title: Reference for a preliminary ruling from the Staatsgerichtshof des Landes Hessen by order of that court of 16 April 1997 in the application for review of legislative provisions brought by Georg Badeck and other members and former members of the Hessischer Landtag, interveners: Hessischer Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen (Case C-158/97)

text:
No C 199/ 10           EN                  Official Journal of the European Communities                                         28 . 6 . 97
(EEC) No 2658/87 on the tariff and statistical                        Reference for a preliminary ruling by the Commissione
nomenclature and on the Common Customs Tariff must                    Tributaria Provinciale di Milano — Sezione XII — by
be interpreted as meaning that Echinacea purpurea                     order of that court of 24 March 1997 in the case of AGAS
extract-based drops must be classified under heading                  (Abbruzzi       Gas    Agas )      SpA   against Amministrazione
3004 .                                                                                Tributaria
                                                                                ( Case C-152/97 )
(') OJ No C 46, 17. 2 . 1996 .                                                                     ( 97/C 199/ 19 )
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Commissione
                                                                      Tributaria Provinciale di Milano ( Provincial Tax Court,
                                                                      Milan ) — Sezione XII (Twelfth Chamber ) — of 24 March
Action brought on 16 April 1997 by the Commission of                  1997, received at the Court Registry on 21 April 1997, for
  the European Communities against the Hellenic Republic              a preliminary ruling in the case of AGAS ( Abbruzzi Gas
                          Case C-146/97                               Agas ) SpA against Amministrazione Tributaria on the
                                                                      following question :
                          ( 97/C 199/ 18 )
                                                                      Do the provisions on the harmonization of indirect taxes
                                                                      on contributions of capital to capital companies ( ! ) in the
An action against the Hellenic Republic was brought                   Union also include merger by acquisition of one company
before the Court of Justice on 16 April 1997 by the                   by another company which already owns 100% of the
Commission of the European Communities, represented                   capital of the former ?
by Maria Kondou-Durande, of its Legal Service, with an
address for service in Luxembourg at the office of Carlos             (') Article 4 of Directive 69/335/EEC of 17 July 1969 ( OJ No
Gomez de la Cruz, also of the Commission's Legal                          L 249 , 3 . 10 . 1969 , p. 5 ), amended by Directives 73/80/EEC
Service, Wagner Centre, Kirchberg.                                        of 9 April 1973 ( OJ No L 103 , 18 . 4 . 1973 , p. 15 ) and 85/
                                                                          303/EEC of 10 June 1985 ( OJ No L 156 , 15 . 6 . 1985 , p. 23 ).
The applicant claims that the Court should:
— declare that, by failing to adopt within the period
     prescribed the laws, regulations and administrative              Reference for a preliminary ruling from the
     provisions necessary to comply with Commission                   Staatsgerichtshof des Landes Hessen by order of that court
     Directive 93/70/EEC of 28 July 1993 establishing                 of 16 April 1997 in the application for review of
     Community analysis methods for official control of               legislative provisions brought by Georg Badeck and
     feedingstuffs ('), the Hellenic Republic has failed to           other members and former members of the Hessischer
     fulfil its obligations under the EC Treaty and that              Landtag, interveners: Hessischer Ministerprasident and
     Directive ,                                                        Landesanwalt beim Staatsgerichtshof des Landes Hessen
                                                                                Case C-158/97 )
— order the Hellenic Republic to pay the costs .                                                    ( 97/C 199/20 )
Pleas in law and main arguments adduced in support:                   Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the
                                                                      Staatsgerichtshof des Landes Hessen ( State Constitutional
Under the third paragraph of Article 189 of the Treaty                Court, Hessen ) of 16 April 1997, which was received at
establishing the European Community, a directive is to be             the Court Registry on 24 April 1997, for a preliminary
binding, as to the result to be achieved, upon each                   ruling in the application for review of legislative
Member State to which it is addressed . Under the first               provisions brought by Georg Badeck and other
paragraph of Article 5 of the Treaty, the Member States               members        and    former        members    of  the   Hessischer
are to take all appropriate measures, whether general or              Landtag, interveners : Hessischer Ministerprasident and
particular, to ensure fulfilment of the obligations arising           Landesanwalt beim Staatsgerichtshof des Landes Hessen,
out of the Treaty or resulting from action taken by the               on the following question :
institutions of the Community. The Hellenic Republic has
not yet taken the appropriate measures to transpose the               Does Article 2 ( 1 ) and (4 ) of Council Directive 76/207/
Directive in question fully into the Greek legal system.              EEC of 9 February 1976 on the implementation of the
                                                                      principle of equal treatment for men and women as
 (*) OJ Nd L 234, 17. 9 . 1993 , p . 17 .                             regards access to employment, vocational training and
                                                                      promotion, and working conditions ( OJ No L 39 , 14 . 2 .
                                                                       1976, p. 40, hereinafter 'the Equal Treatment Directive')
                                                                      preclude national rules under which :
 ---pagebreak--- 28 . 6 . 97           EN                  Official Journal of the European Communities                                  No C 199/ 11
1 . in cases of under-representation under paragraph 3 ( 1 )             Republic has failed to fulfil its obligations under
     and (2 ) of the Hessen Equal Rights Law ( HGlG )                    Article 8 of Directive 83/189/EEC H laying down a
     selection decisions under paragraph 10 of the HGlG,                 procedure for the provision of information in the field
     where a woman and a man applicant have equal                        of technical standards and regulations,
     qualifications, must because of the binding nature of
     the targets in the women's advancement plan under
     paragraph 5 ( 3 ) and ( 4 ) of the HGlG be in favour of         — order the Italian Republic to pay the costs of the
     the woman applicant in the individual case, at least if             proceedings .
     that is necessary for fulfilling the targets and no
     reasons of greater legal weight are opposed;
                                                                     Pleas in law and main arguments adduced in support:
2 . the binding targets of the women's advancement plan
     for posts in the academic service to be filled for fixed        In view of the fact that the description ' Italian-type rural
     terms    and   for  academic assistants     must,   under       cock' has not been authorized by the Commission on the
     paragraph 5 ( 7 ) of the HGlG, provide for at least the         basis of any other Community rule ( for instance, as a
     same proportion of women as the proportion of                   designation of origin or geographical indication ) and that
     women among graduates ( subparagraph 7, sentence 1 ),           consequently it is indubitably subject to the arrangements
     holders of higher degrees ( subparagraph 7, sentence 2 )        laid down for technical standards by Directive 83/189/
     or students ( subparagraph 7, sentence 3 ) in the faculty       EEC, the Commission submits that, by adopting the
     in question;                                                    Decree of 17 December 1990 without having notified it at
                                                                     the draft stage, the Italian Republic has failed to fulfil its
3 . in training-based professions in which women are                 obligations under Article 8 ( 1 ) of Directive 83/189/EEC.
     under-represented, under paragraph 7 ( 1 ) of the HGlG
     women are to be taken into account to the extent of at
                                                                     In the    Commission's view, the           Italian  Government
     least one half in allocating training places, except in         adopted the decree in question with the main purpose of
     the case of training courses in which the State                 introducing a technical regulation within the meaning of
     exclusively provides training;                                  Article 1 ( 5 ) of Directive 83/189/EEC.
4. in sectors in which women are under-represented,
     under paragraph 9 ( 1 ) of the HGlG at least as many            In the light of the provisions at issue as a whole, it is
     women as men, or all the women applicants, are to be            evident that they are designed to lay down the
     called to interview if they satisfy the conditions laid         characteristics which products must display for the
     down by law or otherwise for appointment to the post            purpose of being marketed under the mark in question, or
     or the office to be conferred;                                  to describe the processes relating to their production. Any
                                                                     other provision contained therein is of a merely ancillary
                                                                     nature and function in relation to the prescription of a
5 . in making appointments to commissions, advisory                  technical standard .
     boards, boards of directors and supervisory boards
     and other collegiate bodies, under paragraph 14 of the
     HGlG at least half the members should be women ?                The Commission further submits that the breach of the
                                                                     notification procedure laid down by the Directive means
                                                                     that the technical regulation at issue cannot be relied on
                                                                     as against third parties.
                                                                     (') OJ No L 109, 26 . 4 . 1983 , p . 8 .
Action brought on 25 April 1997 by the Commission of
   the European Communities against the Italian Republic
                        (Case C-160/97)
                         ( 97/C 199/21 )
An action against the Italian Republic was brought before            Reference for a preliminary ruling by the Divisional
the Court of Justice of the European Communities on                  Court, High Court of Justice, Queen's Bench Division, by
                                                                     order of that court of 13 March 1997, in the case of The
25 April 1997 by the Commission of the European
Communities, represented by Paolo Stancanelli, of its                Queen against Secretary of State for Defence, ex parte:
                                                                                Terence Perkins
Legal Service, acting as Agent, with an address for service
in Luxembourg at the office of Carlos Gomez de la Cruz,                                       ( Case C-168/97)
Wagner Centre, Kirchberg.
                                                                                ( 97/C 199/22 )
The applicant claims that the Court should :
                                                                      Reference has been made to the Court of Justice of the
— declare that, by adopting the Decree of the Ministry of             European Communities by an order of the Divisional
      Agriculture and Forests of 17 December 1990 without             Court, High Court of Justice, Queen's Bench Division, of
      having notified it at the draft stage, the Italian              13 March 1997, which was received at the Court Registry


