C 85/28               EN                         Official Journal of the European Union                                           3.4.2004
incident in which he was the victim on 29 October 2001,                  letter that no further action would be taken on their complaint.
whilst he was carrying out his functions at the Angola                   The applicants complained to the European Ombudsman
Delegation. That incident occurred when his hands came into              about the Commission’s treatment of their complaint to it.
contact with a whitish powder of an as yet unknown chemical-             The European Ombudsman’s decision was issued on 18 July
toxicological nature.                                                    2002. On 2 July 2003 the applicants lodged a fresh complaint
                                                                         with the Commission alleging new infringements relating to
                                                                         the same case. However, the Commission decided to continue
The applicant asserts that that incident affected his psychologi-        financing the project.
cal and physical well-being, adversely affecting his social life.
In support of those claims, the applicant alleges an absolute            The applicants claim that they should be awarded compen-
failure to state reasons and a breach of the regulations cited           sation, pleading non-material damage resulting from the
above.                                                                   Commission’s treatment of their complaints. More specifically,
                                                                         they plead that the Commission withheld information from
                                                                         them and misled them with regard to the progress of the case.
                                                                         That is to say, while initially and after receipt of their first
                                                                         complaint the Commission officials considered that Greece
                                                                         had not complied in the present case with the rules laid down
                                                                         by Directive 85/337, they subsequently changed their view
Action brought on 10 February 2004 by Ermioni Komnin-                    and decided to fund the project, without, however, informing
ou and 16 others against the Commission of the European                  the applicants of that decision. In addition, the applicants allege
                          Communities                                    that the Commission’s rejection of their original complaint is
                                                                         based on a statement of reasons that is manifestly contrary to
                         (Case T-42/04)                                  Community law. They further submit that in its handling of
                                                                         their original complaint the Commission did not observe
                        (2004/C 85/55)                                   fundamental rules of impartiality, since the case was assigned
                                                                         to an official who subsequently engaged in political activity in
                                                                         Greece. Finally, the applicants plead that the Commission failed
                   (Language of the Case: Greek)                         to take the necessary measures to remedy the abovementioned
                                                                         forms of maladministration despite the fact that the European
                                                                         Ombudsman found infringements on the part of the Com-
An action against the Commission of the European Communi-                mission and despite the second complaint which the applicants
ties was brought before the Court of First Instance of the               submitted.
European Communities on 10 February 2004 by Ermioni
Komninou, Grigorios Dokos, Donatos Pappas, Vasilios Pappas,
Aristidis Pappas, Eleftheria Pappa, Lamprini Pappa, Irini Pappa,         (1) Council Directive 85/337/EEC of 27 June 1985 on the assessment
Alexandra Dokou, Leonidas Grepis, Nikolaos Grepis, Fotios                    of the effects of certain public and private projects on the
Dimitriou, Zois Dimitriou, Petros Polosis, Despina Polosi,                   environment (OJ L 175, 5.7.1985, p. 40).
Konstantinos Polosis and Thomas Polosis, resident in Parga, in
the prefecture of Preveza, Greece, represented by Pericles
Stroumpos, lawyer.
The applicants claim that the Court should:
—     allow the present application for compensation;                           Removal from the register of Case T-273/99 (1)
—     order the Commission of the European Communities to
      pay to each applicant the sum of EUR 200 000 with                                            (2004/C 85/56)
      interest prescribed by law at a rate of 8 % from the
      judgment of the Court of First Instance until payment;
                                                                                (Language of the Case: Dutch)
—     order the Commission to pay the applicants’ entire costs.
                                                                         By order of 18 December 2003 the President of the Second
Pleas in law and main arguments                                          Chamber (Extented Composition) of the Court of First Instance
                                                                         of the European Communities ordered the removal from the
In 1995 the applicants submitted a complaint to the European             register of Case T-273/99: Autoservice J. Van Deursen B.V. v
Commission, alleging infringement by the Greek authorities of            Commission of the European Communities.
Directive 85/337 (1) in relation to the planning and construc-
tion of a biological sewage treatment plant in Preveza. By
                                                                         (1) OJ C 47 of 19.2.2000.
decision No C(1998) 2297 of 28 July 1998, the Commission
decided to finance that project from the Cohesion Fund. On
20 April 1999 the Commission informed the applicants by


title: Case C-250/09: Reference for a preliminary ruling from the Plovdivski rayonen sad (Bulgaria) lodged on 8 June 2009 — Vasil Ivanov Georiev v Tehnicheski universitet — Sofia, Filial Plovdiv

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/23

         Reference for a preliminary ruling from the Plovdivski rayonen sad (Bulgaria) lodged on 8 June 2009 — Vasil Ivanov Georiev v Tehnicheski universitet — Sofia, Filial Plovdiv
   (Case C-250/09)
   2009/C 220/45
   Language of the case: Bulgarian

      Referring court

   Plovdivski rayonen sad

      Parties to the main proceedings

      Applicant: Vasil Ivanov Georiev

      Defendant: Tehnicheski universitet — Sofia, Filial Plovdiv

      Questions referred

               1.

