title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 15 July 1998 in Case T-286/97 R: Anthony Goldstein v. Commission of the European Communities (No need to adjudicate)

text:
C 312/12              EN                  Official Journal of the European Communities                                  10.10.98
of: V. Tiili, President, C. P. BrieÈt and A. Potocki, Judges;        service in Luxembourg at the Chambers of Elvinger, Hoss
H. Jung, Registrar, made an order on 6 July 1998, the                et Prussen, 2 Place Winston Churchill v. Commission of
operative part of which is as follows:                               the European Communities (Agents: Kirsi Leivo and
                                                                     Richard Lyal) Ð application for annulment of Articles 2
1. The application is dismissed.                                     and 4 of Commission Decision C(97) 3036 of 6 October
                                                                     1997 relating to a procedure pursuant to Article 11(5) of
2. The applicant shall pay the costs.                                Council Regulation No 17 (IV/35.860 Ð Steel tubes), Ð
                                                                     the Court of First Instance (Fourth Chamber), composed
(1) OJ C 7, 10.1.1998.
                                                                     of: P. Lindh, President, K. Lenaerts and J. D. Cooke,
                                                                     Judges, has given an order of 24 June 1998, in which:
                                                                     1. The application         is    dismissed  as    manifestly
                                                                         inadmissible.
               ORDER OF THE PRESIDENT
          OF THE COURT OF FIRST INSTANCE                             2. The applicant is ordered to pay the costs.
                       of 15 July 1998
                                                                     (1) OJ C 55, 20.2.1998.
in Case T-286/97 R: Anthony Goldstein v. Commission of
                  the European Communities
                    (No need to adjudicate)
                        (98/C 312/32)
               (Language of the case: English)                                      ORDER OF THE PRESIDENT
                                                                              OF THE COURT OF FIRST INSTANCE
In Case T-286/97 R: Anthony Goldstein, residing in                                           of 7 July 1998
London, represented by Raymond St John Murphy,
solicitor, 3 Kings Bench Walk, Inner Temple, London,                 in Case T-65/98 R, Van den Bergh Foods Ltd v.
against Commission of the European Communities Ð                              Commission of the European Communities
application for interim measures in connection with a                (Competition Ð Interlocutory proceedings Ð Intervention
complaint (IV/34.824 Ð Goldstein/GMC) against certain                       Ð Confidentiality Ð Suspension of execution)
anti-competitive practices, lodged by the applicant under
Article 3(2) of Council Regulation No 17 of 6 February                                       (98/C 312/34)
1962, First Regulation implementing Articles 85 and 86 of
the Treaty (OJ, English Special Edition 1959Ð1962, p. 87)
                                                                                (Language of the case: English)
Ð the President of the Court of First Instance made an
order on 15 July 1998, the operative part of which is as
follows:                                                             In Case T-65/98 R, Van den Bergh Foods Ltd, formerly
                                                                     HB Ice Cream Ltd, established in Dublin, represented by
1. There is no need to adjudicate on the application for             Malcolm Nicholson and Michael Rowe, solicitors, with an
     interim measures.                                               address for service in Luxembourg at the Chambers of
                                                                     Elvinger, Hoss & Prussen, 2 Place Winston Churchill, v.
2. The applicant shall bear his own costs.                           Commission of the European Communities (Agents: Barry
                                                                     Doherty and Wouter Wils) Ð application for suspension
                                                                     of execution of the Commission Decision of 11 March
                                                                     1998 relating to a proceeding under Articles 85 and 86 of
                                                                     the EC Treaty (Case Nos IV/34.073, IV/34.395 and IV/
                                                                     35.436 Ð Van den Bergh Foods Limited) Ð the President
     ORDER OF THE COURT OF FIRST INSTANCE                            of the Court of First Instance made an order on 7 July
                                                                     1998 in which he:
                       of 24 June 1998
in Case T-596/97: Dalmine SpA v. Commission of the
                                                                     1. grants leave to Master Foods Ltd and Treats Frozen
                   European Communities (1)
                                                                         Confectionery Ltd to intervene in Case T-65/98 R in
(Action for annulment Ð Competition law Ð Decision                       support of the forms of order sought by the defendant;
requiring the supply of information Ð Periodic penalty
    payments Ð Notification Ð Manifest inadmissibility)
                                                                     2. grants the requests for confidential treatment made by
                        (98/C 312/33)                                    Van den Bergh Foods Ltd, with respect to certain
                                                                         information contained in its application for suspension
               (Language of the case: English)                           of execution of the Commission Decision of 11 March
                                                                         1998 relating to a proceeding under Articles 85 and
In Case T-596/97: Dalmine SpA, established in Dalmine                    86 of the EC Treaty (Case Nos IV/34.073, IV/34.395
(Italy), represented by Fabrizio Arossa, of the Milan Bar,               and IV/35.436 Ð Van den Bergh Foods Limited), for
and Rachel Brandenburger, Solicitor, with an address for                 the purposes of the interlocutory proceedings;


title: Judgment of the Court (Sixth Chamber) of 5 December 2002 in Case C-324/01: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Conservation of natural habitats — Wild fauna and flora — Incomplete transposition)

text:
25.1.2003               EN                       Official Journal of the European Communities                                             C 19/7
                 JUDGMENT OF THE COURT                                                         JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                               (Sixth Chamber)
                       of 28 November 2002                                                            of 5 December 2002
in Case C-259/01: Commission of the European Communi-                       in Case C-324/01: Commission of the European Communi-
                                                                                ties v Kingdom of Belgium ( 1)
                     ties v French Republic ( 1)
                                                                            (Failure by a Member State to fulfil its obligations —
(Failure by a Member State to fulfil its obligations —                      Conservation of natural habitats — Wild fauna and flora —
Directive 98/30/EC — Failure to transpose within the                                                Incomplete transposition)
                          prescribed period)
                                                                                (2003/C 19/13)
                           (2003/C 19/12)
                                                                                (Language of the case: French)
                    (Language of the case: French)
                                                                            (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                            in the European Court Reports)
                   in the European Court Reports)
                                                                            In Case C-324/01, Commission of the European Communities
In Case C-259/01, Commission of the European Communities                    (Agents: R. B. Wainwrighte and J. Adda) v Kingdom of Belgium
(Agent: R. Tricot) v French Republic (Agents: G. de Bergues                 (Agent: C. Pochet): Application for a declaration that, by failing
and A. Bréville-Viéville): Application for a declaration that, by           to take all the measures necessary to ensure the full and proper
failing to adopt the laws, regulations and administrative                   transposition of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 14, 15,
provisions necessary to comply with Directive 98/30/EC of                   16(1), 22(b) and (c) and 23(2) of Council Directive 92/43/EEC
the European Parliament and of the Council of 22 June 1998                  of 21 May 1992 on the conservation of natural habitats and
concerning common rules for the internal market in natural                  of wild fauna and flora (OJ 1992 L 206, p. 7), in conjunction
gas (OJ 1998 L 204, p. 1), or, in any event, by not notifying               with Annexes II, IV, V and VI thereto, the Kingdom of Belgium
the Commission thereof, the French Republic has failed to                   has failed to fulfil its obligations under the Directive and the
fulfil its obligations under that directive and, in particular,             third paragraph of Article 249 EC, the Court (Sixth Chamber),
under Article 29 thereof, the Court (Sixth Chamber), composed               composed of: J.-P. Puissochet, President of the Chamber,
of: R. Schintgen (Rapporteur), President of the Second Chamb-               C. Gulmann (Rapporteur), F. Macken, N. Colneric and
er, acting for the President of the Sixth Chamber, C. Gulmann,              J.N. Cunha Rodrigues, Judges; P. Léger, Advocate General;
V. Skouris, F. Macken and N. Colneric, Judges; C. Stix-Hackl,               R. Grass, Registrar, has given a judgment on 5 December
Advocate General; R. Grass, Registrar, has given a judgment                 2002, in which it:
on 28 November 2002, in which it:
                                                                            1.    Declares that by failing to adopt all the laws, regulations and
                                                                                administrative measures necessary to ensure the full and proper
1.    Declares that, by failing to adopt the laws, regulations and
                                                                                transposition of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 14, 15,
      administrative provisions necessary to comply with Directive
                                                                                16(1), 22(b) and (c) and 23(2) of Council Directive 92/43/
      98/30/EC of the European Parliament and of the Council of
                                                                                EEC of 21 May 1992 on the conservation of natural habitats
      22 June 1998 concerning common rules for the internal market
                                                                                and of wild fauna and flora, in conjunction with Annexes II,
      in natural gas, the French Republic has failed to fulfil its
                                                                                IV, V and VI thereto, the Kingdom of Belgium has failed to
      obligations under Article 29 thereof;
                                                                                fulfil its obligations under the Directive;
2.    Orders the French Republic to pay the costs.                          2.    Orders the Kingdom of Belgium to pay the costs.
( 1) OJ C 227 of 11.8.2001.                                                 (1 ) OJ C 289 of 13.10.2001.


