title: Case T-57/16: Judgment of the General Court of 18 July 2017 — Chanel v EUIPO — Jing Zhou and Golden Rose 999 (Ornamentation) (Community design — Invalidity proceedings — Registered Community design representing ornamentation — Earlier design — Ground for invalidity — No individual character — Product at issue — Degree of freedom of the designer — No different overall impression — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002)

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/37

         Judgment of the General Court of 18 July 2017 — Chanel v EUIPO — Jing Zhou and Golden Rose 999 (Ornamentation)
   (Case T-57/16) (1)

   ((Community design - Invalidity proceedings - Registered Community design representing ornamentation - Earlier design - Ground for invalidity - No individual character - Product at issue - Degree of freedom of the designer - No different overall impression - Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002))
   (2017/C 283/56)
   Language of the case: Spanish

      Parties

      Applicant: Chanel SAS (Neuilly-sur-Seine, France) (represented by: C. Sueiras Villalobos, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: E. Zaera Cuadrado, acting as Agent)

      Other parties to the proceedings before the Board of Appeal of EUIPO: Li Jing Zhou (Fuenlabrada, Spain) and Golden Rose 999 Srl (Rome, Italy)

      Re:

   Action brought against the decision of the Third Board of Appeal of EUIPO of 18 November 2015 (Case R 2346/2014-3), relating to invalidity proceedings between, on the one hand, Chanel and, on the other hand, Mr Li Jing Zhou and Golden Rose 999.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 November 2015 (Case R 2346/2014-3);

               2.

               Dismisses the action as to the remainder;

               3.

               Orders EUIPO to pay the costs.

      (1)  OJ C 118, 4.4.2016.


title: JUDGMENT OF THE COURT of 17 December 1998 in Case C-185/95 P: Baustahlgewebe GmbH v Commission of the European Communities (Appeal - Admissibility - Duration of procedure - Preparatory inquiries - Access to the file - Competition - Agreements, decisions and concerted practices - Fines)

text:
6.2.1999             EN                  Official Journal of the European Communities                                     C 33/1
                                                                 I
                                                           (Information)
                                              COURT OF JUSTICE
                                                       COURT OF JUSTICE
              JUDGMENT OF THE COURT                                  2. Sets the amount of the fine imposed on the appellant
                    of 17 December 1998                                  at ECU 2 950 000;
       in Case C-185/95 P: Baustahlgewebe GmbH v
                                                                     3. For the rest, dismisses the appeal;
        Commission of the European Communities (1)
(Appeal Ð Admissibility Ð Duration of procedure Ð                    4. Orders the appellant to bear its own costs and three
Preparatory inquiries Ð Access to the file Ð Competition                 quarters of the Commission's costs.
Ð Agreements, decisions and concerted practices Ð Fines)
                       (1999/C 33/01)                                (1) OJ C 208, 12.8.1995.
              (Language of the case: German)
 (Provisional translation; the definitive translation will be
         published in the European Court Reports)                    Reference for a preliminary ruling by the Supremo
                                                                     Tribunal Administrativo, 1.a SeccËaÄo, 2.a SubseccËaÄo by
                                                                     judgment of that court of 27 October 1998 in the case of
In Case C-185/95 P: Baustahlgewebe GmbH, a company
                                                                     Directora-Geral do Departamento para os Assuntos do
incorporated under German law, established in
                                                                     Fundo Social Europeu against Frota Azul Ð Transportes e
Gelsenkirchen (Germany), represented by Joachim
                                                                                Turismo, Lda.
Sedemund and Frank Montag, Rechtsanwälte, Cologne,
with an address for service in Luxembourg at the                                           (Case C-413/98)
Chambers of Aloyse May, 31 Grand-Rue Ð appeal                                               (1999/C 33/02)
against the judgment of the Court of First Instance of the
European Communities (First Chamber) of 6 April 1995
in Case T-145/89 Baustahlgewebe v Commission [1995]                  Reference has been made to the Court of Justice of the
ECR II-987, seeking to have that judgment set aside, the             European Communities by judgment of the Supremo
other party to the proceedings being: Commission of the              Tribunal Administrativo, 1.a SeccËaÄo, 2.a SubseccËaÄo
European      Communities      (Agents:      initially  Bernd        (Second Sub-Chamber of the First Chamber of the
Langeheine, then Paul Nemitz, assisted by Alexander                  Supreme Administrative Court) of 27 October 1998,
Böhlke) Ð the Court, composed of: G. C. Rodríguez                    which was received at the Court Registry on 20 November
Iglesias, President, J.-P. Puissochet and G. Hirsch                  1998, for a preliminary ruling in the case of
(Presidents of Chambers), G. F. Mancini, J. C. Moitinho              Directora-Geral do Departamento para os Assuntos do
de Almeida, D. A. O. Edward, H. Ragnemalm                            Fundo Social Europeu against Frota Azul Ð Transportes e
(Rapporteur), L. Sevón, M. Wathelet, R. Schintgen and                Turismo, Lda. on the following questions:
K. M. Ioannou, Judges; P. LeÂger, Advocate General; H. A.
Rühl, Principal Administrator, for the Registrar, has given
a judgment on 17 December 1998, in which it:                         1. Under Council Regulation No 2950/83 (1), must a
                                                                         decision by a Member State not to certify the accuracy
                                                                         of the facts and accounts concerning the portion of the
1. Annuls paragraph 2 of the operative part of the                       expenditure in respect of a training operation to which
    judgment of the Court of First Instance of 6 April                   the European Social Fund (ESF) has contributed, on
    1995 in Case T-145/89 Baustahlgewebe v Commission                    the ground that: it does not correspond to the actual
    in so far as it sets the amount of the fine imposed on               cost of the goods and services on the domestic market;
    the appellant at ECU 3 million;                                      the cost of services submitted exceeds the maximum


title: Case C-477/11 P: Appeal brought on 19 September 2011 by Sepracor Pharmaceuticals (Ireland) Ltd against the order of the General Court (Fourth Chamber) delivered on 4 July 2011 in Case T-275/09: Sepracor Pharmaceuticals (Ireland) Ltd v European Commission

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/13

         Appeal brought on 19 September 2011 by Sepracor Pharmaceuticals (Ireland) Ltd against the order of the General Court (Fourth Chamber) delivered on 4 July 2011 in Case T-275/09: Sepracor Pharmaceuticals (Ireland) Ltd v European Commission
   (Case C-477/11 P)
   2011/C 347/20
   Language of the case: English

      Parties

      Appellant: Sepracor Pharmaceuticals (Ireland) Ltd (represented by: I. Dodds-Smith, Solicitor, D. Anderson QC, J. Stratford, Barrister)

      Other party to the proceedings: European Commission

      Form of order sought

   The applicant asks that:

               —

               The order of the General Court be set aside;

               —

               Sepracor's action for annulment be declared admissible and the case be determined in Sepracor's favour (on the essential procedural requirement point) and/or referred back to the GC so that it may examine the substance of the action for annulment;

               —

               The Commission be ordered to pay Sepracor's costs of the present proceedings and those arising at the first instance relating to the plea of inadmissibility; and

               —

               The costs be reserved as to the remainder.

      Pleas in law and main arguments

   The Appellant claims that the contested order dismissing the Appellant' action as inadmissible should be set aside on the following two grounds:

               (a)

               Contravention of the Appellant's rights to access to justice and an effective remedy

               (b)

               Infringement of an essential procedural requirement arising out of reliance on third party representations, a plea raised before the General Court but not considered by it.

      Infringement of essential procedural requirement

   The General Court failed even to address Sepracor's submission as to infringement of an essential procedural requirement arising out of the reliance on third party representations. The failure to inform Sepracor of representations which had been received and taken into account until after a decision had been issued resulted in a breach of the right to be heard, which is a fundamental principle of EU law.

