title: Case C-194/03: Reference for a preliminary ruling by the Finanzgericht Hamburg by order of that Court of 29 April 2003 in the dispute between Dr Georg Friedrich Baur Jr., executor of the estate of Dr Georg Friedrich Baur Sr. and Hauptzollamt Kiel

text:
6.9.2003               EN                         Official Journal of the European Union                                         C 213/7
Advisory Committee on Procurement and Contracts (ACPC),                   Reference for a preliminary ruling by the Arbeitsgericht
the favourable opinion of the ACPC, and the notice of contract            Berlin by order of that Court of 30 April 2003 in the
award published in the Official Journal.                                  proceedings between Imtraud Junk and Rechtsanwalt
                                                                          Wolfgang Kühnel as the liquidator of the assets of AWO
                                                                                Gemeinnützige Pflegegesellschaft Südwest mbH
By its second plea in law, the appellant submits that there is a                                   (Case C-118/03)
contradiction in the grounds of the judgment under appeal
inasmuch as the Court of First Instance formed the view that
the contract concluded between the Council and the successful                                      (2003/C 213/12)
tenderer was the decision to award the contract (paragraph 44)
but examined the Council’s letter of 11 March 2000 to
determine that the decision to award the contract was
                                                                          Reference has been made to the Court of Justice of the
adequately reasoned (paragraphs 56, 57 and 58). By way of
                                                                          European Communities by order of the Arbeitsgericht Berlin
alternative submission, the appellant criticises the Court of
                                                                          (Labour Court, Berlin) of 30 April 2003, received at the Court
First Instance for having failed to ensure compliance with the
                                                                          Registry on 7 May 2003, for a preliminary ruling in the
obligation to state reasons imposed by Article 253 EC in so
                                                                          proceedings between Imtraud Junk and Rechtsanwalt Wolf-
far as it took the view that the Council’s letter of 11 March
                                                                          gang Kühnel as the liquidator of the assets of AWO Gemeinnüt-
2000 was adequately reasoned, particularly having regard to
Article 8(1) of Directive 93/37.                                          zige Pflegegesellschaft Südwest mbH on the following ques-
                                                                          tions:
                                                                          1.    Is Council Directive 98/59/EC ( 1) of 20 July 1998 on the
                                                                                approximation of the laws of the Member States relating
By its third plea in law, the appellant contends that the Court                 to collective redundancies to be interpreted to the effect
of First Instance breached Articles 18 and 30(1) and (2) of                     that ‘redundancy’ within the meaning of Article 1(1)(a)
Directive 93/37 and the contract documents and infringed the                    thereof is to be construed as meaning the notice of
principles of equality and transparency inasmuch as it formed                   dismissal as the first act in terminating the contract of
the view that the qualitative criteria have as their main function              employment or does ‘redundancy’ mean the termination
to check that each tenderer has the competence and abilities                    of the contract of employment upon expiry of the period
required to carry out the works and that the award criteria, in                 of notice?
particular the qualitative and quantitative criteria, carry a
different weight even though that does not follow from the                2.    If ‘redundancy’ is to be construed as meaning the notice
contract documents.                                                             of dismissal, does the directive require that both the
                                                                                consultation procedure under Article 2 of the directive
                                                                                and the notification procedure under Articles 3 and 4
                                                                                thereof must have been concluded before the notices of
By its fourth plea in law, the appellant criticises the Court of                dismissal are announced?
First Instance on the ground that it distorted the appellant’s
argument in forming the view that, in regard to the three
criteria in respect of which STRABAG’s tender was superior to             (1 ) OJ L 225 of 12.08.1998, p. 16.
that of the successful tenderer, the appellant had placed in
question the Council’s assessment in its report to the ACPC,
whereas it in fact criticised the Council for having submitted
during the proceedings before the Court of First Instance
assessments which differed from those contained in that
report.
                                                                          Reference for a preliminary ruling by the Finanzgericht
                                                                          Hamburg by order of that Court of 29 April 2003 in the
                                                                          dispute between Dr Georg Friedrich Baur Jr., executor of
In support of its claim for compensation, the appellant argues            the estate of Dr Georg Friedrich Baur Sr. and Hauptzoll-
that, at the time when the contract was being awarded, the                                             amt Kiel
Council acted unlawfully in such a way as to incur non-
contractual liability. This unlawful conduct formed the basis
of significant damage incurred by STRABAG, which forfeited                                         (Case C-194/03)
the profit which it hoped to secure from performing the
contract and whose commercial image and reputation have                                            (2003/C 213/13)
suffered as a result. The appellant calculates its total damage
to be EUR 3 803 214, that is to say, 10 % of the turnover
which it might have hoped to achieve.
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Finanzgericht Ham-
                                                                          burg (Finance Court, Hamburg) of 29 April 2003, received at
                                                                          the Court Registry on 12 May 2003, for a preliminary ruling
 ---pagebreak--- C 213/8                EN                        Official Journal of the European Union                                           6.9.2003
in the dispute between Dr Georg Friedrich Baur Jr., executor of                 resources required to deliver the special reference quantity
the estate of Dr Georg Friedrich Baur Sr. and Hauptzollamt                      to the lessor before 1 July 1994, had ceased milk
Kiel on the following questions:                                                production and only resumed such production four
                                                                                months later, before 1 July 1994 at least, by means of
                                                                                other production resources both of its own and taken on
1.    Is Article 3a(1) (second indent) (b) of Council Regulation                lease?
      (EEC) No 857/84 (1) of 31 March 1984 adopting general
      rules for the application of the levy referred to in
      Article 5c of Regulation (EEC) No 804/68 (2) in the                (1 ) OJ L 90 of 01.04.1984, p. 13.
      milk and milk products sector, as amended by Council               (2 ) English special edition...: Series-I 68(I) p. 176.
      Regulation (EEC) No 1639/91 ( 3) of 13 June 1991, to be            (3 ) OJ L 150 of 15.06.1991, p. 35.
      construed as permitting a special reference quantity to be
      allocated provisionally to a formerly non-marketing
      holding which, as a result of its having switched in
      the meantime to the production of other agricultural
      products, was — at the time of its request for the
      allocation — able to produce the reference quantity
      requested only by means of production resources (feed-
      crop areas, cows and other production resources)
      additionally leased for that specific purpose?
                                                                         Appeal brought on 12 May 2003 by the Commission of
                                                                         the European Communities against the judgment deliver-
2.    On a proper construction of the second sentence of                 ed on 26 February 2003 by the Second Chamber of the
      the second subparagraph of Article 3a(4) of Council                Court of First Instance of the European Communities in
      Regulation (EEC) No 857/84 of 31 March 1984 adopting               Joined Cases T-344/00 and T-345/00 between CEVA Santé
      general rules for the application of the levy referred to in       animale SA and Pharmacia Entreprises SA, supported by
      Article 5c of Regulation (EEC) No 804/68 in the milk and           Fédération européenne de la santé animale (Fedesa), and
      milk products sector, as amended by Council Regulation                   the Commission of the European Communities (1)
      (EEC) No 1639/91 of 13 June 1991, was the special
      reference quantity that had been definitively allocated
      also to be returned to the national reserve where the                                         (Case C-198/03 P)
      formerly non-marketing holding as defined in Question 1
      had received and could deliver the special reference
      quantity provisionally allocated to it only by means of                                        (2003/C 213/14)
      production resources (feed-crop areas, cows and other
      production resources) additionally leased for that specific
      purpose and where that holding had surrendered those
      leased production resources to the lessor before 1 July
      1994?                                                              An appeal against the judgment delivered on 26 February
                                                                         2003 by the Second Chamber of the Court of First Instance of
                                                                         the European Communities in Joined Cases T-344/00 and
                                                                         T-345/00 between CEVA Santé animale SA and Pharmacia
3.    If Question 2 is answered in the negative:                         Entreprises SA, supported by Fédération européenne de la
                                                                         santé animale (Fedesa), and the Commission of the European
      On a proper construction of the second subparagraph of             Communities was brought before the Court of Justice of the
      Article 3a(4) of Council Regulation (EEC) No 857/84 of             European Communities on 12 May 2003 by the Commission
      31 March 1984 adopting general rules for the application           of the European Communities, represented by T. Christoforou
      of the levy referred to in Article 5c of Regulation (EEC)          and M. Shotter, acting as agents, with an address for service in
      No 804/68 in the milk and milk products sector, as                 Luxembourg.
      amended by Council Regulation (EEC) No 1639/91 of
      13 June 1991, was the special reference quantity that had
      been definitively allocated also to be returned to the             The Applicant claims that the Court should:
      national reserve where the formerly non-marketing hold-
      ing had definitively abandoned enjoyment of the pro-
      duction resources required to deliver the special reference        —      set aside the judgment of the Court of First Instance
      quantity before 1 July 1994?                                              (Second Chamber) of 26 February 2003 in Joined Cases
                                                                                T-344/00 and T-345/00 as regards the actions for
                                                                                damages;
4.    If Question 3 is answered in the affirmative:
                                                                         —      rule on the substance of the applications for damages by
                                                                                dismissing them entirely as unfounded;
      Is definitive abandonment for the purposes of Question 3
      to be understood as meaning that the formerly non-
      marketing holding had returned the leased production               —      order the applicants to pay the Commission’s costs.