title: Case C-481/16: Action brought on 2 September 2016 — European Commission v Hellenic Republic

text:
               17.10.2016

               EN

               Official Journal of the European Union

               C 383/9

         Action brought on 2 September 2016 — European Commission v Hellenic Republic
   (Case C-481/16)
   (2016/C 383/12)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: A. Bouchagiar and B. Stromsky, acting as Agents)

      Defendant: Hellenic Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the Hellenic Republic, by failing to take within the prescribed time-limits all the measures required for the implementation of the Commission Decision of 27 March 2014 in Case SA.34572 on the State aid implemented by Greece for Larco General Mining & Metallurgical Company S.A. or, in any event, by failing adequately to inform the Commission of the measures taken in accordance with Article 5 of the Decision, failed to fulfil its obligations under Articles 3, 4 and 5 of that decision and under the Treaty on the Functioning of the European Union;

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

               In accordance with the European Commission Decision of 27 March 2014 in Case SA.34572, the Hellenic Republic was obliged to recover within four months the incompatible aid granted by it to Larco, and to provide adequate information to the European Commission on the measures required for that purpose. The aid at issue consisted of State guarantees to Larco in 2008, 2010 and 2011 and the State’s participation in the company’s capital increase in 2009.

               2.

               However, the Hellenic Republic did not recover the aid at issue within four months, as it was obliged to do. In addition, the Hellenic Republic continues to fail to undertake the action required in order to implement the Decision. In any event, the Hellenic Republic has not provided adequate information to the European Commission on the relevant action with respect to the implementation of the Decision.


title: Case C-383/01: Reference for a preliminary ruling by the Østre Landsret by order of 26 September 2001 in the case of De Danske Bilimportører v Skatteministeriet, Told- og Skattestyrelsen

text:
24.11.2001            EN                    Official Journal of the European Communities                                      C 331/15
period for compliance laid down in the Directive. That period          Reference for a preliminary ruling by the Østre Landsret
expired on 1 January 2000 without the United Kingdom                   by order of 26 September 2001 in the case of De Danske
having enacted the provisions necessary to comply with the             Bilimportører v Skatteministeriet, Told- og Skattesty-
Directive referred to in the conclusions of the Commission.                                         relsen
                                                                                (Case C-383/01)
(1) OJ L 001, 5.1.1999, p. 1-2.
                                                                                (2001/C 331/25)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 26 September 2001 by
Action brought on 4 October 2001 by the Commission of                  the Østre Landsret (Eastern Regional Court), which was
the European Communities against the United Kingdom                    received at the Court Registry on 5 October 2001, for a
                                                                       preliminary ruling in the case of De Danske Bilimportører v
                                                                       Skatteministeriet, Told- og Skattestyrelsen (Duty and Taxation
                        (Case C-382/01)                                Authority of the Ministry of Fiscal Affairs), on the following
                                                                       questions:
                        (2001/C 331/24)
                                                                       1.   Can an indirect duty (registration duty) charged by a
                                                                            Member State, which in the case of new cars amounts to
                                                                            105 % of DKK 52 800 and 180 % of the remainder of
An action against the United Kingdom was brought before the                 the taxable value, be a measure having an effect equivalent
Court of Justice of the European Communities on 4 October                   to a quantitative restriction on imports and for that
2001 by the Commission of the European Communities,                         reason prohibited under Article 28 EC (reference is made
represented by Christina Tufvesson, acting as agent, with an                in this connection to the Court’s judgment in Case
address for service in Luxembourg.                                          C-47/88 Commission v Denmark [1990] ECR I-4509,
                                                                            paragraph 13)?
The Applicant requests that the Court should:                          2.   If the answer to Question 1 is ‘yes’: can that registration
                                                                            duty be justified on the grounds that are mentioned in
—     declare that by failing to adopt the laws, regulations or             Article 30 EC or follow from the Court’s case-law on
      administrative provisions necessary to comply with the                Article 28 EC (reference is made to Case 120/78 Rewe-
      European Parliament and Council Directive 98/78/EC of                 Zentral [1979] ECR 649)?
      27 October 1998 on the supplementary supervision of
      insurance undertakings in an insurance group (1), or, in
      any event, by failing to inform the Commission of
      those measures, the United Kingdom has failed fulfil its
      obligations under that Directive,
—     order the United Kingdom to pay the costs.
                                                                       Action brought on 9 October 2001 by the Commission
                                                                       of the European Communities against the Kingdom of
                                                                                Spain
Pleas in law and main arguments
                                                                                (Case C-392/01)
Article 249 EC under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by                                  (2001/C 331/26)
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 5 June 2000 without the United Kingdom having
enacted the provisions necessary to comply with the directive
referred to in the conclusions of the Commission.                      An action against the Kingdom of Spain was brought before
                                                                       the Court of Justice of the European Communities on 9 Octo-
                                                                       ber 2001 by the Commission of the European Communities,
(1) OJ L 330, 5.12.1998, p. 1-12.                                      represented by Isabel Martı́nez del Peral, of its Legal Service,
                                                                       acting as Agent, with an address for service in Luxembourg at
                                                                       the office of Luis Escobar Guerrero, also of the Commission’s
                                                                       Legal Service, Wagner Centre, Kirchberg.


title: Case F-153/12: Action brought on 18 December 2012 — ZZ v Commission

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/26

         Action brought on 18 December 2012 — ZZ v Commission
   (Case F-153/12)
   2013/C 55/46
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: M. Kerger, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Application for annulment of the decision refusing entitlement to the household allowance and the survivor’s pension for the applicant’s partner

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the decision of 25 September 2012;

               —

               Declare illegal and annul Article 1(2)(c)(iv) of Annex VII to the Staff Regulations on the grounds that it is discriminatory;

               —

               Declare illegal and annul the first paragraph of Article 17 of Annex VIII to the Staff Regulations;

               —

               Rule that the applicant is entitled to the household allowance with retroactive effect from 13 December 2011 and is entitled to the survivor’s pension for his partner;

               —

               Make any other appropriate orders;

               —

               Order the Commission to pay all the costs.


title: Case F-107/11: Action brought on 18 October 2011 — ZZ v ECDC

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/69

      Action brought on 18 October 2011 — ZZ v ECDC
      (Case F-107/11)
      (2012/C 25/132)
      Language of the case: English

         Parties

         Applicant: ZZ (represented by: E. Mylonas, lawyer)

         Defendant: European Centre for Disease Prevention and Control

         Subject-matter and description of the proceedings

      The annulment of the applicant’s appraisal report for the period of 1 January to 31 December 2010.

         Form of order sought

      The applicant claims that the Tribunal should:

                  —

                  annul the appraisal report of 8 February 2011; and

                  —

                  if necessary, annul:

                              —

                              the decision of the Director of ECDC of 9 September 2011 rejecting the applicant's complaint;

                              —

                              the opinion of the Joint Committee of 30 June 2011 and the decision of the appeal assessor of 5 July 2011;

                              —

                              the report of the countersigning officer of 15 April 2011;

                  —

                  order the ECDC to pay the costs.


title: Case T-258/08: Action brought on 30 June 2008 — Rath v OHIM — Portela & Ca. (DIACOR)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/54

         Action brought on 30 June 2008 — Rath v OHIM — Portela & Ca. (DIACOR)
   (Case T-258/08)
   (2008/C 223/95)
   Language in which the application was lodged: English
   Parties

      Applicant: Matthias Rath (Cape Town, South Africa) (represented by: U. Vogt, C. Kleiner and S. Ziegler, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Portela & Ca., SA (Mamede do Coronado, Portugal)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 April 2008 in case R 1630/2006-2; and

               —

               Order the defendant and, if the case may be, the other party to the proceedings before the Board of Appeal to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘DIACOR’ for goods and services in classes 5, 16 and 41

      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: Portuguese trade mark registration No 137 311 of the mark ‘DIACOL’ for goods in class 79, in accordance with the national classification of goods in force at the time of registration

      Decision of the Opposition Division: Upholding of the opposition for all the contested goods in class 5

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: (i) Infringement of Article 22(6) of Commission Regulation No 2868/95 (1) as several documents submitted by the other party to the proceedings before the Board of Appeal were not in English and no translation had been provided to the applicant in order to assess the content of the evidence of use; (ii) Infringement of Article 43(2) and (3) of Council Regulation No 40/94 as the Board of Appeal erred in its opinion that the other party to the proceedings before it had submitted sufficient evidence for the proof of use of the earlier mark in Portugal for all the goods for which it has been registered; and (iii) Infringement of Article 8(1) of Council Regulation No 40/94 as the conflicting trade marks show no visual, phonetic or conceptual similarities, such as to trigger a likelihood of confusion.

