title: Case C-447/09: Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany), lodged on 18 November 2009 — Reinhard Prigge, Michael Fromm and Volker Lambach v Deutsche Lufthansa AG

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/29

         Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany), lodged on 18 November 2009 — Reinhard Prigge, Michael Fromm and Volker Lambach v Deutsche Lufthansa AG
   (Case C-447/09)
   2010/C 24/55
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Appellants: Reinhard Prigge, Michael Fromm and Volker Lambach

      Respondent: Deutsche Lufthansa AG

      Question referred

   Must Article 2(5), Article 4(1) and/or Article 6(1), first sentence, of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) and/or the general Community-law principle which prohibits discrimination on grounds of age be interpreted as precluding rules of national law which recognise an age-limit of 60 for pilots established by collective agreement for the purposes of ensuring air safety?

      (1)  OJ 2000 L 303, p. 16.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 18 December 1997 in Case C-402/96 (reference to the Court by the Oberlandesgericht Frankfurt am Main for a preliminary ruling): concerning the commercial registration of an undertaking in the process of formation, brought by European Information Technology Observatory, Europäische Wirtschaftliche Interessenvereinigung (European Economic Interest Grouping - Business name)

text:
C 41/8                EN                  Official Journal of the European Communities                                        7.2.98
J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón                    Article 5(a) of Council Regulation (EEC) No 2137/85 of
(Rapporteur), Judges; F. G. Jacobs, Advocate-General; H.             25 July 1985 on the European Economic Interest
von Holstein, Deputy Registrar, gave a judgment on                   Grouping (EEIG) is to be interpreted as meaning that the
18 December 1997, the operative part of which is as                  business name of an EEIG must include the words
follows:                                                             European Economic Interest Grouping' or the initials
                                                                     EEIG', whilst the other elements to be included may be
1. A substance is not excluded from the definition of                imposed by the provisions of internal law applicable in the
     waste in Article 1(a) of Council Directive 75/442/EEC           Member State in which the grouping has its official
     of 15 July 1975 on waste, as amended by Council                 address.
     Directive 91/156/EEC of 18 March 1991, merely
     because it directly or indirectly forms an integral part        (1) OJ C 74, 8.3.1997.
     of an industrial production process.
2. The second paragraph of Article 5 and the third
     paragraph of Article 189 of the EEC Treaty, and
     Directive 91/156/EEC, require the Member States to
     which that Directive is addressed to refrain, during the        Reference for a preliminary ruling from the
     period laid down therein for its implementation, from           Bundesgerichtshof by order of that court of 17 June 1997
     adopting measures liable seriously to compromise the                in proceedings brought by Farmitalia Carlo Erba Srl
     result prescribed.                                                                      (Case C-392/97)
(1) OJ C 180, 22.6.1996.                                                                       (98/C 41/14)
                                                                     Reference has been made to the Court of Justice of the
                                                                     European       Communities       by    an    order    of    the
                                                                     Bundesgerichtshof (Federal Court of Justice) of 17 June
                                                                     1997, which was received at the Court Registry on
               JUDGMENT OF THE COURT                                 18 November 1997, for a preliminary ruling in
                        (Fifth Chamber)                              proceedings brought by Farmitalia Carlo Erba Srl on the
                                                                     following questions:
                     of 18 December 1997
in Case C-402/96 (reference to the Court by the                      1. Is it a condition of the application of Article 3(b) of
Oberlandesgericht Frankfurt am Main for a preliminary                     Council Regulation (EEC) No 1768/92 (1) of 18 June
ruling): concerning the commercial registration of an                     1992 concerning the creation of a supplementary
undertaking in the process of formation, brought by                       protection certificate for medicinal products that the
European        Information      Technology       Observatory,            product in respect of which the grant of a protection
    Europäische Wirtschaftliche Interessenvereinigung (1)                 certificate is sought is described as an active
 (European Economic Interest Grouping Ð Business name)                    ingredient' in the medicinal authorization?
                          (98/C 41/13)
                                                                          Are, then, the terms of Article 3(b) not satisfied where
                                                                          only one individual salt of a substance is stated in the
               (Language of the case: German)
                                                                          notice of authorization to be an active ingredient', but
                                                                          the grant of a protection certificate is sought for the
  (Provisional translation; the definitive translation will be            free basis and/or for other salts of the active
          published in the European Court Reports)                        ingredient?
In Case C-402/96: reference to the Court under Article 177           2. If the questions at 1 are answered in the negative:
of the EC Treaty by the Oberlandesgericht Frankfurt am
Main (Germany) for a preliminary ruling in the
                                                                          According to which criteria is it to be determined
proceedings pending before that court, concerning the
                                                                          whether the product is protected by a basic patent
commercial registration of an undertaking in the process
                                                                          within the meaning of Article 3(a), where the grant of
of formation, brought by European Information
                                                                          a protection certificate is sought for the free base of an
Technology Observatory, Europäische Wirtschaftliche
                                                                          active ingredient including any of its salts, but the
Interessenvereinigung Ð on the interpretation of
                                                                          basic patent in its patent claims mentions only the free
Article 5(a) of Council Regulation (EEC) No 2137/85 of
                                                                          base of this substance and, moreover, mentions only a
25 July 1985 on the European Economic Interest
                                                                          single salt of this free base? Is the wording of the
Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1) Ð the
                                                                          claim for the basic patent or the latter's scope of
Court (Fifth Chamber) composed of: C. Gulmann
                                                                          protection the determining criterion?
(Rapporteur), President of the Chamber, M. Wathelet, J. C.
Moitinho de Almeida, D. A. O. Edward and J.-P.
Puissochet, Judges; A. La Pergola, Advocate-General; R.              (1) OJ L 182, 2.7.1992, p. 1.
Grass, Registrar, gave a judgment on 18 December 1997,
the operative part of which is as follows:


title: Case F-96/09: Judgment of the Civil Service Tribunal (Second Chamber) of 18 September 2012 — Cuallado Martorell v Commission (Civil service — Open competition — Non-admission to the oral test following results obtained in written tests — Requests for review — Specific right of candidates to have access to certain information concerning them — Purpose and scope — Right of access to corrected written tests — None)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/26

         Judgment of the Civil Service Tribunal (Second Chamber) of 18 September 2012 — Cuallado Martorell v Commission
   (Case F-96/09) (1)

   (Civil service - Open competition - Non-admission to the oral test following results obtained in written tests - Requests for review - Specific right of candidates to have access to certain information concerning them - Purpose and scope - Right of access to corrected written tests - None)
   2013/C 46/46
   Language of the case: Spanish

      Parties

      Applicant: Eva Cuallado Martorell (Augsburg, Germany) (represented by: M. Díez Lorenzo, lawyer)

      Defendant: European Commission (represented by: B. Eggers and J. Baquero Cruz, Agents)

      Re:

   Civil service — Action seeking, first, annulment of the decision not to admit the applicant to the oral test in Open Competition EPSO/AD/130/08 and to deny her access to the corrected written tests and, secondly, annulment with retroactive effect of the reserve list published following the competition tests.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the European Commission to bear its own costs and to pay the costs incurred by Ms Cuallado Martorell.