title: Case T-137/06: Action brought on  5 May 2006  — Abdrabbah v Council

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/30

         Action brought on 5 May 2006 — Abdrabbah v Council
   (Case T-137/06)
   (2006/C 165/60)
   Language of the case: English
   Parties

      Applicant: Ghunia Abdrabba (Birmingham, United KIngdom) (represented by: N. Garcia, Solicitor, S. Cox, Barrister)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annulment of Article 2 of Council Regulation (EC) No 881/2002 of 27 May 2002 as amended by Council Regulation (EC) No 561/2003 of 27 March 2003 and Commission Regulation (EC) No 246/2006 of 10 February 2006 and of the reference to the applicant in Annex I;

               —

               order the Council to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-135/06 Al-Faqih v Council.


title: Case C-224/08: Action brought on 23 May 2008 — Commission of the European Communities v French Republic

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/29

         Action brought on 23 May 2008 — Commission of the European Communities v French Republic
   (Case C-224/08)
   (2008/C 171/46)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: C. Huvelin, agent)

      Defendant: French Republic
   Form of order sought

               —

               Declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1) and, in any event, by not having informed the Commission, the French Republic has failed to fulfil its obligations under Article 2 of that directive;

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2006/100/EC expired on the date of accession of Bulgaria and Romania to the European Union, namely 1 January 2007. At the date of bringing this action, the defendant had not taken the measures necessary to transpose completely the directive, in particular in respect of the medical professions, lawyers and architects.

      (1)  OJ L 363, p. 141.


title: Case C-548/09 P: Appeal brought on 23 December 2009 by Bank Melli Iran against the judgment of the Court of First Instance (Second Chamber) delivered on 14 October 2009 in Case T-390/08 Bank Melli Iran v Council

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/10

         Appeal brought on 23 December 2009 by Bank Melli Iran against the judgment of the Court of First Instance (Second Chamber) delivered on 14 October 2009 in Case T-390/08 Bank Melli Iran v Council
   (Case C-548/09 P)
   2010/C 80/17
   Language of the case: French

      Parties

      Appellant: Bank Melli Iran (represented by: L. Defalque, avocate)

      Other parties to the proceedings: Council of the European Union, United Kingdom of Great Britain and Northern Ireland, French Republic, European Commission

      Form of order sought

               —

               Set aside the judgment delivered on 14 October 2009 by the Second Chamber of the Court of First Instance in Case T-390/08 Bank Melli Iran v Council, served on the appellant on 15 October 2009;

               —

               grant the forms of order sought by the appellant in the proceedings at first instance;

               —

               order the respondent to pay the costs of the proceedings at first instance and of the appeal.

      Pleas in law and main arguments

   In support of its appeal, the appellant relies, principally, on three pleas in law and, in the alternative, on three other pleas.
   By its first ground of appeal, the appellant submits that the Court erred in law by not finding the obligation of individual notification in Article 15(3) of Regulation 423/2007 (1) to be an essential procedural requirement, non-compliance with which entails annulment of the measure. The communication of the fund-freezing decision to the appellant’s Paris branch by the French banking commission instead of by the Council does not satisfy the notification requirements provided for by the regulation and constitutes an infringement of a Community public policy rule.
   By its second ground of appeal, the appellant submits that the Court erred in law in its interpretation of the legal bases of Regulation 423/2007. By accepting that that regulation and the decision at issue were adopted by a qualified majority on the basis of Articles 60 EC and 301 EC alone, the Court infringed the essential procedural requirements of the Treaty. Since that regulation and the decision concern entities which are engaged in, associated with or provide support for nuclear proliferation, those items of legislation are not covered by Article 60 EC and 301 EC and should also be based on Article 308 EC, which requires a unanimous vote.
   By its third ground of appeal, Bank Melli Iran submits that the Court erred in law in its interpretation of the concept of the rights of the defence and of the principle of effective judicial protection in so far as it considered that it had sufficient information to carry out its review, without having received any evidence from the Council supporting the statement of reasons for the decision at issue, either before or after the proceedings were initiated.
   In the alternative, the appellant complains, first, that the Court erred in law and in its assessment of the facts in so far as it took the view that the Council has an autonomous discretionary power under Article 7(2) of Regulation 423/2007, whereas its power is limited by the adoption of restrictive measures by the United Nations Security Council.
   The appellant states, second, that the Court made an error of assessment of law with regard to the appellant’s right to property in so far as it held that the importance of the objectives pursued by the legislation at issue — maintaining international peace and security — justified a restriction of fundamental rights, including the right to property and the right to carry on economic activity.
   Lastly, the appellant submits that the Court made a manifest error of assessment of the facts by including it in the list of entities whose assets were to be frozen, since the appellant has not engaged in the Iranian nuclear programme and is not associated with entities which have engaged in it.

      (1)  Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).


title: Case T-12/03: Action brought on 16 January 2003 by Itochu Corporation against the Commission of the European Communities

