205/45
   Language of the case: Danish

      Referring court

   Vestre Landsret

      Parties to the main proceedings

      Applicant: Skatteministeriet

      Defendant: DSV Road A/S

      Questions referred

               1.

               Must Article 204(1)(a) with reference to Articles 92 and 96 in conjunction with Article 1 and Article 4(9) and (10) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) be interpreted as meaning that

                           a)

                           a customs debt arises if a transit procedure for goods which do not physically exist is initiated by mistake in the NCTS system by an authorised consignor, and as a consequence the transit procedure cannot subsequently be discharged in accordance with the rules, or that

                           b)

                           a customs debt does not arise, since the transit procedure is presumed to apply solely to physically existing goods, so that the mistaken generation of a transit in the NCTS system for goods which do not physically exist does not lead to the imposition of customs duties?

               2.

               If Question 1(a) is answered in the affirmative, must the concept of the ‘importation of goods’ in Article 4(10) together with the concept of ‘goods’ in Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code be interpreted as meaning that the concept covers both physically existing goods and goods which do not physically exist?

      (1)  OJ 1992 L 302, p. 1.


title: Case T-270/14: Action brought on 29 April 2014  — Grupa Azoty ATT Polymers v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/24

         Action brought on 29 April 2014 — Grupa Azoty ATT Polymers v Commission
   (Case T-270/14)
   2014/C 223/29
   Language of the case: German

      Parties

      Applicant: Grupa Azoty ATT Polymers (Guben, Germany) (represented by: H. Janssen and S. Kobes, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 in State aid case SA.33995 (2013/C) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law: Infringement of Article 107(1) TFEU

                           —

                           The applicant claims that the contested decision infringes Article 107(1) TFEU because the EEG-surcharge provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) and the special compensation regime did not constitute an allocation of State or State-controlled resources. All the facts relevant to the qualification of those measures were determined in the preliminary proceedings between the Commission and the Federal Republic of Germany. There were no longer any doubts, which the Commission should have found in a proceeding pursuant to Article 108(2) TFEU and Article 4(4) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (1)

               2.

               Second plea in law: Infringement of Article 108(1) TFEU and the principle of legal certainty

                           —

                           The applicant submits in that regard that the Commission infringed Article 108(1) TFEU and the principle of legal certainty by applying the procedure for new aid pursuant to Article 4(4) of Regulation No 659/1999 instead of the procedure for existing aid pursuant to Article 17 et seq. of Regulation No 659/1999 in order to review its provisional assessment of the EEG as aid. In that regard, the applicant observes in particular that, by decision of 22 May 2002, the Commission did not classify the 2000 EEG as aid within the meaning of Article 107(1) TFEU because there was no transfer of State resources. The changes from the 2000 EEG to the 2012 EEG were not substantial in comparison to the Commission decision of 22 May 2002. The Commission, therefore, could have asserted an amended legal opinion in a proceeding pursuant to Article 108(1) TFEU without impacting on the applicant.

               3.

               Third plea in law: Infringement of Article 41 of the Charter of Fundamental Rights and the principle of audi alteram partem

                           —

                           The applicant also claims that the defendant adopted the contested decision without previously giving the applicant the opportunity to provide comments.

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


title: Action brought on 17 February 1995 by Andrew Macrae Moat against the Commission of the European Communities (Case T-41/95)

text:
8 . 4 . 95            EN                 Official Journal of the European Communities                                 No C 87/17
Action brought on 15 February 1995 by Antonio B. De                 — order the defendant to pay the costs'.
Menezes against the Commission of the European
                          Communities
                                                                    Pleas in law and main arguments adduced in support:
                        (Case T-29/95 )
                          (95/C 87/36                               The action is directed against the decision removing the
                                                                    applicant from his post, adopted following disciplinary
               (Language of the case: French)                       proceedings, on the ground that he colluded, as one of the
                                                                    persons marking the written papers in open competition
                                                                    EUR/B/21 , with two of the candidates and had knowledge
An action against the Commission of the European                    of the model answers .
Communities was brought before the Court of First
Instance of the European Communities on 15 February
1995 by Antonio B. De Menezes, residing in Brussels,                In support of his action, the applicant pleads, first, an
represented by Georges Vandersanden, of the Brussels                infringement of Article 6 of the European Convention on
Bar.                                                                Human Rights. He considers that the preliminary
                                                                    administrative inquiry was not conducted in such a way as
                                                                    to ensure the necessary objectivity, dispassion and
The applicant claims that the Court should:                         impartiality; he further maintains that the opinions
                                                                    delivered by the Disciplinary Board and the contested
— declare the action admissible and well-founded,
                                                                    decision removing him from his post were not adopted
                                                                    within the reasonable period referred to in the
— consequently, annul the decision rejecting _ the
                                                                    aforementioned Article and that the time limits laid down by
     applicant's application for the vacant post COM/030/94
     of Director in Directorate A — Information and                 the first and third paragraphs of Article 7 of Annex IX to the
                                                                    Staff Regulations were not complied with.
     Communication Strategy (DG X/A), and the resulting
     decision to appoint another candidate to that post,
                                                                    The applicant pleads, second, a breach of his right to a fair
— order the. defendant to pay all the costs .                       hearing, in that the file produced to the Disciplinary Board
                                                                    and to the appointing authority was not communicated to
                                                                    him in its entirety.
Pleas in law and main arguments adduced in support:
The applicant, a Grade A 3 official assigned to ECHO                The applicant maintains, third, that the disciplinary
( European Community Humanitarian Office ), contests the            measure taken against him is unlawful, inasmuch as the
rejection of his application for the post of Director of            appointing authority did not prove the matters alleged
Directorate    A   —     Information    and   Communication         against him.
Strategy.
                                                                    He further states that the official nominated by the
The pleas and main arguments are the same as those in Case          appointing authority to conduct the preliminary inquiry
T-27/95 .                                                           prior to the referral of the matter to the Disciplinary Board,
                                                                    and the appointing authority itself, uttered threats against
                                                                    him, and that the disciplinary proceedings are vitiated by an
                                                                    abuse of power.
                                                                    Lastly, the applicant pleads a manifest error of assessment,
Action brought on 17 February 1995 by Philippe Guebels              disregard of the principle of proportionality and breach of
  against the Commission of the European Communities                the obligation to provide a statement of reasons laid down
                                                                    by Article 25 of the Staff Regulations .
                        (Case T-40/95 )
                          ( 95/C 87/37
                (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First                   Action brought on 17 February 1995 by Andrew Macrae
Instance of the European Communities on 17 February                 Moat against the Commission of the European
                                                                                Communities
1995 by Philippe Guebels, residing in Arlon (Belgium ),
represented by Jean-Noel Louis, Thierry Demaseure and                                       (Case T-41/95 )
Ariane Tornel, of the Brussels Bar, with an address for                                       ( 95/C 87/38 )
service in Luxembourg at the offices of Fiduciaire Myson
Sari, 1 Rue Glesener.
                                                                                (Language of the case: English)
The applicant claims that the Court should:
                                                                    An action against the Commission of the European
— annul the decision of the Commission of 18 January                Communities was brought before the Court of First
     1995 ,                                                         Instance of the European Communities on 17 February
 ---pagebreak--- No C 87/18         | EN I               Official Journal of the European Communities                                   8 . 4 . 95
1995 by Andrew Macrae Moat, represented by Jacques                 Pleas in law and main arguments adduced in support:
Verhaegen, Avenue René Gobert, 20, 1180 Bruxelles.
                                                                   The applicant challenges the rejection by the Commission,
                                                                   notified on 19 November 1994, of the complaint against the
The applicant claims that the Court should:                        rejection of two requests of 30 March 1994, relating to his
1 . declare the present application, admissible and                candidature to the post COM/5/92 in DG IX/A/7.
    founded;                                                       The applicant claims that the Commission failed both to
                                                                   reconsider, pursuant to the judgment of the Court of First
2 . condemn the Commission for its failure to reconsider
                                                                   Instance of 16 December 1993 , in case T-58/92, the filling of
    the applicant's candidature for the post DG IX/A/7, or         the aforementioned post, and to complete his last staff
    for its failure to annul and republish that post and           report on time in order that it could be consulted when
    consider new candidatures, without delay;                      taking decisions about his career.
3 . condemn the Commission for its failure to ensure the
    early completion of the applicant's staff report for the
    period from 1 July 1991 to 30 June 1993 ;
                                                                        Removal from the register of Case T-172/94 ()
4. condemn the Commission for its failure to reply to the                                   ( 95/C 87/39 )
    applicant's request and/or complaint, with reasons,
    within the time limits laid down in Article 90 of the Staff                  (Language of the case: English)
    Regulations;
                                                                   By order of 13 February 1995 the President of the First
5 . condemn the Commission to pay the applicant                    Chamber ( Extended Composition) of the Court of First
    compensation in whatever amounts the Court considers           Instance of the European Communities ordered the removal
    appropriate for its various failures;                          from the register of Case T-172/94: Rima Industrial SA v.
                                                                   Council of the European Union.
6. condemn the Commission to pay the applicant's
    costs .                                                        (!) OJ No C 120, 30 . 4. 1994 .