               Do the provisions of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation preclude the application of a national Law which does not permit the conclusion of employment contracts of indefinite duration with professors who have reached the age of 65? In this context and, more precisely, taking Article 6(1) of the directive into consideration, are the measures in Article 7(1)(6) of the Law on Protection against Discrimination, which introduce age-limits for employment in specific posts, objectively and reasonably, justified by a legitimate aim and proportionate, bearing in mind that the directive has been fully transposed into Bulgarian law?

               2.

               Do the provisions of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation preclude the application of a national Law under which professors who have reached the age of 68 are compulsorily retired? In view of the foregoing facts and circumstances of the present case and if it is found that a conflict exists between the provisions of the directive and the relevant national legislation which transposed the directive, is it possible that the interpretation of the provisions of Community law results in the national legislation not being applied?


title: Case T-144/02: Judgment of the Court of First Instance (First Chamber) of 12 July 2007 — Eagle and Others v Commission (Staff employed at the JET Joint Undertaking — Application of a legal status different from that of members of the temporary staff — Compensation for material damage sustained)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/26

         Judgment of the Court of First Instance (First Chamber) of 12 July 2007 — Eagle and Others v Commission
   (Case T-144/02) (1)

   (Staff employed at the JET Joint Undertaking - Application of a legal status different from that of members of the temporary staff - Compensation for material damage sustained)
   (2007/C 199/48)
   Language of the case: English
   Parties

      Applicants: Richard J. Eagle (Oxfordshire, United Kingdom) and the 12 applicants whose names appear in the annex (represented by: D. Beard, Barrister)

      Defendant: Commission of the European Communities (represented by: J. Currall, Agent)

      Intervener in support of the defendant: Council of the European Union (represented by: J.P. Hix and B. Driessen, Agents)
   Re:
   Fixing, pursuant to the judgment of the Court of First Instance of 5 October 2004 in T-144/02 Eagle and Others v Commission [2004] ECR II-3381, the amount of damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking.
   Operative part of the judgment

               1.

               Orders the Commission to pay to each of the applicants damages corresponding to the sum indicated for each of them in column 6 of Annex 3 to the present judgment;

               2.

               Orders that that sum shall bear interest at the rate of 5.25 % from 31 December 1999 until actual payment;

               3.

               Orders the Commission to bear its own costs and to pay the costs of the applicants incurred in respect of the entire proceedings before the Court of First Instance;

               4.

               Orders the Council to bear its own costs.

      (1)  OJ C 169, 13.7.2002.


title: Case C-430/13: Request for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 29 July 2013 — Ilona Baradics and Others v QBE Insurance (Europe) Limited Magyarországi Fióktelepe, Magyar Állam

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/38

         Request for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary) lodged on 29 July 2013 — Ilona Baradics and Others v QBE Insurance (Europe) Limited Magyarországi Fióktelepe, Magyar Állam
   (Case C-430/13)
   2013/C 344/67
   Language of the case: Hungarian

      Referring court

   Fővárosi Ítélőtábla

      Parties to the main proceedings

      Appellants: Ilona Baradics, Adrienn Bóta, Éva Emberné Stál, Lászlóné György, Sándor Halász, Zita Harászi, Zsanett Hideg, Katalin Holtsuk, Gábor Jancsó, Mária Katona, Gergely Kezdi, Dr. László Korpás, Ferencné Kovács, Viola Kőrösi, Tamás Kuzsel, Attila Lajtai, Zsolt Lőrincz, Ákos Nagy, Attiláné Papp, Zsuzsanna Peller, Ágnes Petkovics, László Pongó, Zsolt Porpáczy, Zsuzsanna Rávai, László Román, Zsolt Schneck, Mihály Szabó, Péter Szabó, Zoltán Szalai, Erika Szemeréné Radó, Dr. Zsuzsanna Szigeti, Nikolett Szőke, Péter Tóth, Zsófia Várkonyi, Mónika Veres

      Respondents: QBE Insurance (Europe) Limited Magyarországi Fióktelepe, Magyar Állam

      Questions referred

               1.

               Has the national legislature properly complied with Articles 7 and 9 of Directive 90/314/EEC, (1) that is to say, has it ensured effective protection for individuals in the event of insolvency on the part of travel organisers or retailers, in so far as it has made provision that the value of the financial security provided by the travel organiser or retailer is to be adjusted to a set percentage of anticipated net revenues from the sale of the tourist package or to a minimum amount?

               2.

               In so far as it may be found that there is an infringement on the part of the State, is that infringement sufficiently serious as to entail liability for damage?