      (1)  OJ C 148, 5.6.2010, p. 54.


title: Case C-174/02: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 8 March 2002 in the appeal brought by Streekgewest Westelijk Noord-Brabant and Staatssecretaris van Financiën

text:
13.7.2002             EN                      Official Journal of the European Communities                                       C 169/21
Action brought on 13 May 2002 by the Kingdom of Spain                    to gain access to an additional quota which it would be
  against the Commission of the European Communities                     impossible to finance in full (by means of an allocation free of
                                                                         charge), given the limited funds available. Finally, the aid
                                                                         granted does not, and cannot, affect either prices or the total
                                                                         quantities produced.
                        (Case C-173/02)
                        (2002/C 169/37)                                  (1) Council Regulation (EEC) No 3950/92 of 28 December 1992
                                                                             establishing an additional levy in the milk and milk products
                                                                             sector, amended by Council Regulation (EC) No 1256/1999 of
                                                                             17 May 1999 (OJ L 160 of 16.6.1999, p. 73).
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 13 May 2002 by the Kingdom of Spain
represented by S. Ortiz Vaamonde, Abogado del Estado, with
an address for service in Luxembourg at the Spanish Embassy,
4-6 Boulevard Emmanuel Servais.
                                                                         Reference for a preliminary ruling by the Hoge Raad der
                                                                         Nederlanden by judgment of that Court of 8 March 2002
                                                                         in the appeal brought by Streekgewest Westelijk Noord-
The applicant claims that the Court should:
                                                                                Brabant and Staatssecretaris van Financiën
—     annul the Commission’s decision of 12 March 2002                                            (Case C-174/02)
      declaring the aid paid to producers of cows’ milk for the
      purchase of reference quantities incompatible with the
      common market and ordering it to be repaid; and                                             (2002/C 169/38)
—     order the Commission to pay the costs.
                                                                         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 8 March
                                                                         2002, received at the Court Registry on 10 May 2002, for a
Pleas in law and main arguments                                          preliminary ruling in the appeal brought by Streekgewest
                                                                         Westelijk Noord-Brabant and Staatssecretaris van Financiën,
                                                                         on the following questions:
Infringement of Articles 87 EC and 88 EC in that the measure             1.    May only an individual who is affected by a distortion of
at issue is protected by the regulation on the common                          cross-border competition as a result of an aid measure
organisation of the market (COM) in milk and milk products.                    rely on the last sentence of Article 93(3) of the EC Treaty
The measures at issue cannot be challenged as contrary to the                  (now the last sentence of Article 88(3) EC)?
COM in a case in which the latter specifically provides for
mechanisms comparable to those adopted and which are
directed to the same end. The aid granted is not intended to             2.    Where an aid measure within the meaning of the last
cover operating costs but is granted in respect of a production                sentence of Article 93(3) of the EC Treaty (now the last
right, which is a capital asset of the agricultural holding itself.            sentence of Article 88(3) EC) consists of an exemption
The aid is consonant with the objectives laid down in the rules                from a tax (which is to be construed as also meaning a
establishing the additional levy, namely the restructuring of                  reduction in or relief on such tax) whose proceeds are
the milk sector, given that its aim is to improve production                   paid into the public coffers, and no provision in that
structures in the dairy sector, which is fundamental to the                    respect is made for suspending the exemption pending
regional economy of Asturias. The fact that it does not exactly                the notification procedure, must that tax be regarded as
coincide with the mechanism provided for in the COM does                       part of that aid measure, by virtue of the very fact that
not render it contrary to the scheme, since the degree of                      the levying of the tax on persons who do not enjoy an
intervention involved is less than that provided for and                       exemption is the means whereby a favourable effect is
authorised. Instead of allocating quotas free of charge as                     produced, so that as long as the implementation of that
provided for in the first indent of Article 8 of Regulation (EEC)              aid measure is not permitted under the abovementioned
No 3950/92 (1), the Asturian authorities are making more                       provision, the prohibition laid down therein is also
efficient use of public resources, enabling a group of farmers                 applicable to (the levying of) that tax?
 ---pagebreak--- C 169/22              EN                    Official Journal of the European Communities                                     13.7.2002
3.   In the event that the answer to the previous question is               has been any disturbance of trade between Member States
     in the negative: Where a connection as described in the                which can (partly) be attributed to the levy as the method
     final sentence of point 3.4.3 can be identified between                of financing the aid measure? If the answer to this
     the increase in a particular tax whose proceeds are paid               question depends on the closeness of the connection
     into the public coffers and a proposed aid measure within              between the levy and the aid measure, or on the time
     the meaning of the last sentence of Article 93(3) of the               when the revenue from the levy is actually used for the
     EC Treaty (now the last sentence of Article 88(3) EC),                 aid measure, or on other circumstances, what circum-
     must the introduction of that increase be regarded as a                stances are relevant in that regard?
     (start on the) putting into effect of that aid measure
     within the meaning of this provision? If the answer to
     this question turns on the intensity of that connection,          2.   If the prohibition on implementing the aid measure also
     what circumstances are of relevance in this respect?                   applies to the earmarked levy, can the person on whom
                                                                            the levy is imposed then, by relying on the direct effect of
4.   If the prohibition on implementation of the aid measure                Article 93(3), oppose in legal proceedings the full amount
     also relates to the tax, does a final decision by the                  levied on him or only that portion which corresponds to
     Commission declaring the aid measure compatible with                   the part of the revenue which is expected to be spent or
     the common market not mean that the unlawfulness of                    has actually been spent during the period in which the
     the tax is retroactively corrected?                                    implementation of the aid measure is or was prohibited
                                                                            under that provision?
5.   If the prohibition on implementation also relates to the
     tax, can persons on whom the tax is levied oppose such            3.   Do specific requirements arise from Community law with
     tax in law by relying on the direct effect of Article 93(3)            regard to the method of determining what portion of a
     of the EC Treaty in respect of the total amount of the tax             levy falls under the prohibition laid down in the last
     or only in respect of part thereof?                                    sentence of Article 93(3) of the EC Treaty in the case of a
                                                                            levy the revenue from which is earmarked for various
6.   In the latter case, do specific requirements stem from                 purposes for which there are also other sources of
     Community law as regards the manner in which it must                   financing in addition to the levy and which are not all
     be determined which part of the tax is covered by the                  covered by Article 93 of the EC Treaty, where no
     prohibition in the last sentence of Article 93(2) of the EC            apportionment formula is specified in the national pro-
     Treaty?                                                                vision instituting the levy? In such a case, must the
                                                                            portion of the levy which can be allocated to financing
                                                                            the aid measure falling under Article 93 of the EC Treaty
                                                                            be determined on an estimated basis according to the
                                                                            time when the levy was imposed or must it be based on
                                                                            subsequently available data relating to the total revenue
                                                                            from the levy and to the actual expenditure for each of
                                                                            the various purposes?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 8 March 2002
in the case of F. J. Pape against Ministry of Agriculture,
             Nature Management and Fisheries
                        (Case C-175/02)
                        (2002/C 169/39)
                                                                       Appeal brought on 13 May 2002 by Laboratoire Monique
                                                                       Rémy against the order delivered on 26 March 2002 by
                                                                       the First Chamber of the Court of First Instance of
Reference has been made to the Court of Justice of the
                                                                       the European Communities in Case T-218/01 between
European Communities by judgment of the Hoge Raad der
                                                                       Laboratoire Monique Rémy and Commission of the Euro-
Nederlanden (Supreme Court of the Netherlands) of 8 March
                                                                                pean Communities
2002, received at the Court Registry on 10 May 2002, for a
preliminary ruling in the case of F. J. Pape against Ministry of
Agriculture, Nature Management and Fisheries on the follow-                                  (Case C-176/02 P)
ing questions:
1.   For so long as the implementation of an aid measure is                                   (2002/C 169/40)
     not permitted under the last sentence of Article 93(3) of
     the EC Treaty (now the last sentence of Article 88(3) EC),
     does the prohibition laid down in that provision also
     apply to the introduction of a levy the revenue from
     which is earmarked under the relevant law in part for the         An appeal against the order delivered on 26 March 2002 by
     financing of that measure, regardless of whether there            the First Chamber of the Court of First Instance of the


title: Case C-384/15 P: Appeal brought on 15 July 2015 by Skype against the judgment of the General Court (First Chamber) delivered on 5 May 2015 in Case T-184/13: Skype v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/16

         Appeal brought on 15 July 2015 by Skype against the judgment of the General Court (First Chamber) delivered on 5 May 2015 in Case T-184/13: Skype v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-384/15 P)
   (2015/C 354/19)
   Language of the case: English

      Parties

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

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Sky IP International Ltd, Sky plc

      Form of order sought

   The appellant claims that the Court should order:

               —

               that the decision of the General Court dated 5 May 2015 in T-184/13 be annulled in its entirety and the application be remitted to OHIM to allow it to proceed; and

               —

               that OHIM and any intervening parties in this Appeal shall bear their own costs and pay the Appellant’s costs of these proceedings and those of (i) the appeal before the General Court in Case T-184/13; (ii) the Fourth Board of Appeal in Case R 121/2011-4, and (iii) Opposition B 1 046 046 before the Opposition Division.