title: Case T-441/17: Action brought on 4 July 2017 — Arca Capital Bohemia v Commission

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/26

         Action brought on 4 July 2017 — Arca Capital Bohemia v Commission
   (Case T-441/17)
   (2017/C 347/35)
   Language of the case: English

      Parties

      Applicant: Arca Capital Bohemia a.s. (Prague, Czech Republic) (represented by: M. Nedelka, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission decision COMP/F3/NB/tt*D-2017/025322 of 13 March 2017 partially refusing access to documents pursuant to Regulation (EC) No 1049/2001 relating to case COMP/SA. 25076 (2011/NN) — Privatisation of Rental Housing — Karbon Invest;

               —

               annul Commission decision C(2017) 3129 final of 4 May 2017 confirming Commission decision COMP/F3/NB/tt*D-2017/025322 of 13 March 2017;

               —

               order the Commission to bear its own costs and to pay those of the applicant.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the exceptions laid down in Article 4(2), first and third indents, of Regulation (EC) No 1049/2001 were misapplied.

                           —

                           The applicant alleges in this regard that the defendant misapplied relevant case-law which, in its view, does not apply to cases in which the administrative file has been closed. Also, in State aid cases, there is a very strong public interest in obtaining as much information as possible in order to control State bodies and different considerations should also apply to arguments based on commercial interests than those which pertain in merger or cartel cases.

               2.

               Second plea in law, alleging that there is an overriding public interest in disclosure.

                           —

                           The applicant advances arguments in this regard to the effect that the privatisation in question had a grossly negative social impact and refers to widespread suspicion that the process involved wrongdoing on the part of State bodies.


title: Case C-540/07: Judgment of the Court (Second Chamber) of 19 November 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Free movement of capital — Article 56 EC — Articles 31 and 40 of the EEA Agreement — Direct taxation — Withholding at source on outgoing dividends — Set-off at the place of establishment of the recipient of the dividend, pursuant to a convention for the avoidance of double taxation)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/5

         Judgment of the Court (Second Chamber) of 19 November 2009 — Commission of the European Communities v Italian Republic
   (Case C-540/07) (1)

   (Failure of a Member State to fulfil obligations - Free movement of capital - Article 56 EC - Articles 31 and 40 of the EEA Agreement - Direct taxation - Withholding at source on outgoing dividends - Set-off at the place of establishment of the recipient of the dividend, pursuant to a convention for the avoidance of double taxation)
   2010/C 24/07
   Language of the case: Italian

      Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and A. Aresu, Agents)

      Defendant: Italian Republic (represented by: R. Adam, Agent, P. Gentili, avvocato dello Stato)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 56 EC and 40 EEA — Tax system more onerous, for dividends distributed to companies established in other Member States and in EEA States, than that applied to ‘domestic’ dividends

      Operative part of the judgment

   The Court:

               1.

               Declares that, by making dividends distributed to companies established in other Member States subject to a less favourable tax regime than that applied to dividends distributed to resident companies, the Italian Republic has failed to fulfil its obligations under Article 56(1) EC.;

               2.

               Dismisses the action as to the remainder.

               3.

               Orders the Italian Republic to pay three quarters of the costs. The Commission of the European Communities is ordered to pay the remaining quarter.

      (1)  OJ C 37, 9.2.2008.


title: Judgment of the Court of First Instance of 16 February 2000 in Case T-122/99: The Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Community trade mark — Soap bar shape — Formal irregularity in an application for registration — Absolute grounds for refusal to register — Review by the Board of Appeal of it own motion — Observance of the rights of the defence — Sign consisting exclusively of a shape which results from the nature of the goods themselves — Earlier registration of the mark in some Member States)

text:
29.4.2000                EN                     Official Journal of the European Communities                                        C 122/33
with an address for service in Luxembourg at the offices of                O. Montaldo, E. Joly and S. Laitinen) — application for annul-
Fiduciaire Myson SARL, 30 Rue de Cessange, v Commission                    ment of the decision of the Third Board of Appeal of the Office
of the European Communities (Agents: C. Berardis-Kayser and                for Harmonisation in the Internal Market (Trade Marks and
D. Waelbroeck) — application for annulment of the list of                  Designs) of 15 March 1999 (Case R 74/1998-3) relating to
officials promoted to grade A 5 and of the list of officials               Community trade mark application No 230680 concerning a
considered to be the most deserving of promotion to that                   representation of soap — the Court of First Instance (Second
grade in the context of the 1998 promotions procedure, in                  Chamber), composed of: J. Pirrung, President, A. Potocki and
that those lists do not include the name of the applicant, and             A.W.H. Meij, Judges; J. Palacio González, Administrator, for
for annulment of the implicit decision rejecting the applicant’s           the Registrar, has given a judgment on 16 February 2000, in
complaint, together with damages — the Court of First                      which it:
Instance (Third Chamber), composed of: K. Lenaerts, President,
and J. Azizi and M. Jaeger, Judges; G. Herzig, Administrator,              1. Annuls the decision of the Third Board of Appeal of the Office
for the Registrar, has given a judgment on 9 February 2000, in                  for Harmonisation in the Internal Market (Trade Marks and
which it:                                                                       Designs) of 15 March 1999 (Case R 74/1998-3);
1. Annuls the Commission’s decision, confirmed by the implicit             2. Orders the Office to bear its own costs and to pay those of the
     decision rejecting the complaint, not to include the applicant’s           applicant.
     name in the list of officials promoted to grade A 5 in the
     context of the 1998 promotions procedure, as published in the
     Administrative Notices of 6 April 1998;                               (1) OJ C 226 of 7.8.1999.
2. Dismisses the remainder of the application;
3. Orders the Commission to pay the costs.
(1) OJ C 121 of 1.5.1999.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 9 February 2000
                                                                           in Case T-111/97: Gregorio Valero Jordana and Serge
                                                                              Vadé v Commission of the European Communities (1)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                           (Officials — Request for reclassification in grade — Objec-
                                                                           tion of inadmissibility — Material new fact — Admissibility)
                        of 16 February 2000
                                                                                (2000/C 122/48)
in Case T-122/99: The Procter & Gamble Company v
Office for Harmonisation in the Internal Market (Trade
                       Marks and Designs) (1)                                                  (Language of the case: Spanish)
(Community trade mark — Soap bar shape — Formal                            In Case T-111/97: Gregorio Valero Jordana and Serge Vadé,
irregularity in an application for registration — Absolute                 officials of the Commission of the European Communities,
grounds for refusal to register — Review by the Board of                   represented by Carlos Amo Quiñones, of the Madrid Bar, with
Appeal of it own motion — Observance of the rights of the                  an address for service in Luxembourg at the Chambers of
defence — Sign consisting exclusively of a shape which                     Emilio de la Guardia, 46 Rue Tony Neumann, v Commission
results from the nature of the goods themselves — Earlier                  of the European Communities (Agent: Julian Currall) —
       registration of the mark in some Member States)                     application for annulment of the Commission’s decisions of
                                                                           27 December 1996 rejecting the applicants’ complaints dated
                          (2000/C 122/47)                                  13 and 17 September 1996 by which they sought a review of
                                                                           their initial classification with a view to obtaining classification
                                                                           in grade A 6 with effect from the date of their recruitment,
                                                                           and of the Commission’s decisions of 1 March 1990 and
                     (Language of the case: French)                        2 June 1992 inasmuch as those decisions fix the applicants’
                                                                           classification in grade A 7 — the Court of First Instance
In Case T-122/99: The Procter & Gamble Company, a company                  (First Chamber), composed of: B. Vesterdorf, President, and
established in Cincinnatti, Ohio, United States of America,                M. Vilaras and N. Forwood, Judges; H. Jung, Registrar, made
represented by T. van Innis, of the Brussels Bar, with an address          an order on 9 February 2000, the operative part of which is as
for service in Luxembourg at the Chambers of K. Manhaeve,                  follows:
56-58 Rue Charles Martel, against Office for Harmonisation
in the Internal Market (Trade Marks and Designs (Agents:                   1. The application is dismissed as inadmissible;