      (1)  Regulation (EC) No 2868/1995 of the Commission of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).


title: Judgment of the Court (Third Chamber) of 16 June 2005 in Case C-124/02: European Parliament v AIG Europe (Arbitration clause — Insurance policies — Termination on grounds of increase of the risk insured — Abuse — Contractual liability — Damages)

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/2

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 16 June 2005
   in Case C-124/02: European Parliament v AIG Europe (1)

   (Arbitration clause - Insurance policies - Termination on grounds of increase of the risk insured - Abuse - Contractual liability - Damages)
   (2005/C 193/02)
   Language of the case: French
   In Case C-124/02 European Parliament (Agents: D. Petersheim, O. Caisou-Rousseau and M. Ecker) v AIG Europe (Lawyers: J.-L. Fagnart and L. Vael) — action brought on 5 April 2002 under Article 238 EC — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, R. Schintgen (Rapporteur) and K. Schiemann, Judges; P. Léger, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 16 June 2005, in which it:

               1.

               Holds that the termination of the guarantees in contract no. 5.013.347 notified by AIG Europe to the European Parliament on 8 October and 5 November 2001 constitutes a wrongful termination of that contract;

               2.

               Orders AIG Europe to compensate the damage caused to the European Parliament as a result of the wrongful termination of contract no. 5.013.347;

               3.

               Holds that the sum due as compensation for the damage which AIG Europe caused the European Parliament in respect of the year 2001 is obtained by multiplying, firstly, the sum of EUR 205 131,75 by the percentage of premiums received by AIG Europe out of the total sum of those due by the Parliament to the four co-assurors and by multiplying, secondly, the sum of EUR 178 453,01 by the same percentage. The sum which that institution paid or should have paid to AIG Europe under the 'labour disputes/terrorist acts' guarantee for its assets in Belgium and Luxembourg for the period 5 November to 31 December 2001 and in respect of all the guarantees covering its assets in France for the period 16 November to 31 December 2001 must then be deducted from the sum of those two products;

               4.

               Holds that the sum due as compensation for the damage which AIG Europe caused the European Parliament in respect of the year 2002 is obtained by multiplying the sum of EUR 389 291,73 by the percentage of premiums which AIG Europe would have received out of the total of those which the European Parliament should have paid to the four co-assurors in respect of the guarantees for the year 2002 and by deducting from the product thus obtained the sum which that institution should have paid to AIG Europe in respect of the cover for its assets in France against all material damage for the year 2002;

               5.

               Holds that the sums due to the European Parliament by AIG Europe generate interest at the statutory rate with effect from 4 April 2002;

               6.

               Orders AIG Europe to pay the costs.

      (1)  OJ C 144, 15.06.2002.


title: Case T-635/11: Order of the General Court of 19 April 2016 — Regency Entertainment Psychagogiki kai Touristiki v Commission (State aid — Annulment of the contested measure — Action which has become devoid of purpose — No need to adjudicate)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/20

         Order of the General Court of 19 April 2016 — Regency Entertainment Psychagogiki kai Touristiki v Commission
   (Case T-635/11) (1)

   ((State aid - Annulment of the contested measure - Action which has become devoid of purpose - No need to adjudicate))
   (2016/C 232/27)
   Language of the case: English

      Parties

      Applicant: Regency Entertainment Psychagogiki kai Touristiki AE (Maroussi Attikis, Greece) (represented by: N. Niejahr, lawyer, F. Carlin, Barrister, Q. Azau, F. Spyropoulos, I. Dryllerakis, K. Spyropoulos, A. Komninos, K. Struckmann, lawyers, and M. Powell, Solicitor)

      Defendant: European Commission (represented by: P.-J. Loewenthal, D. Triantafyllou and H. van Vliet, acting as Agents)

      Intervener in support of the defendant: Koinopraxia Touristiki Loutrakiou AE OTA — Loutraki AE — Klab Otel Loutraki Kazino Touristikes kai Xenodocheiakes Epicheiriseis AE (Loutraki, Greece) (represented by: S. Pappas, lawyer)

      Re:

   Application for annulment of Commission Decision 2011/716/EU of 24 May 2011 on State aid C 16/10 (ex NN 22/10, ex CP 318/09) implemented by Greece in favour of certain Greek casinos (OJ 2011 L 285, p. 25).

      Operative part of the order

               1.

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

               2.

               The European Commission shall bear its own costs and pay those incurred by Regency Entertainment Psychagogiki kai Touristiki AE.

               3.

               Koinopraxia Touristiki Loutrakiou AE OTA — Loutraki AE — Klab Otel Loutraki Kazino Touristikes kai Xenodocheiakes Epicheiriseis AE shall bear its own costs.

      (1)  OJ C 32, 4.2.2012.


title: Case C-208/05: Judgment of the Court (Third Chamber) of 11 January 2007 (reference for a preliminary ruling from the Sozialgericht Berlin — Germany) — ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit (Freedom of movement for workers — Freedom to provide services — National legislation — Payment by the Member State of the fee due to a private-sector recruitment agency in respect of recruitment — Employment subject to compulsory social security contributions in that Member State — Restriction — Justification — Proportionality)

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/5

         Judgment of the Court (Third Chamber) of 11 January 2007 (reference for a preliminary ruling from the Sozialgericht Berlin — Germany) — ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit
   (Case C-208/05) (1)

   (Freedom of movement for workers - Freedom to provide services - National legislation - Payment by the Member State of the fee due to a private-sector recruitment agency in respect of recruitment - Employment subject to compulsory social security contributions in that Member State - Restriction - Justification - Proportionality)
   (2007/C 42/08)
   Language of the case: German
   Referring court
   Sozialgericht Berlin
   Parties to the main proceedings

      Applicant: ITC Innovative Technology Center GmbH

      Defendant: Bundesagentur für Arbeit
   Re:
   Reference for a preliminary ruling — Sozialgericht Berlin — Interpretation of Articles 18 EC, 39 EC, 49 EC, 50 EC and 87 EC and of Articles 3 and 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475) — National legislation introducing subsidies for private-sector recruitment companies in the event of the conclusion by a job-seeker of a contract of employment resulting in affiliation to the social-security system — Excluded in the case of a contract of employment concluded with an employer established in the territory of another Member State
   Operative part of the judgment

               1.

               Articles 39 EC, 49 EC and 50 EC prohibit national legislation, such as the second sentence of Paragraph 421(g)(1) of Book III of the German Social Security Code, which provides that payment by a Member State to a private-sector recruitment agency of the fee due to that agency by a person seeking employment in respect of that person's recruitment is subject to the condition that the job found by that agency be subject to compulsory social security contributions in that State.

               2.

               It is for the national court to the full extent of its discretion under national law, to interpret and apply domestic law in accordance with the requirements of Community law and, to the extent that such an interpretation is not possible in relation to the EC Treaty provisions conferring rights on individuals which are enforceable by them and which the national courts must protect, to disapply any provision of domestic law which is contrary to those provisions

      (1)  OJ C 171, 9.7.2005.


title: Judgment of the Court (Second Chamber) of  20 October 2005  in Case C-6/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fufil obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora)

text:
               10.12.2005

               EN

               Official Journal of the European Union

               C 315/5

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 20 October 2005
   in Case C-6/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

   (Failure of a Member State to fufil obligations - Directive 92/43/EEC - Conservation of natural habitats - Wild fauna and flora)
   (2005/C 315/09)
   Language of the case: English
   In Case C-6/04, Commission of the European Communities (Agents: M. van Beek and L. Flynn) v United Kingdom of Great Britain and Northern Ireland (Agent: C. Jackson, assisted by K. Smith, Barrister) — Action under Article 226 EC for failure to fulfil obligations, brought on 9 January 2004 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, R. Silva de Lapuerta, G. Arestis and J. Klučka (Rapporteur), Judges; J. Kokott, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 20 October 2005, in which it:

               1.