      Pleas in law and main arguments

   The Appellant’s sole Ground of Appeal is that the General Court infringed Article 8(1)(b) of Council Regulation (EC) No 207/2009 0f 26 February 2009 on the Community Trade Mark (1) in giving its decision in case number T-184/13 relating to Community Trade Mark application no. 4 521 084 (the ‘Contested Mark’). In particular, the General Court made the following errors in reaching its decision to uphold the Respondent’s finding of likelihood of confusion:

               1.

               it incorrectly assessed the characteristics of the relevant public, failing to take account of the fact that the Appellant’s Skype service was based on a very new and innovative form of technology as at the priority date of the Contested Mark (the ‘Relevant Date’), and therefore that the relevant public had an above average level of technical expertise and an enhanced capability of distinguishing between brands;

               2.

               it appears to have wrongly assumed that the Appellant’s acceptance that the goods and services covered by the Contested Mark are identical to certain of the goods and services covered by the earlier mark was also an acceptance that the earlier mark enjoyed an enhanced distinctive character and/or reputation in respect of those areas of crossover with the specification for the Contested Mark as at the Relevant Date;

               3.

               it misapplied the law in several respects when evaluating the Respondent’s assessment of the visual, aural and conceptual similarities of the marks in issue, in particular, by relying on the incorrect legal fiction that the average consumer reads single short words from left to right, and placing undue weight on the coincidence of the letters S-K-Y at the start of both marks, as well as failing to appreciate that the conceptual difference between them counteracts any visual or aural similarity;

               4.

               it made two significant errors in upholding the Respondent’s finding that the earlier mark has an enhanced distinctive character in relation to goods and services outside the Interveners’ ‘core’ television broadcasting services: first, it wrongly relied on use of the earlier mark in relation to the Interveners’ ‘core’ services to infer distinctiveness for other services; and secondly, it took account of evidence of use that post-dated the Relevant Date;

               5.

               it misapplied the law in several respects when conducting the overall assessment of the likelihood of confusion by failing to take into account:

                           i.

                           the substantial reputation enjoyed by the Contested Mark at the Relevant Date; and

                           ii.

                           real-world evidence that the marks in issue have peacefully coexisted in the market place for over ten years, with no infringement action having been brought by the Interveners, which is strongly indicative that there was no likelihood of confusion at the Relevant Date.

         Accordingly, the Appellant requests that the Court: (1) annuls the decision of the General Court in case number T-184/13 and remits the application to the Respondent in order to allow it to proceed; and (2) orders that the costs of the proceedings be awarded to the Appellant.

      (1)  OJ L 78, p. 1.


title: Case F-9/11: Action brought on 7 February 2011 — Sabbag Afota v Council

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/33

         Action brought on 7 February 2011 — Sabbag Afota v Council
   (Case F-9/11)
   2011/C 152/59
   Language of the case: French

      Parties

      Applicant: Veronica Sabbag Afota (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision of the Appointing Authority not to promote the applicant to Grade AD 11 in the 2010 promotion exercise.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the Council’s decision of 19 November 2010 rejecting the complaint against the decision of the Appointing Authority not to promote the applicant to Grade AD 11 in the 2010 promotion exercise;

               —

               to the necessary extent, annul the decision of the countersigning officer finalising the applicant’s report for the 2008-2009 reporting period and the decision of the Appointing Authority of 26 April 2010 not to promote the applicant to Grade AD 11 in the 2010 promotion exercise;

               —

               order the Council to pay the costs.


title: Case C-422/15 P: Appeal brought on 30 July 2015 by Fernando Brás Messias against the order of the General Court (Ninth Chamber) delivered on 4 June 2015 in Case T-192/15 Fernando Brás Messias v Portuguese Republic

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/8

         Appeal brought on 30 July 2015 by Fernando Brás Messias against the order of the General Court (Ninth Chamber) delivered on 4 June 2015 in Case T-192/15 Fernando Brás Messias v Portuguese Republic
   (Case C-422/15 P)
   (2016/C 048/12)
   Language of the case: Portuguese

      Parties

      Appellant: Fernando Brás Messias (represented by: F. Brás Messias, advogado)

      Other party to the proceedings: Portuguese Republic
   By order of 15 December 2015, the Court of Justice (Eighth Chamber) dismissed the action as inadmissible.


title: Case C-288/15: Judgment of the Court (Eighth Chamber) of 9 June 2016 (reference for a preliminary ruling from the Finanzgericht München (Munich Finance Court, Germany)) — Medical Imaging Systems GmbH (MIS) v Hauptzollamt München (Reference for a preliminary ruling — Regulation (EEC) No 2658/87 — Common Customs Tariff — Tariff classification — Subheading 6211 3310 00 0 — Aprons — Anti-radiation protective coats)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/15

         Judgment of the Court (Eighth Chamber) of 9 June 2016 (reference for a preliminary ruling from the Finanzgericht München (Munich Finance Court, Germany)) — Medical Imaging Systems GmbH (MIS) v Hauptzollamt München
   (Case C-288/15) (1)

   ((Reference for a preliminary ruling - Regulation (EEC) No 2658/87 - Common Customs Tariff - Tariff classification - Subheading 6211 3310 00 0 - Aprons - Anti-radiation protective coats))
   (2016/C 296/20)
   Language of the case: German

      Referring court

   Finanzgericht München (Munich Finance Court, Germany)

      Parties to the main proceedings

      Applicant: Medical Imaging Systems GmbH (MIS)

      Defendant: Hauptzollamt München

      Operative part of the judgment

   The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012, must be interpreted as meaning that an anti-radiation protective apron-coat, such as that at issue in the main proceedings, must be classified in subheading 6211 33 10 00 0 of the CN due to its objective characteristics and properties, including, in particular, its external appearance, without it being necessary to refer to the components conferring on the product in question its essential character.

      (1)  OJ C 394, 7.9.2015.


title: Case C-282/12: Judgment of the Court (Fourth Chamber) of 3 October 2013 (request for a preliminary ruling from the Tribunal Central Administrativo Sul — Portugal) — ITELCAR — Automóveis de Aluguer Lda v Fazenda Pública (Free movement of capital — Tax legislation — Corporation tax — Interest paid by a resident company on funds lent by a company established in a non-member country — Existence of ‘special relations’ between those companies — Thin capitalisation rules — No right of deduction in relation to interest on the part of the overall debt regarded as excessive — Interest deductible if paid to a company resident in the national territory — Tax evasion and avoidance — Wholly artificial arrangements — Arm’s length terms — Proportionality)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/30

         Judgment of the Court (Fourth Chamber) of 3 October 2013 (request for a preliminary ruling from the Tribunal Central Administrativo Sul — Portugal) — ITELCAR — Automóveis de Aluguer Lda v Fazenda Pública
   (Case C-282/12) (1)

   (Free movement of capital - Tax legislation - Corporation tax - Interest paid by a resident company on funds lent by a company established in a non-member country - Existence of ‘special relations’ between those companies - Thin capitalisation rules - No right of deduction in relation to interest on the part of the overall debt regarded as excessive - Interest deductible if paid to a company resident in the national territory - Tax evasion and avoidance - Wholly artificial arrangements - Arm’s length terms - Proportionality)
   2013/C 344/51
   Language of the case: Portuguese

      Referring court

   Tribunal Central Administrativo Sul

      Parties to the main proceedings

      Appellant: ITELCAR — Automóveis de Aluguer Lda

      Respondent: Fazenda Pública

      Re:

   Request for a preliminary ruling — Tribunal Central Administrativo Sul (Portugal) — Interpretation of Article 63 TFEU and Article 65 TFEU — Tax legislation — Corporation tax — Interest deductible on borrowing — National rules providing for deduction in the case of excessive indebtedness to a company established in the national territory but not in the case of excessive indebtedness to a company established in a non-member country

      Operative part of the judgment

   Article 56 EC must be interpreted as meaning that, in the case of rules of a Member State which provide that, where interest applied to the part of an overall debt categorised as excessive has been paid by a resident company to a lending company established in a non-member country with which the borrowing company has special relations, it is not deductible as an expense for the purposes of determining taxable profit, but where such interest is paid to a resident lending company with which the borrowing company has special relations, it is deductible for those purposes, those rules are precluded where, if the lending company established in a non-member country does not have a shareholding in the resident borrowing company, they nevertheless presume that the overall debt owed by the borrowing company forms part of an arrangement designed to avoid the tax normally payable or where they do not make it possible, at the outset, to determine their scope with sufficient precision.