title: Case T-569/08: Order of the Court of First Instance of 27 July 2009 — Visonic v OHIM — Sedea Electronique (VISIONIC)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/37

         Order of the Court of First Instance of 27 July 2009 — Visonic v OHIM — Sedea Electronique (VISIONIC)
   (Case T-569/08) (1)

   2009/C 256/66

      Language of the case: English

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

      (1)  C 55, 7.3.2009.


title: Case T-341/13: Action brought on 27 June 2013 — Groupe Léa Nature/OHIM — Debonaire Trading (SO'BiO ētic)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/42

         Action brought on 27 June 2013 — Groupe Léa Nature/OHIM — Debonaire Trading (SO'BiO ētic)
   (Case T-341/13)
   2013/C 260/76
   Language in which the application was lodged: English

      Parties

      Applicant: Groupe Léa Nature (Périgny, France) (represented by: S. Arnaud, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Debonaire Trading Internacional, Lda (Funchal, Portugal)

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare the application admissible;

               —

               Annul decision R 203/2011-1 of the First Board of Appeal for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 March 2013, notified 18 April 2013;

               —

               Order DEBONAIRE TRADING INTERNACIONAL LDA and OHIM each to bear the costs, which they have incurred in the course of the proceedings before the General Court.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘SO’Bio ētic’, for goods in classes 3, 24 and 25 — Community trade mark application No 6 827 281

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Community trade mark registrations and United Kingdom trade mark registrations of the word mark ‘SO…?’et al., for goods in classes 3 and 25

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Annulled the contested decision and rejected the CTM application with respect to all goods claimed in classes 3 and 25

      Pleas in law: Infringement of Article 8 (1)(b) and (5) of CTMR.


title: Case C-85/14: Judgment of the Court (Third Chamber) of 17 September 2015 (request for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — KPN BV v Autoriteit Consument en Markt (ACM) (Reference for a preliminary ruling — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22/EC — Article 28 — Access to numbers and to services — Non-geographic numbers — Directive 2002/19/EC — Articles 5, 8 and 13 — Powers of the national regulatory authorities — Price control — Call transit services — National legislation requiring providers of telephone call transit services not to charge higher tariffs for calls to non-geographic numbers than for calls to geographic numbers — Undertaking without significant market power — Relevant national authority)

text:
               9.11.2015

               EN

               Official Journal of the European Union

               C 371/9

         Judgment of the Court (Third Chamber) of 17 September 2015 (request for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — KPN BV v Autoriteit Consument en Markt (ACM)
   (Case C-85/14) (1)

   ((Reference for a preliminary ruling - Electronic communications networks and services - Universal service and users’ rights - Directive 2002/22/EC - Article 28 - Access to numbers and to services - Non-geographic numbers - Directive 2002/19/EC - Articles 5, 8 and 13 - Powers of the national regulatory authorities - Price control - Call transit services - National legislation requiring providers of telephone call transit services not to charge higher tariffs for calls to non-geographic numbers than for calls to geographic numbers - Undertaking without significant market power - Relevant national authority))
   (2015/C 371/11)
   Language of the case: Dutch

      Referring court

   College van Beroep voor het bedrijfsleven

      Parties to the main proceedings

      Applicant: KPN BV

      Defendant: Autoriteit Consument en Markt (ACM)

      Intervening parties: UPC Nederland BV, UPC Nederland Business BV, Tele2 Nederland BV, BT Nederland NV

      Operative part of the judgment

               1)

               EU law must be interpreted as allowing a relevant national authority to impose a tariff obligation, such as that at issue in the main proceedings, under Article 28 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, to remove an obstacle to calling non-geographic numbers within the European Union which is not technical in nature, but which results from the tariffs applied, without a market analysis having been carried out showing that the undertaking concerned has significant market power, if such an obligation constitutes a necessary and proportionate step to ensure that end-users are able to access services using non-geographic numbers within the European Union.
               It is for the national court to determine whether that condition is satisfied and whether the tariff obligation is objective, transparent, proportionate, non-discriminatory, based on the nature of the problem identified and justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, and whether the procedures laid down in Articles 6, 7 and 7a of Directive 2002/21, as amended by Directive 2009/140, have been followed.

               2)

               EU law must be interpreted as meaning that a Member State may provide that a tariff obligation under Article 28 of Directive 2002/22, as amended by Directive 2009/136, such as that at issue in the main proceedings, be imposed by a national authority other than the national regulatory authority usually responsible for applying the European Union’s new regulatory framework for electronic communications networks and services, provided that that authority satisfies the conditions of competence, independence, impartiality and transparency required by Directive 2002/21, as amended by Directive 2009/140, and that the decisions which it takes can form the subject of an effective appeal to a body independent of the interested parties, this being a matter for the referring court to determine.

      (1)  OJ C 151, 19.5.2014.


title: Case T-767/15: Judgment of the General Court of 28 February 2017 — Labeyrie v EUIPO — Delpeyrat (Representation of a sowing of light coloured fish on a dark background) (EU trade mark — Revocation proceedings — EU figurative mark representing a sowing of light coloured fish on a dark background — Declaration of revocation — Genuine use of the mark — Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009 — Form that differs in elements does not alter the distinctive character)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/28

         Judgment of the General Court of 28 February 2017 — Labeyrie v EUIPO — Delpeyrat (Representation of a sowing of light coloured fish on a dark background)
   (Case T-767/15) (1)

   ((EU trade mark - Revocation proceedings - EU figurative mark representing a sowing of light coloured fish on a dark background - Declaration of revocation - Genuine use of the mark - Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009 - Form that differs in elements does not alter the distinctive character))
   (2017/C 121/41)
   Language of the case: French

      Parties

      Applicant: Labeyrie (Saint-Geours-de-Maremne, France) (represented by: A. Lecomte, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Delpeyrat (Saint-Pierre-du-Mont, France) (represented by: J. Ennochi, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 15 October 2015 (Case R 2694/2014-1), relating to revocation proceedings between Depeyrat and Labeyrie.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Labeyrie to bear its own costs as well as those incurred by EUIPO;

               3.