               Declares that, by failing to adopt, within the prescribed period, all the measures necessary in order to implement completely and correctly the requirements of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, and in particular of:

                           —

                           Article 6(2), as regards Gibraltar,

                           —

                           Article 6(3) and (4), as regards water abstraction plans and projects and land use plans,

                           —

                           Article 11,

                           —

                           Article 12(1)(d), as regards Gibraltar,

                           —

                           Article 12(2),

                           —

                           Article 12(4),

                           —

                           Article 13(1),

                           —

                           Article 14(2),

                           —

                           Article 15,

                           —

                           Article 16,

                           —

                           the whole of Directive 92/43 beyond its territorial waters,

                     the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

      (1)  OJ C 59, 06.03.2004.


title: Case C-334/07 P: Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Freistaat Sachsen (Appeal — State aid — Proposed scheme for aid to small and medium-sized enterprises — Compatibility with the common market — Criteria for assessing State aid — Application ratione temporis — Proposed scheme notified before the entry into force of Regulation (EC) No 70/2001 — Decision subsequent to entry into force thereof — Legitimate expectations — Legal certainty — Complete notifications)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/5

         Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Freistaat Sachsen
   (Case C-334/07 P) (1)

   (Appeal - State aid - Proposed scheme for aid to small and medium-sized enterprises - Compatibility with the common market - Criteria for assessing State aid - Application ratione temporis - Proposed scheme notified before the entry into force of Regulation (EC) No 70/2001 - Decision subsequent to entry into force thereof - Legitimate expectations - Legal certainty - Complete notifications)
   (2009/C 32/09)
   Language of the case: German
   Parties

      Appellant: Commission of the European Communities (represented by: K. Gross, acting as Agent)

      Other party to the proceedings: Freistaat Sachsen (represented by: Th. Lübbig, Rechtsanwalt)
   Re:
   Appeal against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commission by which the Court annulled in part Commission Decision 2003/226/EC of 24 September 2002 on an aid scheme which the Federal Republic of Germany is planning to implement — ‘Guidelines on assistance for SMEs — Improving business efficiency in Saxony’: Subprogrammes 1 (Coaching), 4 (Participation in fairs), 5 (Cooperation) and 7 (Design promotion) (OJ 2003 L 91, p. 13) — Applicability of Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises for aid projects notified to the Commission before the entry into force of that regulation
   Operative part of the judgment
   The Court:

               1.

               Sets aside the judgment of the Court of First Instance of the European Communities of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commission;

               2.

               Refers the case back to the Court of First Instance of the European Communities;

               3.

               Reserves costs.

      (1)  OJ C 223, 22.9.2007.


title: Case T-403/06: Action brought on 22 December 2006 — Belgium v Commission

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/36

         Action brought on 22 December 2006 — Belgium v Commission
   (Case T-403/06)
   (2007/C 42/63)
   Language of the case: French
   Parties

      Applicant: Kingdom of Belgium (represented by: L. Van den Broeck, Agent, and J. Meyers, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the contested decision pursuant to Article 230 EC;

               —

               order the Commission (Eurostat) to pay the costs in connection with this action.

         Pleas in law and main arguments
   By this action, the applicant seeks the annulment of the Commission's decision, contained in the letter of the Statistical Office of the European Communities (Eurostat) of 18 October 2006, to amend the data relating to the government deficit and the government debt of Belgium for 2005 and to provide the data thus amended, pursuant to Article 8h(2) of Council Regulation (EC) No 3605/93 of 22 November 1993 on the application of the Protocol on the excessive deficit procedure annexed to the EC Treaty (1), as amended. The applicant objects to two amendments made by the Commission, namely the classification of the Fonds de l'infrastructure ferroviaire (FIF) (Railway Infrastructure Fund) in the public administration sector rather than in the non-financial corporations sector for the application of the European system of accounts 1995 (ESA 95) (2) and the recording of a capital transfer of EUR 7 400 million on account of the assumption by the State (FIF) in 2005 of the debts of the Société nationale des Chemins de fer belges (SNCB).
   The applicant relies on the following pleas in law in support of its application for annulment.
   As regards the classification of FIF in the public administration sector, the applicant puts forward a plea alleging infringement of Article 8h(2) of Regulation (EC) No 3605/93 and paragraphs 2.12, 3.19 and 3.27 to 3.37 of ESA 95. The applicant submits that FIF must be categorised as an ‘institutional unit’ within the meaning of paragraph 2.12 of ESA 95 and as a ‘market producer’ under the criteria set out in paragraphs 3.19 and 3.27 to 3.37 of ESA 95, and must as such be classified outside the public administration sector. The applicant therefore claims that the contested decision is wrong to find that FIF does not satisfy that twofold condition for 2005.
   In the alternative, as regards the capital transfer of EUR 7 400 million from the Belgian State to SNCB on account of FIF's assumption in 2005 of SNCB's debts, the applicant relies on three pleas. The first is based on infringement of Article 8h(2) of Regulation (EC) No 3605/93 and of paragraphs 1.33, 1.44(c), 4.165(f) and 6.30 of ESA 95. The applicant claims that the allocation of the debt in question to FIF does not flow from a ‘transaction’ within the meaning of paragraph 1.33 of ESA 95 but from a ‘restructuring’ within the meaning of paragraphs 1.44(c) and 6.30 of ESA 95. As an alternative plea, the applicant submits that, even if the allocation of the debt to FIF were to be analysed as a ‘transaction’ within the meaning of paragraph 1.33 of ESA 95, it does not involve a capital transfer for the purposes of paragraph 4.165(f) of ESA 95. The second plea put forward in connection with the objection to the recording of the capital transfer of EUR 7 400 million from the Belgian State to SNCB alleges breach of Article 253 EC in that, according to the applicant, the Commission failed to give a sufficient statement of reasons for the contested decision on that point. Furthermore, the applicant claims that the contested decision infringes the principle of protection of legitimate expectations in that it disregards the opinion expressed by the Commission (Eurostat) in its email of 13 August 2004, in which a Commission expert agreed with the analysis submitted by the applicant in this case.

      (1)  OJ 1993 L 332, p. 7.

      (2)  Approved by Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community (OJ 1996 L 310, p. 1).


title: Case T-567/11: Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Soup-plate with grooves)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/27

         Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Soup-plate with grooves)
   (Case T-567/11)
   2012/C 32/56
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Viejo Valle, SA (L'Olleria, Spain) (represented by: I. Temiño Ceniceros, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Etablissements Coquet SA (Saint Léonard de Noblat, France)

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare the present action, together with its annexes, admissible;

               —

               annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2011, in Case R 1055/2010-3;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Design in respect of which a declaration of invalidity has been sought: Design No 384.912-0009, representing a decorated service set; a soup-plate.

      Proprietor of the Community design: the applicant.

      Applicant for the declaration of invalidity of the Community trade mark: Etablissements Coquet SA.

      Grounds for the application for a declaration of invalidity: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002, since the Community design constitutes an unauthorised use of a work protected by the copyright legislation of a Member State.

      Decision of the Cancellation Division: upheld the application for a declaration of invalidity.

      Decision of the Board of Appeal: dismissed the action.