      (1)  OJ C 250, 18.8.2012.


title: Case C-124/15: Judgment of the Court (First Chamber) of 17 February 2016 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Salutas Pharma GmbH v Hauptzollamt Hanover (Reference for a preliminary ruling — Common Customs Tariff — Tariff classification — Combined Nomenclature — Heading 3004 — Effervescent tablets containing 500 mg of calcium — Level of substance per recommended daily dose significantly higher than the recommended daily allowance to maintain general health or well-being)

text:
               25.4.2016

               EN

               Official Journal of the European Union

               C 145/12

         Judgment of the Court (First Chamber) of 17 February 2016 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Salutas Pharma GmbH v Hauptzollamt Hanover
   (Case C-124/15) (1)

   ((Reference for a preliminary ruling - Common Customs Tariff - Tariff classification - Combined Nomenclature - Heading 3004 - Effervescent tablets containing 500 mg of calcium - Level of substance per recommended daily dose significantly higher than the recommended daily allowance to maintain general health or well-being))
   (2016/C 145/13)
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Salutas Pharma GmbH

      Defendant: Hauptzollamt Hanover

      Operative part of the judgment

   The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and the statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1006/2011 of 27 September 2011 must be interpreted as meaning that a product, such as effervescent tablets with a calcium content of 500 mg per tablet that is used for the prevention and treatment of a calcium deficiency and to support a special therapy for the prevention and treatment of osteoporosis, and for which the maximum recommended daily dose for adults indicated on the label is 1 500 mg, falls within heading 3004 of that nomenclature.

      (1)  OJ C 178, 1.6.2015.


               24.12.2005

               EN

               Official Journal of the European Union

               C 330/12

         Removal from the register of Case C-402/04 (1)

   (2005/C 330/25)

      Language of the case: French

   By order of 4 October 2005, the President of the Court of Justice (Fifth Chamber) of the European Communities has ordered the removal from the register of Case C-402/04: Commission of the European Communities v French Republic.

      (1)  OJ C 273, 6.11.2004.


title: Case C-426/11: Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Mark Alemo-Herron and Others v Parkwood Leisure Ltd (Transfer of undertakings — Directive 2001/23/EC — Safeguarding of employees’ rights — Collective agreement applicable to the transferor and to the employee at the time of the transfer)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/6

         Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Mark Alemo-Herron and Others v Parkwood Leisure Ltd
   (Case C-426/11) (1)

   (Transfer of undertakings - Directive 2001/23/EC - Safeguarding of employees’ rights - Collective agreement applicable to the transferor and to the employee at the time of the transfer)
   2013/C 260/10
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Applicants: Mark Alemo-Herron, Sandra Tipping, Christopher Anderson, Stacey Aris, Audrey Beckford, Lee Bennett, Delroy Carby, Vishnu Chetty, Deborah Cimitan, Victoria Clifton, Claudette Cummings, David Curtis, Stephen Flin, Patience Ijelekhai, Rosemarie Lee, Roxanne Lee, Vivian Ling, Michelle Nicholas, Lansdail Nugent, Anne O’Connor, Shirley Page, Alan Peel, Mathew Pennington, Laura Steward

      Defendant: Parkwood Leisure Ltd

      Re:

   Request for a preliminary ruling — Supreme Court of the United Kingdom — Alemo-Herron and Others v Parkwood Leisure Ltd — Interpretation of Council 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 businesses (OJ 2001 L 82, p. 16) in the light of the judgment of the Court of Justice of 12 March 2001 in Case C-499/04 Werhof v Freeway Traffic Systems — Extent of the transferee's obligations to comply with conditions relating to salaries under a collective agreement applicable to the transferor and the employee at the time of the transfer

      Operative part of the judgment

   Article 3 of Council 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, must be interpreted as precluding a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer are enforceable against the transferee, where that transferee does not have the possibility of participating in the negotiation process of such collective agreements concluded after the date of the transfer.

      (1)  OJ C 311, 22.10.2011.


title: Case C-76/99: Action brought on 3 March 1999 by the Commission of the European Communities against the French Republic

text:
15.5.1999             EN                    Official Journal of the European Communities                                        C 136/11
Action brought on 3 March 1999 by the Commission of                    (Administrative Court) Frankfurt am Main of 18 January 1999,
 the European Communities against the French Republic                  which was received at the Court Registry on 4 March 1999,
                                                                       for a preliminary ruling in the case of Julia Schnorbus v Land
                                                                       Hessen on the following questions:
                         (Case C-76/99)
                                                                       1. Under Sections 24 (2) JAG and 14(a) JAO, where a decision
                        (1999/C 136/18)
                                                                           concerning the admission of applicants to practical legal
                                                                           training is required because the number of applicants
An action against the French Republic was brought before the               exceeds the number of training places, an applicant who
Court of Justice of the European Communities on 3 March                    has completed a duty of service which is only obligatory
1999 by the Commission of the European Communities,                        on men (military or substitute service pursuant to Article
represented by Enrico Traversa, Legal Adviser, acting as Agent,            12 a GG) is to be immediately admitted to the training and
assisted by Nicole Coutrelis, of the Paris Bar, with an address            does not have to satisfy any further requirements in that
for service in Luxembourg at the office of Carlos Gómez de la             regard, whereas the admission of other applicants (female
Cruz, Wagner Centre, Kirchberg.                                            and male) may be deferred by up to 12 months. Does such
                                                                           a rule fall within the scope of Directive 76/207/EEC of 9
                                                                           February 1976 on the implementation of the principle of
The Commission of the European Communities claims that                     equal treatment for men and women as regards access to
the Court should:                                                          employment, vocational training and promotion, and
                                                                           working conditions (1)?
— declare that, by levying VAT on fixed allowances for the
    taking of medical samples for medical analysis, the French
    Republic has failed to fulfil its obligations under Article        2. If Question 1 is to be answered in the affirmative, then:
    13A(1)(b) of Council Directive 77/388/EEC (the Sixth VAT
    Directive) (1);                                                        Does such a rule which, insofar as, exclusively in regard to
                                                                           performance of the duty of service, it results in the
— order the French Republic to pay the costs.                              preferential admission of male applicants to practical legal
                                                                           training, amount to direct discrimination on grounds of
                                                                           sex within the meaning of Article 2(1) of Directive
Pleas in law and main arguments                                            76/207/EEC?
In the Commission’s view, the term ‘activities...closely related’      3. If Question 2 is to be answered in the negative:
to medical care includes the despatch of a sample by the
laboratory which has taken it to another, more specialised                 Does the rule cause indirect discrimination?
laboratory which is the only laboratory authorised under the
national rules to analyse the sample in question. It follows that
the exemption laid down by Article 13A(1)(b) of the Sixth              4. Does the fact that the said rule automatically results in the
Directive must apply to fixed allowances payable under those               preferential admission of men to training without a
rules by the specialised laboratory to the laboratory by which             decision on the matter being subject to an assessment of
the sample was taken. The distinction drawn in France, for the             the individual circumstances or of other relevant factors
purposes of the VAT system, between ordinary analyses and                  meriting consideration in the interests of the remaining
special analyses offends against the principles of neutrality and          applicants in itself preclude justification of the rule for the
uniformity which are applicable to intra-Community VAT.                    purposes of Article 2(4) of Directive 76/207/EEC because
                                                                           it is to that extent more than a measure to promote equal
                                                                           opportunity?
(1) OJ L 145, 13.6.1977, p. 1.
                                                                       5. If question 4 is to be answered in the negative:
                                                                           Is such a rule not justifiable under Article 2(4) of Directive
                                                                           76/207/EEC because only measures which serve to pro-
                                                                           mote equal opportunity in favour of women are permiss-
                                                                           ible thereunder?
Reference for a preliminary ruling from the Verwaltungs-
                                                                       6. If question 5 is to be answered in the negative:
gericht Frankfurt am Main, by order of that court of
18 January 1999 in the case of Julia Schnorbus v Land
                              Hessen                                       Is the mere fact that only men are subject to duties of
                                                                           service under Articles 12 a (1) and (2) GG itself to be
                                                                           regarded as an actual existing inequality within the mean-
                         (Case C-79/99)                                    ing of Article 2(4) of Directive 76/207/EEC which in
                                                                           itself prejudicially affects men’s opportunities in the areas
                        (1999/C 136/19)                                    referred to in Article 1 (1) of the directive, or are the
                                                                           disadvantages faced by women in employment and the
                                                                           risks to which they are in fact exposed on grounds of their
Reference has been made to the Court of Justice of the                     sex also to be taken into account before such a conclusion
European Communities by order of the Verwaltungsgericht                    can be reached?