               Orders Delpeyrat to bear its own costs.

      (1)  OJ C 78, 29.2.2016.


title: Action brought on 8 June 1995 by Neue Maxhütte Stahlwerke GmbH and Lech-Stahlwerke GmbH against the Commission of the European Communities (Case T-129/95)

text:
2 . 9 . 95              EN                  Official Journal of the European Communities                                No C 229/21
Action brought on 8 June 1995 by Neue Maxhütte                         Action brought on 19 June 1995 by Nicolaos Progoulis
Stahlwerke GmbH and Lech-Stahlwerke GmbH against the                     against the Commission of the European Communities
          Commission of the European Communities                                              ( Case T-131/95 )
                         ( Case T-129/95 )                                                      ( 95/C 229/48 )
                           ( 95/C 229/47
                                                                                (Language of the case: French)
               (Language of the case: German)
                                                                       An action against the Commission of the European
                                                                       Communities was brought before the Court of First
An action against the Commission of the European                       Instance of the European Communities on 19 June 1995 by
Communities was brought before the Court of First                      Nicolaos Progoulis, residing in Brussels, represented, by
Instance of the European Communities on 8 June                         Vassilios Akritidis, of the Athens Bar, with an address for
1995 by Neue Maxhütte Stahlwerke GmbH, Sulzbach-                       service in Luxembourg at the Chambers of Arsène
Rosenberg ( FRG ), and Lech-Stahlwerke GmbH,                           Kronshagen, 12 Boulevard de la Foire .
Meitingen-Herbertshofen ( FRG), represented by Dr Rainer
M. Bierwagen, Rechtsanwalt, Brussels, with an address for
service in Luxembourg at the Chambers of Victor Elvinger,              The applicant claims that the Court should:
Elvinger &; Dessoy, 31 Rue d'Eich .
                                                                       — annual the decision of the defendant, addressed to the
                                                                           applicant by letter of 20 March 1995 , rejecting his
The applicants claim that the Court should :                               application for regrading in grade Bl , step 2, -with
                                                                           retroactive effect from 1 March 1983 , and for payment
1 . declare void the Commission's decision of 4 April 1995                 of the sum due in consequence of the regrading applied
     in so far as it concerns the applicants;                              for, calculated retroactively from 1 March 1983 ,
                                                                           together with compound interest thereon at the annual
                                                                           rate of 10 % ,
2 . order the defendant to pay the costs.
                                                                       — order the defendant to pay the costs .
Pleas in law and main arguments adduced in support:
                                                                       Pleas in law and main arguments adduced in support:
The application concerns the Commission's decision of
4 April 1995 addressed to the Federal German Government                The applicant states that he was appointed an official of the
in which it prohibited the Federal State of Bavaria's planned          defendant institution by decision of 9 March 1983 , in grade
contributions to compensation for accumulated losses and               B3 , step 2 . On the following day, he submitted an
in respect of certain investments on the ground that they              application for a review of his classification. He
were State aids which were incompatible with the ECSC                  subsequently lodged a complaint against the decision
Treaty and the Steel Aids Code .                                       rejecting that application, maintaining that the
                                                                       administration had failed to take into acount his period of
The applicants complain that there was an incorrect                    compulsory military service ( 27 months ). In consequence of
statement of the reasons on which the decision was based               that complaint, the defendant reclassified the applicant in
and a breach of Article 15 of the ECSC Treaty. The decision            grade B3 , step 3 .
is based on an erroneous representation and evaluation of
the facts .                                                            On 5 December 1991 , the applicant submitted an
                                                                       application for a review of his classification, on the ground
                                                                       that the professional experience gained by him prior to his
The applicants complain that there was an infringement of              entry into service (the administration had acknowledged
both the applicants ' and the Federal Government's right to            him as having 12 years and nine months' experience ), taken
be heard .
                                                                       together with his period of military service ( 27 months ), was
                                                                       greater ( 15 years ) than that required, according to the
The applicants also claim that the decision incorrectly                wording of the decision of 6 June 1973 on the criteria
applied Article 4 ( c ) of the ECSC Treaty because the planned         applicable to appointment in grade and step on recruitment
payments were in reality not aids . The Commission                     for appointment in grade Bl ( 14 years ). In support of his
misconstrued the notion of aid and incorrectly appraised the           application, the applicant relied on the case of another
Federal State of Bavaria's business conduct. Furthermore,              official whom the defendant had reclassified in a different
the     contested    decision     infringes  the    principle  of      career bracket with retroactive effect from the date of his
proportionality, fails to recognize that in view of the                 appointment. That application was rejected .
applicants' weak market position there is no effect on
competition in the common market, and prevents the                      On 6 May 1994, the applicant submitted a fresh application
 planned privatization measures in an anti-competitive                  for regrading in consequence of the judgment delivered by
 manner .                                                               the Court of First Instance on 29 September 1993 in Joined
                                                                        Cases T-103/92 , T-104/92 snd T-105/92 . That application
                                                                        was rejected by the defendant, who considered that that
                                                                        judgment was not applicable in the applicant's case.


title: Case T-661/15: Action brought on 13 November 2015 — Araujo v Parliament

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/74

         Action brought on 13 November 2015 — Araujo v Parliament
   (Case T-661/15)
   (2016/C 048/82)
   Language of the case: English

      Parties

      Applicant: Rui Araujo (Lisbon, Portugal) (represented by: N. Pirc Musar, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul decision A(2015)8663 C of the European Parliament of 15 September 2015 rejecting the applicant’s confirmatory application for access to certain documents relating to information on Members’ of the European Parliament travel expenses, subsistence allowances, general expenditure allowances and staffing arrangements expenses;

               —

               order the Parliament to pay the applicant’s costs pursuant to Articles 134 and 140 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 (1) in conjunction with Article 8(b) of Regulation 45/2001 (2), since the personal data requested are not protected under Community legislation

               2.

               Second plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 in conjunction with Article 8(b) of Regulation 45/2001, as the access to the requested information was refused, although the conditions for disclosure were met

               3.

               Third plea in law, alleging a violation of the general obligation, under Articles 2 and 4 of Regulation 1049/2001 in conjunction with Article 6(3) of Regulation 1049/2001, to conduct an examination of each individual document

               4.

               Fourth plea in law, alleging a violation of Article 4(6) of Regulation 1049/2001, as the refusal to grant partial access to the requested documents was not justified

               5.

               Fifth plea in law, alleging a violation of the duty to state reasons as required by Articles 7(1) and 8(1) of Regulation 1049/2001, as the Parliament failed to address all the applicant’s arguments

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

      (2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).


20150731063617142015/C 270/473122015TC27020150817EN01ENINFO_JUDICIAL20150609373822Case T-312/15: Action brought on 9 June 2015 — Market Watch v OHIM — Glaxo Group (MITOCHRON)
 ---documentbreak--- C2702015EN3720120150609EN0047372382Action brought on 9 June 2015 — Market Watch v OHIM — Glaxo Group (MITOCHRON)
   (Case T-312/15)2015/C 270/47Language in which the application was lodged: English
      Parties

      Applicant: Market Watch Franchise & Consulting, Inc. (Freeport, Bahamas) (represented by: J. Korab, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Glaxo Group Ltd (Brentford, United Kingdom)

      Details of the proceedings before OHIM

      Applicant: Applicant

      Trade mark at issue: Community word mark ‘MITOCHRON’ — Application for registration No 11 200 078

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 20 March 2015 in Case R 507/2014-2

      Form of order sought

   The applicant claims that the Court should:

            —

            admit the complaint;

            —

            annul the contested decision and dismiss in its entirety the application filed by the other party to the proceedings before the Board of Appeal;

            —

            order OHIM to pay the costs.