      (1)  Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).


title: Case T-148/08: Judgment of the General Court of 12 May 2010 — Beifa Group v OHIM — Schwan-Stabilo Schwanhaüßer (Instrument for writing) (Community design — Invalidity proceedings — Registered Community design representing an instrument for writing — Earlier national figurative mark — Ground for invalidity — Use in the Community design of an earlier sign the holder of which has the right to prohibit such use — Article 25(1)(e) of Regulation (EC) No 6/2002 — Request for proof of genuine use of the earlier mark made for the first time before the Board of Appeal)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/33

         Judgment of the General Court of 12 May 2010 — Beifa Group v OHIM — Schwan-Stabilo Schwanhaüßer (Instrument for writing)
   (Case T-148/08) (1)

   (Community design - Invalidity proceedings - Registered Community design representing an instrument for writing - Earlier national figurative mark - Ground for invalidity - Use in the Community design of an earlier sign the holder of which has the right to prohibit such use - Article 25(1)(e) of Regulation (EC) No 6/2002 - Request for proof of genuine use of the earlier mark made for the first time before the Board of Appeal)
   2010/C 179/56
   Language of the case: English

      Parties

      Applicant: Beifa Group Co. Ltd (Ningbo, Zhejiang, China) (represented by: R. Davis, Barrister, and N. Cordell, Solicitor)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Schwan-Stabilo Schwanhaüßer GmbH & Co. KG (Heroldsberg, Germany) (represented by: U. Blumenröder and H. Gauß, lawyers)

      Re:

   Action brought against the decision of the Third Board of Appeal of OHIM of 31 January 2008 (Case R 1352/2006-3) relating to invalidity proceedings between Schwan-Stabilo Schwanhaüßer GmbH & Co. KG and Ningo Beifa Group Co., Ltd in respect of a Community design.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 January 2008 (Case R 1352/2006-3);

               2.

               Dismisses the action as to the remainder;

               3.

               Orders OHIM to bear its own costs and to pay those incurred by Beifa Group Co. Ltd, and orders Schwan Stabilo Schwanhaüßer GmbH & Co. KG to bear its own costs.

      (1)  OJ C 142, 7.6.2008.


title: Case T-291/06: Action brought on 18 October 2006 — Operator ARP v Commission

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/22

         Action brought on 18 October 2006 — Operator ARP v Commission
   (Case T-291/06)
   (2006/C 310/43)
   Language of the case: Polish
   Parties

      Claimant:‘Operator ARP’ Sp. z o.o. (represented by: J. Szymanowska, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare partially invalid the Commission decision of 5 July 2005 in Case No C 20/04 (ex. NN 25/04) concerning State aid for the benefit of Huta Częstochowa S.A., that is to say, set aside Article 3(2) of that decision in so far as it obligates Poland to take all requisite steps to recover from Operator Sp. z o.o. the State aid granted to Huta Częstochowa S.A. in a manner inconsistent with the common market;

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The claimant seeks a declaration of invalidity in regard to the European Commission decision of 5 July 2005 in State aid Case No C 20/04 (ex. NN 25/04), Article 3(1) of which declares incompatible with the common market the aid which Poland accorded to Huta Częstochowa S.A. over the period from 1997 to May 2002 in the form of operating aid and aid for employment restructuring. The decision was notified to the claimant on 21 August 2006. In Article 3(2) of the contested decision the Commission imposed an obligation on Poland to take all requisite steps to recover the wrongfully granted aid from the undertakings named in that provision, which include the claimant. Pursuant to that decision, all the undertakings mentioned in Article 3(2) are jointly and severally liable for the recovery of that aid, which is to be effected without delay and in accordance with the procedures under national law. Interest is payable in respect of the entire period from the date of receipt of the aid up to the date on which it is actually repaid, in accordance with the provisions contained in Chapter V of Commission Regulation (EC) No 794/2004. (1)

   In its claim that the contested decision is invalid, the claimant states that it is not itself a beneficiary of the aid granted to Huta Częstochowa S.A. over the period from 1997 to 2002, and therefore cannot be a debtor jointly and severally liable for the return of the aid, with the result, according to the claimant, that the obligation placed on Poland to take all requisite steps to recover that aid from the claimant serves no purpose.
   In support of its action, the claimant raises the following heads of complaint:

               —

               Infringement of the rights of defence through breach of Article 88 EC by reason of defective compliance with the obligation to enable interested parties to set out their views in the framework of the formal investigative procedure relating to the aid in question. The claimant submits that, as it did not take part in the formal investigative procedure conducted by the Commission, it did not have an opportunity to set out its views or submit legal argument in the context of that procedure, which would, in its view, have led the Commission to draft differently the operative part of the decision with regard to the definition of the group of aid beneficiaries (exclusion of ‘Operator’ Sp. z o.o. from that group);

               —

               Breach of Article 253 EC, that is to say, lack of proper reasoning for the decision. The claimant submits that, inasmuch as it is named as a beneficiary of the aid, the grounds of the decision are terse and incoherent in that the Commission, in those grounds, does not treat the claimant as an individual capable of being recognised as a beneficiary of the aid, but at the same time refers to it in the operative part as an individual obligated to return the aid. The claimant also points out that the contested decision fails to cast light on the factual circumstances concerning the aid granted to Huta Częstochowa in a manner, according to the decision, at variance with the common market; in particular, the decision does not contain any analysis, within the context of an extension of the group of beneficiaries, of the issue of a possible transfer of benefits accruing from the aid obtained in favour of individuals assuming the assets and liabilities of Huta Częstochowa;

               —

               Misconstruction of Articles 87 EC and 88 EC and of Article 14 of Council Regulation (EC) No 659/1999 (2) by reason of the mention of the claimant as a beneficiary of the aid. The claimant submits that, by designating it as an aid beneficiary, the Commission exceeded the limits of its discretion inasmuch as the claimant does not belong to the group of individuals which in fact benefited from the aid;

               —

               Infringement of the principles of legal certainty and proportionality by reason of the designation of the claimant as an individual obligated to return the aid declared incompatible with the common market, notwithstanding the fact that the claimant was not a beneficiary of that aid.