      Pleas in law: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002 and Article 28(1)(b)(iii) of Regulation No 2245/2002, since the defendant has not sufficiently documented the protected work on which the application for a declaration of invalidity is based, nor provided details of its proprietorship, nor its object.


title: Removal from the register of Joined Cases T-144/93 and T-145/93

text:
12 . 8 . 95             EN                    Official Journal of the European Communities                                No C 208/37
Removal from the register of Joined Cases T-107/93 and                         Removal from the register of Case T-l 97/93 (*)
                                others (M                                                           ( 95 /C 208/ 80 )
                           ( 95/C 208/77 )
                                                                                (Language of the case: German)
                 (Language of the case: German)
                                                                         By order of 29 June 1995 the President of the First Chamber,
By order of 29 June 1 995 the President of the First Chamber,            Extended Composition, of the Court of First Instance of the
Extended Composition, of the Court of First Instance of the              European Communities ordered the removal from the
European Communities ordered the removal from the                        register of Case T-l 97/93 : Friedrich Bethke v. Council of the
register of Joined Cases T-107/93 : Christian Hansen,                    European Union and Commission of the European
T-109/93 : Liesa Thomsen, T-136/93 : Herbert Sonnenberg,                 Communities .
T-153/93 : F. Steensen-Feddersen, T-178/93 : H.-P . Fock,
T-180/93 : E. Ebsen, T-182/93 : R.-D . Tetens, T-192/93 : M.             (') OJ No C 270 , 19 . 10 . 1992 .
Hansen, T-193/93 : H. Ketelsen, T-194/93 : Ch . Jessen,
T-212/93 : H. Thomsen, T-219/93 : H. Johannsen,
T-226/93 : J. Nielsen, T-227/93 : T. Petersen, T-228/93 : J. H.
Sell, T-229/93 : K. Friedrichsen, T-230/93 : K. Ingwersen,
T-232/93 : J. Johannsen, T-236/93 : P. Carstensen,
T-239/93 : P. A. Petersen and T-240/93 : U. Dethlefsen v.                Removal from the register of Joined Cases T-198/93 ,
Council of the European Union and Commission of the                                 T-199/93 , T-200/93 and T-204/93 (')
European Communities .
                                                                                ( 95/C 208/81 )
(M OJ No C 222 , 6 . 9 . 1990 ; OJ No C 34, 9 . 2 . 1991 ; OJ No C 109 ,
     29 . 4 . 1992 and OJ No C 270 , 19 . 10 . 1992 .                                   (Language of the case: German)
                                                                         By order of 29 June 1 995 the President of the First Chamber,
                                                                         Extended Composition, of the Court of First Instance of the
                                                                         European Communities ordered the removal from the
                                                                         register of Joined Cases T-198/93 , T-199/93 , T-200/93 and
       Removal from the register of Case T-122/93 ( )                    T-204/93 : Detlef Maack and Others v. Commission of the
                            ( 95/C 208/78 )                              European Communities .
                  (Language of the case: German)                         m OJ No C 270 , 19 . 10 . 1992 .
By order of 29 June 1995 the President of the First Chamber,
Extended Composition, of the Court of First Instance of the
European Communities ordered the removal from the
register of Case T-122/93 : Franz-Joseph Kliemann v.
Council of the European Union and Commission of the                             Removal from the register of Case T-17/94 (')
European Communities .                                                                               ( 95/C 208/ 82 )
 (') OJ No C 34, 9 . 2 . 1991 .                                                           (Language of the case: French)
                                                                         By order of 22 June 1995 the President of the Fourth
                                                                          Chamber of the Court of First Instance of the European
                                                                          Communities ordered the removal from the register of Case
 Removal from the register of Joined Cases T-144/93 and                  T-17/94 : Dimitrios Benecos v. Commission of the European
                              T-145/93 (')                                Communities .
                             ( 95 /C 208/79 )
                                                                          (') OJ No C 76 , 12 . 3 . 1994 .
                  (Language of the case: German)
 By order of 29 June 1 995 the President of the First Chamber,
 Extended Composition, of the Court of First Instance of the
 European Communities ordered the removal from the                             Removal from the register of Case T-228/94 (')
 register of Joined Cases T-144/93 and T-145/93 : Ernst Theis
 and Karl Leonhauser v. Council of the European Union and                                             ( 95/C 208/83 )
 Commission of the European Communities .
                                                                                (Language of the case: German)
 (') OJ No C 50 , 26 . 2 . 1991 and OJ No C 146 , 5 . 6 . 1991 .
                                                                          By order of 29 June 1995 the President of the First Chamber,
                                                                          Extended Composition, of the Court of First Instance of the


title: Case C-13/11: Order of the President of the Court of 25 November 2011 (reference for a preliminary ruling from the Tribunal da Relação de Guimarães — Portugal) — Maria das Dores Meira da Silva v Zurich — Companhia de Seguros SA

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/25

         Order of the President of the Court of 25 November 2011 (reference for a preliminary ruling from the Tribunal da Relação de Guimarães — Portugal) — Maria das Dores Meira da Silva v Zurich — Companhia de Seguros SA
   (Case C-13/11) (1)

   2012/C 73/45
   Language of the case: Portuguese
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 95, 26.3.2011.


title: Case C-531/08: Action brought on 2 December 2008 — Commission of the European Communities v Portuguese Republic

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/21

         Action brought on 2 December 2008 — Commission of the European Communities v Portuguese Republic
   (Case C-531/08)
   (2009/C 19/39)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by P. Guerra e Andrade and P. Demjek, Agents)

      Defendant: Portuguese Republic
   Form of order sought

               —

               a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies or, in any case, by failing to communicate such provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive;

               —

               an order that the Portuguese Republic should pay the costs.

         Pleas in law and main arguments
   The period prescribed for the transposition of the Directive expired on 15 December 2007.

      (1)  OJ 2005 L 310, p. 1.


title: Case C-476/17: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2017 — Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider-Esleben

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/16

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2017 — Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider-Esleben
   (Case C-476/17)
   (2017/C 347/21)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellants on a point of law: Pelham GmbH, Moses Pelham, Martin Haas

      Respondents in the appeal on a point of law: Ralf Hütter, Florian Schneider-Esleben

      Questions referred

               1.

               Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29/EC (1) to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram?

               2.

               Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive 2006/115/EC (2)?

               3.

               Can the Member States enact a provision which — in the manner of Paragraph 24(1) of the Gesetz über Urheberrecht und verwandte Schutzrechte (German Law on Copyright and Related Rights) — inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29/EC) and to distribute (Article 9(1)(b) of Directive 2006/115/EC) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent?

               4.

               Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive 2001/29/EC if it is not evident that another person’s work or another person’s subject matter is being used?

               5.

               Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29/EC and Article 9(1)(b) of Directive 2006/115/EC) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29/EC and Article 10(2), first sentence, of Directive 2006/115/EC) allow any latitude in terms of implementation in national law?

               6.

               In what way are the fundamental rights set out in the Charter of Fundamental Rights of the European Union to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29/EC) and to distribute (Article 9(1)(b) of Directive 2006/115/EC) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29/EC and Article 10(2), first sentence, of Directive 2006/115/EC)?

      (1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L 167, p. 10.

      (2)  Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ 2006 L 376, p. 28.


title: Case T-313/07: Order of the Court of First Instance of 25 February 2008 — Cemex UK Cement Ltd v Commission of the European Communities

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/37

         Order of the Court of First Instance of 25 February 2008 — Cemex UK Cement Ltd v Commission of the European Communities
   (Case T-313/07) (1)

   (2008/C 128/78)

      Language of the case: English

   The President of the Court of First Instance (Fourth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 235, 6.10.2007.


title: JUDGMENT OF THE COURT (Fourth Chamber) of 29 October 1998 in Case C-410/97: Commission of the European Communities v. Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations - Failure to transpose Directive 92/29/EEC)