title: Case C-378/10: Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 28 July 2010 — VALE Építési Kft.

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/13

         Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 28 July 2010 — VALE Építési Kft.
   (Case C-378/10)
   ()
   2010/C 317/25
   Language of the case: Hungarian

      Referring court

   Magyar Köztársaság Legfelsőbb Bírósága

      Parties to the main proceedings

      Applicant: VALE Építési Kft.

      Questions referred

               1.

               Must the host Member State pay due regard to Articles 43 and 48 EC when a company established in another Member State (the Member State of origin) transfers its seat to that host Member State and, at the same time and for this purpose, deletes the entry regarding it in the commercial register in the Member State of origin, and the company’s owners adopt a new instrument of constitution under the laws of the host Member State, and the company applies for registration in the commercial register of the host Member State under the laws of the host Member State?

               2.

               If the answer to the first question is yes, must Articles 43 and 48 EC be interpreted in such a case as meaning that they preclude legislation or practices of such a (host) Member State which prohibit a company established lawfully in any other Member State (the Member State of origin) from transferring its seat to the host Member State and continuing to operate under the laws of that State?

               3.

               With regard to the response to the second question, is the basis on which the host Member State prohibits the company from registration of any relevance, specifically:

                           —

                           if, in its instrument of constitution adopted in the host Member State, the company designates as its predecessor the company established and deleted from the commercial register in the Member State of origin, and applies for the predecessor to be registered as its own predecessor in the commercial register of the host Member State?

                           —

                           in the event of international conversion within the Community, when deciding on the company’s application for registration, must the host Member State take into consideration the instrument recording the fact of the transfer of company seat in the commercial register of the Member State of origin , and, if so, to what extent?

               4.

               Is the host Member State entitled to decide on the application for company registration lodged in the host Member State by the company carrying out international conversion within the Community in accordance with the rules of company law of the host Member State as they relate to the conversion of domestic companies, and to require the company to fulfil all the conditions (e.g. drawing up lists of assets and liabilities and property inventories) laid down by the company law of the host Member State in respect of domestic conversion, or is the host Member State obliged under Articles 43 and 48 EC to distinguish international conversion within the Community from domestic conversion and, if so, to what extent?


title: Action brought on 24 February 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-83/97)

text:
5 . 4 . 97            EN                     Official Journal of the European Communities                                 No C 108/ 19
approximation of the laws of the Member States relating                 Action brought on 24 February 1997 by the Commission
to cosmetic products (*) preclude a national provision                  of the European Communities against the Federal
which contains prohibitions of statements in connection                                         Republic of Germany
with the marketing of cosmetic products which go beyond                                             ( Case C-83/97)
the restrictions contained in the Directive ?
                                                                                ( 97/C 108/38 )
(') OJ No L 262 , 27. 9 . 1976 , p . 169 .
                                                                        An action against the Federal Republic of Germany was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 24 February 1997 by the Commission of
                                                                        the European Communities, represented by Gotz zur
                                                                        Hausen, of the Legal Service of the Commission of the
Action brought on 25 February 1997 by Societe Anonyme                   European Communities, with an address for service in
des Caves et des Producteurs Reunis de Roquefort                        Luxembourg at the office of Carlos Gomez de la Cruz, of
(Aveyron) and Others against the Commission of the                      the Legal Service of the Commission of the European
                   European Communities                                 Communities, Wagner Centre, C 254, Kirchberg.
                          ( Case C-80/97 )
                                                                        The applicant claims that the Court should:
                            ( 97/C 108/36 )
                                                                        — declare that, by failing to adopt within the period
An action against the Commission of the European                               prescribed all the measures necessary in order to
Communities which had previously been brought before                           comply with Council Directive 92/43/EEC of 21 May
the Court of First Instance was brought before the Court                        1992 on the conservation of natural habitats and of
of Justice of the European Communities on 25 February                          wild fauna and flora ('), the Federal Republic of
 1997 by Societe Anonyme des Caves et des Producteurs                           Germany has failed to fulfil its obligations under the
Reunis de Roquefort ( Aveyron ) and Others . That action,                       EC Treaty,
T-140/97, was the subject of an order declining
jurisdiction and the Court of First Instance referred it to             — order the Federal Republic of Germany to pay the
 the Court of Justice in order that it might hear and                           costs .
 determine the claim for annulment.
                                                                         Pleas in law and main arguments adduced in support:
 Pleas in law and main arguments adduced in support:
                                                                         The pleas in law and main arguments are the same as in
 The pleas in law and main arguments were published in a                 Case C-56/97 (2); the time-limit for transposition of the
 notice in Official Journal of the European Communities                  Directive expired on 5 June 1994 .
 No C 318 of 26 October 1996 , page 24 .
                                                                         (') OJ No L 206 , 22 . 7. 1992, p. 7 .
                                                                         ( 2 ) See page 12 of this Official Journal .
 Action brought on 25 February 1997 by Bergpracht
 Milchwerk GmbH & Co. KG and others against the
           Commission of the European Communities                        Action brought on 28 February 1997 by the Commission
                            ( Case C-82/97)                              of the European Communities against the Portuguese
                                                                                Republic
                              ( 97/C 108/37)
                                                                                ( Case C-88/ 97)
                                                                                ( 97/C 108/39 )
  An action against the Commission of the European
  Communities was brought before the Court of Justice of
  the European Communities on 25 February 1997 by                         An action against the Portuguese Republic was brought
  Bergpracht Milchwerk GmbH & Co . KG and others. The                     before the Court of Justice of the European Communities
  action in question had previously been brought before the               on 28 February 1997 by the Commission of the European
  Court of First Instance under Case T-141/96 ; the Court of              Communities, represented by Francisco de Sousa Fialho,
  First Instance made an order declining jurisdiction in the              of its Legal Service, acting as Agent, with an address for
  case and transferred it to the Court of Justice for                     service in Luxembourg at the office of Carlos Gomez de la
  determination by the latter Court of the application for                 Cruz, Wagner Centre, Kirchberg.
  annulment .
                                                                          The applicant claims that the Court should:
  Pleas in law and main arguments adduced in support:
                                                                           — declare that, by failing to adopt and bring into force
  The pleas in law and main arguments are set out in a                           the laws, regulations or administrative provisions
   notice published in Official Journal of the European                          necessary to comply with Council Directive 92/43/EEC
   Communities No C 336 of 9 November 1996, page 30.                             of 21 May 1992 on the conservation of natural
                                                                                habitats and of wild fauna and flora ('), the
                                                                                Portuguese Republic has failed to fulfil its obligations