      Plea in law

            —

            The trade marks involved in the dispute are not so similar as to be capable of being confused.


title: Case T-723/14: Judgment of the General Court of 2 June 2016 — HX v Council (Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Modification of the form of order sought — Error of assessment)

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/25

         Judgment of the General Court of 2 June 2016 — HX v Council
   (Case T-723/14) (1)

   ((Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Modification of the form of order sought - Error of assessment))
   (2016/C 251/27)
   Language of the case: Bulgarian

      Parties

      Applicant: HX (Damascus, Syria) (represented by: S. Koev, lawyer)

      Defendant: Council of the European Union (represented by: I. Gurov and S. Kyriakopoulou, acting as Agents)

      Re:

   Action brought on the basis of Article 263 TFEU seeking the annulment of Council Implementing Decision 2014/488/CFSP of 22 July 2014 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2014 L 217, p. 49), of Council Implementing Regulation (EU) No 793/2014 of 22 July 2014 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2014 L 217, p. 10), and of Council Decision (CFSP) 2015/837 of 28 May 2015 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015 L 132, p. 82), in so far as the applicant’s name was included on the lists of persons and entities covered by those restrictive measures.

      Operative part of the judgment

   The Court:

               1.

               Annuls, in so far as they concern HX, Council Implementing Decision 2014/488/CFSP of 22 July 2014 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria, and Council Implementing Regulation (EU) No 793/2014 of 22 July 2014 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Council of the European Union to bear its own costs and to pay the costs incurred by HX.

      (1)  OJ C 462, 22.12.2014.


title: Case T-260/16: Action brought on 24 May 2016 — Kingdom of Sweden v European Commission

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/38

         Action brought on 24 May 2016 — Kingdom of Sweden v European Commission
   (Case T-260/16)
   (2016/C 305/53)
   Language of the case: Swedish

      Parties

      Applicant: Kingdom of Sweden (represented by: A. Falk, N. Otte Widgren, C. Meyer-Seitz, U. Persson and L. Swedenborg)

      Defendant: European Commission

      Form of order sought

               —

               First, declare Commission Implementing Decision (EU) 2016/417 of 17 March 2016 (the contested decision) invalid in so far as it provides that financial corrections are to be made at a flat rate of 2 percent equivalent to EUR 8 811 286,44 in decoupled direct aid paid out to Sweden for the 2013 claim year under Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003, and

               —

               In the alternative, set aside and vary the contested decision so as to reduce the above amount to EUR 1 022 259,46;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant submits that the Commission has disregarded Article 52 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 and Article 11(1) of Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD, in that, in the communication which has to be sent to the Member State under those provisions, it neither specifies the alleged infringement for which the applicant is responsible in this connection nor states what corrective measures are to be taken to ensure that the appropriate EU rules are followed in the future. The communication cannot, therefore, be relied on to justify the imposition of the contested flat rate financial corrections on Sweden.
   The applicant submits that the Commission based the contested decision on erroneous conclusions regarding the differences between the number of errors found in the use of checks by means of remote sensing and the number of errors found in the use of checks by means of classic on-site inspections. According to the applicant the Commission has been unable to demonstrate either what the alleged infringements consist in or how they could have led to a risk of losses for the EAGF. The applicant argues that Sweden selected the checks and in essence the risk analysis provided for by Article 31 of Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector and, therefore, Sweden did not expose the EAGF to the risks the Commission alleges. The Commission’s decision on a flat rate correction of 2 percent is thus, according to the applicant, contrary to Article 31 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy and Article 52 of Regulation No 130/2013.
   In the event that the Court concludes that the risk analysis was not effective under Article 31(2) of Regulation No 1122/2009, the applicant argues in the alternative that there were no grounds for the Commission to apply a flat rate correction of 2 percent. Neither the magnitude of the alleged infringement, in the light of its nature and extent, nor the financial loss which the infringement could have caused for the EU can justify the amount of EUR 8 811 286,44 which was deducted from EU financing by the contested decision. The applicant argues that, with due diligence, it is possible to establish the amount equivalent to the risk which the infringement could have created. Using the flat rate correction at issue is thus contrary to Article 5(2) of Regulation No 1306/2013 and to the Commission’s Guidelines for the calculation of financial consequences when preparing the decision regarding the clearance of the accounts of EAGGF Guarantee (Document No VI/5330/97) and the principle of proportionality. According to the applicant, the amount resulting from the flat rate correction should be reduced.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 12 December 1995 in Case T-203/95 R, Bernard Connolly v. Commission of the European Communities

text:
17 . 2 . 96            EN                Official Journal of the European Communities                                 No C 46/ 15
     ORDER OF THE COURT OF FIRST INSTANCE                                         ORDER OF THE PRESIDENT
                     of 17 November 1995                                     OF THE COURT OF FIRST INSTANCE
in Case T-330/94 Salt Union Ltd . v. Commission of the                                   of 12 December 1995
                   European Communities ( 1 )                       in Case T-203/95 R, Bernard Connolly v. Commission of
             (Intervention — Rules on Languages)                                      the European Communities
                          ( 96/C 46/28 )                                                       ( 96/C 46/29 )
                                                                                (Language of the case: French)
                 (Language of the case: English)
                                                                    In Case T-203/95 R: Bernard Connolly, an official of the
                                                                    Commission of the European Communities, resident at
In Case T-330/94 Salt Union Ltd, established in Cheshire            Everberg ( Belgium ), represented by Jacques Sambon and
( United Kingdom ), represented by Jonathan Scott and Craig         Pierre-Paul van Gehuchten, both of the Brussels Bar, with an
Pouncey, Solicitors, with an address for service in                 address for service in Luxembourg at the Chambers of Louis
Luxembourg at the Chambers of Georges Baden, 8                      Schiltz, 2 Rue du Fort Reinsheim, against the Commission
Boulevard Royal , v. Commission of the European                     of the European Communities (Agents : Gianluigi Valsesia
Communities ( Agents : Nicholas Khan and Jean-Paul                  and Julian Currall ) — application for interim measures
Keppenne ) — application, first, for the annulment of the           prohibiting the Commission from communicating to the
decision contained in a letter of 5 August 1994 in which the        press information concerning the disciplinary proceedings
Commission informed the applicant that it had found no              brought against the applicant whilst those proceedings are
ground for proposing any appropriate measures within the            in progress as well as information concerning his career,
meaning of Article 93 ( 1 ) of the EC Treaty with regard to the     personality, opinions or health, and ordering the
Netherlands regional aid scheme 'Subsidieregeling regionale         Commission to take all necessary measures to ensure that no
investeringsprojecten 1991 ' and, secondly, for an order that       such information is made public, and, secondly, ordering the
the Community should indemnify the applicant for the                Commission to pay the applicant a periodic penalty of Bfr
damage it considers it has suffered as a result of that              100 000 for every breach committed as from the date of the
decision, the Court of First Instance (Third Chamber,               interim order — the President of the Court of First Instance
extended composition ), composed of C. P. Briët, President,         has made an order on 12 December 1995 , the operative part
B. Vesterdorf, K. Lenaerts, P. Lindh and A. Potocki, Judges,        of which is as follows ::
H. Jung, Registrar, has made an order on 17 November
 1995 in which it :
                                                                     1 . The Commission is reminded to take all necessary
                                                                         measures to ensure that no information concerning Mr
                                                                         Connolly 's career, personality, opinions or health, likely
 1 . grants Frima BV leave to intervene in support of the                to harm, directly or indirectly, his personal and
     form of order sought by the Commission;                             professional reputation, is disclosed by its staff in
                                                                         contacts with the press or in any other manner.
2 . grants Verein Deutsche Salzindustrie eV leave to
     intervene in support of the form of order sought by Salt       2 . The remainder of the application for interim measures is
                                                                         dismissed.
      Union, in so far as it is based on Article 1 73 of the
      Treaty;
                                                                    3.   Costs are reserved.
 3 . orders a period to be prescribed within which the
      interveners must state in writing the pleas relied on in
     support of the forms of order which they seek;
4 . grants the requests submitted by Frima BV and Verein
      Deutsche Salzindustrie eV to be authorized to use Dutch
                                                                    Action brought on 27 November 1995 by Telecom Italia
      and German, respectively, in the oral procedure;
                                                                     SpA against the Commission of the European
                                                                                Communities
 5 . reserves the costs .                                                                   ( Case T-2 15/95 )
                                                                                ( 96/C 46/30 )
 (') OJ No C 380 , 31 . 12 . 1994 .
                                                                                (Language of the case: Italian)
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First