title: Case C-199/02: Action brought on 29 May 2002 by the European Parliament against Chubb Insurance Company of Europe SA, Commercial General Norwich Union and Royal Sun Alliance Belgium

text:
C 233/12                 EN                      Official Journal of the European Communities                                  28.9.2002
                     ORDER OF THE COURT                                     Action brought on 29 May 2002 by the European Parlia-
                                                                            ment against Chubb Insurance Company of Europe SA,
                                                                            Commercial General Norwich Union and Royal Sun
                           (First Chamber)                                                         Alliance Belgium
                                                                                (Case C-199/02)
                           of 14 June 2002
                                                                                (2002/C 233/19)
in Case C-248/01 (reference for a preliminary ruling from
the Landesgericht Feldkirch): Hermann Pfanner Getränke
GmbH and Others, Getränkebetrieb GmbH and Others (1)                        An action against Chubb Insurance Company of Europe SA,
                                                                            Commercial General Norwich Union and Royal Sun Alliance
                                                                            Belgium was brought before the Court of Justice of the
(Article 92(1) of the Rules of Procedure — Reference for a                  European Communities on 29 May 2002 by the European
preliminary ruling — Disclosure of annual accounts and                      Parliament, represented by D. Petersheim and O. Caisou-
annual report — Maintenance of a register of companies —                    Rousseau, acting as Agents, with an address for service in
                 Lack of jurisdiction of the Court)                         Luxembourg.
                                                                            The European Parliament claims that the Court should:
                           (2002/C 233/18)
                                                                            1.    order the defendants to reimburse the European Parlia-
                                                                                ment the costs of repairing the storm damage caused to
                    (Language of the case: German)                                its Alucobond panels on 26 December 1999, amounting
                                                                                to EUR 1 194 378,43 together with interest on account
                                                                                of late payment;
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                          2.    order Chubb to reimburse the European Parliament
                                                                                expert’s fees amounting to EUR 2 200,64 together with
                                                                                interest on account of late payment;
                                                                            3.    order the defendants to pay the costs.
In Case C-248/01: reference to the Court under Article 234 EC
from the Landesgericht Feldkirch (Regional Court, Feldkirch)
(Austria), for a preliminary ruling in proceedings before that              Pleas in law and main arguments
Landesgericht brought by Hermann Pfanner Getränke GmbH
and Others and Getränkebetrieb GmbH and Others on the
validity and interpretation of the First Council Directive 68/              The action is brought on the basis of an arbitration clause.
151/EEC of 9 March 1968 on co-ordination of safeguards                      The applicant takes the view that the defendant insurance
which, for the protection of the interests of members and                   companies are not entitled to rely upon an exclusion clause
others, are required by Member States of companies within the               set out under the heading ‘storms and hailstorms’ in the
meaning of the second paragraph of Article 58 of the Treaty,                supplementary general conditions of the contract of insurance.
with a view to making such safeguards equivalent throughout
the Community (OJ, English Special Edition 1968 (I), p. 41)
and of the Fourth Council Directive 78/660/EEC of 25 July
1978 based on Article 54(3)(g) of the Treaty on the annual
accounts of certain types of companies (OJ 1978 L 222, p. 11)
— the Court (First Chamber), composed of: P. Jann, President
of the Chamber, M. Wathelet (Rapporteur) and A. Rosas,                      Reference for a preliminary ruling by the VAT and Duties
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,               Tribunals, London Tribunal Centre, by direction of that
made an order on 14 June 2002, in which it ruled:                           court dated 27 June 2002, in the case of Halifax plc, Leeds
                                                                            Permanent Development Services Ltd, County Wide
                                                                            Property Investments Ltd against Commissioners of Cus-
The Court of Justice of the European Communities clearly has no                                    toms and Excise
jurisdiction to answer the questions put by the Landesgericht Feldkirch
in its order of 22 June 2001.                                                                       (Case C-255/02)
                                                                                (2002/C 233/20)
( 1) OJ C 289 of 13.10.2001.
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by a direction of the VAT and Duties


title: Case T-208/12: Action brought on 18 May 2012 — Think Schuhwerk v OHIM (Shoes with red aglets)

text:
               14.7.2012

               EN

               Official Journal of the European Union

               C 209/11

         Action brought on 18 May 2012 — Think Schuhwerk v OHIM (Shoes with red aglets)
   (Case T-208/12)
   2012/C 209/19
   Language of the case: German

      Parties

      Applicant: Think Schuhwerk GmbH (Kopfing, Austria) (represented by M. Gail, lawyer)

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

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2012 in Case R 1552/2011-1;

               —

               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and to pay those of the applicant.

      Pleas in law and main arguments

      Community trade mark concerned: Other mark relating to shoes with laces at the end of which are red aglets, for goods in Class 25 — Application No 9 130 361

      Decision of the Examiner: Registration refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               —

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

               —

               Infringement of the principle of equal treatment


title: Case C-347/01: Action brought on 13 September 2001 by the Commission of the European Communities against the Federal Republic of Germany

text:
24.11.2001            EN                     Official Journal of the European Communities                                      C 331/9
Pleas in law and main arguments                                         Pleas in law and main arguments
                                                                        The pleas in law and main arguments are the same as those in
As a result of the fact that directives are binding in nature           Case C-345/01 (2).
pursuant to the third paragraph of Article 249 EC and the first
paragraph of Article 10 EC, the Member States to which a
directive is addressed are bound to transpose the provisions in         (1) OJ L 330 of 5.12.1998, p. 13.
the directive into domestic law so that they are fully effective        (2) See p. 8 of this Official Journal.
by the time the deadline for transposition expires. That
deadline expired on 5 June 2000 without Austria having
adopted the requisite provisions.
(1) OJ 1998 L 330, p. 13.
(2) OJ 1990 L 117, p. 1.                                                Action brought on 13 September 2001 by the Com-
                                                                        mission of the European Communities against the Federal
                                                                                Republic of Germany
                                                                                (Case C-347/01)
                                                                                (2001/C 331/14)
Action brought on 13 September 2001 by the Com-                         An action against the Federal Republic of Germany was
mission of the European Communities against the Federal                 brought before the Court of Justice of the European Communi-
                     Republic of Germany                                ties on 13 September 2001 by the Commission of the
                                                                        European Communities represented by Götz zur Hausen, a
                                                                        legal adviser in the Legal Service of the Commission of
                         (Case C-346/01)                                the European Communities, with an address for service in
                                                                        Luxembourg at the office of Luis Escobar Guerrero, a member
                                                                        of the Legal Service of the European Commission, Wagner
                         (2001/C 331/13)
                                                                        Centre C 254, Kirchberg, Luxembourg.
                                                                        The applicant claims that the Court should:
An action against the Federal Republic of Germany was                   1.    Declare that, by failing to adopt the laws, regulations
brought before the Court of Justice of the European Communi-                  and administrative provisions necessary to comply with
ties on 13 September 2001 by the Commission of the                            Directive 98/8/EC (1) of the European Parliament and of
European Communities represented by Götz zur Hausen, a                        the Council of 16 February 1998 concerning the placing
legal adviser in the Legal Service of the Commission of                       of biocidal products on the market, or at least by failing
the European Communities, with an address for service in                      to communicate them to the Commission, the Federal
Luxembourg at the office of Luis Escobar Guerrero, a member                   Republic of Germany has failed to fulfil its obligations
of the Legal Service of the European Commission, Wagner                       under Article 34(1) of that directive.
Centre C 254, Kirchberg, Luxembourg.
                                                                        2.    Order the Federal Republic of Germany to pay the costs.
The applicant claims that the Court should:
                                                                        Pleas in law and main arguments
1.    Declare that, by failing to adopt the laws, regulations and
      administrative provisions necessary in order to comply
      with Council Directive 98/81/EEC (1) of 26 October 1998           The pleas in law and main arguments are the same as those in
      amending Directive 90/219/EEC on the contained use of             Case C-345/01 (2): the deadline for transposition expired on
      genetically modified micro-organisms, or at least by              14 May 2000.
      failing to inform the Commission thereof, the Federal
      Republic of Germany has failed to fulfil its obligations
                                                                        (1) OJ L 123 of 24.4.1998, p. 1.
      under Article 2(1) of that Directive.
                                                                        (2) See p. 8 of this Official Journal.
2.    Order the Federal Republic of Germany to pay the costs.