text:
8.3.2003                EN                          Official Journal of the European Union                                             C 55/41
Pleas in law and main arguments                                             Pleas in law and main arguments
Applicant for regis-            Jean-Pierre Koubi
tration of a Community                                                      The applicant is a major general trading company in Japan.
trade mark:                                                                 Itochu Hellas, a local subsidiary of Itochu Europe and only
                                                                            indirectly a subsidiary of the applicant, concluded a distri-
Community mark con-             The word mark ‘conforflex’ for              bution agreement with Nintendo. The applicant indicates that
cerned:                         certain products in Class 20 (bed-          the distribution and sale of game consoles was never one of its
                                room furniture) (No 1171172).               core activities and that such activities were at the sole discretion
                                                                            of local subsidiaries, who operate with a large degree of
Marks put forward as            The national marks ‘flex’ and ‘flex’        independence.
grounds for refusal             for certain products in Class 20
under the opposition            (including beds, mattresses and
procedure                       pillows, bedding articles).                 In support of its application, the applicant claims that it cannot
                                                                            be held liable for an alleged infringement of Article 81 (1) of
Owner of the marks put          Fabricas Lucia Antonio Betere,              the EC Treaty on behalf of Itochu Hellas and, therefore, that it
forward as grounds for          S.A.
                                                                            is not the correct addressee of the contested decision. Accord-
refusal                                                                     ing to the applicant, the Commission should prove that a
Decision of the Oppo-           Dismissal of the opposition.                mother company exerted decisive influence over its subsidiary
sition Division:                                                            in order to hold the former liable for the acts of the subsidiary.
Decision of the Board of        Annulment of the decision of the
Appeal:                         Opposition Division and rejection           The applicant claims furthermore that the fine should be
                                of the application for registration         annulled or substantially reduced. The applicant invokes a lack
                                of the Community mark.                      of proper reasoning and an infringement of the principle of
                                                                            proportionality and equal treatment. The applicant claims that
Pleas in law:                   Infringement of the concept of              the Commission treated the applicant in the same way as other
                                risk of confusion.                          undertakings without enabling the applicant to assess the
                                                                            figures on which the Commission relied.
                                                                            The applicant submits that the Commission had no grounds
                                                                            to increase the fine to ensure deterrence considering that
                                                                            Itochu Hellas should have been the addressee of the decision.
Action brought on 16 January 2003 by Itochu Corpor-                         The applicant also claims that an increase for deterrence on
ation against the Commission of the European Communi-                       account of the applicant’s size and resources constitutes an
                                 ties                                       infringement of the principles of proportionality and equal
                                                                            treatment.
                           (Case T-12/03)
                          (2003/C 55/97)                                    Moreover, the applicant invokes a manifest error of assessment
                                                                            and a violation of the principle of proportionality insofar as
                    (Language of the case: English)                         the fine was increased to take into account the duration of the
                                                                            alleged infringement. The applicant also submits that the
                                                                            Commission should have applied a smaller increase by percent-
                                                                            age on account of duration as Itochu Hellas’ participation was
An action against the Commission of the European Communi-                   only passive.
ties was brought before the Court of First Instance of the
European Communities on 16 January 2003 by Itochu Corpor-
ation, Tokyo, Japan, represented by Mr Gerwin Van Gerven                    The applicant also puts forward that the Commission has
and Mr Thomas Franchoo, Lawyers.                                            infringed Article 253 of the EC Treaty and the principle of
                                                                            proportionality because it has refused to consider certain
The applicant claims that the Court should:                                 attenuating circumstances, like the very limited and exclusively
                                                                            passive role of Itochu Hellas and the fact that Itochu Hellas did
—     annul Articles 1, 3 and 5 of Commission decision                      not implement the restrictive practices. Furthermore, according
      C(2002) 4072 final of 30 October 2002 in Cases                        to the applicant, the Commission has violated the principle of
      COMP/35.587 PO Video games, COMP/35.706 Nintendo                      equal treatment by accepting attenuating circumstances in
      Distribution and COMP/36.321 Omega-Nintendo, inso-                    favour of other addressees and not for the applicant.
      far as it finds an infringement on Article 81 (1) of the EC
      Treaty, imposes a fine upon and addresses the decision to
      the applicant, or alternatively, to substantially reduce that         The applicant finally invokes a violation of Article 15 (2) of
      fine;                                                                 Regulation 17 (1) insofar as the Commission imposed a fine
                                                                            that exceeds 10 % of Itochu Hellas’ turnover in the preceding
—     order the Commission to pay the costs.                                business year and a violation of its rights of defence insofar
 ---pagebreak--- C 55/42                 EN                          Official Journal of the European Union                                     8.3.2003
as the Commission changed the legal assessment of the                       Removal from the register of Joined Cases T-100/02 and
infringements without offering the applicant the possibility of                                        T-102/02 (1)
responding to it during the administrative proceedings.
                                                                                (2003/C 55/100)
( 1) EEC Council: Regulation No 17: First Regulation implementing                              (Language of the Case: English)
     Articles 85 and 86 of the Treaty (OJ 13 of 21.2.1962, p. 204).
                                                                            By order of 2 December 2002 the President of the Fifth
                                                                            Chamber of the Court of First Instance of the European
                                                                            Communities ordered the removal from the register of Joined
                                                                            Cases T-100/02 and T-102/02: EVC International N.V. v
                                                                            Commission of the European Communities.
         Removal from the register of Case T-96/01 (1)
                                                                            (1 ) OJ C 156 of 29.06.2002.
                           (2003/C 55/98)
                     (Language of the Case: Greek)
                                                                                Removal from the register of Case T-170/02 (1)
By order of 13 December 2002 the President of the Second
Chamber of the Court of First Instance of the European                                               (2003/C 55/101)
Communities ordered the removal from the register of Case
T-96/01: Rodolfos Maslias v European Parliament.                                                (Language of the Case: French)
( 1) OJ C 200 of 14.07.2001.
                                                                            By order of 6 December 2002 the President of the Second
                                                                            Chamber of the Court of First Instance of the European
                                                                            Communities ordered the removal from the register of Case
                                                                            T-170/02: Maria Rosaria Ragazzini v European Parliament.
                                                                            (1 ) OJ C 202 of 24.08.2002.
Removal from the register of Joined Cases T-99/02 and
                             T-101/02 ( 1)
                           (2003/C 55/99)
                                                                                Removal from the register of Case T-295/02 ( 1).
                    (Language of the Case: English)
                                                                                (2003/C 55/102)
                                                                                (Language of the Case: Dutch)
By order of 2 December 2002 the President of the Fifth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Joined                 By order of 13 December 2002 the President of the Third
Cases T-99/02 and T-101/02: Ineos N.V. v Commission of the                  Chamber of the Court of First Instance of the European
European Communities.                                                       Communities ordered the removal from the register of Case
                                                                            T-295/02: Koninklijke BAM NBM N.V. v Commission of the
( 1) OJ C 156 of 29.06.2002.                                                European Communities.
                                                                            (1 ) OJ C 289 of 23.11.2002.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 18 December 1997 in Case C-384/95 (reference for a preliminary ruling from the Finanzgericht des Landes Brandenburg): Landboden-Agrardienste GmbH & Co. KG v. Finanzamt Calau (VAT - Supply of services - National compensation for the extensification of potato production)