title: Case C-44/03: Reference for a preliminary ruling by the Bezirksgericht Dornbirn by order of that court of 16 December 2002 in the case of Helmut Horn against Dr Karl Schelling

text:
21.2.2004                EN                         Official Journal of the European Union                                          C 47/11
Council Directive 93/36/EEC of 14 June 1993 coordinating                    2.   Are Articles 49 and 12 EC to be interpreted as meaning
procedures for the award of public supply contracts, as amended by               that they do not apply to measures under Article 7 EC
Directive 97/52/EC of the European Parliament and the Council of                 and/or analogous bilateral foreign policy measures of
13 October 1997 amending Directives 92/50/EEC, 93/36/EEC                         individual Member States?
and 93/37/EEC concerning the coordination of procedures for the
award of public service contracts, public supply contracts and public
works contracts respectively, must be interpreted as meaning that a
contracting authority which has commenced a procedure for the               3.   Are Articles 49 and 12 EC to be interpreted as meaning
award of a contract on the basis of the lowest price may discontinue             that there are other principles in the imposition of
the procedure, without awarding a contract, when it discovers after              sanctions under Article 7 EC for the avoidance of
examining and comparing the tenders that, because of errors                      discrimination than for other measures of State action? If
committed by itself in its preliminary assessment, the content of the            appropriate it would be necessary to clarify what formal
invitation to tender makes it impossible for it to accept the most               or substantive preconditions must be observed in that
economically advantageous tender, provided that, when it adopts such             connection.
a decision, it complies with the fundamental rules of Community law
on public procurement such as the principle of equal treatment.
                                                                            4.   Are the provisions of Article 81 EC to be interpreted as
(1) OJ C 219 of 14.9.2002.                                                       meaning that the prohibitions laid down therein also
                                                                                apply to actions of the Member States themselves or only
                                                                                to undertakings and associations of undertakings? Should
                                                                                the latter be the case then it must be determined whether
                                                                                Articles 49 and 12 EC are to be interpreted as meaning
                                                                                that actions of Member States which fail to observe the
                                                                                principles laid down in Article 81 EC in any event
                                                                                infringe the prohibitions on discrimination laid down in
Reference for a preliminary ruling by the Bezirksgericht                         Articles 49 and 12 EC?
Dornbirn by order of that court of 16 December 2002 in
     the case of Helmut Horn against Dr Karl Schelling
                                                                            5.   Are Articles 49 and 12 EC to be interpreted as meaning
                           (Case C-44/03)                                        that demands for a boycott of the economy or parts of
                                                                                the economy of a Member State or measures likely to
                           (2004/C 47/18)                                        affect the economy of a Member State in such a way that
                                                                                competitive disadvantages may arise in that Member State
                                                                                are in any event unlawful and not permissible? Which
                                                                                conditions must be satisfied in order that in this respect
Reference has been made to the Court of Justice of the                           no infringements of the abovementioned provisions are
European Communities by order of the Bezirksgericht (District                    committed and to what extent are individual measures of
court) Dornbirn of 16 December 2002, received at the Court                       individual states in that connection also to be attributed
the Court Registry on 6 February 2003, for a preliminary                         to other states acting jointly?
ruling in the case of Helmut Horn against Dr Karl Schelling on
the following questions:
1.    Are the provisions of Article 49 et seq. EC and Article 12            6.   Are the provisions of the EC Treaty, in particular Article 7
      EC to be interpreted as precluding, on the basis of the                    EC, to be interpreted as meaning that a foreign policy in
      report of the three EU wise men, the EU sanctions and                      regard to the imposition of sanctions is no longer
      thus as meaning that in the present case one of the                        available to the individual EU Member States or, in regard
      defendants’ fundamental rights guaranteed under EU law                     to the imposition of sanctions against individual EU
      was infringed? Under those sanctions                                       Member States, does the possibility of a bilateral foreign
                                                                                policy on the part of the individual Member States
                                                                                subsist?
      (a)   official bilateral diplomatic contacts at political level
            are no longer to be entertained with an Austrian
            government so composed;
                                                                            7.   Are the provisions of the EC Treaty to be interpreted as
      (b) Austrian candidates are no longer to be supported in                   meaning that the imposition of sanctions without any
            selection procedures for international organisations;                formal procedure being pending under Article 7 EC and
            and                                                                  without any examination or in the absence of the
                                                                                substantive preconditions for sanctions under Article 7
      (c)   Austrian ambassadors are no longer to be received                    EC, even though those sanctions were published in the
            at political level (ministerial contacts) but henceforth             form of a measure of the European Union (EU Council),
            only at technical level (contacts with officials) and                constitute an act contrary to Community law or indeed a
            that in bilateral international relations there is no                non-act which is therefore irrelevant and unlawful as a
            business as usual with Austria?                                      sovereign act?
 ---pagebreak--- C 47/12                 EN                       Official Journal of the European Union                                             21.2.2004
8.    Are the provisions of the EC Treaty founding state liability             does not provide in the event of irregular legislative
      under the criteria laid down by the Court of Justice where               measures (Paragraph 1 AHG — ‘in enforcement of the
      rights directly conferred on EC citizens by the EC Treaty                Laws ...’), also to be classified as a damages claim?
      are grossly and culpably infringed to be interpreted as
      meaning that relevant restrictions on state liability under
      the national legal order, or also on the basis of decisions        (1) Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The
      of national courts (in particular to the effect that claims            Queen v Secretary of State for Transport, ex parte: Factortame Ltd
      for compensation in regard to foreign policy measures                  and Others [1996] ECR I-1029.
      are precluded), are in any event unlawful?                         (2) Courage Ltd v Bernard Crehan [2001] ECR I-6297.
                                                                         Reference for a preliminary ruling by the Landesgericht
Reference for a preliminary ruling by the Landesgericht                  für Zivilrechtsachen Wien by order of that court of
für Zivilrechtssachen Wien by order of that court of                     7 April 2003 in the case of Monika Herbstrith against
15 April 2003 in the case of Helmut Fröschl against                                              Republic of Austria
                        Republic of Austria
                                                                                (Case C-229/03)
                         (Case C-184/03)
                                                                                (2004/C 47/20)
                          (2004/C 47/19)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Landesgericht für
Reference has been made to the Court of Justice of the                   Zivilrechtsachen Wien (Regional civil court, Vienna) of 7 April
European Communities by order of the Landesgericht für                   2003, received at the Court Registry on 26 May 2003, for a
Zivilrechtssachen Wien (Regional Court for civil cases, Vienna)          preliminary ruling in the case of Monika Herbstrith against
of 15 April 2003, received at the Court Registry on 5 May                Republic of Austria on the following questions:
2003, for a preliminary ruling in the case of Helmut Fröschl
against Republic of Austria on the following questions:                  1.    Is EU law concerning equal treatment of men and women
                                                                               at work, in particular Directive 76/207/EEC (1), directly
                                                                               applicable, so that, as to amount, a claim for compen-
1.    In 1998 was it contrary to then directly applicable                      sation under Paragraph 15(1) of the B-GBG may be
      Community law, in particular Articles 12, 43 and 49 of                   obtained to the full extent of the damage occasioned,
      the EC Treaty, to interpret Paragraph 373c(3)(a), (b) and                irrespective of any limitation under Austrian domestic
      (c) of the Gewerbeordnung 1994 (Trade Code, GewO                         legislation or, in the absence of any such direct applica-
      1994), BGBl No 194, in the version of BGBl No I 63/                      bility of EU law, is there a claim founded on state liability
      1997, and the Regulation of the Federal Minister for                     for compensation to the full extent of the damage?
      Economic Affairs on the grant of exemption from the
      prescribed proof of competence for nationals of Member
      States of the Agreement on the European Economic Area,             2.    In the assessment of claims in respect of the foregoing is
      BGBl No 775/1993, in such a way that a national                          the rule concerning the burden of proof in Article 4 of
      photographer is prohibited from exercising his trade                     Council Directive 97/80/EC (2) directly applicable and, if
      because the qualifications set out there for proof of                    so,
      competence have been acquired by him in Austria and
      not in another State of the EEA?                                         (a)   does that apply on the basis that an expert opinion
                                                                                within the meaning of Paragraph 22(1) of the B-
      If question 1 is answered in the affirmative:                                  GBG is sufficient for the purposes of attestation if it
                                                                                appears conclusively and unreservedly that there is
      According to the settled case-law of the Court of Justice                      discrimination and it cannot be ruled out that such
      (e.g. Joined Cases C-46/93 and C-48/93 (1); Case C-453/                        discrimination arose for gender-related reasons, with
      99 (2)), is the payment of the costs which the plaintiff has                   the result that in the case giving rise to this reference
      to incur in domestic proceedings, including his recourse                       the opinion of the federal committee on equal
      to public law courts, in order to have a law contrary to                       treatment of 9 November 1998 satisfies this require-
      Community law set aside and for which national law                             ment