      Contravention of rights to access to justice and an effective remedy

   The Appellant submitted in July 2007 an application for a centralised marketing authorisation for its product Lunivia, backed by extensive and expensive research, on the basis that Lunivia was eligible for centralised assessment as a new active substance (‘NAS’) in accordance with Article 3(2)(a) of Regulation (EC) 726/2004 (1). There were at least substantial reasons for contending that the Appellant's product Lunivia was a new active substance (‘NAS’) and it was accepted for assessment centrally on that basis by EMA.
   The contested decision amounted to a final determination by the Commission that Lunivia would not be treated as a NAS (and was thus the functional equivalent of a negative decision on eligibility). That decision had legal consequences, notably the removal of the protection from cross-reference by generic second applicants and from the exploitation of copy authorisations for a total period of 10 years.
   In the circumstances, the Appellant had no choice but to withdraw its application. To allow a centralised marketing authorisation to be granted without the protection for its dossier of research that follows from the grant of NAS status would have enabled immediate reliance by generic applicants across the EU on all the valuable pre-clinical and clinical data on the Appellant's dossier. No innovative pharmaceutical company could have contemplated allowing this to happen. The ‘remedies’ of an application for annulment and interim relief would have been ineffective, since they could not have reversed these irrevocable consequences.
   The only prospect for a practical and effective remedy (as opposed to a theoretical and illusory one) therefore lies in permitting a challenge to be brought to the contested decision.
   In that respect, the Appellant relies, inter alia, upon:

               (a)

               The right to access to justice and to an effective remedy, protected by the European Convention on Human Rights, Articles 6 and 13 and by Article 47 of the EU Charter of Fundamental Rights

               (b)

               The requirement that procedural rules governing actions brought before the courts of the Union be interpreted consistently with those principles

               (c)

               The case law of the European Court of Human Rights and of national courts

               (d)

               Policy considerations relating to the interrelationship of the centralised procedure and national procedures

               (e)

               The case law of the Court of Justice concerning:

                           1.

                           the separation of powers

                           2.

                           the admissibility of challenges to acts forming the culmination of a special and distinct procedure

                           3.

                           the existence of adequate legal protection

                           4.

                           the disclosure of confidential information.

      (1)  Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency
   OJ L 136, p. 1


title: Case T-327/14: Action brought on 13 May 2014  — Compagnie des fromages & Richesmonts v OHIM — Grupo Lactalis Iberia (Representation of a red and white chessboard)

text:
               21.7.2014

               EN

               Official Journal of the European Union

               C 235/28

         Action brought on 13 May 2014 — Compagnie des fromages & Richesmonts v OHIM — Grupo Lactalis Iberia (Representation of a red and white chessboard)
   (Case T-327/14)
   2014/C 235/38
   Language in which the application was lodged: French

      Parties

      Applicant: Compagnie des fromages & Richesmonts (Puteaux, France) (represented by: T. Mollet-Vieville and T. Cuche, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Grupo Lactalis Iberia, SA (Madrid, Spain)

      Form of order sought

               —

               Find that Community trade mark No 6 0 59  687 is valid for the designation of cheeses;

               —

               In consequence, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 3 March 2014 in its entirety in so far as it ruled that Community trade mark No 6 0 59  687 is invalid;

               —

               In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 3 March 2014 in its entirety in so far as it ruled that Community trade mark No 6 0 59  687 is invalid for the designation of cheeses;

               —

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

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: Representation of a red and white chessboard

      Proprietor of the Community trade mark: The applicant

      Applicant for the declaration of invalidity of the Community trade mark: Grupo Lactalis Iberia, SA

      Grounds for the application for a declaration of invalidity: Absolute grounds provided for in Article 52(1)(a) of Regulation No 207/2009, in conjunction with Article 7(1)(b), (c) and (d) of Regulation No 207/2009

      Decision of the Cancellation Division: Rejection of the application for invalidity

      Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration of invalidity of the mark in question

      Pleas in law: The Board of Appeal erred in fact and in law (infringement of Article 7(1)(b) and (c) of Regulation No 207/2009; infringement of Article 52(1)(a) of Regulation No 207/2009)


title: Case T-227/05: Action brought on 13 June 2005 by Vesselina Ranguelova against the Commission of the European Communities

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/29

         Action brought on 13 June 2005 by Vesselina Ranguelova against the Commission of the European Communities
   (Case T-227/05)
   (2005/C 205/52)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 June 2005 by Vesselina Ranguelova, residing in Bergen (Netherlands), represented by Sébastien Orlandi, Xavier Martin, Albert Coolen and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               annul the Commission's decision fixing her classification in Grade A*6;

               2.

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant was recruited by the Commission as a member of the temporary staff, for a post for which the level of responsibility had been fixed in the vacancy notice by reference to Grades A7 to A4, which, according to the new system, are equivalent to Grades A*8 to A*12. Upon recruitment, however, the applicant's classification was fixed at Grade A*6.
   The applicant contests that decision and relies on the same pleas in law as the applicant in Case T-196/05.


title: JUDGMENT OF THE COURT of 9 November 1995 in Case C-426/93: Federal Republic of Germany v. Council of the European Union (Action for annulment - Regulation (EEC) No 2186/93 on Community coordination in drawing up business registers for statistical purposes - Legal basis - Principle of proportionality)

text:
20 . 1 . 96            EN                 Official Journal of the European Communities                                      No C 16/ 1
                                                                     I
                                                              (Information)
                                               COURT OF JUSTICE
                                                         COURT OF JUSTICE
               JUDGMENT OF THE COURT                                                    JUDGMENT OF THE COURT
                      of 9 November 1995                                                      of 9 November 1995
in Case C-426/93 : Federal Republic of Germany v. Council               in Case C-465/93 ( reference for a preliminary ruling from
                   of the European Union ( J )                          the Verwaltungsgericht Frankfurt am Main ): Atlanta
(Action for annulment — Regulation (EEC) No 2 1 86/93 on                Fruchthandelsgesellschaft mbH and Others v. Bundesamt
Community coordination in drawing up business registers                              für Ernährung und Forstwirtschaft (')
for statistical purposes — Legal basis — Principle of                   (Regulation — Reference for a preliminary ruling —
                         proportionality)                               Assessment of validity — National court — Interim
                            96/C 16/01 )                                                              relief)
                                                                                ( 96/C 16/02 )
                (Language of the case: German)
                                                                                (Language of the case: German)
(Provisional translation; the definitive translation will be
          published in the European Court Reports)                      (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
In Case C-426/93 : Federal Republic of Germany ( Agents :
Ernst Roder and Hans-Jörg Niemeyer ) v. Council of the
                                                                        In Case C-465/93 : reference to the Court under Article 177
European Union ( Agents : Jill Aussant and Klaus Borchers ),
supported by the Commission of the European                             of the EC Treaty from the Verwaltungsgericht
Communities ( Agent: Jürgen Grunwald ) — application for                ( Administrative Court ) Frankfurt am Main for a
the annulment of Council Regulation ( EEC ) No 2186/93 of               preliminary ruling in the proceedings pending before that
22 July 1993 on Community coordination in drawing up                    court between Atlanta Fruchthandelsgesellschaft mbH and
business registers for statistical purposes ( OJ No L 1 96 , p . 1 )    Others and Bundesamt fur Ernàhrung und Forstwirtschaft
— the Court, composed of: G. C. Rodriguez Iglesias,                     — on the interpretation of Article 1 8 9 of the EC Treaty, and
President, D. A. O. Edward and G. Hirsch ( Presidents of                more particularly on the national court's power to order
Chambers ), G. F. Mancini, F. A. Schockweiler, J. C.                    interim measures disapplying a regulation pending a
Moitinho de Almeida ( Rapporteur ), P. J. G. Kapteyn, C.                preliminary ruling by the Court on its validity — the Court,
Gulmann, J. L. Murray, P. Jann and H. Ragnemalm, Judges;                composed of: G. C. Rodriguez Iglesias, President, C. N.
F. G. Jacobs, Advocate-General ; L. Hewlett, Administrator,             Kakouris, D. A. O. Edward, J. -P. Puissochet and G. Hirsch
 for the Registrar, gave a judgment on 9 November 1995 , the             ( Presidents of Chambers ), G. F. Mancini, F. A. Schockweiler
operative part of which is as follows :                                  ( Rapporteur ), J. C. Moitinho de Almeida, P. J. G. Kapteyn,
                                                                         C. Gulmann, J. L. Murray, P. Jann and H. Ragnemalm,
 1 . the application is dismissed;                                      Judges; M. B. Elmer, Advocate-General; H. A. Rühl,
                                                                        Principal Administrator, for the Registrar, has given a
2 . the Federal Republic of Germany is ordered to pay the               judgment on 9 November 1995 , in which it rules :
      costs;
                                                                         1 . Article 189 of the Treaty is to be interpreted as not
 3 . The Commission of the European Communities shall                         precluding national courts from granting interim relief
      bear its own costs.                                                     to settle or regulate the disputed legal positions or
                                                                              relationships with reference to a national administrative
 (') OJ No C 332 , 8 . 12 . 1993 .                                            measure based on a Community Regulation which is the
                                                                              subject of a reference for a preliminary ruling on its
                                                                              validity;


title: Case T-309/10: Action brought on 15 September 2011 — Klein v Commission

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/35

         Action brought on 15 September 2011 — Klein v Commission
   (Case T-309/10)
   2011/C 347/65
   Language of the case: German

      Parties

      Applicant: Christoph Klein (Großgmain, Austria) (represented by: D. Schneider-Addae-Mensah)

      Defendant: European Commission

      Form of order sought

               —

               Declare that, by failing to take a decision in the safeguard clause procedure in progress since 1997 concerning the inhaler Broncho Air® and the effecto® and by not initiating a safeguard procedure pursuant to Article 8 of Directive 93/42/EEC following an order by Germany prohibiting distribution of the effecto®, the European Union, represented by the Commission, has failed to comply with its obligations under Directive 93/42/EEC and under general Community law and has thereby caused the applicant direct damage;

               —

               Order the applicant to pay damages of an amount still to be calculated in respect of the damage caused to it by the European Union, represented by the Commission;

               —

               Order the European Union, represented by the Commission, to pay the costs of the proceedings and the applicant’s expenses.