text:
19.12.98               EN                 Official Journal of the European Communities                                    C 397/13
     by the latter State as driving without a licence and            and K. M. Ioannou, Judges; D. Ruiz-Jarabo Colomer,
     thus rendered punishable by imprisonment or a fine.             Advocate-General; R. Grass, Registrar, has given a
                                                                     judgment on 29 October 1998, in which it:
2. A national of a non-member country who holds a
     valid Community model driving licence issued by one             1. Declares that, by failing to adopt, within the
     Member State, who has taken up normal residence in                   prescribed period, the laws, regulations and
     another Member State, but who has not exchanged his                  administrative provisions necessary to comply with
     driving licence within the one-year period prescribed                Council Directive 92/29/EEC of 31 March 1992 on
     by the first subparagraph of Article 8(1) of Directive               the minimum safety and health requirements for
     80/1263/EEC, is entitled to rely directly on                         improved medical treatment on board vessels, the
     Articles 1(2) and 8(1) of Council Directive 91/439/                  Grand Duchy of Luxembourg has failed to fulfil its
     EEC of 29 July 1991 on driving licences in order to                  obligations thereunder.
     challenge the imposition, in the Member State in
     which he has established his new residence, of a term
     of imprisonment or a fine for driving without a                 2. Orders the Grand Duchy of Luxembourg to pay the
     licence. Community law does not prevent a court of                   costs.
     such a Member State, by reason of the principle that
     forms part of national law in certain Member States of          (1) OJ C 55, 20.2.1998.
     the retroactive effect of more favourable provisions of
     criminal law, from applying the aforesaid provisions of
     Directive 91/439/EEC even where the offence took
     place before the date set for compliance with that
     directive.
(1) OJ C 252, 16.8.1997.                                                            JUDGMENT OF THE COURT
                                                                                of 10 November 1998
                                                                     in Case C-360/96 (reference for a preliminary ruling from
                                                                     the Gerechtshof te Arnhem): Gemeente Arnhem and
                                                                                Gemeente Rheden v. BFI Holding BV (1)
                                                                     (Public service contracts Ð Meaning of contracting
                JUDGMENT OF THE COURT                                         authority Ð Body governed by public law)
                       (Fourth Chamber)                                                      (98/C 397/21)
                      of 29 October 1998
in    Case C-410/97: Commission of the European                                      (Language of the case: Dutch)
       Communities v. Grand Duchy of Luxembourg (1)
(Failure of a Member State to fulfil its obligations Ð
                                                                       (Provisional translation; the definitive translation will be
          Failure to transpose Directive 92/29/EEC)
                                                                               published in the European Court Reports)
                         (98/C 397/20)
                                                                     In Case C-360/96: reference to the Court under Article 177
                 (Language of the case: French)                      of the EC Treaty from the Gerechtshof (Regional Court of
                                                                     Appeal), Arnhem (Netherlands), for a preliminary ruling
                                                                     in the proceedings pending before that court between
                                                                     Gemeente Arnhem and Gemeente Rheden and BFI
  (Provisional translation; the definitive translation will be       Holding BV Ð on the interpretation of Articles 1(b) and 6
          published in the European Court Reports)                   of Council Directive 92/50/EEC of 18 June 1992 relating
                                                                     to the coordination of procedures for the award of public
                                                                     service contracts (OJ L 209, 1992, p. 1) Ð the Court,
In Case C-410/97: Commission of the European                         composed of: G. C. Rodríguez Iglesias, President, P. J. G.
Communities (Agent: Marie Wolfcarius) v. Grand Duchy                 Kapteyn, J.-P. Puissochet and P. Jann (Rapporteur)
of Luxembourg (Agent: Nicholas Schmit) Ð application                 (Presidents of Chambers), G. F. Mancini, J. C. Moitinho
for a declaration that, by failing to adopt the laws,                de Almeida, D. A. O. Edward, L. Sevón, M. Wathelet, R.
regulations and administrative provisions necessary to               Schintgen and K. M. Ioannou, Judges; A. La Pergola,
comply with Council Directive 92/29/EEC of 31 March                  Advocate General; D. Louterman-Hubeau, Principal
1992 on the minimum safety and health requirements for               Administrator, for the Registrar, has given a judgment on
improved medical treatment on board vessels (OJ L 113,               10 November 1998, in which it has ruled:
30.4.1992, p. 19), the Grand Duchy of Luxembourg has
failed to fulfil its obligations under that directive Ð the
Court (Fourth Chamber), composed of: P. J. G. Kapteyn,               1. The second subparagraph of Article 1(b) of Council
President of the Chamber, H. Ragnemalm (Rapporteur)                       Directive 92/50/EEC of 18 June 1992 relating to the


title: Case C-63/99: Reference for a preliminary ruling by the High Court of Justice, Queen's Bench Division (Crown Office) (England and Wales), by order of that court of 9 December 1998, in the case of The Queen against Secretary of State for the Home Department, ex parte: Wieslaw Gloszczuk and Elzbieta Gloszczuk

text:
C 121/12               EN                    Official Journal of the European Communities                                       1.5.1999
Reference for a preliminary ruling by the High Court of                 Reference for a preliminary ruling by the High Court
Justice, Queen’s Bench Division (Crown Office) (England                 of Justice, Queen’s Bench Division (Commercial Court)
and Wales), by order of that court of 9 December 1998,                  (England and Wales), by order of that court of 18 Decem-
in the case of The Queen against Secretary of State for                 ber 1998, in the case of Pace Airline Services Ltd against
the Home Department, ex parte: Wieslaw Gloszczuk and                                  Aerotrans Luftfahrtagentur GmbH
                       Elzbieta Gloszczuk
                                                                                (Case C-64/99)
                         (Case C-63/99)
                                                                                (1999/C 121/23)
                        (1999/C 121/22)                                 Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the High Court of
                                                                        Justice, Queen’s Bench Division (Commercial Court) (England
Reference has been made to the Court of Justice of the                  and Wales), of 18 December 1998, which was received at the
European Communities by an order of the High Court of                   Court Registry on 23 February 1999, for a preliminary ruling
Justice, Queen’s Bench Division (Crown Office) (England and             in the case of Pace Airline Services Ltd against Aerotrans
Wales) of 9 December 1998, which was received at the Court              Luftfahrtagentur GmbH, on the following questions:
Registry on 22 February 1999, for a preliminary ruling in the
case of The Queen against Secretary of State for the Home
Department, ex parte: Wieslaw Gloszczuk and Elzbieta Glosz-             Where:
czuk, on the following questions:
                                                                        a) company X, incorporated in Member State A, is an agent
                                                                            for a carrier of goods by air;
1. Does Article 44 of the Association Agreement between the
    EEC and the Republic of Poland [‘the Agreement’ (OJ L               b) company X appoints another company (‘Y’) incorporated
    348, 31.12.1993, p. 2)] confer rights of establishment                  in Member State B to conclude contracts for the sale of
    upon a Polish national whose presence within the territory              cargo space between the carrier and third-party consignors
    of a Member State is unlawful under national immigration                on flights operated by the carrier;
    law by reason of a breach of an express condition, imposed
    upon his admission to the territory as a visitor, relating to       c) all relevant activities of company Y are carried out in
    the permitted duration of his stay within that Member                   Member State B;
    State when that breach arose prior to his becoming a
    self-employed person and his application to take up and
    pursue activities under Article 44 of the Agreement?                d) company X and company Y have agreed that their
                                                                            contractual relationship is governed by the laws of Member
                                                                            State A.
2. If the answer to the first question is ‘yes’, does Article 44
    of the Agreement have direct effect within the national
    legal systems of Member States, notwithstanding the                 Question 1
    provisions of Article 58 of the Agreement?
                                                                        In the circumstances set out above, are the words ‘sale or the
3. If the answer to the second question is ‘yes’:                       purchase of goods (...) or to negotiate and conclude such
                                                                        transactions (...)’ in Article 1(2) of Council Directive
                                                                        86/653/EEC (1) to be construed as including the activities of
                                                                        company Y?
    i) to what extent may a Member State apply its laws and
         regulations regarding entry and stay, work, labour
         conditions and establishment of natural persons, and
         supply of services, to persons invoking Article 44 of the      Question 2
         Agreement, without violating the proviso contained in
         the penultimate sentence of Article 58 (1) of the              In the circumstances set out above, is the term ‘principal’ in
         Agreement and, inter alia, the principle of pro-               Article 1(2) of the said Directive to be interpreted as including
         portionality?                                                  company X?
    ii) does Article 58, in any and if so what circumstances,           Question 3
         permit the refusal of an application under Article 44
         of the Agreement made by someone whose presence
         in the Member State is otherwise unlawful?                     1. In the circumstances set out above, are the provisions of
                                                                            the said Directive to be interpreted as requiring Member
                                                                            State A to enact implementing rules which provide that
                                                                            their substantive provisions apply in relation to the
                                                                            activities of commercial agents which are carried out
                                                                            exclusively in Member State B?