title: Case C-524/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 21 December 2004, in the case of Test Claimants in the Thin Cap Group Litigation against Commissioners of Inland Revenue

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/20

         Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 21 December 2004, in the case of Test Claimants in the Thin Cap Group Litigation against Commissioners of Inland Revenue
   (Case C-524/04)
   (2005/C 57/35)
   Language of procedure: English
   Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales), Chancery Division, dated 21 December 2004, which was received at the Court Registry on 31 December 2004 for a preliminary ruling in the case of Test Claimants in the Thin Cap Group Litigation and Commissioners of Inland Revenue on the following questions:

               1.

               Is it contrary to Article 43, 49 or 56 EC for a Member State (‘the State of the borrowing company’) to keep in force and apply provisions such as those in sections 209, 212 and schedule 28AA of the Income and Corporation Taxes Act 1988 (‘the national provisions’) which impose restrictions upon the ability of a company resident in that Member State (‘the borrowing company’) to deduct for tax purposes interest on loan finance granted by a direct or indirect parent company resident in another Member State in circumstances where the borrowing company would not be subject to such restrictions if the parent company had been resident in the State of the borrowing company?

               2.

               What difference, if any, does it make to the answer to Question 1:

                           a)

                           if the loan finance is provided not by the parent company of the borrowing company but by another company (‘the lending company’) in the same company group sharing a common direct or indirect parent company with the borrowing company and both that common parent and the lending company are resident in Member States other than the State of the borrowing company?

                           b)

                           if the lending company is resident in a Member State other than that of the borrowing company but all common direct or indirect parent companies of the borrowing company and the lending company are resident in a third country?

                           c)

                           if all the common direct or indirect parent companies of the lending company and the borrowing company are resident in third countries and the lending company is resident in a Member State other than that of the borrowing company, but advances the loan finance to the borrowing company from a branch of the lending company situated in a third country?

                           d)

                           if the lending company and all the common direct or indirect parent companies of the lending company and the borrowing company are resident in third countries?

               3.

               Would it make any difference to the answers to Questions 1 and 2 if it could be shown that the borrowing constituted an abuse of rights or was part of an artificial arrangement designed to circumvent the tax law of the Member State of the borrowing company? If so, what guidance does the Court of Justice think it appropriate to provide as to what constitutes such an abuse or artificial arrangement in the context of cases such as the present?

               4.

               If there is a restriction on the movement of capital between Member States and third countries within article 56 EC, did that restriction exist on 31 December 1993 for the purposes of article 57 EC?

               5.

               In the event that any of the matters referred to in questions 1 or 2 are contrary to Articles 43, 49 or 56 EC, then in circumstances where the borrowing company, or other companies in the borrowing company's group (‘the Claimants’) make the following claims:

                           a)

                           a claim for the repayment of the additional corporation tax paid by the borrowing company as a result of the disallowance, as a deduction against its profits chargeable to corporation tax, of interest paid to the lending company, where those interest payments would have been regarded as allowable deductions from the borrowing company's profits if the lending company had also been resident in the State of the borrowing company;

                           b)

                           a claim for repayment of the additional corporation tax paid by the borrowing company where the full amount of interest on the loan has actually been paid to the lending company but the claim for a deduction in respect of that interest has been reduced because of the national provisions or the tax authority's application of them;

                           c)

                           a claim for the repayment of the additional corporation tax paid by the borrowing company where the amount of interest on loans from the lending company, allowable as a deduction against the borrowing company's profits, has been reduced because equity capital has been subscribed rather than loan capital, or has been substituted for existing loan capital, because of the national provisions or the tax authority's application of them;

                           d)

                           a claim for the repayment of the additional corporation tax paid by the borrowing company where the interest on loans from the lending company allowable as a deduction against the borrowing company's profits has been reduced by reducing the rate of interest chargeable on the loan (or making the loan interest free) as a result of the national provisions or the tax authority's application of them;

                           e)

                           a claim for restitution or compensation in respect of losses, or other tax reliefs or credits, of the borrowing company (or which were surrendered to the borrowing company by other companies in the borrowing company's group which were also resident in the State of the borrowing company) used by the borrowing company to offset the additional corporation tax liabilities referred to in paragraphs (a), (b) or (c) above, where such losses, reliefs and credits would otherwise have been available for alternative use or to be carried forward;

                           f)

                           a claim for repayment of un-utilised advance corporation tax paid by the borrowing company upon interest payments to the lending company which were re-characterised as distributions;

                           g)

                           a claim for restitution or compensation in respect of amounts of advance corporation tax paid in the circumstances referred to in paragraph (f) above but which were subsequently set off against the borrowing company's corporation tax liabilities;

                           h)

                           a claim for compensation for costs and expenses incurred by the Claimants in complying with the national provisions and the Revenue authority's application of them;

                           i)

                           a claim for restitution or compensation for the loss of return upon loan capital invested as equity (or converted to equity) in the circumstances described in (c); and

                           j)

                           a claim for restitution or compensation for any tax liability incurred by the lending company in its State of residence upon the deemed or imputed receipt of interest from the borrowing company which was recharacterised as a distribution under the national provisions referred to in question 1
                           are such claims to be regarded, for the purposes of Community law, as:
                           claims for restitution or repayment of sums unduly levied which arise as a consequence of, and adjunct to, the breach of the abovementioned Community provisions; or
                           claims for compensation or damages; or
                           claims for payment of an amount representing a benefit unduly denied?