      Pleas in law and main arguments

   The applicant claims compensation for the damage suffered by him as a result of the alleged failure by the Commission to take action in the safeguard clause procedure pursuant to Article 8 of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices. (1) The applicant developed an inhalation aid for asthma sufferers and persons suffering from COPD [chronic obstructive pulmonary disease], which in the view of the German authorities did not fulfil the basic requirements of Directive 93/42/EEC, because the applicant had in particular omitted to provide sufficient clinical data concerning the lack of danger presented by the inhaler. The applicant claims that the safeguard clause procedure opened by the Commission in 1997 pursuant to Article 8 of Council Directive 93/42/EEC in order to resolve that issue, following the first banning of the inhaler, was never concluded. Following the second ban in 2005 the Commission did not initiate another safeguard clause procedure, considering that the matter fell under Article 18 of Directive 93/42/EEC.
   In support of the action, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging that the Commission failed to act insofar as it did not conclude the safeguard clause procedure initiated in 1997 and failed to initiate the stated safeguard clause procedure following the banning of the effecto® in 2005.
               Owing to the lack of clarity of the legal situation in the absence of a decision by the Commission, the applicant and/or atmed AG, of whose board the applicant is the chairman, have been burdened with unnecessary costs in relation to legal proceedings and patents.

               2.

               Second plea in law, complaining that the Commission failed to reach a positive conclusion in the safeguard clause procedure, having decided that the banning orders of the German authorities were unjustified.
               The inhaler Broncho Air® and the effecto® are not dangerous; the burden of proof with regard to the dangerousness of the product rests however with the Member State, given the presumption of conformity of the medical device in question which bears the EC marking. The usefulness of the inhaler Broncho Air® and the effecto® have moreover been clearly established on the basis of the submission of sufficient clinical data. In the absence of a positive decision by the Commission, atmed AG — and therefore the applicant — have suffered substantial loss of revenue, leading to insolvency, and to a lapse of the patents and the exclusive marketing right.

               3.

               Third plea in law, alleging that the applicant lacks sufficient information concerning the required documentation supposed to be forwarded, because the clinical data to be submitted were never clearly described.

      (1)  Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1), in the version as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 (OJ 1993 L 284, p. 1).


title: Case T-235/14: Order of the General Court of 9 June 2015 — ArcelorMittal Hamburg and Others v Commission (State aid — Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings — Decision to open the procedure under Article 108(2) TFEU — Adoption of the final decision after the action was brought — No need to adjudicate)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/58

         Order of the General Court of 9 June 2015 — ArcelorMittal Hamburg and Others v Commission
   (Case T-235/14) (1)

   ((State aid - Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings - Decision to open the procedure under Article 108(2) TFEU - Adoption of the final decision after the action was brought - No need to adjudicate))
   (2015/C 294/70)
   Language of the case: German

      Parties

      Applicants: ArcelorMittal Hamburg GmbH (Hamburg, Germany); ArcelorMittal Bremen GmbH, successor in law to Bregal Bremer Galvanisierungs GmbH (Bremen, Germany); ArcelorMittal Hochfeld GmbH (Duisburg, Germany); and ArcelorMittal Ruhrort GmbH (Duisburg) (represented by: H. Janssen and G.-R. Engel, lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, acting as Agents, and by A. Luke and C. Maurer, lawyers)

      Re:

   Application to annul in part Commission decision C (2013) 4424 final of 18 December 2013 to open the procedure under Article 108(2) TFEU regarding measures implemented by the Federal Republic of Germany in favour of renewable electricity and of energy-intensive users (State aid SA.33995 (2013/C) (ex 2013/NN)).

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               There is no longer any need to adjudicate on the application for intervention submitted by the EFTA Surveillance Authority.

               3.

               ArcelorMittal Hamburg GmbH, ArcelorMittal Bremen GmbH, ArcelorMittal Hochfeld GmbH and ArcelorMittal Ruhrort GmbH shall bear their own costs and those incurred by the European Commission.

               4.

               The EFTA Surveillance Authority shall bear its own costs.

      (1)  OJ C 223, 14.7.2014.


title: Case C-280/05: Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Incompatibility with the common market — Duty to recover — Non-fulfilment)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/2

         Judgment of the Court (Third Chamber) of 6 December 2007 — Commission of the European Communities v Italian Republic
   (Case C-280/05) (1)

   (Failure of a Member State to fulfil obligations - State aid - Incompatibility with the common market - Duty to recover - Non-fulfilment)
   (2008/C 22/03)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: V. Di Bucci and E. Righini, acting as Agents)

      Defendant: Italian Republic (represented by: I.M. Braguglia, acting as Agent, and D. Del Gaizo, lawyer)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 2, 3 and 4 of Commission Decision 2004/800/EC of 30 March 2004 declaring incompatible with the common market the aid scheme put into effect by Italy providing for urgent measures to assist employment in firms in financial difficulty, in special administration, and having at least 1 000 employees (Aid No CR 62/2003, ex NN 7/2003 — Italy) (OJ 2004 L 352, p. 10) — Failure to adopt, within the prescribed period, the measures necessary to recover the aid declared incompatible with the common market
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, the measures necessary to recover from the beneficiaries the aid declared unlawful and incompatible with the common market by Commission Decision 2004/800/EC of 30 March 2004 on the State aid scheme put into effect by Italy providing for urgent measures to assist employment, the Italian Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision;

               2.

               orders the Italian Republic to pay the costs.

      (1)  OJ C 229, 17.9.2005.


title: Case C-358/07: Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany), lodged on 2 August 2007 — Kulpa Automatenservice Asperg GmbH v Land Baden-Württemberg

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/19

         Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany), lodged on 2 August 2007 — Kulpa Automatenservice Asperg GmbH v Land Baden-Württemberg
   (Case C-358/07)
   (2007/C 269/38)
   Language of the case: German
   Referring court
   Verwaltungsgericht Stuttgart
   Parties to the main proceedings

      Applicant: Kulpa Automatenservice Asperg GmbH

      Defendant: Land Baden-Württemberg
   Questions referred

               1.

               Are Articles 43 and 49 EC to be interpreted as precluding a national monopoly on certain gaming, such as sports betting and lotteries, where there is no consistent and systematic policy to limit gaming in the Member State concerned as a whole, because the operators which have been granted a licence within that Member State encourage and advertise participation in other gaming — such as State-run sports betting and lotteries — and, moreover, other games with the same or even higher potential danger of addiction — such as betting on certain sporting events (horse racing), slot machines and casino games — may be provided by private service providers?

               2.