title: Action brought on 30 April 1996 by José Francisco Meoro Avilés against Commission of the European Communities (Case T-61/96)

text:
No C 180/38           EN                 Official Journal of the European Communities                                   22 . 6 . 96
— order that interest be paid on all the above sums at the          Action brought on 25 April 1996 by Jean-Louis Burban
    rate of 8 % from the date of the application to the time of                   against the European Parliament
     payment ,                                                                             ( Case T-59/96 )
                                                                                ( 96/C 180/90 )
— order the defendant to pay the costs .
                                                                                (Language of the case: Frencb)
Contentions       and   principal  arguments      adduced     in
support:                                                            An action against the European Parliament was brought
                                                                    before the Court of First Instance of the European
                                                                    Communities on 25 April 1996 by Jean-Louis Burban,
The applicant, an official in the Commission' scientific and        residing in Paris, represented by Jean-Pierre Spitzer, of the
technical services at the Joint Research Centre, Ispra ,            Paris Bar, with an adress for service at the Chambers of
maintains that it is unlawful to refuse to pay him the              Aloyse May , 31 Grand-Rue .
installation allowance and daily subsistence allowance on
his return from a period of external service with the
International Atomic Energy Agency, Vienna . The contested          The applicant claims that the Court should:
decision is based on the view that the applicant would              — award compensation in the sum of ECU 100 000 for the
neither encounter particular difficulties in resettling into the        material damage, and ECU 100 000 for the
environment which he had earlier left or nor need to effect
                                                                        non-material damage, suffered by the applicant,
removals again, having returned to his own dwelling in
Italy.                                                              — order the defendant to pay all of the costs .
According to the applicant, the provisions of the Staff             Pleas in law and main arguments:
Regulations concerning the installation allowance relate
only to the objective fact that the person concerned is             The applicant, a grade A 4 official of the European
obliged to change his place of residence in order to comply         Parliament, seeks reparation for the material and
with Article 20 of the Staff Regulations . The latter provision     non-material damage suffered by him by reason of the delay
lays down no further requirement and takes account of no            in drawing up his staff reports for the periods 1991 — 1992
other factor .                                                      and 1993—1994 .
                                                                    He considers that the defendant has not only breached the
It is true that the case-law has clarified the scope of the         principle whereby staff reports are to be drawn up on a
provisions of the Staff Regulations, but it has done so in          regular and periodic basis, but has also failed to adopt any
factual circumstances where legal preconditions were not            measure in lieu capable of remedying the absence of such
fulfilled ( failure to move house or be accompanied by              reports at the time when consideration of the comparative
members of one's family, transfers at one's own request and         merits of internal candidates took place .
for personal reasons, and so on ) or else in relation to
conduct intended to evade legal provisions . That case-law          The applicant draws attention in that regard to the
has nothing to do with this case, where the applicant and his       questionable nature of the only report, relating to 1989 , on
family both duly moved to another State, a residence was            the basis of which the appointing authority examined all of
rented in Austria and there was a compulsory transfer back          the applicant's applications from 1990 onwards . He
to Italy .                                                          contends that, in drawing up that report, the former head of
                                                                    the defendant's Information Office for France misused his
As regards the return to the applicant's dwelling in Italy,         powers as reporting officer, with a view to being replaced in
which involved a genuine financial sacrifice for the applicant      his post as Assistant Director not by the applicant, his
since — both because of the certain date of his return and the      natural successor, but by a personal friend outside the
legal difficulties of regaining possession of the dwelling in       European Parliament, by means of an external
Italy after renting it out — he had to bear throughout the          competition .
period in question the financial burdens and operating
expenses of two residences .
As regards the refusal to pay him the daily subsistence
allowance, the applicant maintains that the payment of such         Action brought on 30 April 1996 by José Francisco Meoro
allowances is based on the very circumstances described                    Avilés against Commission of the European
above, in other words a change of residence by an official in                                 Communities
order to comply with his obligations under Article 20 of the
                                                                                ( Case T-61 /96 )
Staff Regulations . The only difference from the 'case of the
installation allowance lies in the fact that the daily                                       ( 96/C 180/91 )
subsistence allowance is paid until removal or for a
maximum period of six months . The difference is thus only a                      (Language of the case: Spanisb)
question of time .
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance on 30 April 1996 by José Francisco Meoro Avilés,
 ---pagebreak--- 22 . 6 . 96            EN                  Official Journal of the European Communities                                No C 180/39
residing in Alcantarilla ( Murcia, Spain ), represented by            in these proceedings lay down as a precondition for
Ramôn Marés Salvador, of the Madrid Bar, with an address              admission possession of, at least, a degree of licenciado.
for service in Luxembourg at the chambers of Alain Lorang,            That implies that 'technical engineers' will not be admitted .
51 Rue Albert 1er .                                                   The same does not apply to persons who hold equivalent
                                                                      qualifications in other Community countries, such as the
The applicant claims that the Court should :                          Federal Republic of Germany, the United Kingdom or
                                                                      Denmark (Fachhochschulabschluss, University degree or
— declare void notices of open competition Nos                        equivalent, Kandidateksamen), who are admitted to the
     EUR/LA/97 and EUR/LA/98 ( 96/C 62 A/01 ) for the                 abovementioned A and LA competitions.
     constitution of reserve lists for the recruitment of
     translators ( LA 7/LA 6 ) and assistant translators ( LA 8 )
     published in the Official Journal of the European                The applicant puts forward the following pleas in law:
      Communities on 1 March 1996 ,
                                                                      — the text of the contested competition notices
— require the Commission of the European Communities                     misinterprets and unjustifiably restricts, as regards
      to amend, in accordance with Article 176 of the Treaty             Spanish nationals, the provisions of Article 5 of the Staff
      establishing the EEC , the ' Guide for candidates taking           Regulations solely in order to discriminate against
      part in interinstitutional competitions or in open                 'technical engineers' who have obtained their
      competitions organized by the Commission' published                qualifications in Spain, depriving them of access to A
      regularly in the Official Journal of the European                  and LA competitions and, consequently, to the
      Communities and any other publication concerning                   corresponding posts . The Commission is thus guilty of
      access to the Community civil service so as to include,             manifest abuse of procedure and misuse of powers. Also,
      unambiguously,      ' Ingenieria    técnica'    ( technical         in view of the fact that the competition notices are in
      engineering ) in the table entitled ' Guide to national             breach of Article 5 of the Staff Regulations and Article 7
      educational qualifications required as a minimum                    of the EC Treaty, there is also a breach of the principles
      condition of admission to open competitions' and                    of legal certainty and protection of legitimate
      specifically in the section dealing with Spanish                    expectations and of the right of access to the European
      candidates for 'A' and ' LA' competitions,                          Civil Service under the conditions laid down by the Staff
                                                                          Regulations,
— order the Commission of the European Communities to
      pay the costs .
                                                                      — the contested notices also contravene the principle of
                                                                          equal treatment since they involve discrimination on
 Contentions      and   principal    arguments     adduced     in         grounds of nationality without any objective
support:
                                                                          justification,
The applicant explains that in Spain there are two types of
full university education leading to a formal end-of-course           — the Commission's conduct is also in breach of Directive
 qualification : the course of education followed by aspiring             89/48/EEC on recognition of higher-education diplomas
graduates and the equivalent thereof ( engineers and                      awarded on completion of professional education and
 architects ), which are of a maximum duration of                         training of at least three years' duration, which applies
 four-and-a-half years to six years, and that followed by                 by analogy to the European civil service,
 aspiring diploma-holders and the equivalent thereof
 ( ingenieros técnicos technical engineers and arquitéctos             — the requirement of a licenciatura ( degree ) for access to
 técnicos technical architects ) which is of a maximum                    the Community civil service of Spanish candidates is
 duration of approximately three-and-a-half years . Both                  neither necessary nor appropriate to the objective of
 graduates and diploma-holders complete a full course of                  Article 5 of the Staff Regulations, which is to employ in
 university study leading to a qualification officially                   the Community civil service persons with university
 recognized by the Spanish State . The notices of open                    education . There is thus a clear breach of the principle of
 competition, Nos EUR/LA/97 and EUR/LA/98 , challenged                    proportionality .


title: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 16 September 1997 in the case of Bezirksregierung Lüneburg against Karl-Heinz Wettwer (Case C-376/97)