text:
C 55/10               EN                  Official Journal of the European Communities                                      20.2.98
(OJ L 228, 11.8.1992, p. 1) or, in the alternative, by               88 of 21 September 1988 (OJ L 298, 31.10.1988, p. 1),
failing to inform the Commission thereof, the Kingdom of             Commission Regulation (EEC) No 2886/89 of 2 August
Spain has failed to fulfil its obligations under the EC              1989 (OJ L 282, 21.10.1989, p. 1) and Commission
Treaty Ð the Court (Fifth Chamber), composed of: C.                  Regulation (EEC) No 2472/90 of 31 July 1990 (OJ L 247,
Gulmann, President of the Chamber, M. Wathelet, J. C.                10.9.1990, p. 1) Ð the Court (First Chamber), composed
Moitinho de Almeida (Rapporteur), P. Jann and L. Sevón,              of: M. Wathelet, President of the Chamber, D. A. O.
Judges; A. La Pergola, Advocate-General; L. Hewlett,                 Edward (Rapporteur) and L. Sevón, Judges; C. O. Lenz,
Administrator, for the Registrar, has given a judgment on            Advocate-General; H. A. Rühl, Principal Administrator,
18 December 1997, in which it:                                       for the Registrar, has given a judgment on 18 December
                                                                     1997, in which it has ruled:
1. declares that, by failing to adopt within the prescribed
     period the laws, regulations and administrative                 Image processing, as it can be carried out with an
     provisions necessary to comply with Council Directive           automatic data-processing machine unit which includes,
     92/49/EEC of 18 June 1992 on the coordination of                inter alia, an analogue/digital converter, a high-quality
     laws, regulations and administrative provisions                 graphics processor and a digital/analogue converter, is not
     relating to direct insurance other than life assurance          to be regarded as the performance of a specific function'
     and amending Directives 73/239/EEC and 88/357/                  for the purposes of the last paragraph of Note 5(B) to
     EEC (third non-life insurance Directive), the Kingdom           Chapter 84 of the Combined Nomenclature of the
     of Spain has failed to fulfil its obligations under that        Common Customs Tariff in Annex I to Council
     Directive;                                                      Regulation (EEC) No 2658/87 of 23 July 1987 on the
                                                                     tariff and statistical nomenclature and on the Common
                                                                     Customs Tariff, as amended by the Annexes to
2. orders the Kingdom of Spain to pay the costs.
                                                                     Commission Regulations (EEC) No 3174/88 of
                                                                     21 September 1988, (EEC) No 2886/89 of 2 August 1989
(1) OJ C 16, 20.1.1996.                                              and (EEC) No 2472/90 of 31 July 1990.
                                                                     (1) OJ C 31, 3.2.1996.
               JUDGMENT OF THE COURT
                        (First Chamber)
                    of 18 December 1997                                             JUDGMENT OF THE COURT
in Case C-382/95 (reference for a preliminary ruling from                                   (Fifth Chamber)
the Bundesfinanzhof): Techex Computer + Grafik
                                                                                of 18 December 1997
        Vertriebs GmbH v. Hauptzollamt München (1)
                                                                     in Case C-384/95 (reference for a preliminary ruling from
(Common Customs Tariff Ð Tariff headings Ð Tariff
                                                                     the Finanzgericht des Landes Brandenburg): Landboden-
classification of a Vista' board electronic component
                                                                        Agrardienste GmbH & Co. KG v. Finanzamt Calau (1)
intended for image processing and capable of being used
as a graphics card in a computer Ð Classification in the             (VAT Ð Supply of services Ð National compensation for
                  Combined Nomenclature)                                       the extensification of potato production)
                          (98/C 55/17)                                                        (98/C 55/18)
               (Language of the case: German)                                       (Language of the case: German)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                     (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
In Case C-382/95: reference to the Court under Article 177
of the EC Treaty from the Bundesfinanzhof (Federal                   In Case C-384/95: reference to the Court under Article 177
Finance Court), for a preliminary ruling in the proceedings          of the EC Treaty from the Finanzgericht des Landes
pending before that court between Techex Computer +                  Brandenburg (Finance Court of the Land of Brandenburg),
Grafik Vertriebs GmbH and Hauptzollamt München Ð                     Germany, for a preliminary ruling in the proceedings
on the interpretation of the Combined Nomenclature of                pending before that court between Landboden-
the Common Customs Tariff in Annex I to Council                      Agrardienste GmbH & Co. KG and Finanzamt Calau Ð
Regulation (EEC) No 2658/87 of 23 July 1987 on the                   on the interpretation of Articles 6(1), 11(A)(1)(a) and
tariff and statistical nomenclature and on the Common                12(3)(a) of and Annex H to the Sixth Council Directive
Customs Tariff (OJ L 256, 7.9.1987, p. 1), as amended by             77/388/EEC of 17 May 1977 on the harmonisation of the
the Annexes to Commission Regulation (EEC) No 3174/                  laws of the Member States relating to turnover taxes Ð
 ---pagebreak--- 20.2.98               EN                  Official Journal of the European Communities                                      C 55/11
Common system of value added tax: uniform basis of                   1. declares that, by not adopting all the laws, regulations
assessment (OJ L 145, 13.6.1977, p. 1) Ð the Court (Fifth                 and administrative provisions necessary to comply
Chamber), composed of: C. Gulmann (Rapporteur),                           with Council Directive 89/106/EEC of 21 December
President of the Chamber, M. Wathelet, J. C. Moitinho de                  1988 on the approximation of laws, regulations and
Almeida, J.-P. Puissochet and L. Sevón, Judges; F. G.                     administrative provisions of the Member States
Jacobs, Advocate-General; H. von Holstein, Deputy                         relating to construction products, the Kingdom of
Registrar, for the Registrar, has given a judgment on                     Belgium has failed to fulfil its obligations under that
18 December 1997, in which it has ruled:                                  Directive;
On a proper construction of Articles 6(1) and 11(A)(1)(a)            2. orders the Kingdom of Belgium to pay the costs.
of the Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member                  (1) OJ C 269, 14.9.1996.
States relating to turnover taxes Ð Common system of
value added tax: uniform basis of assessment, an
undertaking given by a farmer under a national
compensation scheme not to harvest at least 20 % of his
potato crop does not constitute a supply of services for the
purposes of that Directive. Consequently, compensation
received for that purpose is not subject to turnover tax.                           JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
(1) OJ C 31, 3.2.1996.                                                                   of 18 December 1997
                                                                     in Case C-284/96 (reference for a preliminary ruling from
                                                                     the Tribunal de Grande Instance de Briey): Didier
                                                                     Tabouillot v. Directeur des Services Fiscaux de Meurthe-
                                                                                et-Moselle (1)
                                                                     (Article 95 of the Treaty Ð Differential tax on motor
               JUDGMENT OF THE COURT                                                             vehicles)
                       (Fifth Chamber)                                                        (98/C 55/20)
                    of 18 December 1997
                                                                                (Language of the case: French)
in   Case    C-263/96: Commission of the European
          Communities v. Kingdom of Belgium (1)
(Failure to fulfil obligations Ð Directive 89/106/EEC Ð                (Provisional translation; the definitive translation will be
                   Construction products)                                      published in the European Court Reports)
                         (98/C 55/19)
                                                                     In Case C-284/96: reference to the Court under Article 177
                                                                     of the EC Treaty from the Tribunal de Grande Instance de
                (Language of the case: Dutch)                        Briey (Regional Court, Briey), France, for a preliminary
                                                                     ruling in the proceedings pending before that court
                                                                     between Didier Tabouillot and Directeur des Services
                                                                     Fiscaux de Meurthe-et-Moselle Ð on the interpretation of
  (Provisional translation; the definitive translation will be
                                                                     Article 95 of the EC Treaty for the purpose of determining
         published in the European Court Reports)
                                                                     whether the French system of motor vehicle tax is
                                                                     compatible with that provision Ð the Court (Fifth
                                                                     Chamber), composed of: C. Gulmann, President of the
In Case C-263/96: Commission of the European                         Chamber, M. Wathelet (Rapporteur), J. C. Moitinho de
Communities (Agent: Hendrik van Lier) v. Kingdom of                  Almeida, D. A. O. Edward and J.-P. Puissochet, Judges;
Belgium (Agent: Jan Devadder) Ð application for a                    F. G. Jacobs, Advocate-General; D. Louterman-Hubeau,
declaration that, by not adopting the laws, regulations and          Principal Administrator, for the Registrar, has given a
administrative provisions necessary to comply with                   judgment on 18 December 1997, in which it has ruled:
Council Directive 89/106/EEC of 21 December 1988 on
the approximation of laws, regulations and administrative
provisions of the Member States relating to construction             A situation such as that arising from the importation into
products (OJ L 40, 11.2.1989, p. 12), the Kingdom of                 a Member State of a vehicle which has come directly from
Belgium has failed to fulfil its obligations under that              a non-member country does not fall within the scope of
Directive Ð the Court (Fifth Chamber), composed of: C.               Article 95 of the EC Treaty.
Gulmann, President of the Chamber, J. C. Moitinho de
Almeida, D. A. O. Edward, J.-P. Puissochet and L. Sevón              (1) OJ C 318, 26.10.1996.
(Rapporteur), Judges; G. Tesauro, Advocate-General; R.
Grass, Registrar, has given a judgment on 18 December
1997, in which it:


title: Case T-109/02: Action brought on 11 April 2002 by Bolloré S.A. against Commission of the European Communities