title: Case C-281/13 P: Order of the Court (Fourth Chamber) of 3 April 2014 — Lord Inglewood and Others v European Parliament (Appeal — Additional pension scheme for Members of the European Parliament — Amendment to the additional pension scheme in 2009 — Decisions rejecting the appellants’ applications to benefit from the provisions in force before amendment of the scheme — Errors of law — Legal certainty — Legitimate expectations — Equal treatment — Principle of proportionality)

text:
               16.6.2014

               EN

               Official Journal of the European Union

               C 184/7

         Order of the Court (Fourth Chamber) of 3 April 2014 — Lord Inglewood and Others v European Parliament
   (Case C-281/13 P) (1)

   ((Appeal - Additional pension scheme for Members of the European Parliament - Amendment to the additional pension scheme in 2009 - Decisions rejecting the appellants’ applications to benefit from the provisions in force before amendment of the scheme - Errors of law - Legal certainty - Legitimate expectations - Equal treatment - Principle of proportionality))
   2014/C 184/09
   Language of the case: French

      Parties

      Appellants: Lord Inglewood, Georges Berthu, Guy Bono, David Robert Bowe, Brendan Donnelly, Catherine Guy-Quint, Christine Margaret Oddy, Nicole Thomas-Mauro, Gary Titley, Maartje van Putten, Vincenzo Viola (represented by: S. Orlandi, avocat)

      Other party to the proceedings: European Parliament (represented by: M. Windisch and S. Seyr, acting as Agents)

      Re:

   Appeal brought against the judgment of the General Court (Fourth Chamber) of 13 March 2013 in Joined Cases T-229/11 and T-276/11 Inglewood and Others v Parliament, by which the General Court dismissed the appellants’ action for annulment of the decisions of the European Parliament refusing to grant them their voluntary additional pension, early, at the age of 60 or in part in the form of a lump sum — Errors of law — Infringement of acquired rights — Infringement of the principles of legitimate expectations, legal certainty, equal treatment and proportionality

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Lord Inglewood, Mr Georges Berthu, Mr Guy Bono, Mr David Robert Bowe, Mr Brendan Donnelly, Ms Catherine Guy-Quint, Ms Christine Margaret Oddy, Ms Nicole Thomas-Mauro, Mr Gary Titley, Ms Maartje van Putten and Mr Vincenzo Viola are ordered to pay the costs.

      (1)  OJ C 226, 03.08.2013.


title: Case T-331/07: Order of the Court of First Instance of 6 June 2008 — Chupa Chups v Commission

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/36

         Order of the Court of First Instance of 6 June 2008 — Chupa Chups v Commission
   (Case T-331/07) (1)

   (2008/C 197/69)

      Language of the case: Spanish

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

      (1)  OJ C 247, 20.10.2007.


title: Case C-506/04: Reference for a preliminary ruling by the Cour administrative (Grand Duchy of Luxembourg) by judgment of that court of 7 December 2004, in the case of Graham J. Wilson against Conseil de l'Ordre des avocats du barreau de Luxembourg

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/15

         Reference for a preliminary ruling by the Cour administrative (Grand Duchy of Luxembourg) by judgment of that court of 7 December 2004, in the case of Graham J. Wilson against Conseil de l'Ordre des avocats du barreau de Luxembourg
   (Case C-506/04)
   (2005/C 31/30)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by judgment of the Cour administrative (Higher Administrative Court) Grand Duchy of Luxembourg, of 7 December 2004 received at the Court Registry on 9 December 2004, for a preliminary ruling in the case of Graham J. Wilson against Conseil de l'Ordre des avocats du barreau de Luxembourg on the following questions:

               1.

               Should Article 9 of Directive 98/5 (1) to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained be interpreted as precluding appeal proceedings as provided for under the Law of 10 August 1991, as amended by the Law of 13 November 2002?

               2.

               More particularly, do appeal bodies such as the Conseil disciplinaire et administratif and the Conseil disciplinaire et administratif d'appel constitute ‘a remedy before a court or tribunal in accordance with domestic law’ within the meaning of Article 9 of Directive 98/5 and should Article 9 be interpreted as precluding a remedy which requires referral to one or more bodies of this nature before it becomes possible to refer a matter on a question of law to a ‘court or tribunal’ within the meaning of Article 9?

         and subject to a later ruling on the jurisdiction of the administrative courts and the admissibility of the action, the procedural and substantive pleas of the parties remaining the same, on the following questions:

               3.

               Are the competent authorities of a Member State authorised to subject the right of a lawyer of a Member State to practise on a permanent basis the profession of lawyer under his home-country professional title in the areas of activity specified in Article 5 of Directive 98/5/EC to a requirement of proficiency in the languages of that Member State?

               4.

               In particular, may the competent authorities make the right to practise the profession subject to the condition that the lawyer sit an oral examination in all (or more than one) of the three main languages of the host Member State for the purpose of allowing the competent authorities to verify whether the lawyer is proficient in the three languages, and if so, what procedural guarantees, if any, are required?

      (1)  Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ L 77, 14.3.1998, p. 36).


title: Case F-39/06: Order of the Civil Service Tribunal (Third Chamber) of 29 March 2007 — Chassagne v Commission (Officials — Remuneration — Annual travel expenses — Provisions applicable to officials originating from French overseas departments — Article 8 of Annex VII to the amended Staff Regulations — Application manifestly unfounded in law)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/41

         Order of the Civil Service Tribunal (Third Chamber) of 29 March 2007 — Chassagne v Commission
   (Case F-39/06) (1)

   (Officials - Remuneration - Annual travel expenses - Provisions applicable to officials originating from French overseas departments - Article 8 of Annex VII to the amended Staff Regulations - Application manifestly unfounded in law)
   (2007/C 96/86)
   Language of the case: French
   Parties

      Applicant: Olivier Chassagne (Brussels, Belgium) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

      Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, Agents)

      Intervener in support of the defendant: Council of the European Union (represented by M. Bauer and I. Sulce, Agents)
   Re:
   Application for, first, an acknowledgement that Article 8 of Annex VII to the Staff Regulations, in the version in force since 1 May 2004, is illegal and consequently inapplicable to the applicant for the purpose of establishing the sum of annual travel expenses to be reimbursed and, secondly, an application for damages.
   Operative part of the order

               1.

               The action is dismissed.

               2.

               Each party is to bear its own costs.

      (1)  OJ C 131, 3.6.2006, p. 53.


title: Case C-321/11: Judgment of the Court (Third Chamber) of 4 October 2012 (reference for a preliminary ruling from the Juzgado de lo Mercantil No 2, A Coruña — Spain) — Germán Rodríguez Cachafeiro, María de los Reyes Martínez-Reboredo Varela-Villamor v Iberia, Líneas Aéreas de España SA (Air transport — Regulation (EC) No 261/2004 — Compensation for passengers in the event of denied boarding — Concept of ‘denied boarding’ — Cancellation of a passenger’s boarding card by an air carrier because of the anticipated delay to an earlier flight also operated by it which included check-in for the flight concerned)

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/13

         Judgment of the Court (Third Chamber) of 4 October 2012 (reference for a preliminary ruling from the Juzgado de lo Mercantil No 2, A Coruña — Spain) — Germán Rodríguez Cachafeiro, María de los Reyes Martínez-Reboredo Varela-Villamor v Iberia, Líneas Aéreas de España SA
   (Case C-321/11) (1)

   (Air transport - Regulation (EC) No 261/2004 - Compensation for passengers in the event of denied boarding - Concept of ‘denied boarding’ - Cancellation of a passenger’s boarding card by an air carrier because of the anticipated delay to an earlier flight also operated by it which included check-in for the flight concerned)
   2012/C 366/21
   Language of the case: Spanish

      Referring court

   Juzgado de lo Mercantil No 2, A Coruña

      Parties to the main proceedings

      Applicants: Germán Rodríguez Cachafeiro, María de los Reyes Martínez-Reboredo Varela-Villamor

      Defendant: Iberia, Líneas Aéreas de España SA

      Re:

   Reference for a preliminary ruling — Juzgado de lo Mercantil No 2 de A Coruña — Interpretation of Articles 2(j), 3(2), 4(3), 5 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Concept of ‘denied boarding’ — Denial of boarding on a connecting flight because of delay to the first flight attributable to the airline — Allocation of seats on the connecting flight to other passengers because it was envisaged that it would be impossible for the passengers in question to arrive in time to catch their connecting flight, which was not the case

      Operative part of the judgment

   Article 2(j) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in conjunction with Article 3(2) of Regulation No 261/2004, must be interpreted as meaning that the concept of ‘denied boarding’ includes a situation where, in the context of a single contract of carriage involving a number of reservations on immediately connecting flights and a single check-in, an air carrier denies boarding to some passengers on the ground that the first flight included in their reservation has been subject to a delay attributable to that carrier and the latter mistakenly expected those passengers not to arrive in time to board the second flight.