               Are Articles 43 and 49 EC to be interpreted as meaning that authorisations to operate sports betting, granted by the competent State bodies of the Member States, which are not restricted to the particular national territory, entitle the holder of the authorisation and third parties appointed by it to make and implement offers to conclude contracts in other Member States as well without any additional national authorisations being required?


title: Appeal brought on 19 May 1998 by Georges Tzoano against the judgment delivered on 19 March 1998 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-74/96 between Georges Tzoano and the Commission of the European Communities (Case C-191/98 P)

text:
15.8.98                EN                Official Journal of the European Communities                                     C 258/19
(2) set aside the judgment delivered on 19 March 1998 by                Commission and supplements the grounds for the
    the Court of First Instance in Case T-83/96 and,                    Commission's refusal, without the appellant having
    adjudicating afresh in the matter, annul the decision of            been able to put forward any argument in fact or in
    29 March 1996 addressed by the Commission to the                    law concerning that point.
    appellant;
                                                                    (1) OJ C 137 of 2.5.1998, p. 14.
(3) order the Commission of the European Communities                (2) OJ L 46 of 18.2.1994, p. 58.
    to pay the costs, including the costs of the proceedings
    at first instance.
Pleas in law and main arguments adduced in support:
Ð Infringement of Commission Decision 94/90/ECSC,                   Appeal brought on 19 May 1998 by Georges Tzoano
    EC, Euratom on public access to Commission                      against the judgment delivered on 19 March 1998 by the
    documents (2):                                                  Fourth Chamber of the Court of First Instance of the
                                                                    European Communities in Case T-74/96 between Georges
                                                                    Tzoano and the Commission of the European
    Ð The Court of First Instance failed to have regard
                                                                                Communities
         to the rule, based on Decision 94/90, requiring the
         Commission, before denying access to any                                         (Case C-191/98 P)
         document, to show that, by reason of the
                                                                                (98/C 258/32)
         information which it contains, its dissemination
         may cause actual prejudice to the public interest,
         which is protected by the first category of
         exceptions in Decision 94/90.                              An appeal against the judgment delivered on 19 March
                                                                    1998 by the Fourth Chamber of the Court of First
    Ð By applying, for the purposes of deciding whether             Instance of the European Communities in Case T-74/96
         to grant access to the Commission documents                between Georges Tzoano and the Commission of the
         concerned, the criterion of the addressee(s) of            European Communities was brought before the Court of
         those documents Ð in the present case, the                 Justice of the European Communities on 19 May 1998 by
         national courts to which the letters in question           Georges Tzoano, represented by Eric Boigelot, of the
         were sent Ð the Court of First Instance infringed          Brussels Bar, with an address for service in Luxembourg at
         the provisions and objectives of Decision 94/90.           the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim.
    Ð Neither Decision 94/90 nor any other rule of law              The appellant claims that the Court should:
         provides any support for the view expressed by the
         Court of First Instance that the exception
         concerning protection of the public interest (more         (a) set aside the contested judgment (1);
         particularly: court proceedings') is designed to
         ensure general respect for the principle of the
         procedural autonomy of courts and that the scope           (b) itself adjudicate on the dispute and allow the
         of that exception is therefore not restricted solely           appellant's initial application:
         to the protection of the interests of the parties but
         encompasses the procedural autonomy of national
                                                                        Ð annul the respondent's decision of 22 June 1995
         and Community courts.
                                                                             removing the appellant from his post without loss
                                                                             of entitlement to a retirement pension and annul
Ð Infringement of the European Convention on Human                           the decision of 19 February 1996 expressly
    Rights: the European Convention on Human rights, in                      rejecting the complaint lodged by the appellant on
    particular Article 6 thereof and the case-law relating                   21 September 1995 against the contested decision;
    thereto, provides no support for the view expressed by
    the Court of First Instance that it gives rise to the
                                                                        Ð order the respondent to pay the costs, including
    principle of procedural autonomy'. Neither the
                                                                             those relating to the proceedings at first instance.
    objective of Article 6 of the Convention nor the
    construction placed on the guarantees described in
    that article provide any legal basis for the reasoning of       Pleas in law and main arguments adduced in support:
    the Court of First Instance.
Ð Breach of the obligation to provide a statement of                Breach of Community law, in particular:
    reasons.
                                                                    Ð infringement of Article 33 of the EC Statute of the
Ð Breach of the principle of the autonomy of the parties                Court of Justice; the obligation to state the reasons on
    and of the rights of the defence: in its judgment, the              which a judgment is based is, in particular, such that
    Court of First Instance substitutes itself for the                  the grounds on which it purports to be based must be
 ---pagebreak--- C 258/20              EN                  Official Journal of the European Communities                                    15.8.98
     legally permissible, that is to say, adequate, not              Reference for a preliminary ruling by the Regeringsrätten
     vitiated by any error of law or of fact and not                 by order of that court of 29 April 1998 in the case of X
     contradictory;                                                             AB and Y AB against Riksskatteverket
                                                                                (Case C-200/98)
Ð infringement of the Staff Regulations of officials of the
     European Communities, in particular Articles 12, 13,                                    (98/C 258/33)
     14 and 17, the first and second paragraphs of
     Article 21, Article 25, the second paragraph of
     Article 87 and the fifth paragraph of Article 88 thereof
     and Annex IX thereto, in particular Articles 1, 2 and           Reference has been made to the Court of Justice of the
     3, the second paragraph of Article 7 and Article 11 of          European Communities by order of 29 April 1998,
     that annex;                                                     received at the Court Registry on 22 May 1998, for a
                                                                     preliminary ruling in the case of X AB and Y AB against
Ð breach of the general principles applicable under                  Riksskatteverket on the following question:
     Community law, in particular the principle of the
     rights of the defence, the audi alteram partem rule, the
     principle that the court seised of the proceedings must
     be impartial (and Article 6 of the Convention on                Under Paragraph 2(3) of Law 1947:576 on State Income
     Human Rights), the principles of legal certainty, good          Tax, an intra-group transfer is treated, under certain
     faith and the protection of legitimate expectations, the        conditions, as having fiscal effect if it is made by a
     duty to have regard for the welfare and interests of            Swedish limited liability company to another Swedish
     officials and the principle that all administrative acts        limited liability company which is wholly owned either by
     must be based on legally permissible grounds, that is           the first-named company directly or by that company
     to say, grounds which are pertinent and not vitiated by         together with a wholly-owned Swedish subsidiary or
     any error of law or of fact.                                    subsidiaries. The fiscal result is the same if one, or more,
                                                                     of the wholly-owned subsidiaries is foreign provided it is
                                                                     established, or they are established, in one and the same
The contested judgment applies a restrictive interpretation          Member State and Sweden has concluded with that State a
to the fifth paragraph of Article 88 of the Staff                    double-taxation      agreement       containing    a    non-
Regulations of officials; the object of that provision is to         discrimination clause. Against that background, is it
ensure that the administrative authority charged with                compatible with existing Community law, in particular
investigating the matter and thereafter, as the case may be,         Article 52 in combination with Article 58 and Article 73b
with imposing a disciplinary measure is fully informed of            and d of the Treaty of Rome, to apply a set of rules under
the facts alleged against the official concerned which form          which an intra-group transfer is not treated as having the
the subject-matter of the criminal prosecution brought               same fiscal effect when the Swedish parent company
against him.                                                         instead owns the recipient company together with two or
                                                                     more wholly-owned foreign subsidiaries which are
The appellant also complains that the Court of First                 established in different Member States with which Sweden
Instance based its contested judgment on incorrect                   has concluded a double-taxation agreement containing a
considerations and reasons which were contrary to the                non-discrimination clause?
items contained in the case-file. The Court of First
Instance failed in the contested judgment to arrive at the
proper factual or legal conclusions which it should have
drawn from the information in the file before it.
The contested judgment should also be annulled on the
ground that it misapplies the audi alteram partem rule, the
principle of equality of arms and the obligation to provide          Action brought on 25 May 1998 by the Commission of
a statement of pertinent reasons. Thus it wrongly                    the European Communities against the Kingdom of
concludes that the principle of equality of arms was                                            Belgium
respected on the ground that the appellant had access to                                  (Case C-201/98)
the documents which were available to the Disciplinary
Board for the purposes of delivering its opinion, on which                                   (98/C 258/34)
the appointing authority relied in adopting the contested
decision'. The Court of First Instance also wrongly based
on the same grounds its conclusion that the appellant was
given the opportunity of acquainting himself with all the
                                                                     An action against the Kingdom of Belgium was brought
facts on which the decision was based, in sufficient time
                                                                     before the Court of Justice of the European Communities
to enable him to submit his observations'.
                                                                     on 25 May 1998 by the Commission of the European
                                                                     Communities, represented by Frank Benyon, Legal
(1) Judgment of 19 March 1998 in Case T-74/96 (OJ C 137 of           Adviser, and Bernard Mongin, of its Legal Service, acting
    2.5.1998, p. 13).                                                as Agents, with an address for service in Luxembourg at
                                                                     the Office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                     Kirchberg.


title: Case T-407/06: Action brought on 21 December 2006 — Zhejiang Aokang Shoes v Council

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/38

         Action brought on 21 December 2006 — Zhejiang Aokang Shoes v Council
   (Case T-407/06)
   (2007/C 42/67)
   Language of the case: English
   Parties

      Applicant: Zhejiang Aokang Shoes Co., Ltd (Oubei, China) (represented by: I. MacVay, solicitor, R. Thompson, QC, and K. Beal, barrister)

      Defendant: Council of the European Union
   Form of order sought

               —

               The contested regulation be annulled in so far as it applies to the applicant;

               —

               the defendant meet the applicant's costs of these proceedings.