               6.

               In the event that the answer to any part of Question 5 is that the claims are claims for payment of an amount representing a benefit unduly denied:

                           a)

                           are such claims a consequence of, and an adjunct to, the right conferred by the abovementioned Community provisions; or

                           b)

                           must all or some of the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame be satisfied; or

                           c)

                           must some other conditions be met?

               7.

               Does it make any difference whether as a matter of domestic law the claims referred to in Question 6 are brought as restitutionary claims or are brought or have to be brought as claims for damages?

               8.

               What guidance, if any, does the Court of Justice think it appropriate to provide in the present cases as to which circumstances the national court ought to take into consideration when it comes to determine whether there is a sufficiently serious breach within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame, in particular as to whether, given the state of the case law on the interpretation of the relevant Community provisions, the breach was excusable?

               9.

               As a matter of principle, can there be a direct causal link (within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame) between any breach of Articles 43, 49 and 56 EC and losses falling into the categories identified in Question 5(a)-(h) that are claimed to flow from it? If so, what guidance, if any, does the Court of Justice think it appropriate to provide as to the circumstances which the national court should take into account in determining whether such a direct causal link exists?

               10.

               In determining the loss or damage for which reparation may be granted, is it open to the national court to have regard to the question of whether injured persons showed reasonable diligence in order to avoid or limit their loss, in particular by availing themselves of legal remedies which could have established that the national provisions did not (by reason of the application of double taxation conventions) have the effect of imposing the restrictions set out in Question 1? Is the answer to this question affected by the beliefs of the parties at the relevant times as to the effect of the double taxation conventions?


title: Case C-246/0l: Action brought on 25 June 2001 by the Commission of the European Communities against the Kingdom of the Netherlands.

text:
C 245/8                EN                    Official Journal of the European Communities                                          1.9.2001
Reference for a preliminary ruling by the Tribunale di                        failed to fulfil its obligations under Article 3(1) of Council
Ascoli Piceno, Italy, by order of that court of 30 March                      Regulation (EEC) No 2408/92 of 23 July 1992 on access
2001 in criminal proceedings against Piergiorgio Gambelli                     for Community air carriers to intra-Community air
                            and Others                                        routes;
                                                                        2.    Order the Kingdom of the Netherlands to pay the costs
                         (Case C-243/01)
                                                                              of the proceedings.
                         (2001/C 245/14)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunale di Ascoli             In adopting Regulation No 2408/92 the Council, pursuant to
Piceno of 30 March 2001, which was received at the Court                Article 80(2) EC, defined the detailed rules for application of
Registry on 22 June 2001, for a preliminary ruling in                   the principle of freedom to supply services within the area of
the criminal proceedings pending before that court against              air transport, as set out in Article 49 EC. When the provisions
Piergiorgio Gambelli and Others, on the following question:             of Regulation No 2408/92 fall to be interpreted, therefore,
                                                                        recourse must be had to that principle, which goes further
                                                                        than simply prohibiting discrimination of a service provider
A decision is sought as to the compatibility with Article 43 et
                                                                        established in another Member State on the ground of that
seq. and Article 49 et seq. of the EC Treaty regarding freedom
                                                                        person’s nationality, providing as it does also for the removal
of establishment and freedom to provide cross-frontier ser-
                                                                        of any restriction whatsoever — even if applicable without
vices, and the repercussions thereof within the national legal
                                                                        distinction to domestic service providers and to service providers
order, of domestic legislation like the Italian provisions
                                                                        from other Member States — which prohibits, obstructs or
contained in Article 4(1) et seq., Article 4 bis and Article 4 ter
                                                                        renders less attractive the activities ’of a service provider who
of Law No 401 of 13 December 1989 (as most recently
                                                                        is established in another Member State and lawfully provides
amended by Article 37(5) of Law No 388 of 23 December
                                                                        similar services there. Under Article 1 of the Netherlands
2000) which impose prohibitions — enforced by criminal
                                                                        Regulation of 9 May 1995, there is an exemption from
penalties — on the pursuit, by any person and at any place, of
                                                                        mandatory checks for ’flights with a domestic destination. This
the activities of collecting, taking, booking and forwarding
                                                                        does not apply in the case of flights on which passengers can
offers of bets, in particular bets on sporting events, unless
                                                                        mingle with passengers for flights having an international
the requirements concerning concessions and authorisations
                                                                        destination’. As a result of this, a cross-border flight within the
prescribed by domestic law have been complied with.
                                                                        Community involves the carrier in higher costs than in
                                                                        the case of a comparable domestic flight. The Netherlands
                                                                        Regulation also makes it possible for security checks to be
                                                                        carried out for domestic flights (on the ground that passengers
                                                                        on such flights may mingle with passengers for international
                                                                        flights), but without any charge being levied in that connection.
Action brought on 25 June 2001 by the Commission of
the European Communities against the Kingdom of the
                           Netherlands.
                          (Case C-246/0l)                               Reference for a preliminary ruling by the Bundesverga-
                                                                        beamt Wien by order of that court of 25 June 2001 in the
                         (2001/C 245/15)                                review procedure brought by the architect and qualified
                                                                        engineer Werner Hackermüller against 1. BIG Bundesim-
                                                                        mobiliengesellschaft mbH and 2. WED Wiener Entwick-
An action against the Kingdom of the Netherlands was brought                                   lungsgesellschaft mbH
before the Court of Justice of the European Communities
on 25 June 2001 by the Commission of the European                                                   (Case C-249/01)
Communities, represented by M. Huttunen and H.M.H. Spey-
art, acting as Agents.                                                                             (2001/C 245/16)
The applicant claims that the Court should:                             Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Bundesvergabeamt
1.    Rule that, by adopting and maintaining in force                   Wien (Federal Contracting Authority, Vienna) of 25 June 2001,
      Articles 37g and 37j of the Luchtvaartwet (Law on Air             received at the Court Registry on 28 June 2001, for a
      Traffic) and Article 1 of the Regulation of the Netherlands       preliminary ruling in the review procedure brought by the
      Minister of Justice of 9 May 1995 on the exemption of             architect and qualified engineer Werner Hackermüller against
      flights on which passengers are subject to checks for             1. BIG Bundesimmobiliengesellschaft mbH and 2. WED Wien-
      dangerous objects, the Kingdom of the Netherlands has             er Entwicklungsgesellschaft mbH on the following questions:


title: Case T-440/15: Action brought on 29 July 2015 — European Dynamics Luxembourg and Others v European Medicines Agency

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/31

         Action brought on 29 July 2015 — European Dynamics Luxembourg and Others v European Medicines Agency
   (Case T-440/15)
   (2015/C 337/32)
   Language of the case: Greek

      Parties

      Applicants: European Dynamics Luxembourg SA (Luxembourg, Luxembourg), Evropaiki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Αthens, Greece), European Dynamics Belgium SA (Βrussels, Βelgium) (represented by: I. Ambazis and M. Sfyri, lawyers)

      Defendant: European Medicines Agency

      Form of order sought

   The applicants claim that the General Court should:

               —

               annul the Request Form for Services of the European Medicines Agency No SC002, in the context of the ΕΜΑ/2012/10/ICT framework-agreement, which was communicated to the applicants on 22/05/2015, by means of an e-mail from the Head of the Central Sourcing Unit; and

               —

               order the European Medicines Agency to pay all the costs of the applicants.