      (1)  OJ C 282, 24.9.2011.


title: Case C-434/10: Reference for a preliminary ruling from the Administrativen sad Sofia-grad — (Bulgaria) lodged on 6 September 2010 — Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/16

         Reference for a preliminary ruling from the Administrativen sad Sofia-grad — (Bulgaria) lodged on 6 September 2010 — Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti
   (Case C-434/10)
   ()
   2010/C 317/31
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Sofia-grad

      Parties to the main proceedings

      Applicant: Petar Aladzhov

      Defendant: Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti

      Questions referred

               1.

               Must the prohibition on leaving the territory of a Member State of the European Union which has been imposed on a national of that State as the director of a commercial company registered under the law of the State concerned on account of unpaid public-law debts owed by that company be regarded as falling within the scope of the ground of protection of ‘public policy’ provided for in Article 27(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) in the circumstances of the main proceedings and where the following circumstances also obtain:

                           1.1.

                           the constitution of that Member State makes no provision for restricting the freedom of movement of natural persons for the purpose of protecting public policy;

                           1.2.

                           the ground of ‘public policy’ as a basis for imposing the aforementioned prohibition is contained in a national law which was adopted in order to transpose another legislative act of the European Union;

                           1.3.

                           the ground of ‘public policy’ within the meaning of the aforementioned provision of the directive also includes the ground of ‘protection of the rights of other citizens’ where a measure is adopted to secure the budgetary revenue of the Member State by means of the settlement of public-law debts?

               2.

               In the circumstances of the main proceedings, does it follow from the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and from the measures adopted in accordance with EU law to give them effect that a national rule of law under which the Member State imposes on one of its nationals, in his capacity as director of a commercial company registered under the law of the Member State concerned, an administrative coercive measure in the form of a ‘prohibition on leaving the country’ on account of unpaid public-law debts owed to that State which are classified as ‘considerable’ under its law is permissible where the procedure for cooperation between the Member States under Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (2) and Commission Regulation (EC) No 1179/2008 laying down detailed rules for implementing certain provisions of Directive 2008/55 (3) may be applied for the purpose of settling the debt?

               3.

               In the circumstances of the main proceedings, are the principle of proportionality and the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and the measures adopted in accordance with EU law to give them effect, or as the case may be the criteria contained in Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family Members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, to be interpreted as meaning that, where a commercial company registered under the law of a Member State owes a public-law debt classified as a ‘considerable debt’ under the law of that State, they allow a natural person who is the director of the company concerned to be prohibited from leaving that Member State where the following circumstances obtain:

                           3.1.

                           the existence of a ‘considerable’ public-law debt is regarded as a genuine, present and sufficiently serious threat affecting a fundamental interest of society, an assessment which the legislature has made by introducing the specific administrative measure of a ‘prohibition on leaving the country’;

                           3.2.

                           no provision is made for an assessment of circumstances connected with the personal conduct of the director or with an infringement of his fundamental rights, such as his right to pursue an occupational activity involving travelling abroad under a separate legal relationship;

                           3.3.

                           the consequences for the commercial activities of the debtor company and the possibilities of settling the public-law debt are not assessed after the prohibition has been imposed;

                           3.4.

                           the prohibition is imposed on the basis of an application which is binding if it certifies that a ‘considerable’ public-law debt exists which is owed by a specific commercial company, that the debt is not secured to an extent sufficient to cover the principal and the interest, and that the person against whom the imposition of the prohibition is applied for is a member of an executive body of that commercial company;

                           3.5.

                           the prohibition lasts until such time as the public-law debt is fully settled or secured, but no provision is made for a review of that prohibition on application by the addressee to the authority which imposed the prohibion or for account to be taken of the limitation period applicable to the debt?

      (1)  OJ L 158, p. 77.

      (2)  OJ L 150, p. 28.

      (3)  OJ L 319, p. 21.


title: Case C-274/09: Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 20 July 2009 — Privater Rettungsdienst und Krankentransport Stadler v Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau — Joined parties: Malteser Hilfsdienst e.V. and Bayerisches Rotes Kreuz

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/28

         Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 20 July 2009 — Privater Rettungsdienst und Krankentransport Stadler v Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau — Joined parties: Malteser Hilfsdienst e.V. and Bayerisches Rotes Kreuz
   (Case C-274/09)
   2009/C 267/50
   Language of the case: German

      Referring court

   Oberlandesgericht München

      Parties to the main proceedings

      Claimant: Privater Rettungsdienst und Krankentransport Stadler

      Defendant: Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau

      Joined parties: Malteser Hilfsdienst e.V. and Bayerisches Rotes Kreuz

      Questions referred

   The following questions are referred to the Court of Justice of the European Community for a preliminary ruling on the interpretation of Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1) (‘the Directive’) pursuant to the first paragraph of Article 234 EC:

               1.

               Is a contract relating to the supply of services (here, rescue services) under the terms of which the contracting authority does not make a direct payment of consideration to the contractor, but:

                           (a)

                           the usage fee for the services to be provided is set by negotiation between the contractor and third parties who are contracting authorities (here, social security institutions),

                           (b)

                           if agreement is not reached provision is made for a decision by an arbitration board established to this end, whose decision is subject to review by State courts, and

                           (c)

                           the fee is paid to the contractor not directly by the users, but in regular payments on account by a central settlement office whose services the contractor is statutorily required to call upon,

                     to be regarded for that reason alone as a service concession within the meaning of Article 1(4) of the Directive as distinct from a service contract for the purposes of Article 1(2)(a) and (d) of the Directive?

               2.

               If the first question referred is to be answered in the negative, is there a service concession where the operating risk connected with the public services is limited because:

                           (a)

                           under a statutory provision, the usage fees for the provision of the services are to be based on the costs that can be estimated in accordance with economic principles applicable to undertakings and that are consistent with proper provision of services, economical and cost-efficient management and efficient organisation,

                           (b)

                           the usage fees are due from solvent social security institutions,

                           (c)

                           a certain exclusivity of exploitation is guaranteed in the contractually stipulated area,

                     but the contractor assumes this limited risk entirely?

      (1)  OJ 2004 L 134, p. 114.


title: Judgment of the Court of 26 September 2000 in Case C-205/98: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 93/89/EEC — Tolls — Brenner motorway — Prohibition of discrimination — Obligation to set toll rates by reference to the costs of the infrastructure network concerned)