text:
C 7/8                 EN                 Official Journal of the European Communities                                 10. 1. 98
Reference for a preliminary ruling by the Bayerische                of 16 September 1997, received at the Court Registry on
Verwaltungsgerichtshof by order of that court of                    4 November 1997, for a preliminary ruling in the case of
20 October 1997 in the case of Anton Feyrer against                 Bezirksregierung Lüneburg (Lüneburg District Authority)
Landkreis Rottal-Inn (also party: Landesanwaltschaft                v. Karl-Heinz Wettwer on the following question
       Bayern as representative of the public interest)             concering Regulation (EEC) No 805/68 (1) as amended by
                        (Case C-374/97)                             Regulation (EEC) No 571/89 (2) and Regulations (EEC)
                                                                    No 572/89 (3) and (EEC) No 719/89 (4):
                           (98/C 7/16)
                                                                    Is entitlement to a beef and veal producers' special
Reference has been made to the Court of Justice of the
                                                                    premium for the year 1991 transferred to a producer to
European Communities by order of the Bayerische
                                                                    whom, during the compulsory stock holding period, the
Verwaltungsgerichtshof (Bavarian Administrative Court)
                                                                    applicant transferred his agricultural holding by way of
of 20 October 1997, received at the Court Registry on
                                                                    anticipated succession and who carried out the prescribed
3 November 1997, for a preliminary ruling in the case of
                                                                    holding and fattening of the bovine animals in question?
Anton Feyrer v. Landkreis Rottal-Inn, represented by the
Landrat (also party: Landesanwaltschaft Bayern as
representative of the public interest) on the following             (1 ) OJ, English Special Edition 1968 (I) p. 187.
questions:                                                          (2 ) OJ L 61, 4. 3. 1989, p. 43.
                                                                    (3 ) OJ L 63, 7. 3. 1989, p. 1.
                                                                    (4 ) OJ L 79, 21. 3. 1989, p. 9.
1. Can an individual oppose the collection of fees higher
    than the standard amounts listed in point 1 of the
    Annex relating to Article 2 (1) of Council Directive
    85/73/EEC (1) as amended by Council Directive 93/
    118/EC (2) where the Member State has not
    transposed Directive 93/118/EC into national law
    within the prescribed period?                                   Action brought on 4 November 1997 by the Commission
                                                                    of the European Communities against the Hellenic
2. Can a Member State collect fees higher than the                                                Republic
    standard amounts in reliance in point 4 (b) of the
    Annex relating to Article 2 (1) of Council Directive                                     (Case C-377/97)
    85/73/EEC as amended by Directive 93/118/EC                                                 (98/C 7/18)
    provided that the fees levied do not exceed the actual
    costs, no further conditions being imposed?
                                                                    An action against the Hellenic Republic was brought
3. Is the authorization given to Member States under                before the Court of Justice of the European Communities
    Article 2 (3) of Council Directive 85/73/EEC as                 on 4 November 1997 by the Commission of the European
    amended by Directive 93/118/EEC to collect an                   Communities, represented by Maria Kondou-Durande, of
    amount exceeding the Community fees dependent on                its Legal Service, with an address for service in
    the total fee collected in the Member State as a whole          Luxembourg at the office of Carlos Gómez de la Cruz, of
    and the actual inspection costs in the Member State as          its Legal Service, Wagner Centre, Kirchberg.
    a whole or is it sufficient, when the Member State has
    delegated authorization to collect the fees to the local
    authorities, that the total fee collected by the local          The applicant claims that the Court should:
    authority is not greater than the actual inspection
    costs of that authority?
                                                                    Ð declare that, by not adopting within the prescribed
(1) OJ L 32, 5. 2. 1985, p. 14.                                          period the laws, regulations and administrative
(2) OJ L 340, 31. 12. 1993, p. 15.                                       provisions necessary to implement Council Directive
                                                                         93/120/EC (1) of 22 December 1993 amending
                                                                         Directive 90/539/EEC (2) on animal health conditions
                                                                         governing intra-Community trade in and imports from
                                                                         third countries of poultry and hatching eggs, the
                                                                         Hellenic Republic has failed to fulfil its obligations
Reference      for    a      preliminary  ruling    by    the            under the Treaty and that Directive,
Bundesverwaltungsgericht by order of that court of
16 September 1997 in the case of Bezirksregierung
           Lüneburg against Karl-Heinz Wettwer                      Ð order the Hellenic Republic to pay the costs.
                        (Case C-376/97)
                           (98/C 7/17)                              Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of                  The time limit for implementation of Directive 93/120/EC
the European Communities by order of the                            expired on 1 January 1995. The Commission notes that
Bundesverwaltungsgericht (Federal Administrative Court)             the Hellenic Republic still has not adopted the appropriate


title: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale della Liguria in the case Hera SpA against Unità Sanitaria Locale No 3 (Genoa) and Impresa Romagnoli SpA (Case C-304/96)

text:
No C 336/20           EN                   Official Journal of the European Communities                                     9 . 11 . 96
    and Chemnitz, in the form of investment subsidies                 de Versailles ( Versailles Court of Appeal ) of 8 September
    amounting to DM 90,7 million, the Federal Republic of             1995 , which was received at the Court Registry on
    Germany has infringed the decision of the Commission              23 September 1996 , for a preliminary ruling in the case of
    of 26 June 1996 on the grant of aid by Germany to the             Javico International and Jafico AG v. Yves Saint Laurent
    Volkswagen group for works in Mosel and Chemnitz                  Parfums on the following questions :
    and the third sentence of Article 93 ( 3 ) of the EC
    Treaty,                                                           1 . Where an undertaking ( the supplier ) situated in a
                                                                           Member State of the European Union by contract
— order the Federal Republic of Germany to pay the                         entrusts another undertaking ( the distributor ) situated
    costs .                                                                in another Member State with the distribution of its
                                                                           products in a territory outside the Union, must
Pleas in law and main arguments adduced in support:                        Article 85 ( 1 ) of the Treaty establishing the European
                                                                           Community be interpreted as prohibiting provisions in
Infringement of Community law, in particular the third                     that contract which preclude the distributor from
sentence of Article 93 ( 3 ) of the EC Treaty: the legality of the         effecting any sales in a territory other than the
decision of the Commission is a matter to be determined by                 contractual territory, and hence any sale in the Union,
the Court of First Instance, in which the Free State of Saxony             either by direct marketing or by redirection from the
has in the meantime lodged an application for a declaration                contractual territory ?
of nullity pursuant to Article 173 of the EC Treaty ( Case
T-126/96 ). Until such time as a final judgment has been              2 . In the event that the said Article 85 ( 1 ) prohibits such
delivered in that action, Germany and, consequently, the                   contractual provisions, must it be interpreted as not
Free State of Saxony are obliged to comply fully with the                  being applicable where the supplier otherwise
decision of the Commission .
                                                                           distributed his products on the territory of the Union by
                                                                           means of a selective distribution network which has
                                                                           been the subject of an exemption decision under
                                                                           Article 85 ( 3 )?
Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale della Liguria in the case Fiera
SpA against Unità Sanitaria Locale No 3 ( Genoa ) and
                    Impresa Romagnoli SpA
                        ( Case C-304/96 )                             Reference for a preliminary ruling by the High Court of
                          ( 96/C 336/37 )                             Justice, Queen's Bench Division, by order of that court of
                                                                      16 November 1995 , in the case of the Commissioners of
Reference has been made to the Court of Justice of the                Customs and Excise against T. P. Madgett and R. M.
European Communities by an order of the Tribunale                             Baldwin trading as The Howden Court Hotel
Amministrativo Regionale della Liguria ( Regional                                              ( Case C-308/96 )
Administrative Court of Liguria ), First Civil Chamber, of                                       ( 96/C 336/39 )
4 July 1 996 , received at the Court Registry on 1 9 September
1996 , for a preliminary ruling in the case of Hera SpA
against Unita Sanitaria Locale No 3 ( Genoa ) and Impresa             Reference has been made to the Court of Justice of the
Romagnoli SpA, on the question :                                      European Communities by an order of the High Court of
                                                                      Justice, Queen's Bench Division, of 16 November 1995 ,
whether or not the Community rules allow — and if so in               which was received at the Court Registry on 23 September
what cases — a Member State to make temporary                          1996 , for a preliminary ruling in the case of the
exceptions regarding the entry into force of directives where         Commissioners of Customs and Excise against T. P.
the latter prescribe an appropriate time-limit.                       Madgett and R. M. Baldwin trading as The Howden Court
                                                                      Hotel , on the following questions:
                                                                       1 . What are the criteria for determining whether the
                                                                           operations of a taxable person are the operations of a
                                                                           'travel agent' or 'tour operator' to which the provisions
Reference for a preliminary ruling from the Cour d'Appel de                of Article 26 of Council Directive 77/388/EEC ( ! ) of
Versailles by judgment of that court of 8 September 1995 in                 17 May 1977 on the harmonization of the laws of the
the case of Javico International and Javico AG v. Yves Saint               Member States relating to turnover tax ( the sixth
                        Laurent Parfums                                     Directive on value added tax ) apply ? In particular, do
                        ( Case C-306/96 )                                  the said provisions apply to the operations of a person
                                                                           who, though not a 'travel agent' or 'tour operator' in the
                           ( 96/C 336/38 )                                  ordinary English meanings of those expressions ,
                                                                            provides for the benefit of travellers services of a kind
Reference has been made to the Court of Justice of the                      commonly provided by travel agents or tour
European Communities by a judgment of the Cour d'Appel                      operators ?