title: Case C-495/03: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 21 November 2003 in the case of Intermodal Transports B.V. against Staatssecretaris van Financiën

text:
24.1.2004               EN                          Official Journal of the European Union                                           C 21/23
Reference for a preliminary ruling by the Hoge Raad der                     Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 21 November                        Nederlanden by judgment of that Court of 21 November
2003 in the case of Senior Engineering Investments B.V.                     2003 in the case of Intermodal Transports B.V. against
              against Staatssecretaris van Financiën                                         Staatssecretaris van Financiën
                                                                                (Case C-495/03)
                          (Case C-494/03)
                                                                                (2004/C 21/42)
                           (2004/C 21/41)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Hoge Raad
                                                                            der Nederlanden (Supreme Court of the Netherlands) of
Reference has been made to the Court of Justice of the                      21 November 2003, received at the Court Registry on
European Communities by judgment of the Hoge Raad                           24 November 2003, for a preliminary ruling in the case
der Nederlanden (Supreme Court of the Netherlands) of                       of Intermodal Transports B.V. against Staatssecretaris van
21 November 2003, received at the Court Registry on                         Financiën on the following questions:
24 November 2003, for a preliminary ruling in the case of
Senior Engineering Investments B.V. against Staatssecretaris                1.    Should a national court refer questions on the interpret-
van Financiën on the following questions:                                         ation of the Combined Nomenclature (CN) (1) to the
                                                                                Court of Justice of the European Communities for a
                                                                                preliminary ruling in the case where a party to a dispute
1.     Does Article 4(2)(b) of Council Directive 69/335/EEC (1)                   brought before it concerning classification in the CN of a
       of 17 July 1969, as amended by Council Directive 85/                       certain product invokes a decision by a customs authority
       303/EEC (2) of 10 June 1985, permit capital duty to be                     laid down in binding tariff information issued to a third
       levied on a company in respect of a direct informal                        party in respect of a similar product and the national
       capital contribution made by the parent of that company                    court takes the view that that binding tariff information
       to a subsidiary of that company and, if so, what                           is at variance with the CN?
       circumstances are of relevance in that respect; in particu-
       lar is it relevant whether or not that company must be
       regarded, from an economic point of view, as the real                2.    Must heading 8709 of the CN be interpreted as covering
       recipient of that direct informal capital contribution?                    vehicles such as those in issue in the present case?
2.     Does the freedom of establishment laid down in                       (1) CN: Position under the Combined Nomenclature as referred to in
       Article 52 of the EC Treaty (now, after amendment,                       Article 1 of Council Regulation (EEC) No 2658/87 of 23 July
       Article 43 EC), in conjunction with Article 58 of the EC                 1987 on the tariff and statistical nomenclature and on the
       Treaty (now Article 48 EC), prohibit the tax authorities                 Common Customs Tariff, OJ 1987 L 256.
       of a Member State from pursing a policy which levies no
       capital duty on a company in respect of a direct informal
       capital contribution made by the parent of that company
       to a subsidiary of that company, provided that that
       subsidiary is established in that Member State, and is it
       relevant in this respect — on the assumption that the
       directive permits capital duty to be levied both on that
       company and its subsidiary in a case such as the present             Action brought on 24 November 2003 by the Com-
       — whether or not more capital duty has been levied at                mission of the European Communities against the French
       group level than would have been the case had both that                                           Republic
       company and its subsidiary been established in the
       Netherlands?
                                                                                (Case C-496/03)
(1) Council Directive 69/335/EEC of 17 July 1969 concerning                                           (2004/C 21/43)
    indirect taxes on the raising of capital (OJ L 249 of 3.10.1969,
    p. 25).
(2) Council Directive 85/303/EEC of 10 June 1985 amending Direc-
    tive 69/335/EEC concerning indirect taxes on the raising of capital
    (OJ L 156 of 15.6.1985, p. 23).                                         An action against the French Republic was brought before the
                                                                            Court of Justice of the European Communities on 24 Novem-
                                                                            ber 2003 by the Commission of the European Communities,
                                                                            represented by C.-F. Durand and F. Simonetti, acting as Agents,
                                                                            with an address for service in Luxembourg.


title: Case C-372/04: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 12 July 2004, in the case of The Queen on the application of Yvonne Watts against 1) Bedford Primary Care Trust 2) Secretary of State for Health

text:
               6.11.2004

               EN

               Official Journal of the European Union

               C 273/15

         Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 12 July 2004, in the case of The Queen on the application of Yvonne Watts against 1) Bedford Primary Care Trust 2) Secretary of State for Health
   (Case C-372/04)
   (2004/C 273/29)
   Reference has been made to the Court of Justice of the European Communities by order of the Court of Appeal (England & Wales) (Civil Division), dated 12 July 2004, which was received at the Court Registry on 27 August 2004 for a preliminary ruling in the case of The Queen on the application of Yvonne Watts and 1) Bedford Primary Care Trust 2) Secretary of State for Health on the following questions:
   Question 1
   Having regard to the nature of the NHS and its position under national law, is Article 49 EC, read in the light of Geraets Smits, Muller-Faure and Inizan to be interpreted as meaning that in principle persons ordinarily resident in the United Kingdom enjoy an entitlement in EU law to receive hospital treatment in other Member States at the expense of the United Kingdom National Health Service (‘the NHS’).
   In particular on the true interpretation of Article 49 EC:

               (a)

               Is there any distinction between a State funded national health service such as the NHS and insurance funds such as the Netherlands ZFW scheme, in particular having regard to the fact that the NHS has no fund out of which payment must be made?

               (b)

               Is the NHS obliged to authorise and pay for such treatment in another Member State, notwithstanding that it is not obliged to authorise and pay for such treatment to be carried out privately by a United Kingdom service provider?

               (c)

               Is it relevant if the patient secures the treatment independently of the relevant NHS body, and without prior authorization or notification?

         Question 2
   In answering Question 1, is it material whether hospital treatment provided by the NHS is itself the provision of services within Article 49 EC?
   If so, and in the circumstances set out in the Statement of Facts, are Articles 48, 49 and 50 EC to be interpreted as meaning that in principle;

               (1)

               the provision of hospital treatment by NHS bodies constitutes the provision of services within Article 49 EC;

               (2)

               a patient receiving hospital treatment under the NHS as such exercises a freedom to receive services within Article 49 EC; and

               (3)

               NHS bodies providing hospital treatment are services providers within Articles 48 and 50 EC?

         Question 3
   If Article 49 EC applies to the NHS, may it or the Secretary of State rely as objective justification for refusing prior authorisation for hospital treatment in another Member State on:

               (a)

               the fact that authorisation would seriously undermine the NHS system of administering medical priorities through waiting lists;

               (b)

               the fact that authorisation would permit patients with less urgent medical needs to gain priority over patients with more urgent medical needs;

               (c)

               the fact that authorisation would have the effect of diverting resources to pay for less urgent treatment for those who are willing to travel abroad thus adversely affecting others who do not wish or are not able to travel abroad or increasing costs of NHS bodies;

               (d)

               the fact that authorisation may require the United Kingdom to provide additional funding for the NHS budget or to restrict the range of treatments available under the NHS;

               (e)

               the comparative costs of the treatment and the incidental costs thereof in the other Member State?