text:
C 131/24              EN                     Official Journal of the European Communities                                      1.6.2002
The applicant claims that the Court should:                             —     order the Commission to pay the costs.
—     annul the Commission’s decision establishing the calcu-
      lation of the pension rights acquired by the applicant
      prior to his entry into service and transferred to the            Pleas in law and main arguments
      Community pension scheme pursuant to Article 11(2) of
      Annex VIII of the Staff Regulations;
                                                                        In support of his claim, the applicant pleads infringement of
                                                                        Article 45 of the Staff Regulations and of the principles of
—     order the Commission to pay the costs.
                                                                        equal treatment and career progression. According to the
                                                                        applicant, his merits were not taken fully into consideration in
                                                                        the context of the 2001 promotions procedure.
Pleas in law and main arguments
In support of his claim, the applicant pleads non-compliance
with the obligation to provide a statement of reasons and
infringement of Article 11(2) of Annex VIII to the Staff
Regulations and of the general provisions for the implemen-             Action brought on 11 April 2002 by Bolloré S.A. against
tation thereof, as well as breach of the principle of equal                      Commission of the European Communities
treatment. According to the applicant, the calculation should
have been carried out on the basis of his situation at the time                                 (Case T-109/02)
of entering the service of the Communities as a member of the
temporary staff, and not on the basis of his situation at the
time of his being appointed as an established official, some                                    (2002/C 131/46)
nine years later.
                                                                                (Language of the case: French)
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 11 April 2002 by Bolloré S.A.,
                                                                        established in Puteaux (France), represented by Robert Saint-
Action brought on 2 April 2002 by Prodromos Mavridis                    Esteben and Hugues Calvet, lawyers, with an address for service
  against the Commission of the European Communities                    in Luxembourg.
                         (Case T-97/02)                                 The applicant claims that the Court should:
                        (2002/C 131/45)                                 —     Annul Articles 1, 2 and 3 of the Commission decision of
                                                                              20 December 2001, reference COMP/E-1/36212 —
                                                                              Carbonless paper, relating to a proceeding pursuant to
                  (Language of the case: French)                              Article 81 of the EC Treaty and Article 53 of the EEA
                                                                              Agreement, in so far as they refer to Bolloré;
                                                                        —     In the alternative, reduce very substantially the amount
                                                                              of the fine imposed on Bolloré by Article 3 of the
An action against the Commission of the European Communi-                     decision;
ties was brought before the Court of First Instance of the
European Communities on 2 April 2002 by Prodromos
                                                                        —     Order the Commission to pay the costs.
Mavridis, residing in Brussels, represented by Jean-Noël Louis,
lawyer, with an address for service in Luxembourg.
                                                                        Pleas in law and main arguments
The applicant claims that the Court should:
—     annul the Commission’s decision not to promote the                The applicant contests the Commission’s decision finding that
      applicant to grade A 5 in the context of the 2001                 it took part in an agreement contrary to Article 81(1) of the
      promotions procedure;                                             EC Treaty and Article 53(1) of the EEA Agreement.
 ---pagebreak--- 1.6.2002               EN                     Official Journal of the European Communities                                        C 131/25
It seeks, first, the annulment of that decision, on the ground           The applicants claim that the Court should:
that by finding for the first time in the decision that it was
liable for having personally taken part in the cartel in question,
the Commission upheld a complaint which had not been set
out in the statement of complaints. Bolloré was in fact                  —     Set aside the decision of the defendant’s Third Board of
concerned in the procedure only as the 100 % parent company                    Appeal of 16 January 2002 in appeal R 0538/2001-3;
of Copigraph, the latter being the company which, according
to the Commission, took part in the cartel. Consequently, by
finding against the applicant on the basis of a new complaint
not notified in the statement of complaints, the Commission              —     Order the defendant to pay the costs.
prevented it from defending itself properly and thereby
infringed its rights of defence and right to be heard.
The applicant also claims that there was a breach of Article 81
of the EC Treaty and Article 53 of the EEA Agreement as a
result of imputing to the applicant the anti-competitive                 Pleas in law and main arguments
conduct of Copigraph. Bolloré points out that, according to
the latest case-law, the holding of 100 % of the capital of a
company does not in itself mean that the infringing conduct
of the subsidiary may be imputed to the parent company.
                                                                         Community trade mark          Three-dimensional trade mark in
                                                                         applied for:                  the form of a representation of
                                                                                the frustrum of a pyramid upside
                                                                                down with a rectangular base area
In the alternative, the applicant contests the amount of the
                                                                                approximately 25 cm × 8 cm and
fine imposed on it by the Commission, and seeks a very
                                                                                bevelled lateral faces in the colour
substantial reduction, on the ground that it infringed
                                                                                gold — Application No 1408889
Article 15(2) of Regulation No 17 and the principle of
proportionality.
                                                                         Goods or services:            Goods in classes 16 and 30 (inter
                                                                                alia chocolate, chocolate goods;
                                                                                cardboard packaging in the form
                                                                                of a gold ingot for chocolate and
                                                                                chocolate goods)
                                                                         Decision        contested     Refusal of registration by the
                                                                         before the Board of           examiner
                                                                         Appeal:
Action brought on 5 April 2002 by Axions s.a. and
Christian Belce against Office for Harmonisation in the
         Internal Market (Trade marks and designs)
                                                                         Decision of the Board of      Dismissal of the appeal
                                                                         Appeal:
                         (Case T-110/02)
                                                                         Grounds of claim:             Infringement of Article 7(1)(b) of
                         (2002/C 131/47)                                                               Regulation (EC) No 40/94 (1);
                                                                                error of assessment and breach of
                                                                                the principle of equal treatment.
                   (Language of the case: German)
                                                                         (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                             Community trade mark (OJ L 11 of 14.1.1994, p. 1).
An action against the Office for Harmonisation in the Internal
Market (Trade marks and designs) was brought before the
Court of First Instance of the European Communities on
5 April 2002 by Axions S.A., of Geneva (Switzerland), and
Christian Belce, of Veyrier (Switzerland), represented by C.M.
Eckhartt, lawyer.


               4.6.2016

               EN

               Official Journal of the European Union

               C 199/12

         Request for an Advisory Opinion from the EFTA Court by Héraðsdómur Reykjavíkur dated 22 May 2015 in the case of Ferskar kjötvörur ehf. v the Icelandic State
   (Case E-17/15)
   (2016/C 199/08)
   A request has been made to the EFTA Court by a letter dated 22 May 2015 from Héraðsdómur Reykjavíkur (Reykjavik District Court), which was received at the Court Registry on 16 June 2015, for an Advisory Opinion in the case of Ferskar kjötvörur ehf. v the Icelandic State on the following questions:

               1.

               Does the field of application of the EEA Agreement, as defined in Article 8 thereof, entail that a Member State of the Agreement has discretion regarding the setting of rules on the importation of raw meat products and is, in this respect, not bound by the provisions of the Agreement and the acts based thereon?

               2.

               If the answer to the first question is in the negative, then the question arises whether it is compatible with the provisions of Council Directive 89/662/EEC that a Member State of the EEA Agreement should set rules demanding that an importer of raw meat products applies for a special permit before the products are imported, and require the submission, for this purpose, of an import declaration, information on the country of origin and production, the type of product and the producer, and the required certificates, including a certificate confirming that the products have been stored frozen for a certain period prior to customs clearance.

               3.

               The national court requests the opinion of the Court whether the provisions of Regulation (EC) No 178/2002 of the European Parliament and of the Council are relevant in answering the second question.

               4.

               Following on from the second and third questions, an answer is requested to the question of whether it constitutes a technical barrier to trade in the sense of Article 18 EEA if an EEA State sets rules under which the importation to that State of raw meat products is not permitted.

               5.

               An opinion is requested on whether it affects the answer to the fourth question, if it is permitted, under the rules of the EEA State of destination, to grant exceptions from the general prohibition referred to in that question.

               6.

               If the answer to the fourth and/or fifth question is in the affirmative, an answer is then requested to the question of in which cases such a prohibition on the importation of raw meat products taking into account, as appropriate, the circumstances described in the fifth question, could be considered justifiable with reference to Article 13 EEA. Also, an answer is requested to the question of what requirements should be made regarding proof in this connection, particularly in the light of the precautionary principle of EEA law.


title: Case F-104/14: Action brought on 7 October 2014  — ZZ v Commission

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/52

         Action brought on 7 October 2014 — ZZ v Commission
   (Case F-104/14)
   (2015/C 007/63)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: A. Salerno, lawyer)

      Defendant: Commission

      Subject-matter and description of the proceedings

   Annulment of the decision not to include the applicant on the reserve list for competition EPSO/AD/241/12 — GA.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the decision of the selection board in competition EPSO AD/241/12 — GA not to include the applicant on the list of successful candidates;

               —

               order the Commission to pay all the costs of the proceedings.


title: Case T-117/01: Action brought on 28 May 2001 by Marcos Roman Parra against the Commission of the European Communities