      (1)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

      (2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case T-311/04: Action brought on 22 July 2004 by José Luis Buendia Sierra against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/44

         Action brought on 22 July 2004 by José Luis Buendia Sierra against the Commission of the European Communities
   (Case T-311/04)
   (2004/C 262/84)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 July 2004 by José Luis Buendia Sierra, residing in Brussels, represented by Marc van der Woude and Valérie Landes, lawyers.
   The applicant claims that the Court of First Instance should:

               —

               annul the decision of the Director General of the Legal Service to award him only one Directorate-General priority point for the 2003 promotion period, which was confirmed and made definitive by the decision of the Appointing Authority rejecting his informal appeal;

               —

               annul the Appointing Authority's decision not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2003 promotion year;

               —

               annul the Appointing Authority's decision to award him a total of 20 points for the 2003 promotion year, the list of merit of Grade A5 officials for the promotion year 2003, the list of officials promoted to Grade A4 in the promotion year 2003 and, in any case, the decision not to enter his name in those lists;

               —

               annul, so far as may be necessary, the decision rejecting his complaint;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:
   According to the applicant, the decision to award him only one Directorate-General priority point is due to criteria established in the Legal Service which lead to the award of such points to officials with most seniority in grade, irrespective of their merits. In challenging that decision, the applicant alleges infringement of Article 45 of the Staff Regulations and infringement of Article 2(1) of the general provisions giving effect to Article 43 of the Staff Regulations and of Article 6(3) and (4) of the general provisions giving effect to Article 45 of the Staff Regulations. In addition, the applicant maintains that that decision offends against the principle of equal treatment and the principle that officials are to have reasonable career prospects, contains a manifest error of assessment and amounts to improper exercise of authority. Finally, he alleges breach of essential procedural requirements in the procedure for the award of points and considering the informal appeal.
   Moreover, the applicant claims that the decision not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2003 promotion year is contrary to Article 45 of the Staff Regulations, Article 9 of the general provisions giving effect to Article 45 of the Staff Regulations and the principle of equal treatment. In his view, that decision is also vitiated by a manifest error of assessment and misuse of power.
   Finally, the applicant challenges the decision to award him a total of 20 points, the list of merit of Grade A5 officials, the list of officials promoted to Grade A4 and the decision not to enter his name in those lists. In this connection, the applicant alleges, first of all, that the other acts challenged in this action are unlawful and also that the rules governing staff appraisal for the period 2001-2002, the general provisions giving effect to Article 43 of the Staff Regulations and the general provisions giving effect to Article 45 of the Staff Regulations are unlawful. In his view, those provisions offend against Articles 25(2) and 45 of the Staff Regulations, the principle that officials are to have reasonable career prospects and the principle of equal treatment. Last, the applicant claims that those decisions are vitiated by lack of competence and breaches of essential procedural requirements.


title: Case C-506/07: Reference for a preliminary ruling from the Audiencia Provincial de la Coruña (Spain) lodged on 20 November 2007 — Lubricantes y Carburantes Galaicos, S.L. (Lubricarga) v Petrogal Española, S.A., now GALP Energía España SAU )

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/6

         Reference for a preliminary ruling from the Audiencia Provincial de la Coruña (Spain) lodged on 20 November 2007 — Lubricantes y Carburantes Galaicos, S.L. (Lubricarga) v Petrogal Española, S.A., now ‘GALP Energía España SAU’)
   (Case C-506/07)
   (2008/C 37/07)
   Language of the case: Spanish
   Referring court
   Audiencia Provincial de la Coruña
   Parties to the main proceedings

      Applicant: Lubricantes y Carburantes Galaicos, S.L. (Lubricarga)

      Defendant: Petrogal Española, S.A., now ‘GALP Energía España SAU’
   Questions referred

               1.

               If the contract concluded between Lubricarga S.L. and Petrogal S.A. is de minimis, is it excluded in all cases from Article [81] of the Treaty or, notwithstanding that classification, will that article apply to the contract in the event that the proprietor of the service station is obliged to observe the final public selling price set by the supplier and/or that exclusive purchasing obligations and prohibitions of competition are imposed on the reseller but are not made subject to the time limitations laid down in Commission Regulation (EEC) No 1984/83 (1) and Commission Regulation (EC) No 2790/1999 (2)?

               2.