         Question 4
   In determining whether treatment is available without undue delay for the purposes of Article 49 EC, to what extent is it necessary or permissible to have regard in particular to the following:

               (a)

               waiting times;

               (b)

               the clinical priority accorded to the treatment by the relevant NHS body;

               (c)

               the management of the provision of hospital care in accordance with priorities aimed at giving best effect to finite resources;

               (d)

               the fact that treatment under the NHS is provided free at the point of delivery;

               (e)

               the individual medical condition of the patient, and the history and probable course of the disease in respect of which that patient seeks treatment?

         Question 5
   On the proper interpretation of Article 22(1)(c) of Regulation 1408/71 (1) and in particular the words ‘within the time normally necessary for obtaining the treatment in question’:

               (a)

               Are the applicable criteria identical with those applicable in determining questions of undue delay for the purposes of Article 49 EC?

               (b)

               If not, to what extent is it necessary or permissible to have regard to the matters set out in question 4?

         Question 6
   In circumstances where a Member State is obliged in EU law to fund the hospital treatment in other Member States of persons ordinarily resident in the first Member State, is the cost of such treatment to be calculated under Article 22 of Regulation 1408/71 by reference to the legislation of the Member State where the treatment is provided or under Article 49 EC by reference to the legislation of the Member State of residence?
   In each case:

               (a)

               What is the precise extent of the obligation to pay or reimburse the cost, in particular where, as in the case of the United Kingdom, hospital treatment is provided to patients free at the point of delivery and there is no nationally set tariff for reimbursement of patients for the cost of treatment?

               (b)

               Is the obligation limited to the actual cost of providing the same or equivalent treatment in the first Member State?

               (c)

               Does it include an obligation to meet travel and accommodation costs?

         Question 7
   Are Article 49 EC and Article 22 of Regulation 1408/71 to be interpreted as imposing an obligation on Member States to fund hospital treatment in other Member States without reference to budgetary constraints and, if so, are these requirements compatible with the Member States' responsibility for the organisation and delivery of health services and medical care, as recognised under Article 152(5) EC?

      (1)  Regulation (EEC) No 1408/71 of the Council, of 14 June 1971, on the application of social security schemes to employed persons and their families moving within the Community.


title: Case T-52/13: Judgment of the General Court of 14 November 2013 — Efag Trade Mark Company v OHIM (FICKEN) (Community trade mark — Application for Community word mark FICKEN — Absolute ground for refusal — Mark contrary to public order and good morals — Article 7(1)(f) of Regulation (EC) No 207/2009)

text:
               21.12.2013

               EN

               Official Journal of the European Union

               C 377/15

         Judgment of the General Court of 14 November 2013 — Efag Trade Mark Company v OHIM (FICKEN)
   (Case T-52/13) (1)

   (Community trade mark - Application for Community word mark FICKEN - Absolute ground for refusal - Mark contrary to public order and good morals - Article 7(1)(f) of Regulation (EC) No 207/2009)
   2013/C 377/34
   Language of the case: German

      Parties

      Applicant: Efag Trade Mark Company GmbH & Co. KG (Schemmerhofen, Germany) (represented by: M. Wekwerth, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 18 October 2012 (Case R 493/2012-1), concerning an application for registration of the word sign FICKEN as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Efag Trade Mark Company GmbH & Co. KG to pay the costs.

      (1)  OJ C 101, 6.4.2013.


title: Case C-107/13: Judgment of the Court (Second Chamber) of 13 March 2014 (request for a preliminary ruling from the Administrativen sad Veliko Tarnovo — Bulgaria) — FIRIN OOD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Veliko Tarnovo pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Common system of value added tax  — Deduction of input tax paid  — Payments made on account  — Refusal to allow the deduction  — Fraud  — Adjustment of the deduction in the case where the taxable transaction is not carried out  — Conditions)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/14

         Judgment of the Court (Second Chamber) of 13 March 2014 (request for a preliminary ruling from the Administrativen sad Veliko Tarnovo — Bulgaria) — FIRIN OOD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Veliko Tarnovo pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-107/13) (1)

   ((Common system of value added tax - Deduction of input tax paid - Payments made on account - Refusal to allow the deduction - Fraud - Adjustment of the deduction in the case where the taxable transaction is not carried out - Conditions))
   2014/C 135/15
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Veliko Tarnovo

      Parties to the main proceedings

      Applicant: FIRIN OOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Veliko Tarnovo pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Re:

   Request for a preliminary ruling — Administrativen sad Veliko Tarnovo — Interpretation of Article 168(a), read in conjunction with Articles 65, 90(1) and 185(1), and of Article 205, read in conjunction with Articles 168(a) and 193, of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Principles of the neutrality of VAT, effectiveness and proportionality — Deduction of input tax paid — Payment made on account in respect of precisely identified goods prior to the supply — Refusal to allow the deduction at the time of receipt of the payment on account since supply not made — Possibility for the supplier to adjust the deduction initially made and impact on the refusal to allow such a deduction — Refusal to allow the recipient of a supply to deduct VAT because of the joint and several liability for payment of the tax of a taxable person other than the person liable — Designation of the person jointly and severally liable on the basis of presumptions founded on established precepts of civil law.

      Operative part of the judgment

   Articles 65, 90(1), 168(a), 185(1) and 193 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as requiring that the deduction of value added tax made by the recipient of an invoice drawn up with a view to a payment being made on account in relation to the supply of goods be adjusted where, in circumstances such as those in the main proceedings, that supply is ultimately not made, even if the supplier remains liable for that tax and has not refunded the payment made on account.

      (1)  OJ C 129, 4.5.2013.


title: Judgment of the Court (Sixth Chamber) of 16 November 2000 in Case C-37/99 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands): criminal proceedings against Roelof Donkersteeg (Directive 83/189/EEC — Technical standards and regulations — Obligation to notify — Footwear disinfecting facilities on agricultural holdings — Vaccination of pigs)