      Pleas in law and main arguments

   In the opinion of the applicants, the contested Request Form for Services should be annulled under Article 263 TFEU, because the EMA altered the award criteria which were set out in the Technical Specifications, and introduced new criteria at the stage of sending a request form for the services of business analysts.


title: Case C-143/99: Reference for a preliminary ruling from the Verfassungsgerichtshof, Austria, by order of that court of 10 March 1999 in the cases of Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer Zementwerke GmbH v Finanzlandesdirektion für Kärnten

text:
C 188/18             EN                     Official Journal of the European Communities                                        3.7.1999
either of the Member States concerned, against the taxable             The applicant claims that the Court should:
income of that company for the purposes of assessment to
corporation tax, whereas, if the permanent establishment were
located in the same Member State as the company, the business          (a) Declare that:
losses in question could certainly be set off against the taxable
income of that company?                                                    — by maintaining, in breach of Article 59 of the EC
                                                                                Treaty, a general prohibition whereby lawyers estab-
                                                                                lished in other Member States and practising in Italy in
                                                                                the exercise of the freedom to provide services do not
                                                                                have available to them the infrastructure needed by
                                                                                them to provide their services;
                                                                           — by making enrolment as a lawyer on an Italian register
Reference for a preliminary ruling from the Verfassungs-                        conditional upon the possession of Italian citizenship,
gerichtshof, Austria, by order of that court of 10 March                        the possession of qualifications acquired only in Italy
1999 in the cases of Adria-Wien Pipeline GmbH and                               and maintenance of a residence in an Italian judicial
Wietersdorfer & Peggauer Zementwerke GmbH v Fin-                                district;
               anzlandesdirektion für Kärnten
                                                                           — by applying in a discriminatory manner against lawyers
                       (Case C-143/99)                                          from other Member States the ‘offsetting measures’
                                                                                (aptitude test) provided for in Article 4 of Council
                       (1999/C 188/41)                                          Directive 89/48/EEC of 21 December 1988; (1)
Reference has been made to the Court of Justice of the                     — by incompletely transposing Directive 89/48, notwith-
European Communities by an order of the Verfassungsgericht-                     standing the absence of implementing rules laying
shof (Constitutional Court), Austria, of 10 March 1999, which                   down arrangements for the aptitude test for lawyers
was received at the Court Registry on 21 April 1999, for a                      from other Member States,
preliminary ruling in the cases of Adria-Wien Pipeline GmbH
and Wietersdorfer & Peggauer Zementwerke GmbH v Fin-
anzlandesdirektion für Kärnten on the following questions:             the Italian Republic has failed to fulfil its obligations under
                                                                       Articles 52 and 59 of the EC Treaty and of Direc-
1. Are legislative measures of a Member State which provide            tive 89/48/EEC;
    for partial reimbursement of energy duties on natural gas
    and electrical energy, but grant that reimbursement only           (b) Order the italian Republic to pay the costs.
    to undertakings whose activity is shown to consist primar-
    ily in the production of tangible assets, to be regarded as
    State aid within the meaning of Article 92 of the EC
    Treaty?                                                            Contentions and principal arguments adduced in support
2. If the answer to Question 1 is affirmative: Is such a
    legislative measure to be regarded as State aid under
    Article 92 of the EC Treaty even if it is granted to all           (a) A lawyer established in another Member State who prac-
    undertakings, regardless of whether their activity is shown            tises law in the exercise of his freedom to provide
    to consist primarily in the production of tangible assets?             services must have an opportunity of access in Italy to
                                                                           an infrastructure enabling him to provide the services
                                                                           requested by his clients. The prohibition in Article 2 of
                                                                           Law No 31/1982, by reason of its absolute and general
                                                                           nature, is therefore incompatible with the principle of the
                                                                           freedom to provide services as laid down and defined in
                                                                           Articles 59 and 60 of the Treaty and as interpreted by the
                                                                           Court of Justice, in particular in its judgment in Gebhard (2).
Action brought on 21 April 1999 by the Commission of
 the European Communities against the Italian Republic                 (b) The Commission considers that the continuing existence
                                                                           in the Italian legislation governing the professions of a
                       (Case C-145/99)                                     provision like Article 17.1.7, which imposes as a precon-
                                                                           dition for enrolment on the lawyers’ professional register
                                                                           the requirement of residence within the district of the
                       (1999/C 188/42)                                     Court in the area of the local Bar Association, despite the
                                                                           recommendation from the National Bar Association the
An action against the Italian Republic was brought before the              local Bar Associations in its Opinion of 29 April 1994 that
Court of Justice on 21 April 1999 by the Commission of the                 that provision be disapplied, is precisely the opposite of
European Communities, represented by Enrico Traversa, Legal                the precise, clear and transparent situations which the
Adviser, and Bernard Mongin, of its legal Service, acting as               Court requires the Member States to provide in order to
Agents, with an address for service in Luxembourg at the office            enable lawyers to determine the rights conferred on them
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                     by Article 52 of the Treaty and to make use of them.


title: Case T-87/15: Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car) (European Union trade mark — Withdrawal of the application for registration — No need to adjudicate)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/45

         Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car)
   (Case T-87/15) (1)

   ((European Union trade mark - Withdrawal of the application for registration - No need to adjudicate))
   (2016/C 419/60)
   Language of the case: English

      Parties

      Applicant: Aston Martin Lagonda Ltd (Gaydon, United Kingdom) (represented by: D. Farnsworth, Solicitor)

      Defendant: European Union Intellectual Property Office (represented by: H. O’Neill, acting as Agent)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 11 December 2014 (Case R 1797/2014-2) relating to the applicant’s Community trade mark application

      Operative part of the order

               1.

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

               2.

               Aston Martin Lagonda Ltd shall bear its own costs and pay those incurred by the European Union Intellectual Property Office (EUIPO).

      (1)  OJ C 138, 27.4.2015.


title: Case T-436/11: Action brought on 3 August 2011 — Afriqiyah Airways v Council

text:
               1.10.2011

               EN

               Official Journal of the European Union

               C 290/14

         Action brought on 3 August 2011 — Afriqiyah Airways v Council
   (Case T-436/11)
   2011/C 290/20
   Language of the case: French

      Parties

      Applicant: Afriqiyah Airways (Tripoli, Libya) (represented by: B. Sarfati, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   Annulment of Council Implementing Decision 2011/300/CFSP of 23 May 2011 implementing Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya (OJ 2011 L 136, p. 85), together with Annex II to that decision;
   Order that the Council pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the procedure for adopting the measure was irregular. The applicant pleads that the procedure concerning the adoption of the contested decision provided for by Article 8(2) of Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 53) was irregular, and relies on breach of the provisions of the second paragraph of Article 296 TFEU.

               2.

               Second plea in law, alleging infringement of the obligation to state the reasons for the decision. The applicant criticises the Council for providing a stereotype statement of reasons, which did not enable the addressee of the decision to understand the reasons for its adoption, nor the General Court to exercise its judicial review of the measure’s legality. The ground that the applicant is a subsidiary of and owned by the Libyan African Investment Portfolio, an entity itself covered by the restrictive measures, is insufficient.

               3.

               Third plea in law, alleging infringement of the rights of the defence on the ground that it was not established that the rights of the defence were respected or that the applicant was put in a position to assert its rights prior to its inclusion on the list.

               4.

               Fourth plea in law, alleging breach of Article 27 TEU. The applicant claims that Decision 2011/137/CFSP referred to in paragraph 2 and Council Decision 2011/178/CFSP of 23 March 2011 amending Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya (OJ 2011 L 78, p. 24), were adopted in breach of Article 27(1) TEU.

               5.

               Fifth plea in law, alleging error of law and manifest error of assessment on the ground that the applicant is a civil airline carrying passengers and freight, whereas the contested decision has the effect of freezing the applicant’s assets on the sole ground that it is the property of the Libyan State, through an investment fund.