               In the event that Regulation No 1984/83 is applicable, where it prohibits exclusive vertical agreements relating to service stations for an indefinite duration or for a period of more than 10 years, subject to the derogation laid down in Article 12(2) which provides that ‘where the agreement relates to a service station which the supplier lets to the reseller, or allows the reseller to occupy on some other basis, in law or in facts, exclusive purchasing obligations or prohibitions of competition indicated in this title may … be imposed on the reseller for the whole period for which the reseller in fact operates the premises’, does that derogation cover a case such as the one in issue where, pursuant to the private contract of 27 July 1990 and the public deed dated 10 October 1995, Lubricarga, the owner of a plot of land, granted Galp surface rights for a period of 25 years and the latter undertook to build the service station, on the condition that, once the construction had been completed, the facilities would be assigned to Lubricarga which would operate them for the same period of time, subject to the obligation to purchase all motor-vehicle and other fuel exclusively from the oil company?

               3.

               In the event that Regulation No 2790/1999 is applicable, where it provides in Article 5 that ‘the time limitation of five years shall not apply where the contract goods or services are sold by the buyer from premises and land owned by the supplier or leased by the supplier from third parties not connected with the buyer, provided that the duration of the non-compete clause does not exceed the period of occupancy of the premises and land by the buyer’, does that exemption include a case such as the one in issue where, pursuant to the private contract of 27 July 1990 and the public deed dated 10 October 1995, Lubricarga, the owner of a plot of land, granted Galp surface rights for a period of 25 years and the latter undertook to build the service station, on the condition that, once the construction had been completed, the facilities would be assigned to Lubricarga which would operate them for the same period of time, subject to the obligation to purchase all motor-vehicle and other fuel exclusively from the oil company?

               4.

               Having regard to the fact that Article [81](1)(a) of the EEC Treaty refers to the prohibition of the indirect fixing of purchase or selling prices, and recital 8 in the preamble to Regulation No 1984/83 states that ‘further restrictive obligations and in particular those which limit the reseller's choice of customers or his freedom to determine his prices and conditions of sale cannot be exempted under this regulation’, does that prohibition apply to a contract such as the one in issue, clause 10 and annex I of which refer to the obtaining of competitive prices and state that ‘the discounts awarded to the proprietor shall not be lower than the average commissions received by the operators of the three [leading] undertakings (in terms of turnover) operating in the geographical area in which the Service Station is situated’, on the grounds that the contract may restrict, in any event, the right of the purchaser to determine the selling price?

               5.

               Having regard to the fact that Article [81](1)(a) of the EEC Treaty refers to the prohibition of the indirect fixing of purchase or selling prices, and Regulation No 2790/99 provides that retention of the resale price is a particularly serious restriction of competition, does that prohibition apply to a contract such as the one in issue, clause 10 and annex I of which refer to the obtaining of competitive prices and state that ‘the discounts awarded to the proprietor shall not be lower than the average commissions received by the operators of the three [leading] undertakings (in terms of turnover) operating in the geographical area in which the Service Station is situated’, on the grounds that the contract may restrict, in any event, the right of the purchaser to determine the selling price?

      (1)  Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5).

      (2)  Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21).


title: Case T-518/11: Order of the General Court of 5 May 2014  — BTL Diffusion v OHIM — dm-drogerie markt (babyTOlove) (Community trade mark — Opposition proceedings — Withdrawal of the opposition — No need to adjudicate)

text:
               29.9.2014

               EN

               Official Journal of the European Union

               C 339/17

         Order of the General Court of 5 May 2014 — BTL Diffusion v OHIM — dm-drogerie markt (babyTOlove)
   (Case T-518/11) (1)

   ((Community trade mark - Opposition proceedings - Withdrawal of the opposition - No need to adjudicate))
   2014/C 339/19
   Language of the case: English

      Parties

      Applicant: BTL Diffusion (St Cloud, France) (represented by: A. Berendes, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel and D. Botis, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany) (represented by: C. Mellein and B. Beinert, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 8 July 2011 (Case R 883/2010-2) concerning opposition proceedings between dm-drogerie markt GmbH and BTL Diffusion.

      Operative part of the order

               1.

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

               2.

               The applicant and the intervener shall bear their own costs and shall each pay half of the costs incurred by the defendant.

      (1)  OJ C 355, 3.12.2011.


title: Case C-369/06: Order of the President of the Seventh Chamber of the Court of 28 June 2007 — Commission of the European Communities v Republic of Austria

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/32

         Order of the President of the Seventh Chamber of the Court of 28 June 2007 — Commission of the European Communities v Republic of Austria
   (Case C-369/06) (1)

   (2007/C 297/54)