text:
10.2.2001                 EN                     Official Journal of the European Communities                                             C 45/5
                   JUDGMENT OF THE COURT                                                     JUDGEMENT OF THE COURT
                           (Sixth Chamber)                                                            (Sixth Chamber)
                        of 16 November 2000                                                        of 16 November 2000
in Case C-37/99 (reference for a preliminary ruling from                    in Case C-217/99: Commission of the European Communi-
the Hoge Raad der Nederlanden (Netherlands): criminal                                         ties v Kingdom of Belgium (1)
          proceedings against Roelof Donkersteeg (1)
(Directive 83/189/EEC — Technical standards and regu-                       (Failure to fulfil obligations — Free movement of goods
lations — Obligation to notify — Footwear disinfecting                      — Measures having equivalent effect — Nutrients and
   facilities on agricultural holdings — Vaccination of pigs)               foodstuffs containing nutrients — Obligation to submit a
                                                                            notification file — Obligation to include notification number
                                                                                on labelling)
                            (2001/C 45/09)
                                                                                (2001/C 45/10)
                      (Language of the Case: Dutch)
                                                                                (Language of the Case: French)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
                                                                            (Provisional translation; the definitive translation will be published
In Case C-37/99, reference to the Court under Article 177 of                                    in the European Court Reports)
the EC Treaty (now Article 234 EC) by the Hoge Raad der
Nederlanden (Netherlands), for a preliminary ruling in the                  In Case C-217/99, Commission of the European Communities
criminal proceedings pending before the court the against                   (Agent: H. van Lier) v Kingdom of Belgium (Agents: initially
Roelof Donkersteeg — on the interpretation of Article 1 of                  Y. Houyet and then P. Rietjens) — application for a declaration
Council Directive 83/189/EEC of 28 March 1983 laying down                   that, by laying down in Article 6(1)(1) of the Royal Decree of
a procedure for the provision of information in the field of                3 March 1992, concerning the placing on the market of
technical standards and regulations (OJ 1983 L 109, p. 8), as               nutrients and foodstuffs to which nutrients have been added
amended by Council Directive 88/182/EEC of 22 March 1988                    (Moniteur Belge of 15 April 1992, p. 8467), an obligation to
(OJ 1988 L 81, p. 75) — the Court (Sixth Chamber), composed                 indicate on the labelling of the products to which the decree
of: C. Gulmann (Rapporteur), President of the Chamber,                      applies the notification number provided for by Article 4
J.-P. Puissochet and F. Macken, Judges; N. Fennelly, Advocate               thereof, the Kingdom of Belgium has failed to fulfil its
General; D. Louterman-Hubeau, Administrator, for the Regis-                 obligations under Article 30 of the EC Treaty (now, after
trar, has given a judgment on 16 November, in which it has                  amendment, Article 28 EC) et seq. — the Court (Sixth
ruled:                                                                      Chamber), composed of C. Gulmann, President of the Chamb-
                                                                            er, V. Skouris (Rapporteur) and J.-P. Puissochet, Judges; N. Fen-
1.     A provision such as that in issue in the main proceedings,           nely, Advocate General: H.A. Rühl, Registrar, has given a
       which requires there to be one or more disinfectant containers       judgment on 16 November 2000 in which it:
       or appropriate cleaning facilities for disinfecting footwear on
       pig farms, is not, for the purposes of Council Directive
       83/189/EEC of 28 March 1983 laying down a procedure for              1.    Declares that, by laying down in Article 6(1)(1) of the Royal
       the provision of information in the field of technical standards           Decree of 3 March 1992, concerning the placing on the market
       and regulations, as amended by Council Directive 88/182/EEC                of nutrients and foodstuffs to which nutrients have been added,
       of 22 March 1988, a technical regulation which ought to have               an obligation to indicate on the labelling of the products to
       been notified to the Commission before being adopted.                      which the decree applies the notification number provided for
                                                                                by Article 4 thereof, the Kingdom of Belgium has failed to fulfil
2.     A provision such as that in issue in the main proceedings which            its obligations under Article 30 of the EC Treaty (now, after
       requires every farmer to have the pigs on his holding vaccinated           amendment, Article 28 EC) et seq.;
       Aujeszky’s disease is not, for the purposes of Directive as
       amended by Directive 88/182, a technical regulation which            2.    Orders the Kingdom of Belgium to pay the costs.
       ought to have been notified to the Commission before being
       adopted.
                                                                            (1) OJ C 226 of 7.8.1999.
(1) OJ C 121 of 1.5.1999.


title: Case F-10/08: Action brought on 21 January 2008 — Aayhan and Others v European Parliament

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/70

         Action brought on 21 January 2008 — Aayhan and Others v European Parliament
   (Case F-10/08)
   (2008/C 64/116)
   Language of the case: French
   Parties

      Applicants: Laleh Aayhan (Strasbourg, France) and Others (represented by: R. Blindauer, lawyer)

      Defendant: European Parliament
   The subject-matter and description of the proceedings
   Annulment of the European Parliament's decision of 25 October 2007 rejecting the complaint brought by the applicants on 21 June 2007 for the purpose of having all the fixed-term contracts between them and the Parliament converted into a single contract for an indefinite period.
   Form of order sought

               —

               Annul the decision of the Secretary General of the European Parliament, the Appointing Authority, of 25 October 2007 expressly rejecting the complaint lodged with the Parliament on 27 June 2007;

               —

               Consider all the fixed-term contracts between the applicants and the European Parliament as a single contract for an indefinite period, continuing in effect beyond 1 January 2007;

               —

               Re-employ all the applicant members of staff on the basis of contracts for an indefinite period with the European Parliament;

               —

               Grant each applicant member of staff an indemnity in respect of all the periods worked since the beginning of their employment equivalent to the right to paid leave which they have acquired through their work;

               —

               Take note of the fact that the applicants regard the decision of 20 April 2007 as the rejection of a complaint and have already brought an action before the Civil Service Tribunal.


title: Case F-35/05: Order of the Civil Service Tribunal of 30 June 2006 — Colombani v Commission

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/38

         Order of the Civil Service Tribunal of 30 June 2006 — Colombani v Commission
   (Case F-35/05) (1)

   (2006/C 190/71)

      Language of the case: French

   The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

      (1)  OJ C 193 of 6.8.2005 (case initially registered before the Court of First Instance of the European Communities under number T-206/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005).


title: Case C-598/14 P: Judgment of the Court (Second Chamber) of 5 April 2017 — European Union Intellectual Property Office (EUIPO) v Gilbert Szajner, Forge de Laguiole (Appeal — EU trade mark — Invalidity proceedings — Regulation (EC) No 207/2009 — Article 8(4) — Article 65(1) and (2) — Word mark LAGUIOLE — Application for a declaration of invalidity based on a prior right acquired pursuant to national law — Application of national law by EUIPO — Role of the EU Courts)

text:
               29.5.2017

               EN

               Official Journal of the European Union

               C 168/5

         Judgment of the Court (Second Chamber) of 5 April 2017 — European Union Intellectual Property Office (EUIPO) v Gilbert Szajner, Forge de Laguiole
   (Case C-598/14 P) (1)

   ((Appeal - EU trade mark - Invalidity proceedings - Regulation (EC) No 207/2009 - Article 8(4) - Article 65(1) and (2) - Word mark LAGUIOLE - Application for a declaration of invalidity based on a prior right acquired pursuant to national law - Application of national law by EUIPO - Role of the EU Courts))
   (2017/C 168/04)
   Language of the case: French

      Parties

      Appellant: European Union Intellectual Property Office (EUIPO) (represented by: A. Folliard-Monguiral, Agent)

      Other parties to the proceedings: Gilbert Szajner (represented by: A. Sam-Simenot, avocate), Forge de Laguiole SARL (represented by: F. Fajgenbaum, avocate)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Union Intellectual Property Office (EUIPO) to pay the costs;

               3.

               Orders Forge de Laguiole SARL to bear its own costs.

      (1)  OJ C 96, 23.3.2015.


title: Case C-126/16: Judgment of the Court (Third Chamber) of 22 June 2017 (request for a preliminary ruling from the Rechtbank Midden-Nederland — Netherlands) — Federatie Nederlandse Vakvereniging and Others v Smallsteps BV (Reference for a preliminary ruling — Directive 2001/23/EC — Articles 3 to 5 — Transfers of undertakings — Safeguarding of employees’ rights — Exceptions — Insolvency proceedings — ‘Pre-pack’ — Survival of an undertaking)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/15

         Judgment of the Court (Third Chamber) of 22 June 2017 (request for a preliminary ruling from the Rechtbank Midden-Nederland — Netherlands) — Federatie Nederlandse Vakvereniging and Others v Smallsteps BV
   (Case C-126/16) (1)

   ((Reference for a preliminary ruling - Directive 2001/23/EC - Articles 3 to 5 - Transfers of undertakings - Safeguarding of employees’ rights - Exceptions - Insolvency proceedings - ‘Pre-pack’ - Survival of an undertaking))
   (2017/C 277/20)
   Language of the case: Dutch

      Referring court

   Rechtbank Midden-Nederland

      Parties to the main proceedings

      Applicants: Federatie Nederlandse Vakvereniging, Karin van den Burg-Vergeer, Lyoba Tanja Alida Kukupessy, Danielle Paase-Teeuwen, Astrid Johanna Geertruda Petronelle Schenk

      Defendant: Smallsteps BV

      Operative part of the judgment

   Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, and in particular Article 5(1) thereof, must be interpreted as meaning that the protection of workers guaranteed by Articles 3 and 4 of that directive applies in a situation, such as that at issue in the main proceedings, in which the transfer of an undertaking takes place following a declaration of insolvency and in the context of a ‘pre-pack’ where that ‘pre-pack’ is prepared before the declaration of insolvency and put into effect immediately after that declaration, and, in particular, a court-appointed prospective insolvency administrator investigates the possibilities for continuation of the activities of that undertaking by a third party and prepares for acts which must be carried out shortly after the insolvency to enable such continuation and, moreover, it is irrelevant in that regard that the ‘pre-pack’ is also aimed at maximising the proceeds of the transfer for all the creditors of the undertaking in question.