text:
C 227/28               EN                     Official Journal of the European Communities                                    11.8.2001
European Communities on 23 May 2001 by Stefano Cocchi,                   The applicants claim that the Court should:
residing at Varano Borghi (Italy), and Evi Hainz, residing
at Besozzo (Italy), represented by Laure Levi and Georges                —     annul the decision of the Authority Empowered to
Vandersanden, avocats.                                                         Conclude Contracts (AECC) to cancel the recruitment
                                                                               procedures initiated by the publication of the following
The applicants claim that the Court should:                                    vacancy notices: COM/R/5638/00 and COM/R/5639/00
                                                                               (in the case of Francesca Bertolo), COM/R/5526/00 (in
—     annul the decisions of the Authority Empowered to                        the case of Laurence Bories), COM/R/5645/00 (in the
      Conclude Contracts (AECC), of unknown date, appointing                   case of Lionello Brovelli), COM/R/5889/99 (in the case of
      persons to fill the posts declared vacant by, respectively,              Philippe Chemin), COM/R/5520/00 (in the case of Laura
      vacancy notices COM/R/5530/00 of 24 February 2000                        Copes), COM/R/5646/00 (in the case of Maria Gabriella
      (in the case of Mr Cocchi) and COM/R/5500/00 of                          D’Elia), COM/R/5863/99 (in the case of Emanuele Mondi-
      24 February 2000 (in the case of Ms Hainz) and, in so far                ni) and COM/R/5521/00 (in the case of Helen Preissler);
      as may be necessary, annul the implicit decision rejecting
      the applicants’ complaints;                                        —     in the case of Philippe Chemin and Emanuele Mondini,
                                                                               annul, respectively, vacancy notices COM/R/5734/00
—     order the defendant to pay one euro by way of damages                    (Philippe Chemin) and COM/R/5735/00 (Emanuele Mon-
      for the prejudice suffered as a result of that decision, that            dini), published on 23 June 2000, and annul the decisions
      sum being fixed on an equitable and provisional basis;                   taken in the context of those new recruitment procedures;
—     order the defendant to pay all the costs.                          —     order the defendant to pay one euro by way of damages
                                                                               for the prejudice suffered as a result of the contested
                                                                               decisions, that sum being fixed on an equitable and
                                                                               provisional basis;
Pleas in law and main arguments
                                                                         —     order the defendant to pay the costs.
The pleas in law and main arguments advanced in this
application are analogous to those put forward in Case
T-330/00 (1).                                                            Pleas in law and main arguments
                                                                         The present action reproduces the facts and legal arguments
(1) OJ 2000 C 372, p. 15.
                                                                         put forward in support of the application of certain applicants
                                                                         in Case T-331/00 Bories and Others v Commission (1).
                                                                         (1) OJ C 372 of 23.12.2000, p. 16.
Action brought on 29 May 2001 by Francesca Bertolo
and Others against the Commission of the European
                          Communities
                         (Case T-115/01)                                 Action brought on 28 May 2001 by Marcos Roman Parra
                                                                           against the Commission of the European Communities
                        (2001/C 227/54)
                                                                                (Case T-117/01)
                   (Language of the case: French)
                                                                                (2001/C 227/55)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                  (Language of the case: French)
European Communities on 29 May 2001 by Francesca Bertolo,
residing at Varese (Italy), Laurence Bories, residing at Vallon
Pont d’Arc (France), Lionello Brovelli, residing at Angera (Italy),      An action against the Commission of the European Communi-
Philippe Chemin, residing at Gif sur Yvette (France), Laura              ties was brought before the Court of First Instance of the
Copes, residing at Ispra (Italy), Maria Gabriella d’Elia, residing       European Communities on 28 May 2001 by Marcos Roman
at Taino (Italy), Emanuele Mondini, residing at Gavirate                 Parra, residing at Zaventem (Belgium), represented by Jean-
(Italy) and Helen Preissler, residing at Siegsdorf (Germany),            Noël Louis and Véronique Peere, avocats, with an address for
represented by Georges Vandersanden and Laure Levi, avocats.             service in Luxembourg.
 ---pagebreak--- 11.8.2001              EN                     Official Journal of the European Communities                                         C 227/29
The applicant claims that the Court should:                                    article. In the applicant’s view, the present case does not
                                                                               involve any selective advantage of the type which is
—     annul the Commission’s decision not to promote him to                    inherent in all aid, at least as regards the amounts paid to
      grade A6 in the course of the 2000 promotion procedure;                  FGV, the consideration for which was the provision of a
—     order the Commission to pay the costs.                                   maritime transport service.
                                                                         —     Misinterpretation of the concept of aid within the mean-
Pleas in law and main arguments                                                ing of the abovementioned article, inasmuch as the
                                                                               Commission states that the amounts paid in return for
In support of his action, the applicant pleads a failure to                    travel vouchers did not correspond to any actual need of
provide a statement of reasons, as required by Article 25 of                   the applicant, since they had not yet been used as at the
the Staff Regulations, and also infringement of Article 45 of                  date when the contested decision was adopted. The
the Staff Regulations and breach of the principle of equal                     applicant asserts in that regard that the travel vouchers
treatment and the principle that officials should have reason-                 do not have to be used within any specific period
able career prospects. The applicant bases his claim, inter alia,              and that the purchase of them constituted a normal
on the absence of a staff report.                                              commercial transaction.
                                                                         —     Breach of the right to property enshrined in Article 295
                                                                               EC, inasmuch as the contested decision obliges the
                                                                               contractor providing the transport service to refund all
                                                                               the amounts received, on the basis of the non-utilisation
                                                                               of the vouchers purchased. The applicant states that the
Action brought on 31 May 2001 by Diputación Foral                             imposition of that obligation entails a de facto restriction
de Bizkaia against the Commission of the European                              on the capacity to conclude contracts which goes beyond
                          Communities                                          what is permitted by the Community rules governing
                                                                               State aid.
                        (Case T-118/01)
                                                                         —     Absence or insufficiency of a statement of reasons for the
                        (2001/C 227/56)                                        decision, inasmuch as it does not show that the 1995
                                                                               Agreement has any real effect on competition and intra-
                                                                               Community trade.
                   (Language of the case: Spanish)
                                                                         —     Misinterpretation of Article 87(2)(a) EC, inasmuch as the
An action against the Commission of the European Communi-                      Commission, having acknowledged that the aid benefits
ties was brought before the Court of First Instance of the                     individual consumers with special needs and may there-
European Communities on 31 May 2001 by Diputación Foral                       fore be regarded as aid having a social character, goes on
de Bizkaia, established in Bilbao (Spain), represented by                      to state, without producing any evidence in support, that
Marta Morales Isasi and Ignacio Saenz-Cortabarria Fernández,                  the condition laid down by the Treaty (namely, the
abogados.                                                                      absence of discrimination related to the origin of the
                                                                               products concerned) is not fulfilled.
The applicant claims that the Court should:
—     annul the Commission’s decision of 29 November 2000
      on the aid scheme implemented by Spain in favour of the            In the alternative, in the event that the Court of First Instance
      shipping company Ferries Golfo de Vizcaya (OJ L 89 of              considers that — as the contested decision maintains — the
      29 March 2001, p. 28);                                             1995 Agreement in itself constitutes State aid in favour of
—     annul Article 2 of that decision in so far as it orders the        FGV within the meaning of Article 87(1) EC, the applicant
      recovery of ESP 985 500 000 together with interest                 asserts that it is lawful aid (existing aid), since the Kingdom of
      thereon;                                                           Spain has not infringed the obligation laid down in the final
                                                                         sentence of Article 93(3) of the Treaty (now Article 88(3) EC).
—     order the Commission to pay the costs.                             Given that what is involved is lawful aid, Article 14(1) of
                                                                         Regulation (EC) No 659/1999 of 22 March 1999 laying down
                                                                         detailed rules for the application of Article 93 of the EC Treaty
Pleas in law and main arguments                                          does not permit its recovery, and Article 2 of the decision is
                                                                         therefore null and void.
The applicant bases its action on the following pleas:
—     Infringement of Article 87(1) EC, on account of the
      incorrect assessment made by the Commission in con-
      sidering, from the outset, that all the amounts granted to
      Ferries Golfo de Vizcaya (FGV) under the 1995 Agree-
      ment constitute State aid within the meaning of that


title: Case T-715/13: Action brought on 24 December 2013 — Lidl Stiftung v OHIM — Horno del Espinar (Castello)

text:
               15.3.2014

               EN

               Official Journal of the European Union

               C 78/13

         Action brought on 24 December 2013 — Lidl Stiftung v OHIM — Horno del Espinar (Castello)
   (Case T-715/13)
   2014/C 78/27
   Language in which the application was lodged: English

      Parties

      Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: M. Wolter, M. Kefferpütz and A. Marx, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Horno del Espinar, SL (El Espinar, Spain)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 1 October 2013 given in Case R 2338/2012-2;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark containing the verbal element ‘Castello’ for goods in Classes 29, 30 et 31 — Community trade mark application No 6 819 941

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

      Mark or sign cited in opposition: Community trade mark registration No 4 199 907 for goods and services in Classes 30, 35 and 39 and Spanish trade marks for goods and services in Classes 30, 35 and 39

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 75, 79 and 8(1)(b) CTMR.


title: Case C-281/05: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 2 June 2005 in Montex Holdings Ltd. v Diesel S.p.A.

text:
               1.10.2005

               EN

               Official Journal of the European Union

               C 243/7

         Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 2 June 2005 in Montex Holdings Ltd. v Diesel S.p.A.
   (Case C-281/05)
   (2005/C 243/10)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof (Germany) of 2 June 2005, received at the Court Registry on 13 July 2005, for a preliminary ruling in the proceedings between Montex Holdings Ltd. and Diesel S.p.A. on the following questions concerning the interpretation of Article 5(1) and (3) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (1) and concerning Articles 28 to 30 EC:

               (a)

               Does a registered trade mark grant its proprietor the right to prohibit the transit of goods with the sign?

               (b)

               If the answer is in the affirmative: may a particular assessment be based on the fact that the sign enjoys no protection in the country of destination?

               (c)

               If the answer to (a) is in the affirmative and irrespective of the answer to (b), is a distinction to be drawn according to whether the article whose destination is a Member State comes from a Member State, an associated State or a third country? Is it relevant in this regard whether the article has been produced in the country of origin lawfully or in infringement of a right to a sign existing there held by the trade-mark proprietor?