         Pleas in law and main arguments
   The applicant, who is a Chinese producer and exporter of leather footwear, seeks the annulment of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam (1).
   In support of its application, the applicant invokes nine pleas in law of which the first five relate to the lack of competence, infringement of essential procedural requirements laid down in the Basic Regulation (2) and infringement of the principles of legitimate expectations, rights of defence and equal treatment.
   Furthermore, the applicant submits that there has been an erroneous and discriminatory calculation of the dumping margin applied to the applicant and that the contested regulation is vitiated by a manifest error of assessment in respect of the extent and duration of the injury relied on to justify the imposition of duties on the applicant.
   Moreover, the applicant contends that the Commission has infringed Article 20 of the Basic Regulation in failing to give proper disclosure to the applicant in respect of the radical change of the definitive measures proposed by the Commission between 7 July and 28 July 2006.
   Finally, the applicant alleges that the contested regulation infringes Article 2(10) of the Basic Regulation in respect of the need to make a ‘fair comparison’ between the export price and the normal value when assessing the dumping margin.

      (1)  OJ 2006 L 275, p. 1.

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).


title: Case C-288/02: Action brought on 9 August 2002 by the Commission of the European Communities against the Hellenic Republic

text:
12.10.2002              EN                    Official Journal of the European Communities                                         C 247/5
4.    Are the provisions of Article 28 and 30 EC on the free             Pleas in law and main arguments
      movement of goods, applicable to Norway on the basis
      of Articles 8 to 16 of the European Economic Area
      Agreement (EEA Agreement), to be interpreted, with                 According to the Commission, current Greek legislation is not
      reference to the provisions contained in Council Decision          consistent with Regulation (EEC) No 3577/92. The fact that
      2000/766/EC and Commission Decision 2001/9 cited in                the regulation is of direct application and its provisions prevail
      question (1) above, as meaning that a Member State may             over national law does not release Member States from the
      not impose a requirement of zero error in a situation              obligation to repeal national provisions incompatible with
      such as that described in questions (1) and (2) above?             Community law.
( 1) OJ L 306 of 7.12.2000, p. 32.                                       As regards the classification of the ports of the Peloponnese as
( 2) OJ L 2 of 5.1.2001, p. 32.                                          island ports, the Commission points out that the Peloponnese
( 3) OJ L 109 of 26.4.1983, p. 8.                                        is separated from the rest of Greece by a man-made canal and
                                                                         is linked by road and rail with the rest of the country. It
                                                                         therefore accords with common sense, and also with the case-
                                                                         law of the Court of Justice (see Joined Cases C-15/98 and
                                                                         C-105/99 Italy and Sardegna Lines v Commission [2000] ECR
                                                                         I-8855, paragraph 55), for the Peloponnese to be considered
                                                                         part of mainland Greece.
Action brought on 9 August 2002 by the Commission of
the European Communities against the Hellenic Republic
                                                                         Finally, as regards island cabotage, the Commission submits
                                                                         that, while host State rules apply for regulating manning-
                          (Case C-288/02)                                related issues, those rules must not, however, in any event be
                                                                         contrary to Article 49 of the EC Treaty.
                          (2002/C 247/09)
                                                                         (1 ) OJ L 364, 12.12.1992, p. 7.
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 9 August
2002 by the Commission of the European Communities,
represented by K. Simonsson and M. Patakia, Legal Advisers,
with an address for service in Luxembourg. The applicant
claims that the Court should declare that by:                            Reference for a preliminary ruling by the Royal Court of
                                                                         Jersey, Samedi Division, by order of that court dated
—     expressly conferring the right to carry passengers between         5 August 2002, in the case of Jersey Produce Marketing
      Greek mainland ports solely upon Greek passenger ships             Organisation Ltd against 1) The States of Jersey and
      and the right to carry out tours with passenger ships of a         2) Jersey Potato Export Marketing Board, Interveners:
      gross tonnage exceeding 650 gt by way of island cabotage                 1) Top Produce Limited and 2) Fairview Farm Ltd
      solely upon Greek passenger ships,
—     requiring in the case of Community ships entered in a                                        (Case C-293/02)
      second or international register a certificate from the
      competent authority of the flag State declaring that that                                    (2002/C 247/10)
      ship is allowed to provide cabotage services,
—     considering that the Peloponnese constitues an island,
      and                                                                Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Royal Court of
—     applying to Community tankers, freighters, passenger               Jersey, Samedi Division, dated 5 August 2002, which was
      ships and tourist ships, and to cruise ships which carry           received at the Court Registry on 13 August 2002, for a
      out sea tours by way of island cabotage its rules as host          preliminary ruling in the case of Jersey Produce Marketing
      State relating to manning conditions, and requiring the            Organisation Ltd against 1) The States of Jersey and 2) Jersey
      shipowners to submit an application to the competent               Potato Export Marketing Board, Interveners: 1) Top Produce
      authorities for measurement of the gross tonnage of the            Limited and 2) Fairview Farm Ltd, on the following questions:
      ship, in order for the Greek authorities to calculate the
      basic composition of the crew,                                     1.     Is a statutory Scheme such as that which regulates the
                                                                                export of potatoes from Jersey to the United Kingdom to
the Hellenic Republic has failed to fulfil its obligations under                be considered as a measure having an effect equivalent to
Articles 1, 3 and 6 of Council Regulation (EEC) No 3577/92                      quantitative restrictions on exports, contrary to Article 29
of 7 December 1992 (1) applying the principle of freedom to                     EC, by reason of the fact that potatoes sent directly from
provide services to maritime transport within Member States                     Jersey to the United Kingdom may travel via another
(maritime cabotage).                                                            Member State but without leaving the carrying vessel?


title: Case T-60/14: Action brought on 27 January 2014 — BMV Mineralöl Versorgungsgesellschaft v OHIM — Delek Europe (GO)

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/27

         Action brought on 27 January 2014 — BMV Mineralöl Versorgungsgesellschaft v OHIM — Delek Europe (GO)
   (Case T-60/14)
   2014/C 93/48
   Language of the case: German

      Parties

      Applicant: BMV Mineralöl Versorgungsgesellschaft mbH (Berlin, Germany) (represented by: M. Von Fuchs and I. Czernik, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Delek Europe BV (Breda, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2013 in Case R 382/2013-4;

               —

               order the intervener to pay the costs of the proceedings, including those incurred during the appeal proceedings;

               —

               in the alternative, if the intervener does not declare its participation in the proceedings, order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings, including those incurred during the appeal proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Delek Europe BV

      Community trade mark concerned: Figurative mark, containing the word element ‘GO’, for goods and services in Classes 9, 35 and 36 (Community trade mark application No 9 995 201)

      Proprietor of the mark or sign cited in the opposition proceedings: Applicant

      Mark or sign cited in opposition: Figurative mark, containing the word element ‘GO’, for goods and services in Classes 4, 19, 35, 39 and 42

      Decision of the Opposition Division: Opposition partially dismissed

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009


title: Case C-392/06: Judgment of the Court (Sixth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2002/15/EC — Organisation of the working time of persons performing mobile road transport activities — Failure to transpose within the period prescribed)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/15

         Judgment of the Court (Sixth Chamber) of 21 June 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-392/06) (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/15/EC - Organisation of the working time of persons performing mobile road transport activities - Failure to transpose within the period prescribed)
   (2007/C 183/25)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: N. Yerrell and R Vidal Puig, acting as Agents)

      Defendant: Kingdom of Spain (represented by: M.A. Sampol Pucurull)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 294, 2.12.2006.


title: Case T-134/08: Action brought on 4 April 2008 — Schräder v CPVO — Jørn Hansson (Lemon Symphony)

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/32

         Action brought on 4 April 2008 — Schräder v CPVO — Jørn Hansson (Lemon Symphony)
   (Case T-134/08)
   (2008/C 142/58)
   Language in which the application was lodged: German
   Parties

      Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter and W.-A. Schmidt, lawyers)