      (1)  OJ C 165, 10.5.2016.


title: Case C-72/08: Action brought on 20 February 2008 — Commission of the European Communities v Republic of Poland

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/22

         Action brought on 20 February 2008 — Commission of the European Communities v Republic of Poland
   (Case C-72/08)
   (2008/C 92/42)
   Language of the case: Polish
   Parties

      Applicant: Commission of the European Communities (represented by: R. Vidal Puig and A. Stobiecka-Kuik, acting as Agents)

      Defendant: Republic of Poland
   Form of order sought

               —

               declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2004/36/EC of the European Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports (1) or, in any event, not informing the Commission thereof, the Republic of Poland has failed to fulfil its obligations under Article 11 of that directive;

               —

               order the Republic of Poland to pay the costs.

         Pleas in law and main arguments
   The time-limit for transposition of Directive 2004/36/EC expired on 30 April 2006.

      (1)  OJ L 143, 30.4.2004, p. 76.


title: Case T-363/00: Action brought on 27 November 2000 by Luigia Dricot against the Commission of the European Communities

text:
C 61/16                EN                     Official Journal of the European Communities                                    24.2.2001
Pleas in law and main arguments                                          Action brought on 27 November 2000 by Sophie Van
                                                                         Weyenbergh against the Commission of the European
                                                                                Communities
The pleas in law and arguments are similar to those put
forward in Case T-357/00 Martı́nez Alarcón v Commission.                                         (Case T-364/00)
                                                                                (2001/C 61/32)
                                                                                (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 27 November 2000 by Sophie Van
Action brought on 27 November 2000 by Luigia Dricot                      Weyenbergh, residing at Tervuren (Belgium), represented by
  against the Commission of the European Communities                     Carlos Mourato, of the Brussels Bar.
                         (Case T-363/00)                                 The applicant claims that the Court should:
                                                                         —     annul the decision dated 28 January 2000 of the selection
                          (2001/C 61/31)                                       board in competition COM/TB/99, deciding not to admit
                                                                               the applicant to that competition, and the implicit
                                                                               decision of the appointing authority dated 9 October
                                                                               2000 giving a negative response to the complaint submit-
                   (Language of the case: French)                              ted by the applicant;
                                                                         —     alternatively, order the defendant to pay to the applicant
An action against the Commission of the European Communi-                      the sum of BEF 2 941 667, subject to alteration during
ties was brought before the Court of First Instance of the                     the course of the proceedings, by way of compensation
European Communities on 27 November 2000 by Luigia                             for material and non-material damage;
Dricot, residing at Overijse (Belgium), represented by Carlos
Mourato, of the Brussels Bar.                                            —     order the defendant to pay the costs.
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the decisions dated 28 January 2000 and 24 Febru-            The pleas in law and arguments are similar to those put
      ary 2000 of the selection board in competition                     forward in Case T-357/00 Martı́nez Alarcón v Commission.
      COM/TB/99, deciding not to admit the applicant to that
      competition, and the implicit decision of the appointing
      authority dated 28 August 2000 giving a negative
      response to the complaint submitted by the applicant;
—     alternatively, order the defendant to pay to the applicant
      the sum of BEF 500 000, subject to alteration during the
      course of the proceedings, by way of compensation for              Action brought on 30 November 2000 by Scott S.A.
      material and non-material damage;                                    against the Commission of the European Communities
                                                                                (Case T-366/00)
—     order the defendant to pay the costs.
                                                                                (2001/C 61/33)
Pleas in law and main arguments
                                                                                (Language of the case: English)
The pleas in law and arguments are similar to those put                  An action against the Commission of the European Communi-
forward in Case T-357/00 Martı́nez Alarcón v Commission.                ties was brought before the Court of First Instance of the
                                                                         European Communities on 30 November 2000 by Scott S.A.,
                                                                         a company registered in France, represented by Jeremy Lever
                                                                         QC and George Peretz, Barristers and Robin Griffith, Solicitor
                                                                         of Clifford Chance, London.


title: Action brought on 6 March 1996 by Boubeker Maayouchi against the Commission of the European Communities (Case T-27/96)