      Language of the case: German

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

      (1)  OJ C 261, 28.10.2006.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 21 January 1999 in Case C-347/97: Commission of the European Communities v. Kingdom of Belgium (Failure of a Member State to fulfil its obligations - Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances - Failure by a Member State to adopt programmes provided for in Article 6 of the Directive)

text:
27.3.1999             EN                  Official Journal of the European Communities                                       C 86/3
to adopt the laws, regulations or administrative provisions          declaration that, by failing to adopt and/or communicate,
necessary to comply fully and properly with Council                  within the prescribed period, all the measures necessary to
Directive 85/337/EEC of 27 June 1985 on the assessment               comply with Article 6 of Council Directive 91/157/EEC of
of the effects of certain public and private projects on the         18 March 1991 on batteries and accumulators containing
environment (OJ L 175, 5.7.1985, p. 40), the Portuguese              certain dangerous substances (OJ L 78, 26.3.1991, p. 38),
Republic has failed to fulfil its obligations under the third        the Kingdom of Belgium has failed to fulfil its obligations
paragraph of Article 189 of the EC Treaty and Article 12             under that article Ð the Court (Fifth Chamber), composed
of that directive Ð the Court (Fifth Chamber), composed              of: J.-P. Puissochet, President of the Chamber, P. Jann, J. C.
of: J.-P. Puissochet, President of the Chamber, J. C.                Mointinho de Almeida, C. Gulmann (Rapporteur) and
Moitinho de Almeida, C. Gulmann, L. Sevón (Rapporteur)               D. A. O. Edward, Judges; G. Cosmas, Advocate-General;
and M. Wathelet, Judges; J. Mischo, Advocate-General; R.             L. Hewlett, Administrator, for the Registrar, gave a
Grass, Registrar, has given a judgment on 21 January                 judgment on 21 January 1999, in which it:
1999, in which it:
1. Declares that, by adopting a transitional provision by            1. Declares that, by failing to adopt, within the
     virtue of which national legislation transposing                     prescribed period, all the measures necessary to
     Council Directive 85/337/EEC of 27 June 1985 on the                  comply with Article 6 of Council Directive
     assessment of the effects of certain public and private              91/157/EEC of 18 March 1991 on batteries and
     projects on the environment, adopted after 3 July                    accumulators containing certain dangerous substances,
     1988, the deadline for transposition, is not applicable              the Kingdom of Belgium has failed to fulfil its
     to projects in respect of which the consent procedure                obligations under that article.
     had been initiated before the entry into force of the
     national law transposing that directive but after 3 July
     1988, the Portuguese Republic has failed to fulfil its
     obligations under that directive.                               2. Orders the Kingdom of Belgium to pay the costs.
2. Orders the Portuguese Republic to pay the costs.                  (1) OJ C 357, 22.11.1997.
(1) OJ C 181, 14.6.1997.
                                                                                JUDGMENT OF THE COURT
               JUDGMENT OF THE COURT                                                        (Fourth Chamber)
                       (Fifth Chamber)                                                     of 21 January 1999
                     of 21 January 1999                              in    Case    C-416/97: Commission of the            European
in    Case   C-347/97: Commission of the European                                  Communities v. Italian Republic (1)
           Communities v. Kingdom of Belgium (1)
                                                                     (Failure of Member State to fulfil its obligations Ð
(Failure of a Member State to fulfil its obligations Ð               Directives 93/119/EC, 94/42/EC, 94/16/EC and
Directive 91/157/EEC on batteries and accumulators                   93/118/EC Ð Non-transposition within the prescribed
containing certain dangerous substances Ð Failure by a                                         time-limits)
Member State to adopt programmes provided for in
                  Article 6 of the Directive)                                                (1999/C 86/06)
                        (1999/C 86/05)
                                                                                (Language of the case: Italian)
                (Language of the case: French)
  (Provisional translation; the definitive translation will be         (Provisional translation; the definitive translation will be
          published in the European Court Reports)                             published in the European Court Reports)
In Case C-347/97: Commission of the European
Communities (Agent: Götz zur Hausen) v. Kingdom of                   In Case C-416/97: Commission of the European
Belgium (Agent: Annie Snoecx) Ð application for a                    Communities (Agent: Francesco P. Ruggeri Laderchi) v.


title: Case T-86/10: Action brought on 17 February 2010 — British Sugar v Commission

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/58

         Action brought on 17 February 2010 — British Sugar v Commission
   (Case T-86/10)
   2010/C 113/90
   Language of the case: English

      Parties

      Applicant: British Sugar plc (London, United Kingdom) (represented by: K. Lasok, QC, G. Facenna, Barrister, W. Robinson, P. Doris and D. Das, Solicitors)

      Defendant: European Commission

      Form of order sought

               —

               annul the contested measure;

               —

               order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter.

      Pleas in law and main arguments

   The applicant seeks the annulment of Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (1).
   The applicant puts forward the following pleas in law in support of its claims.
   First, it submits that the Commission failed to adopt the measures necessary to comply with the Court’s judgments in Jülich (2) and SAFBA (3) Cases by which the Court declared invalid Commission Regulations (EC) Nos 1762/2003 (4), 1775/2004 (5) and 1686/2005 (6). The applicant claims that, as a result of the judgments in Jülich and SAFBA, the Commission was under an obligation and therefore had the competence to take the measures necessary to rectify the illegality identified in those judgments. That obligation and that competence were limited to adopting the measures necessary to secure the restoration to the persons concerned (including the applicant) of the amounts that they had been unlawfully required to pay in the marketing years in question. Those amounts were and are, in the applicant’s submission, identifiable by applying the formula used in the regulations held by the Court to be invalid subject to the correction of the error identified by the Court. The applicant contends therefore that in breach of that obligation, and acting outside that competence, the Commission adopted the contested measure, which is vitiated by the same fundamental defect that led the Court of Justice to invalidate Regulations (EC) Nos 1762/2003, 1775/2004 and 1686/2005.
   Second, the applicant claims, that the method of calculating the sugar levies that has been adopted in the contested measure is contrary to the Court’s conclusion in Jülich case.
   Third, the applicant argues that the Commission lacked competence to adopt the contested measure under Regulation (EC) No 1260/2001 because, in the applicant’s opinion;