      Defendant: Community Plant Variety Office

      Other party to the proceedings before the Board of Appeal of CPVO: Jørn Hansson (Søndersø, Denmark)
   Form of order sought

               —

               Annul the decision of the Board of Appeal of CPVO of 4 December 2007 (Case A 006/2007);

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments

      Community plant variety right concerned: Lemon Symphony

      Proprietor of the Community plant variety right: Jørn Hansson

      Decision of the Board of Appeal of the Community Plant Variety Office which is being contested: Failure to cancel the Community plant variety right for Lemon Symphony in accordance with Article 21 of Council Regulation (EC) No 2100/94 (1)

      Appellant before the Board of Appeal: the Applicant

      Decision of the Board of Appeal: dismissal of the appeal
   Pleas in law:

               —

               Infringement of Article 59(2) of Commission Regulation (EC) No 1239/95 (2) inasmuch as the applicant was not summoned to the hearing in due form;

               —

               Infringement of Article 71(1), in conjunction with Articles 21, 67 and 68, of Regulation No 2100/94 inasmuch as the grounds of appeal were not considered or not adequately considered;

               —

               Infringement of Article 73 of Regulation No 2100/94 and Article 230 EC inasmuch as the applicant's right to judicial review of administrative action has been infringed;

               —

               Infringement of Article 48 of Regulation No 2100/94 inasmuch as a member of the Board of Appeal allegedly had an interest in the proceedings.

      (1)  Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).

      (2)  Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 1995 L 121, p. 37).


title: Case C-570/07: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 24 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/13

         Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 24 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias
   (Case C-570/07)
   (2008/C 79/23)
   Language of the case: Spanish
   Referring court
   Tribunal Superior de Justicia de Asturias
   Parties to the main proceedings

      Applicants: José Manuel Blanco Pérez and Maria del Pilar Chao Gómez

      Defendants: Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias
   Question referred
   Should Articles 2, 3 and 4 of Decree 72/2001 dated 19 July of the Principality of Asturias regulating pharmacies and pharmaceutical dispensaries, and Sections 4, 6 and 7 of the Annex thereto, be considered to be in breach of Article 43 of the EC Treaty?


title: Case C-343/02: Action brought on 26 September 2002 by the Commission of the European Communities against the French Republic

text:
C 261/12               EN                     Official Journal of the European Communities                                     26.10.2002
Action brought on 26 September 2002 by the Com-                          their transposition. That time-limit expired without the French
mission of the European Communities against the French                   Republic having brought into force the necessary provisions
                            Republic                                     in order to comply with the directive referred to in the
                                                                         Commission’s application.
                        (Case C-343/02)
                                                                         (1 ) OJ 2001 L 127, p. 38.
                                                                         (2 ) OJ 2001 L 127, p. 42.
                        (2002/C 261/19)
An action against the French Republic was brought before the             Action brought on 26 September 2002 by the Com-
Court of Justice of the European Communities on 26 Septem-               mission of the European Communities against the French
ber 2002 by the Commission of the European Communities,                                              Republic
represented by A. Bordes, acting as Agent, with an address for
service in Luxembourg.                                                                            (Case C-344/02)
                                                                                (2002/C 261/20)
The applicant claims that the Court should:
                                                                         An action against the French Republic was brought before the
—     Declare that, by failing to adopt and bring into force             Court of Justice of the European Communities on 26 Septem-
      within the prescribed period the laws, regulations or              ber 2002 by the Commission of the European Communities,
      administrative provisions necessary to comply:                     represented by A. Bordes, acting as Agent, with an address for
                                                                         service in Luxembourg.
      —     Commission Directive 2001/32/EC of 8 May 2001
            recognising protected zones exposed to particular            The applicant claims that the Court should:
            plant health risks in the Community and repealing
            Directive 92/76/EEC (1),                                     —     Declare that, by failing to adopt and bring into force
                                                                               within the prescribed period the laws, regulations or
      —     Commission Directive 2001/33/EC of 8 May 2001                      administrative provisions necessary to comply with
            amending certain annexes to Council Directive                      Directive 2000/16/EC of the European Parliament and
            2000/29/EC on protective measures against the                      the Council of 10 April 2000 amending Council Directive
            introduction into the Community of organisms                       79/373/EEC on the marketing of compound feedingstuffs
            harmful to plants or plant products and against their              and Council Directive 96/25/EC on the circulation of feed
            spread within the Community (2), and                               materials (1), the French Republic has failed to fulfil its
                                                                               obligations under that directive; and
      in any event, by failing to communicate them to the                —     Order the French Republic to pay the costs.
      Commission, the French Republic has failed to fulfil its
      obligations under those two directives;
                                                                         Pleas in law and main arguments
—     Order the French Republic to pay the costs.
                                                                         Under Article 249 of the EC Treaty, according to which a
                                                                         directive is to be binding, as to the result to be achieved, upon
                                                                         each Member State to which it is addressed, Member States are
Pleas in law and main arguments                                          required to observe the time-limits laid down in directives for
                                                                         their transposition. That time-limit expired on 3 May 2001
                                                                         without the French Republic having brought into force the
Under Article 249 of the EC Treaty, according to which a                 necessary provisions in order to comply with the directive
directive is to be binding, as to the result to be achieved, upon        referred to in the Commission’s application.
each Member State to which it is addressed, Member States are
required to observe the time-limits laid down in directives for          (1 ) OJ 2000 L 105, p. 36.


title: Case C-679/11 P: Judgment of the Court (Ninth Chamber) of 26 September 2013 — Alliance One International Inc. v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Spanish market for the purchase and first processing of raw tobacco — Price-fixing and market-sharing — Infringement of Article 81 EC — Whether unlawful conduct of a subsidiary attributable to its parent company — Obligation to state reasons — Fundamental rights — Deterrent effect — Equal treatment — Mitigating circumstances — Cooperation — Unlimited jurisdiction — Ne ultra petita — Right to a fair hearing)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/18

         Judgment of the Court (Ninth Chamber) of 26 September 2013 — Alliance One International Inc. v European Commission
   (Case C-679/11 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Spanish market for the purchase and first processing of raw tobacco - Price-fixing and market-sharing - Infringement of Article 81 EC - Whether unlawful conduct of a subsidiary attributable to its parent company - Obligation to state reasons - Fundamental rights - Deterrent effect - Equal treatment - Mitigating circumstances - Cooperation - Unlimited jurisdiction - Ne ultra petita - Right to a fair hearing)
   2013/C 344/30
   Language of the case: English

      Parties

      Appellant: Alliance One International Inc. (represented by: M. Odriozola and A. Vide, abogados)

      Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre, E. Gippini Fournier, J. Bourke and C. Urraca Caviedes, Agents)

      Re:

   Appeal brought against the judgment of the General Court (Fourth Chamber) of 12 October 2011 in Case T-41/05 Alliance One International v Commission reducing the part of the fine imposed on Agroexpansión, for the payment of which Alliance One International, Inc. was held jointly and severally liable with Agroexpansión, and dismissing as to the remainder an application for partial annulment of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) of the EC Treaty (Case COMP/C.38.238/B.2 — Raw tobacco sector in Spain) concerning a cartel aimed at fixing the prices paid to producers and the quantities purchased from them in the Spanish raw tobacco market.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal and the cross-appeal;

               2.

               Orders Alliance One International Inc. to pay the costs of the appeal;

               3.

               Orders the European Commission to pay the costs of the cross-appeal.

      (1)  OJ C 73, 10.3.2012.


title: Case C-317/09 P: Appeal brought on 10 August 2009 by ArchiMEDES against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 June 2009 in Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/36

         Appeal brought on 10 August 2009 by ArchiMEDES against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 June 2009 in Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission
   (Case C-317/09 P)
   2009/C 267/67
   Language of the case: French

      Parties

      Appellant: Architecture, Microclimat, Énergies Douces Europe et Sud, sarl (ArchiMEDES) (represented by: P.-P. Van Gehuchten, avocat)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought

   ArchiMEDES requests the Court of Justice of the European Communities to set aside the judgment delivered on 10 June 2009 by the Court of First Instance of the European Communities in Joined Cases T-396/05 and T-397/05 and grant the appellant's actions by which it sought:

               —

               annulment of the Commission's decision contained in a letter of 5 October 2005, notified to the applicant on 10 October 2005, to impose a set-off of their reciprocal claims, and

               —

               annulment of the recovery decision contained in the letters of 30 August 2005 and debit note No 3240705638 of 23 August 2005, notified to the applicant on 2 September 2005,

               —

               annulment of the Commission's decision to terminate the contract of 30 August 2005,

               —

               an order for the Commission to pay the sum of EUR 125 906, plus statutory default interest since 12 February 2002,

               —

               in the alternative, an order for the Commission to pay the sum of EUR 103 551,90, plus statutory default interest since 12 February 2002,

         and an order for the Commission to pay all the costs of the proceedings.