text:
 No C 133/28          EN                  Official Journal of the European Communities                                        4 . 5 . 96
 Marc Kleyr, of the Luxembourg Bar, with an address                  of the right to a fair hearing and the principle of
 for service in Luxembourg at his Chambers, 17 Rue                   non-retroactivity, and are incompatible with Articles 21 and
 Louvigny.                                                            1 1 of the Staff Regulations .
The applicant claims that the Court should:                          As regards the decision not to act on the request submitted
                                                                     pursuant to Article 90 of the Staff Regulations, the applicant
— annul the decision of the Court's complaints committee,            maintains,     first,  that    the   defendant    erred    in    its
     communicated on 31 January 1996, rejecting the                  characterization of the facts giving rise to that request. He
     complaint submitted by the applicant on 3 October               also maintains that the decision does not contain a sufficient
     1 995 ,                                                         statement of the reasons on which it is based, in accordance
— annul the 'opinion' of the Head of the Portuguese                  with Article 25 of the Staff Regulations, and that it is
     Translation Division of 21 January 1994 exhibited as            incompatible with the principle of non-retroactivity . Lastly,
     Annex 2 to the answers given by the administration of           he complains that, by adopting that decision, the defendant
     the Court of Justice to the questions put to the parties by     supported those responsible for the unlawful acts from
     the Court of First Instance in Joined Cases T-547/93 and        which he has suffered since 1987 .
    T-280/94 Lopes v. Court of Justice of the European
     Communities ,
— annul the document entitled 'Analysis of sample I'
    exhibited as Annex 1 to the answers dated 29 June 1995           Action brought on 6 March 1996 by Boubeker Maayouchi
    given by the administration of the Court of Justice to the          against the Commission of the European Communities
    questions put by the Court of First Instance in Joined                                    ( Case T-27/96 )
     Cases T-547/93 and T-280/94,
                                                                                96/C 133/61 )
— annul the decision not to act on the request submitted on
    7 July 1995 seeking the cessation of the abuse of powers                         (Language of the case: French)
    or authority committed in relation to the applicant
    by the Head of Translation and jurist-revisers in               An action against the Commission of the European
    the Portuguese Translation Division, which was                   Communities was brought before the Court of First
    communicated by memorandum of 21 July 1995 from                  Instance of the European Communities on 6 March 1996 by
    the Registrar of the Court,                                      Boubeker Mayyouchi, residing in Rabat ( Morocco ),
— award the applicant damages of not less than Bfr                  represented by Nicolas Lhoëst, of the Brussels Bar, with an
    20 000 000 by way of compensation for the material               address for service in Luxembourg at the offices of
    and non-material damage suffered by him as a result of           Fiduciaire Myson Sari , 1 Rue Glesener.
    the conduct of the servants of the Court of Justice,
                                                                    The applicant claims that the Court should:
— order the defendant to pay all of the costs .
                                                                    — declare that the Commission failed to verify that the
Pleas in law and main arguments                                           procedure for the election of representatives for staff
                                                                          serving outside the Community was conducted in
The applicant maintains, first, that the decision rejecting the           accordance with the procedural and substantive rules
complaint was adopted in clear breach of the first paragraph              governing such elections,
of Article 24 of the Staff Regulations of officials, since the
nature of the contested acts is such as to call in question his     — declare that the list of voters in the local staff
personal and professional reputation and the defendant                    constituency, drawn up by the Head of the
administration failed to take all necessary measures to                   Commission's Delegation to Morocco, is incomplete,
ascertain whether or not there was any substance to the
serious accusations contested by the applicant.                     — annul the Electoral Committee's decision to reject two of
                                                                          the votes cast by local staff in the regional ballot held at
As regards the assessments contained in the document of                   the Commission's Delegation to Morocco,
21 January 1994 , the applicant observes that those
assessments do not appear in the reports concerning him             — annul the election result adopted by the Electoral
and were not communicated to him, so that he was                          Committee at its meeting of 13 February 1995 in so far
prevented from exercising his right to be heard in due                    as it declared Bassel Kaghadou as the elected regional
course, as required by Articles 26 and 43 of the Staff                    representative for the local staff constituency in
Regulations . He further claims that it is not possible to                geographical area No 7,
ascertain from the statements made in the assessments
whether or not those assessments are well founded, and that         — in so far as may be necessary, annul the decision adopted
this necessarily results in an infringement of Article 25 of the          by the Commission explicitly rejecting the applicant's
Staff Regulations.                                                        complaint,
As regards the second contested document, the applicant             — at the very least, declare that the Commission has
considers that that document does not constitute an                       committed errors in relation to the organization of the
impartial and objective analysis of his work, and he contests             elections and the counting of votes from Morocco and
the validity of the assessments contained in it. He further               order the Commission to pay the applicant 1 franc by
observes that that document contains assessments regarding                way of symbolic compensation for non-material
his conduct which were adopted in disregard of the principle              damage,
 ---pagebreak--- 4 . 5 . 96            HN                  Official Journal of the European Communities                                No C 133/29
— order the Commission to pay the costs in their                     Instance of the European Communities on 6 March 1996 by
     entirety .                                                      Doreen Chew, residing in Suva ( Fiji ), represented by Nicolas
                                                                     Lhoëst, of the Brussels Bar, with an address for service in
                                                                     Luxembourg at the offices of Fiduciaire Myson Sari, 1 Rue
Pleas in law and main arguments                                      Glesener .
The applicant, who is a member of the local staff employed
by the Commission's Delegation to Morocco, contests the              The applicant claims that the Court should:
irregularities which he alleges have vitiated the procedure
for electing representatives of staff serving outside the
                                                                     — annul the Electoral Committee's decision accepting the
Community .
                                                                         votes from the Delegation to the Solomon Islands, cast in
                                                                         the regional ballot for geographical area No 3 for the
At its meeting of 13 February 1995 , the Electoral                       election of a representative for local staff,
Committee — reversing an earlier decision — took the view
that, out of 23 votes cast in a regional ballot in Morocco for
the election of a member of the local staff, two were invalid,       — annul the election result announced by the Electoral
in the first case because the vote was not indicated on the              Committee at its meeting of 13 February 1995 in so far
regulation ballot paper, in the second because the vote was              as it named the regional representative elected by the
cast by correspondence and the outside envelope bearing the              local staff constituency for geographical area No 3 ,
name and signature of the voter was not attached to the list
of voters' signatures . As a result of the position adopted by       — declare the applicant to be the representative elected for
the Committee, the applicant was not elected.                            the local staff constituency in geographical area
                                                                         No 3 ,
The applicant maintains, first, that the voters' list drawn up
by the Head of the Commission's Delegation to Morocco                — in so far as may be necessary, annul the decision adopted
was incomplete because it did not include three members of               by the Commission expressly rejecting the applicant's
the local staff on temporary contracts who were eligible to              complaint,
vote . Those persons are members of the local staff, whether
or not they are on temporary contracts, and must at the very
least be treated as local staff since they have been in service      — at the very least, declare that the Commission has
for 3 years, 15 months and 12 months, respectively. The                  committed an error by taking into consideration the
Commission therefore acted in breach of its duty under                   votes from the Solomon Islands for the election of a
Article 9 ( 2 ) of the Staff Regulations to ensure that the              member of the local staff in the regional ballot and order
electoral procedure is properly conducted .                              the Commission to pay the applicant 1 franc by way of
                                                                         symbolic compensation for non-material damage,
Secondly, the applicant contests the Electoral Committee's
rejection of two of the votes freely entered by                      — order the Commission to pay the costs in their
correspondence . The applicant emphasizes that those two                 entirety .
votes were cast strictly in accordance with the free choice of
each voter. The fact that the special form was not used
cannot therefore affect the validity of the vote reflecting that     Pleas in law and main arguments
free choice . Furthermore , in so far as the voters from the
Morocco Delegation did not comply with certain formal                The applicant relates that, during December 1994, elections
procedural rules, but without prejudice to the certainty and         were held to provide for local and regional representation of
effectiveness of the vote, the applicant cannot be penalized         staff serving outside the Community in the various
for shortcomings which are a direct result of a failure on the       Commission delegations . At the meeting convened on
part of the Flead of Delegation to provide information .             12 January 1995 to establish the election report, the
                                                                     Electoral Committee declared that at the Delegation to the
                                                                     Solomon Islands the members of local staff had cast six
                                                                     votes in the regional ballot, whereas only five voters had
                                                                     signed the list of voters/signatures; the Committee also
                                                                     declared that if the votes from the Solomon Islands were not
                                                                     counted, the applicant would win the election . The Head of
Action brought on 6 March 1996 by Doreen Chew against                the Commission's Delegation to the Solomon Islands
        the Commission of the European Communities                   informed the Electoral Committee that the signature of one
                        ( Case T-28/96 )                             voter, who had voted, did not appear on the list of
                                                                     voters/signatures because of a ' substantive error' and
                          ( 96/C 133/62                              forwarded a copy, duly rectified, of the list in question. The
                                                                     Electoral Committee decided, therefore, at its meeting of
                (Language of the case: French)                       13 February 1995 , to accept the results forwarded from the
                                                                     Delegation to the Solomon Islands and declared that
                                                                     another candidate had been elected, not the applicant. The
An action against the Commission of the European                     applicant submitted a complaint against that decision,
Communities was brought before the Court of First                    which was expressly rejected .


title: Case T-231/11: Action brought on 2 May 2011 — Fraas v OHIM (Dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/18

         Action brought on 2 May 2011 — Fraas v OHIM (Dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern)
   (Case T-231/11)
   2011/C 238/32
   Language of the case: German

      Parties

      Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of 4 March 2011 in Case R 2041/2010-4 relating to Community trade mark application No 008 423 626 (figurative mark);

               —

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

      Pleas in law and main arguments

      Community trade mark concerned: Figurative mark representing a dark grey, light grey, light blue, dark blue, ochre and beige coloured checked pattern for goods in Classes 18, 24, and 25 — application No 8 423 626.

      Decision of the Examiner: Partial rejection of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation No 207/2009, as the Community trade mark at issue has distinctive character, and infringement of Articles 75 and 76 of Regulation No 207/2009, as the Board of Appeal did not examine the extensive factual and legal submissions of the applicant.