               —

               that regulation had been repealed and was not in force at the time the contested measure was adopted; and

               —

               the effect of the judgment in Jülich that the Commission had no competence to determine production levies in a manner inconsistent with Article 15 of that regulation. In the absence of competence by reason of the judgments Jülich and SAFBA or Regulation No 1260/2001 competence to set production levies is held by the Council under what is now Article 43 TFEU. Accordingly, the Commission had no competence at all to adopt the contested measure.

      (1)  OJ 2009 L 321, p. 1

      (2)  Joined Cases C-5/06 and C-23/06 to C-36/06, Zuckerfabrik Jülich, [2008] ECR I-3231

      (3)  Joined Cases C-175/07 to C-184/07 SAFBA, [2008] ECR I-142

      (4)  Commission Regulation (EC) No 1762/2003 of 7 October 2003 fixing the production levies in the sugar sector for the 2002/03 marketing year, OJ 2003 L 254, p. 4

      (5)  Commission Regulation (EC) No 1775/2004 of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year, OJ 2004 L 316, p. 64

      (6)  Commission Regulation (EC) No 1686/2005 of 14 October 2005 setting the production levies and the coefficient for the additional levy in the sugar sector for the 2004/05 marketing year OJ 2005 L 271, p. 12


title: Case T-143/14: Action brought on 3 March 2014 — EE v OHIM (Device of a yellowy pattern)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/57

         Action brought on 3 March 2014 — EE v OHIM (Device of a yellowy pattern)
   (Case T-143/14)
   2014/C 135/74
   Language of the case: English

      Parties

      Applicant: EE Ltd (Hatfield, United Kingdom) (represented by: P. Brownlow, Solicitor)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 November 2013 given in Case R 703/2013-2.

      Pleas in law and main arguments

      Community trade mark concerned: The figurative trade mark representing a device of a yellowy pattern for goods and services in Classes 7, 9, 16, 25, 35-39, 41, 42 and 45 — Community trade mark application No 11 388 311

      Decision of the Examiner: Found the mark applied for not eligible for registration

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) CTMR.


title: Case C-23/14: Judgment of the Court (Second Chamber) of 6 October 2015 (request for a preliminary ruling from the Sø- og Handelsretten — Denmark) — Post Danmark A/S v Konkurrencerådet (Reference for a preliminary ruling — Article 82 EC — Abuse of a dominant position — Market for the distribution of bulk mail — Direct advertising mail — Retroactive rebate scheme — Exclusionary effect — ‘As-efficient-competitor’ test — Degree of likelihood and seriousness of an anti-competitive effect)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/4

         Judgment of the Court (Second Chamber) of 6 October 2015 (request for a preliminary ruling from the Sø- og Handelsretten — Denmark) — Post Danmark A/S v Konkurrencerådet
   (Case C-23/14) (1)

   ((Reference for a preliminary ruling - Article 82 EC - Abuse of a dominant position - Market for the distribution of bulk mail - Direct advertising mail - Retroactive rebate scheme - Exclusionary effect - ‘As-efficient-competitor’ test - Degree of likelihood and seriousness of an anti-competitive effect))
   (2015/C 389/04)
   Language of the case: Danish

      Referring court

   Sø- og Handelsretten

      Parties to the main proceedings

      Applicant: Post Danmark A/S

      Defendant: Konkurrencerådet

      Operative part of the judgment

               1.

               In order to determine whether a rebate scheme, such as that at issue in the main proceedings, implemented by a dominant undertaking is capable of having an exclusionary effect on the market contrary to Article 82 EC, it is necessary to examine all the circumstances of the case, in particular, the criteria and rules governing the grant of the rebates, the extent of the dominant position of the undertaking concerned and the particular conditions of competition prevailing on the relevant market. The fact that the rebate scheme covers the majority of customers on the market may constitute a useful indication as to the extent of that practice and its impact on the market, which may bear out the likelihood of an anti-competitive exclusionary effect.

               2.

               The application of the ‘as-efficient-competitor’ test does not constitute a necessary condition for a finding to the effect that a rebate scheme is abusive under Article 82 EC. In a situation such as that in the main proceedings, applying the as-efficient-competitor test is of no relevance.

               3.

               Article 82 EC must be interpreted as meaning that, in order to fall within the scope of that article, the anti-competitive effect of a rebate scheme operated by a dominant undertaking, such as that at issue in the main proceedings, must be probable, there being no need to show that it is of a serious or appreciable nature.