      Pleas in law and main arguments

   ArchiMEDES raises four grounds in support of its appeal.
   By its first ground of appeal, concerning its application for annulment of the decision to set-off their claims contained in the letter of 5 October 2005, the appellant alleges the infringement, by the Court of First Instance, of Article 230 EC, Article 1291 of the French Civil Code and an erroneous or a lack of reasoning of the judgment under appeal. In its view, the set-off decision is an act which may be challenged under Article 230 EC and the decision adopted by the Commission in the present case was taken without complying with the conditions set out in Article 1291 of the French Civil Code governing the contract entered into by ArchiMEDES and the Commission, according to which, if a claim is disputed, that claim only becomes certain from the point in time at which a judgment is delivered ordering the debtor to pay the creditor the sum claimed. Therefore, the Court of First Instance misconstrued those provisions in finding that the appellant was no longer able to seek annulment of the decision of 5 October 2005 since the latter constituted an unlawful unilateral act.
   By its second ground of appeal, the appellant alleges an infringement of Article 6 of the European Convention for the Protection of Human Rights, Article 64 of the Rules of Procedure of the Court of First Instance, the general principle of litis denuntiatio, the rights of the defence and the right to a fair hearing in that, without giving any reasons, the Court of First Instance refused to grant the appellant's claim seeking that a comparison be made with the other parties to the contract and that the judgment be the same for all of them. In effect, that refusal means that the multiple parties to a contract with the Commission are no longer placed on a level playing field since the Commission could, where appropriate, bring its action against all its co-contractors whereas that possibility does not exist in the case where the action is brought against only one of the contracting parties.
   By its third ground of appeal, which is divided into two parts, the appellant claims that the Court of First Instance infringed Article 1134 and 1165 of the Civil Code, the principle that documents must be construed in accordance with their actual terms, Articles 1.1 and 10 of contract BU/209/95, Articles 2.1, 2.2, 21.1 and 21.4 of Annex II to the contract and the erroneous or lack of reasoning of the judgment under appeal. The appellant submits that the Court of First Instance infringed the above cited provisions, first, by dissociating the rights and duties of the various contractors even though they are jointly and severally responsible for performing contract BU/209/95 and, second, by assessing the applicant as a third party to the contract because of its status as a subcontractor, even though it is definitely a contracting party.
   By its fourth ground of appeal, the appellant claims that the Court of First Instance infringed Articles 1134 and 1184 of the Civil Code, the principle that documents must be construed in accordance with their actual terms, and Article 5 of Annex II to contract BU/209/95. Also it claims that there was a lack of reasoning and a contradiction in the judgment under appeal in that the Court of First Instance granted the Commission the right to terminate the contract of 30 August 2005 unilaterally although it stated that the final report was tacitly approved by the Commission more than three years earlier.


title: Case T-117/06: Action brought on  13 April 2006  — DeTeMedien v OHIM (suchen.de)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/33

         Action brought on 13 April 2006 — DeTeMedien v OHIM (suchen.de)
   (Case T-117/06)
   (2006/C 143/66)
   Language of the case: German
   Parties

      Applicant: DeTeMedien, Deutsche Telekom Medien GmbH (Frankfurt, Germany) (represented by: J. Fesenmair and I. Gehring, lawyers)

      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 30 January 2006 in appeal proceedings R 287/2005-1, and

               —

               order the Office for Harmonisation to bear the applicant's refundable costs

         Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘suchen.de’ for goods and services in Classes 9, 16, 35, 36, 38 and 42 (Application No 3 915 329)

      Decision of the examiner: Partial rejection of the application
   Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: The mark applied for does have distinctive character and is not purely descriptive; thus, no absolute grounds for refusal under Article 7(1)(b) and (c) or Article 7(2) of Regulation (EC) No 40/94 (1) stand in the way of its registration.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case T-225/17: Action brought on 19 April 2017 — Adapta Color v EUIPO — Coatings Foreign IP (Bio proof ADAPTA)

text:
               26.6.2017

               EN

               Official Journal of the European Union

               C 202/23

         Action brought on 19 April 2017 — Adapta Color v EUIPO — Coatings Foreign IP (Bio proof ADAPTA)
   (Case T-225/17)
   (2017/C 202/38)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Adapta Color, SL (Peniscola, Spain) (represented by: G. Macías Bonilla, G. Marín Raigal and E. Armero Lavie, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Coatings Foreign IP Co. LLC (Wilmington, Delaware, United States)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: European Union figurative mark containing the word elements ‘Bio proof ADAPTA’ — European Union trade mark No 4 582 599

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 6 February 2017 in Case R 311/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               uphold the present action in its entirety;

               —

               annul the contested decision;

               —

               order the defendant and, where appropriate, the intervener, to pay the costs of the present proceedings, as well as the costs incurred in the proceedings for a declaration of invalidity and the subsequent appeal proceedings before EUIPO.

      Pleas in law

   The pleas in law and main arguments are the same as those put forward in Case T-223/17.


title: Order of the Court of First Instance of 21 March 2002 in Case T-235/01: Georgios Caravelis v European Parliament (Action for annulment — Withdrawal of the contested measure — Case not proceeding to judgment)

text:
15.6.2002              EN                     Official Journal of the European Communities                                          C 144/45
2.    The Commission is to bear its own costs and to pay those of the    made an order on 26 October 2001, the operative part of
      applicant;                                                         which is as follows:
3.    The Kingdom of Denmark is to bear its own costs.
                                                                         1.    Execution of the Commission Decision of 3 July 2001 relating
                                                                               to a proceeding pursuant to Article 82 EC (Case COMP D3/
                                                                               38.044 — NDC Health/IMS Health: Interim measures) is
(1) OJ C 4 of 6.1.2001.                                                        suspended until such time as the Court of First Instance has
                                                                               given judgment in the main action;
                                                                         2.    Costs are reserved.
ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                            INSTANCE
                        26 October 2001                                         ORDER OF THE COURT OF FIRST INSTANCE
in Case T-184/01 R: IMS Health Inc. v Commission of the                                            of 21 March 2002
                     European Communities
                                                                         in Case T-235/01: Georgios Caravelis v European Parlia-
(Proceedings for interim relief — Competition law —                                                     ment (1)
Complaint — Alleged abuse of copyright — Commission
decision providing for protective measures — Conditions for
                                                                         (Action for annulment — Withdrawal of the contested
the grant of interim relief — Prima facie case — Urgency —
                                                                                measure — Case not proceeding to judgment)
                      Balancing of interests)
                                                                                (2002/C 144/95)
                         (2002/C 144/94)
                                                                                (Language of the case: Greek)
                   (Language of the case: English)
                                                                         In Case T-235/01: Georgios Caravelis, an official of the
In Case T-184/01 R, IMS Health Inc., a company incorporated
                                                                         European Parliament, residing in Brussels, represented by
in accordance with the laws of the State of Delaware,
                                                                         C. Tagaras, lawyer, v European Parliament (Agents: J. F. De
established at Fairfield, Connecticut (United States of America),
                                                                         Wachter, C. Karamarcos and N. Korogiannakis) — application
represented by N. Levy and J. Temple Lang, Solicitors, and
                                                                         for annulment of Vacancy Notice No 9186 relating to the
R. O’Donoghue, Barrister, v Commission of the European
                                                                         filling of the A 3 post of director of the Information Office in
Communities (Agents: E. Gippini Fournier, A. Whelan and
                                                                         Athens — the Court of First Instance (Fifth Chamber), compo-
F. Siredney-Garnier) supported by AzyX Deutschland GmbH
                                                                         sed of: J. D. Cooke, President, and R. Garcı́a-Valdecasas and
Geopharma Information Services, established at Neu-Isenburg
                                                                         P. Lindh, Judges; H. Jung, Registrar, made an order on 21 March
(Germany), represented by L. Levi, G. Vandersanden and
                                                                         2002, the operative part of which is as follows:
D. Dugois, lawyers, and NDC Health Corporation, a company
incorporated in accordance with the laws of the State of
Delaware, established at Atlanta, Georgia (United States of
America), represented by I. Forrester QC, F. Fine, Solicitor,            1.    There is no need to give a decision on the present application;
C. Price and A. F. Gagliardi, lawyers, with an address for service
in Luxembourg, and NDC Health GmbH & Co. KG, established                 2.    The parties are to bear their own costs.
at Bad Camberg (Germany), represented by I. Forrester QC,
F. Fine, Solicitor, C. Price and A. F. Gagliardi, lawyers, with an
address for service in Luxembourg: Application for interim
measures in respect of the Commission Decision of 3 July                 (1) OJ C 331 of 24.11.2001.
2001 relating to a proceeding pursuant to Article 82 EC
(Case COMP D3/38.044 — NDC Health/IMS Health: Interim
measures), the President of the Court of First Instance has


title: Case T-117/05: Order of the Court of First Instance of 19 September 2006 — Rodenbröker and Others v Commission (Action for annulment — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Decision 2004/813/EC — List of sites of Community importance for the Atlantic biogeographical region — Persons directly and individually concerned — Inadmissibility)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/49