      (1)  OJ 1989 L 40, p. 1.


title: Case T-181/11: Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate)

text:
               22.12.2012

               EN

               Official Journal of the European Union

               C 399/22

         Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY)
   (Case T-181/11) (1)

   (Community trade mark - Opposition - Opposition withdrawn - No need to adjudicate)
   2012/C 399/40
   Language of the case: English

      Parties

      Applicant: Chivas Holdings (IP) Ltd (Paisley, Renfrewshire, United Kingdom) (represented by: A. Carboni, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

      Other party/parties to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom) (represented by: K. Lumsdaine, lawyer)

      Re:

   Action brought against the decision of the Frist Board of Appeal of OHIM of 12 January 2011 (Case R-1263/2010-1) concerning opposition proceedings between Glencairn Scotch Whisky Co. Ltd and Chivas Holdings (IP) Ltd.

      Operative part of the order

               1.

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

               2.

               The applicant and the intervener are each ordered to bear their own costs and to pay half the costs incurred by the defendant.

      (1)  OJ C 152, 21.5.2011.


title: Case C-427/13: Order of the Court (Tenth Chamber) of 17 July 2014 (request for a preliminary ruling from the Autorità per la Vigilanza sui Contratti pubblici di lavori, servizi e forniture — Italy) — Emmeci Srl v Cotral SpA (Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure of the Court — Autorità per la Vigilanza sui Contratti pubblici di lavori, servizi e forniture — Article 267 TFEU — Concept of ‘court or tribunal of a Member State’  — Lack of jurisdiction of the Court)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/28

         Order of the Court (Tenth Chamber) of 17 July 2014 (request for a preliminary ruling from the Autorità per la Vigilanza sui Contratti pubblici di lavori, servizi e forniture — Italy) — Emmeci Srl v Cotral SpA
   (Case C-427/13) (1)

   ((Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court - Autorità per la Vigilanza sui Contratti pubblici di lavori, servizi e forniture - Article 267 TFEU - Concept of ‘court or tribunal of a Member State’ - Lack of jurisdiction of the Court))
   2014/C 315/44
   Language of the case: Italian

      Referring court

   Autorità per la Vigilanza sui Contratti pubblici di lavori, servizi e forniture

      Parties to the main proceedings

      Applicant: Emmeci Srl

      Defendant: Cotral SpA

      Operative part of the order

   The Court of Justice of the European Union clearly has no jurisdiction to answer the questions referred by the Autorità per la Vigilanza sui Contratti pubblici di lavori, servizi e forniture (Italy), by its decision of 22 May 2013 (Case C-427/13).

      (1)  OJ C 325, 9.11.2013.


title: Action brought on 4 February 1997 by the Coopérative d'Elevage de la Vendée, de l'Anjou et du Poitou (CEVAP) and the Coopérative Agricole d'Eleveurs de Veaux du Bocage (CEVB) against the Council of the European Union (Case T-24/97)

text:
26 . 4 . 97             EN                     Official Journal of the European Communities                                 No C 131 / 19
Action brought on 4 February 1997 by the Cooperative                      Instance of the European Communities on 6 February
d'Elevage de la Vendee, de l'Anjou et du Poitou (CEVAP)                   1997 by Michael Pulch, residing at Tervuren ( Belgium ),
and the Cooperative Agricole d'Eleveurs de Veaux du                       represented by Nicolas Lhoest, of the Brussels Bar, with an
Bocage ( CEVB ) against the Council of the European                       address for service in Luxembourg at the offices of
                                   Union                                  Fiduciaire Myson Sari, 30 Rue de Cessange .
                           ( Case T-24/97)
                             ( 97/C 131 /45 )                             The applicant claims that the Court should:
                (Language of the case: French)                            — annul the decision of the appointing authority dated
                                                                                14 May 1996 , appointing the applicant in grade A7,
An action against the Council of the European Union was                         step 3 , with effect from 1 October 1995 ,
brought before the Court of First Instance of the European
Communities on 4 February 1997 by the Cooperative
d'Elevage de la Vendee, de l'Anjou et du Poitou ( CEVAP),                 — rule that the applicant should be reclassified in grade
established at Saint Laurent sur Sèvre ( France ), and the                      A6, step 3 , with effect from 1 October 1995 , with all
Cooperative Agricole d'Eleveurs de Veaux du Bocage                              the financial and other consequences which that
( CEVB ), established at Torchamp ( France ), represented by                    entails,
Francois Sarda, of the Paris Bar, with an address for
service in Luxembourg at the Chambers of Bonn &                           — order the defendant to pay all the costs.
Schmitt, 62 Avenue Guillaume .
                                                                          Pleas in law and main arguments adduced in support:
The applicants claim that the Court should :
— annul Council Regulation ( EC ) No 2222/96 of                           The applicant, an official employed in Directorate-General
      18 November 1996, with all the consequences flowing                 I, contests his classification in grade A7. His claim is
     therefrom in law,                                                    based on his allegedly outstanding merits, as well as the
                                                                          professional experience gained by him as an administrator
— order the Council of the European Union to pay the                      in the German Ministry of Foreign Affairs, where he
     costs .                                                              occupied a post at a grade corresponding to grade A5 in
                                                                          the Community establishment plan . The applicant refers
Pleas in law and main arguments adduced in support:                       to two notes sent by his former Head of Unit and by the
                                                                          Director of Directorate B of DG I to the Staff Reports
                                                                          Committee, recommending his appointment in grade A6 .
The applicants, a series of independent French groups
producing veal for human consumption, contest Council
Regulation ( EC ) No 2222/96 of 18 November 1996                          The applicant makes the following assertions in support of
amending Regulation ( EEC ) No 805/68 on the common                       his claims :
organization of the market in beef and veal ( ] ), in
particular Article 1 ( 4 ) thereof, inasmuch as it requires the           — absence of a statement of reasons pursuant to the
Member States to pay an early marketing premium, the
conditions and methods of calculation of which have                             second paragraph of Article 25 of the Staff
                                                                                Regulations, inasmuch as the defendant puts forward
caused them serious damage.
                                                                                no argument of any substance which might have
                                                                                justified the rejection of his application for
The pleas in law and main arguments are the same as in                          classification in grade A6,
Case T-14/97 Sofivo and Others v. Commission, Case
T-15/97 Kermene and Vals v. Commission and Case T-20/
97 Sofivo and Others v. Commission (2 ).                                  — infringement of Article 31 (2 ) of the Staff Regulations
                                                                                and of the general decision adopted by the
O OJ No L 296 , 21 . 11 . 1996 , p. 50 .                                         Commission with a view to introducing into its
(2 ) OJ No C 94, 22 . 3 . 1997.                                                  administrative practice the classification criteria ,
                                                                                flowing from the judgment of the Court of First
                                                                                Instance   of    5  October   1995   in   Case  T-17/95
                                                                                Alexopoulou v. Commission ('),
                                                                          — the existence, in the present case, of a manifest error
Action brought on 6 February 1997 by Michael Pulch                               of assessment, and failure to fulfil the duty to have
    against the Commission of the European Communities                           regard for the interests and welfare of the applicant, in
                            ( Case T-25/97)                                      that the appointing authority took into account
                              ( 97/C 131 /46 )
                                                                                neither his professional experience nor his outstanding
                                                                                qualifications .
                (Language of the case: French)
                                                                           (') [ 1995 ECR-SC 683 .
An action against the Commission of the European
Communities was brought before the Court of First


title: Order of the Court of First Instance of 8 December 1999 in Case T-161/98: Henri de Compte v European Parliament (Officials — Annulment of a disciplinary measure — Action manifestly inadmissible — Action manifestly unfounded in law)