text:
C 335/10                 EN                     Official Journal of the European Communities                                        25.11.2000
The principle of equal treatment, as laid down in Article 3(1) of          The Combined Nomenclature as set out in Annex 1 of Commission
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on              Regulation (EEC) No 3174/88 of 21 September 1988 amending
the application of social security schemes to employed persons, to self-   Annex I to Council Regulation (EEC) No 2658/87 on the tariff and
employed persons and to members of their families moving within            statistical nomenclature and on the Common Customs Tariff is to be
the Community, as amended by Council Regulation (EEC) No                   interpreted as meaning that a product made by adding rennet to
1945/93 of 30 June 1993, precludes national legislation which              skimmed milk and made up of 54 % water, 0,9 % fat, 5,7 %
fixes the minimum amount of a cash benefit that can be paid to a           phosphorous and 2 % salt and casein must be classified under tariff
Community national residing in another Member State at a higher            subheading 0406 90 11‘Other cheese: — For processing’.
level than that required where that payment is made within the same
Member State, in circumstances where the payment to be sent to
another Member State does not involve expenses higher than those           (1) OJ C 100 of 10.4.1999.
incurred in respect of the payment of the same benefit within the first
Member State.
(1) OJ C 174 of 19.6.1999.
                                                                                JUDGMENT OF THE COURT
                                                                                of 26 September 2000
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)                                 in Case C-205/98: Commission of the European Communi-
                                                                                ties v Republic of Austria (1)
                      of 26 September 2000
                                                                           (Failure of a Member State to fulfil obligations — Directive
in Case C-42/99 (reference for a preliminary ruling from                   93/89/EEC — Tolls — Brenner motorway — Prohibition of
the Supremo Tribunal Administrativo, Portugal): Fábrica                   discrimination — Obligation to set toll rates by reference to
de Queijo Eru Portuguesa Ld.a v Tribunal Técnico                                  the costs of the infrastructure network concerned)
              Aduaneiro de Segunda Instância (1)
                                                                                (2000/C 335/19)
(Free movement of goods — Common Customs Tariff —
Tariff heading — Cheese or casein — Regulation (EEC) No
                               3174/88)                                                        (Language of the case: Dutch)
                           (2000/C 335/18)
                                                                           (Provisional translation; the definitive translation will be published
                  (Language of the case: Portuguese)                                          in the European Court Reports)
                                                                           In Case C-205/98: Commission of the European Communities
(Provisional translation; the definitive translation will be published     (Agents: L. Pignataro and A. Buschmann) v Republic of Austria
                    in the European Court Reports)                         (Agents: H. Dossi) — application for a declaration that, by
                                                                           raising from 1 July 1995 and from 1 February 1996 the tolls
In Case C-42/99: reference to the Court under Article 177 of               for the whole Brenner motorway, a transit route through
the EC Treaty (now Article 234 EC) from the Supremo                        Austria used predominantly by goods vehicles of over 12
Tribunal Administrativo (Supreme Administrative Court) for a               tonnes from other Member States, and by not imposing the
preliminary ruling in the proceedings pending before that                  said tolls only to cover the costs of constructing, operating
court between Fábrica de Queijo Eru Portuguesa Ld.a and                   and developing the Brenner motorway, the Republic of Austria
Tribunal Técnico Aduaneiro de Segunda Instância in the                     has failed to fulfil its obligations under Article 7(b) and Article
presence of: Ministério Público — on the interpretation of the            7(h) of Council Directive 93/89/EEC of 25 October 1993 on
Combined Nomenclature as set out in Annex I of Commission                  the application by Member States of taxes on certain vehicles
Regulation (EEC) No 3174/88 of 21 September 1988                           used for the carriage of goods by road and tolls and charges
amending Annex I to Council Regulation (EEC) No 2658/87                    for the use of certain infrastructures (OJ 1993 L 279, p. 32) —
on the tariff and statistical nomenclature and on the Common               the Court, composed of: G.C. Rodrı́guez Iglesias, President,
Customs Tariff (OJ 1988 L 298 p. 1) — the Court (Fifth                     J.C. Moitinho de Almeida (Rapporteur), L. Sevón, R. Schintgen
Chamber), composed of: D.A.O. Edward, President of the                     (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann,
Chamber, L. Sevón, P.J.G. Kapteyn, H. Ragnemalm (Rappor-                  J.-P. Puissochet, P. Jann, M. Wathelet, V. Skouris and F. Macken,
teur) and M. Wathelet, Judges; N. Fennelly, Advocate General;              Judges; A. Saggio, Advocate General; H.A. Rühl, Principal
H.A. Rühl, Principal Administrator, for the Registrar, has given           Administrator, for the Registrar, has given a judgment on
a judgment on 26 September 2000, in which it has ruled:                    26 September 2000, in which it:
 ---pagebreak--- 25.11.2000                 EN                      Official Journal of the European Communities                                           C 335/11
1.    Declares that, by raising, on 1 July 1995 and 1 February                for the award of public works contracts (OJ, English Special
      1996, the tolls for the full itinerary on the Brenner motorway,         Edition 1971 (II), p. 682), as amended by Council Directive
      a transit route through Austria used predominantly by goods             89/440/EEC of 18 July 1989 (OJ 1989 L 210, p. 1), in
      vehicles of a maximum permissible gross laden weight of not             particular under Articles 12, 26 and 29 thereof, and under
      less than 12 tonnes registered in other Member States, but not          Council Directive 93/37/EEC of 14 June 1993 concerning the
      for partial itineraries on that motorway, the great majority of         coordination of procedures for the award of public works
      the users of which are vehicles of a maximum permissible gross          contracts (OJ 1993 L 199, p. 54), in particular under Articles
      laden weight of not less than 12 tonnes used for the same type          8, 11, 22 and 30 thereof — the Court, composed of:
      of transport and registered in Austria, and, second, by not             G.C. Rodrı́guez Iglesias, President, J.C. Moitinho de Almeida,
      applying the abovementioned tolls only in order to cover the            D.A.O. Edward, L. Sevón and R. Schintgen (Presidents of
      costs linked with the construction, operation and development           Chambers), J.-P. Puissochet, P. Jann, H. Ragnemalm and
      of the Brenner motorway, the Republic of Austria has failed to          V. Skouris (Rapporteur), Judges; S. Alber, Advocate General;
      fulfil its obligations under, respectively, Article 7(b) and Article    D. Louterman-Hubeau, Principal Administrator, for the Regis-
      7(h) of Council Directive 93/89/EEC on the application by               trar, has given a judgment on 26 September 2000, in which it:
      Member States of taxes on certain vehicles used for the carriage
      of goods by road and tolls and charges for the use of certain           1.    Declares that, in the course of the various procedures for the
      infrastructures;                                                              award of public works contracts for the construction and
                                                                                maintenance of school buildings conducted by the Nord-Pas-
2.    Orders the Republic of Austria to pay the costs.                              de-Calais Région and the Département du Nord over a period
                                                                                of three years, the French Republic has failed to fulfil its
                                                                                obligations under Article 59 of the EC Treaty (now, after
(1) OJ C 234 of 25.7.1998.                                                          amendment, Article 49 EC) as well as under Articles 12(5),
                                                                                26 and 29(2) of Council Directive 71/305/EEC of 26 July
                                                                                1971 concerning the coordination of procedures for the award
                                                                                of public works contracts, as amended by Council Directive
                                                                                89/440/EEC of 18 July 1989, and under Articles 8(3),
                                                                                11(5), 22(2) and 30(2) of Council Directive 93/37/EEC of
                                                                                14 June 1993 concerning the coordination of procedures for
                                                                                the award of public works contracts;
                   JUDGMENT OF THE COURT                                      2.    Dismisses the application as to the remainder;
                          of 26 September 2000                                3.    Orders the French Republic and the Commission of the
                                                                                European Communities to bear their own costs.
in Case C-225/98: Commission of the European Communi-
                        ties v French Republic (1)                            (1) OJ C 258 of 15.8.1998.
(Failure of a Member State to fulfil its obligations — Public
works contracts — Directives 71/305/EEC, as amended by
Directive 89/440/EEC, and 93/37/EEC — Construction and
maintenance of school buildings by the Nord-Pas-de-Calais                                      JUDGMENT OF THE COURT
               Région and the Département du Nord)
                                                                                (Fifth Chamber)
                             (2000/C 335/20)
                                                                                of 26 September 2000
                       (Language of the case: French)                         in Case C-322/98 (reference for a preliminary ruling from
                                                                              Landesarbeitsgericht Hamburg): Bärbel Kachelmann v
                                                                                Bankhaus Hermann Lampe KG (1)
(Provisional translation; the definitive translation will be published
                                                                              (Social policy — Male and female workers — Access to
                      in the European Court Reports)
                                                                              employment and working conditions — Equal treatment —
                                                                                Conditions governing dismissal)
In Case C-225/98: Commission of the European Communities
(Agent: M. Nolin) v French Republic (Agents: K. Rispal-                                                 (2000/C 335/21)
Bellanger and A. Viéville-Bréville) application for a declaration
that, in the course of the various procedures for the award of
                                                                                (Language of the case: German)
public works contracts for the construction and maintenance
of school buildings conducted by the Nord-Pas-de-Calais
Région and the Département du Nord over a period of three                     (Provisional translation; the definitive translation will be published
years, the French Republic has failed to fulfil its obligations                                  in the European Court Reports)
under Article 59 of the EC Treaty (now, after amendment,
Article 49 EC) as well as under Council Directive 71/305/EEC                  In Case C-322/98: reference to the Court under Article 177 of
of 26 July 1971 concerning the coordination of procedures                     the EC Treaty (now Article 234 EC) by the Audiencia Provincial