         Order of the Court of First Instance of 19 September 2006 — Rodenbröker and Others v Commission
   (Case T-117/05) (1)

   (Action for annulment - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Decision 2004/813/EC - List of sites of Community importance for the Atlantic biogeographical region - Persons directly and individually concerned - Inadmissibility)
   (2006/C 294/103)
   Language of the case: German
   Parties

      Applicants: Andreas Rodenbröker (Hövelhof, Germany) and the other 81 applicants whose names appear in the Annex to the order (represented by: H. Glatzel, lawyer)

      Defendant: Commission of the European Communities (represented by: M. van Beek and B. Schima, acting as Agents)
   Re:
   Action for annulment of Commission Decision 2004/813/EC of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Atlantic biogeographical region (OJ 2004 L 387, p. 1).
   Operative part of the order

               1.

               The action is dismissed as inadmissible;

               2.

               The applicants shall bear their own costs and pay those of the Commission, including those relating to the application for interim measures.

      (1)  OJ C 143, 11.6.2005.


title: Joined Cases C-75/05 P and C-80/05 P: Judgment of the Court (First Chamber) of 11 September 2008 — Federal Republic of Germany (C-75/05 P), Glunz AG, OSB Deutschland GmbH (C-80/05 P) v Kronofrance SA, Commission of the European Communities (Appeals — State aid — Commission decision not to raise objections — Action for annulment — Admissibility — Interested parties — Regional aid for large investment projects — Multisectoral framework of 1998)

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/2

         Judgment of the Court (First Chamber) of 11 September 2008 — Federal Republic of Germany (C-75/05 P), Glunz AG, OSB Deutschland GmbH (C-80/05 P) v Kronofrance SA, Commission of the European Communities
   (Joined Cases C-75/05 P and C-80/05 P) (1)

   (Appeals - State aid - Commission decision not to raise objections - Action for annulment - Admissibility - Interested parties - Regional aid for large investment projects - Multisectoral framework of 1998)
   (2008/C 285/02)
   Language of the case: German
   Parties

      Appellants: Federal Republic of Germany (represented by: W.-D. Plessing, C. Schulze-Bahr, acting as Agents, M. Núñez-Müller, Rechtsanwalt) (C-75/05 P), Glunz AG, OSB Deutschland GmbH (represented by: H.-J. Niemeyer, Rechtsanwalt)

      Other parties to the proceedings: Kronofrance SA (represented by: R. Nierer and L. Gordalla, Rechtsanwälte), Commission of the European Communities (represented by: V. Kreuschitz, acting as Agent)
   Re:
   Appeal against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 (Kronofrance SA v Commission, supported by Glunz AG and OSB Deutschland GmbH), by which the Court annulled the Commission's Decision SG (2001) D of 25 July 2001 not to object to the aid granted by the German authorities to Glunz AG — Infringement of the fourth paragraph of Article 230 EC — Infringement of Article 87(3) EC — Infringement of Article 64 of the Rules of Procedure of the Court of First Instance
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeals;

               2.

               Orders the Federal Republic of Germany to pay the costs relating to Case C-75/05 P;

               3.

               Orders Glunz AG and OSB Deutschland GmbH to pay the costs relating to Case C 80/05 P;

               4.

               Orders the Commission of the European Communities to bear its own costs.

      (1)  OJ C 106, 30.4.2005.


title: Case C-556/13: Judgment of the Court (Fourth Chamber) of 26 March 2015 (reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania)) — ‘Litaksa’ UAB v ‘BTA Insurance Company’ SE (Reference for a preliminary ruling — Compulsory insurance against civil liability in respect of the use of motor vehicles — Directive 90/232/EEC — Article 2 — Differentiation in the amount of the insurance premium depending on the territory in which the vehicle is used)

text:
               26.5.2015

               EN

               Official Journal of the European Union

               C 171/4

         Judgment of the Court (Fourth Chamber) of 26 March 2015 (reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania)) — ‘Litaksa’ UAB v ‘BTA Insurance Company’ SE
   (Case C-556/13) (1)

   ((Reference for a preliminary ruling - Compulsory insurance against civil liability in respect of the use of motor vehicles - Directive 90/232/EEC - Article 2 - Differentiation in the amount of the insurance premium depending on the territory in which the vehicle is used))
   (2015/C 171/05)
   Language of the case: Lithuanian

      Referring court

   Lietuvos Aukščiausiasis Teismas

      Parties to the main proceedings

      Applicant:‘Litaksa’ UAB

      Defendant:‘BTA Insurance Company’ SE

      Operative part of the judgment

   Article 2 of the Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended by Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005, must be interpreted as meaning that a premium which varies according to whether the insured vehicle is to be used only in the territory of the Member State in which that vehicle is normally based or in the entire territory of the European Union does not fall within the concept of ‘single premium’, within the meaning of that article.

      (1)  OJ C 24, 25.1.2014.


title: Case C-497/06P: Appeal brought on 5 December 2006 by CAS Succhi di Frutta SpA. against the judgment delivered on 13 September 2006 in Case T-226/01 CAS Succhi di Frutta SpA v Commission

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/10

         Appeal brought on 5 December 2006 by CAS Succhi di Frutta SpA. against the judgment delivered on 13 September 2006 in Case T-226/01 CAS Succhi di Frutta SpA v Commission
   (Case C-497/06P)
   (2007/C 42/16)
   Language of the case: Italian
   Parties

      Appellant: CAS Succhi di Frutta SpA (represented by: F. Sciaudone, R. Sciaudone and D. Fioretti, Avvocati)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               Annul the judgment under appeal and refer the case back to the Court of First Instance so that it may give a ruling on the merits in the light of the information provided by the Court of Justice;

               —

               order the Commission to pay the costs of the present proceedings and of the proceedings at first instance relating to Case T-226/01.

         Pleas in law and main arguments
   The pleas in law put forward challenging the judgment of the Court of First Instance may be divided into four categories, which relate to: the significance of the judgment in Case C-496/99 P Commission v CAS; the substitution of fruit; the coefficients of substitution; the costs incurred by the appellant in arguing its case.
   With regard to the significance of the judgment delivered in Case C-496/99 P Commission v CAS, the appellant alleges: distortion and misrepresentation of the arguments put forward by the appellant on the significance of the judgment in Case T-226/01 Commission v CAS; breach of the principle of the authority of res judicata; misrepresentation of the action for damages referred to in the judgment in Commission v CAS; an error in the interpretation of the conditions under which an action for damages may be brought.
   With regard to the substitution of fruit, the appellant alleges: a failure to provide adequate reasoning in relation to the loss suffered as a result of the substitution of the fruit and manifest error of assessment of the appellant's arguments concerning the unlawfulness of the tendering procedure; an error concerning the legal significance of the substitution of the fruit in the context of the mechanism of the tendering procedure; breach of the principle of the authority of res judicata in relation to the date when it was known with certainty that substituted fruit was to be received; distortion of the clear sense of the evidence in the case-file and failure to give adequate reasons concerning the advantages resulting from the substitution of fruit and the appellant's knowledge as of March 1996; infringement of procedural rules, manifest distortion of evidence and breach of the general principles relating to the burden of proof.
   With regard to the coefficients of substitution, the appellant claims; an incorrect assessment of the quantities of fruit to be taken into account in calculating the loss.
   Lastly, with regard to the costs incurred in defending its case, the appellant claims; breach of the principle of the right to compensation for loss relating to the costs of technical and legal assistance and infringement of the principle of compensation for the expenses incurred in participating in the tendering procedure.