text:
C 79/26                EN                    Official Journal of the European Communities                                      18.3.2000
decision of the Commission of 10 October 1997 imposing on                      ORDER OF THE COURT OF FIRST INSTANCE
the applicant the disciplinary measure of downgrading him
from grade D 1, step 8, to grade D 2, step 8, for failure to fulfil                         of 23 November 1999
his obligations under the Staff Regulations — the Court of First
Instance (Fifth Chamber), composed of R. Garcı́a-Valdecasas,            in Case T-173/98: Unión de Pequeños Agricultores v
President, P. Lindh and J.D. Cooke, Judges; H. Jung, Registrar,                        Council of the European Union (1)
made an order on 24 November 1999, the operative part of
which is as follows:                                                                       (Manifestly inadmissible)
1. The application is dismissed as inadmissible.                                                 (2000/C 79/58)
2. The parties shall bear their own costs.
                                                                                (Language of the case: Spanish)
(1) OJ 1998 C 312.                                                      In Case T-173/98: Unión de Pequeños Agricultores, established
                                                                        in Madrid, represented by Javier Ledesma Bartret and José-Mar-
                                                                        ia Jiménez Laiglesia y de Oñate, of the Madrid Bar, with an
                                                                        address for service in Luxembourg at the address of Concep-
                                                                        ción Llasser Moyano, 22 Rue Wenkelhiel, Dalheim, against
                                                                        Council of the European Union (Agents: Ignacio Dı́ez Parra
                                                                        and Antonio Tanca) — application for annulment in part of
                                                                        Council Regulation (EC) No 1638/98 of 20 July 1998
      ORDER OF THE COURT OF FIRST INSTANCE                              amending Regulation No 136/66/EEC on the establishment of
                                                                        a common organisation of the market in oils and fats (OJ
                                                                        1998 L 210, p. 32) — the Court of First Instance (Third
                      of 8 December 1999                                Chamber), composed of K. Lenaerts, President, J. Azizi and
                                                                        M. Jaeger, Judges; H. Jung, Registrar, made an order on 23 Nov-
in Case T-161/98: Henri de Compte v European Parlia-                    ember 1999, the operative part of which is as follows:
                              ment (1)
                                                                        1. The action is dismissed as manifestly inadmissible.
(Officials — Annulment of a disciplinary measure — Action               2. The applicant shall bear its own costs and pay those incurred by
manifestly inadmissible — Action manifestly unfounded in                     the Council.
                                law)
                                                                        3. The Diputación Provincial de Jaén, the Junta de Comunidades de
                                                                             Castilla-La Mancha, the Consejo de Gobierno de la Comunidad
                         (2000/C 79/57)                                      Autónoma de Andalucı́a and the Commission shall bear their
                                                                             own costs.
                  (Language of the case: French)
                                                                        (1) OJ 1999 C 71.
In Case T-161/98: Henri de Compte, former official of the
European Parliament, residing in Longeville-lès-Metz (France),
represented by Henri Ferretti, of the Thionville Bar, with an
address for service in Luxembourg at the Chambers of André
Lutgen, 1 Rue J.-P. Brasseur, against European Parliament
(Agents: Manfred Peter, Yannis Pantalis and Denis Waelbroeck)                  ORDER OF THE COURT OF FIRST INSTANCE
— application for annulment of the decision of the President
of the European Parliament of 18 January 1988 downgrading                                    of 8 December 1999
him from grade A 3, step 8, to grade A 7, step 6 — the Court
of First Instance (Fourth Chamber), composed of V. Tiili,               in Case T-79/99, Euro-Lex European Law Expertise GmbH
President, R.M. Moura Ramos and P. Mengozzi, Judges;                    against the Office for Harmonisation in the Internal
H. Jung, Registrar, made an order on 8 December 1999, the                             Market (trade marks and designs) (1)
operative part of which is as follows:
                                                                        (Community trade mark — Representation by a lawyer who
1. The application is dismissed.                                                 is a manager of the applicant — Inadmissible)
2. The parties shall bear their own costs.                                                       (2000/C 79/59)
(1) OJ 1998 C 378.                                                                        (Language of the case: German)
                                                                        In Case T-79/99, Euro-Lex European Law Expertise GmbH,
                                                                        established in Emmerich (Germany), represented by Eckhard


title: Case T-893/16: Action brought on 19 December 2016 — Xiaomi v EUIPO — Apple (MI PAD)

text:
               13.2.2017

               EN

               Official Journal of the European Union

               C 46/26

         Action brought on 19 December 2016 — Xiaomi v EUIPO — Apple (MI PAD)
   (Case T-893/16)
   (2017/C 046/29)
   Language in which the application was lodged: English

      Parties

      Applicant: Xiaomi, Inc. (Beijing, China) (represented by: T. Raab and C. Tenkhoff, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Apple Inc. (Cupertino, California, United States)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘MI PAD’ — Application for registration No 12 780 987

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of EUIPO of 22 September 2016 in Case R 363/2016-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO and the other party to the proceedings before the Board of Appeal of EUIPO to pay the costs of the proceedings.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case F-3/06: Action brought on  6 January 2006  — Frankin and Others v Commission

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/33

         Action brought on 6 January 2006 — Frankin and Others v Commission
   (Case F-3/06)
   (2006/C 74/65)
   Language of the case: French
   Parties

      Applicants: Jacques Frankin (Sorée, Belgium) and Others (represented by: G. Bounéou and F. Frabetti, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicants claim that the Court should:

               —

               annul the explicit decision of 10 June 2005 whereby the Commission refused to afford the applicants assistance under Article 24 of the Staff Regulations;

               —

               order the Commission to make good all the loss thereby sustained by the applicants;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicants, who are all officials or other servants of the Commission, had sought to have their pension entitlement acquired in Belgium transferred to the Community system, in accordance with the provisions of a Belgian law enacted in 1991. In 2003 Belgium enacted a new law, which, in the applicants' submission, provides more favourable for new transfers of that type. As the applicants had already transferred their rights, however, they were unable to take advantage of the provisions of the Law of 2003.
   The applicants therefore submitted a request seeking to obtain the assistance provided for in Article 24 of the Staff Regulations. The Commission, which had no intention of assisting its officials and temporary servants to secure those transfers, rejected their request by decision of 10 June 2005.
   By their action, the applicants contest that decision, which they treat as a refusal to afford assistance, in breach of Article 24 of the Staff Regulations. In addition to that article, they rely in support of their claims on a breach of the duty to have regard to the welfare of the staff, of the principle of non-discrimination, of the prohibition of unfair process, of the obligation to state reasons, of legitimate expections and of the rule patere legem quam ipse fecisti and on a misuse of powers.


title: Case T-590/14: Judgment of the General Court of 12 May 2016 — Zuffa v EUIPO (ULTIMATE FIGHTING CHAMPIONSHIP) (EU trade mark — Application for the EU word mark ULTIMATE FIGHTING CHAMPIONSHIP — Absolute grounds for refusal — Lack of distinctive character — Descriptiveness — Distinctive character acquired through use — Obligation to state reasons — Relevant public — Article 7(1)(b) and (c), (2) and (3) and Article 75 of Regulation (EC) No 207/2009)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/11

         Judgment of the General Court of 12 May 2016 — Zuffa v EUIPO (ULTIMATE FIGHTING CHAMPIONSHIP)
   (Case T-590/14) (1)

   ((EU trade mark - Application for the EU word mark ULTIMATE FIGHTING CHAMPIONSHIP - Absolute grounds for refusal - Lack of distinctive character - Descriptiveness - Distinctive character acquired through use - Obligation to state reasons - Relevant public - Article 7(1)(b) and (c), (2) and (3) and Article 75 of Regulation (EC) No 207/2009))
   (2016/C 232/13)
   Language of the case: English

      Parties

      Applicant: Zuffa, LLC (Las Vegas, Nevada, United States) (represented by: S. Malynicz, Barrister, and K. Gilbert and C. Balme, Solicitors)

      Defendant: European Union Intellectual Property Office (EUIPO) (represented by: P. Bullock, acting as Agent)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 19 May 2014 (Case R 1425/2013-2), regarding an application for registration of the sign ULTIMATE FIGHTING CHAMPIONSHIP as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 May 2014 (Case R 1425/2013-2) in so far as it dismisses the appeal of Zuffa, LLC as regards the following goods and services:

                           —

                           ‘pre-recorded audio cassettes; phonograph records; compact discs; pre-recorded video cassettes; laser video discs; digital video discs; digital versatile discs; electronic storage media; USB flashdrives; CD-ROM discs all featuring mixed martial arts competitions, events and programs; motion picture films in the field of mixed martial arts’ in Class 9;

                           —

                           ‘provision of information relating to mixed martial arts via communication and computer networks; providing news and information in the fields of sports, fitness and mixed martial arts via communication and computer networks’ in Class 41;

               2.

               Dismisses the present action as to the remainder;

               3.

               Orders Zuffa, LLC and EUIPO to bear their own costs.

      (1)  OJ C 351, 6.10.2014.