      (1)  OJ C 78, 15.3.2014.


title: Case C-667/15: Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 14 December 2015 — Loterie Nationale — Nationale Loterij NV v Paul Adriaensen and Others

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/10

         Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 14 December 2015 — Loterie Nationale — Nationale Loterij NV v Paul Adriaensen and Others
   (Case C-667/15)
   (2016/C 106/14)
   Language of the case: Dutch

      Referring court

   Hof van beroep te Antwerpen

      Parties to the main proceedings

      Appellant: Loterie Nationale — Nationale Loterij NV

      Respondents: Paul Adriaensen, Werner De Kesel, The Right Frequency VZW

      Question referred

   Does the application of paragraph 14 of Annex I to Directive 2005/29/EC (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council require that a prohibited pyramid promotional scheme exists only if the realisation of the financial promise to existing members:

               —

               depends primarily or mostly on the direct transfer of the contributions of the new members (‘direct link’),
               or

               —

               does it suffice that the realisation of the financial promise to existing members depends primarily or mostly on an indirect payment through the contributions of existing members, i.e. existing members do not obtain their compensation primarily or mostly from their own sale or their own consumption of goods or services, but depend for the realisation of the financial promise primarily or mostly on the subscription and contributions of new members (‘indirect link’)?

      (1)  OJ 2005 L 149, p. 22.


title: Case C-324/13 P: Appeal brought on 14 June 2013 by Fercal — Consultadoria e Serviços, Lda against the judgment delivered on 10 April 2013 by the General Court (Fifth Chamber) in Case T-360/11 Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (Patrizia Rocha)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/22

         Appeal brought on 14 June 2013 by Fercal — Consultadoria e Serviços, Lda against the judgment delivered on 10 April 2013 by the General Court (Fifth Chamber) in Case T-360/11 Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (Patrizia Rocha)
   (Case C-324/13 P)
   2013/C 260/39
   Language of the case: Portuguese

      Parties

      Appellant: Fercal — Consultadoria e Serviços, Lda (represented by: A.J. Rodrigues, advogado)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               set aside the judgment of 10 April 2013 of the Fifth Chamber of the General Court, notified on 11 April 2013, in Case T-360/11 and, consequently, annul the decision of the Second Board of Appeal of OHIM of 8 April 2011 in Case … R2355/2010-2 in annulment proceedings No 2004 C, in accordance with the relevant provisions of European Union law;

               —

               declare that the appellant’s mark is still valid and in force;

               —

               order the respondent to pay the costs of the proceedings.

      Grounds of appeal and main arguments

   Article 60 of Regulation No 207/2009 (1) provides, in relation to the lodging and form of an appeal, that a notice of appeal must be filed in writing within two months and that, within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed.
   The appellant submits that, although sent by mail on 27 January 2011, the grounds of appeal were received on 2 February 2011, that is to say outside of the four-month time limit provided for in Article 60 of Regulation No 207/2009.
   The rules relating to the calculation of time limits and to notification are set out in Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
   Pursuant to Rule 70(1) and (2) thereof, when calculated in terms of days, weeks, months or years, calculation shall start on the day following notification, namely the day of actual receipt of the document notified.
   Where the time limit is given in months, as in the present case, the time limit shall expire in the relevant month four months later on the day which has the same number as date of notification (Rule 70(4)).
   In the event of unforeseen circumstances or force majeure unattributable to either party, the time limit shall be suspended.
   In the present case, since the appellant was notified on 27 September 2010 and was provided with four months within which to file a notice of appeal, the time limit commenced on 28 September 2010 and ended four months later on the same day, namely on 28 January 2011.
   Consequently, the appellant filed its notice of appeal within that time limit so as not to risk losing its rights, that is to say that its time limit was shorter than four months.
   The appellant filed a notice or appeal setting out its grounds of appeal by mail on 27 January 2011, namely on the day prior to the final day of the time limit.
   The respondent received the above on 2 February 2011, since there was a weekend in between.
   The appellant submits that it complied with the relevant provisions of law and the time limit with which it was provided to file its notice of appeal, and thus deems its appeal to be admissible.
   In that respect, it claims that the notice of appeal was filed within the two-month time limit (first part of Article 60 of Regulation No 207/2009).
   It adds that the grounds of appeal were submitted in writing within the four-month time limit.
   Moreover, they were sent by post and were thus no longer in the appellant’s hands.
   The ‘filing’ of a notice of appeal, referred to in the judgment under appeal, cannot in any way — with all due respect to alternative interpretations and opinions — be understood as receipt by the respondent, unless the appellant fails to comply with the prescribed time limit.
   Contrary to the what was held in the judgment under appeal, Article 60 of Regulation No 207/2009 indeed refers to the filing of a ‘statement setting out the grounds of appeal within four months’, but that cannot be taken to mean, and does not mean, that such grounds must also be received within that time limit, since such documents are not always received immediately.
   The appellant is required to comply with its obligation within that time limit, which it indeed did. The date of reception can thus not be regarded as the relevant date, since such an interpretation contravenes the principle of equality in the light of the diversity of countries and the fact that the same means of communication may not be available nor required, and constitute alternatives which are consistent with Regulation No 2868/95.
   The appellant claims that it is required to send or file its grounds of appeal within the four-month time limit, and the filing of its grounds of appeal was not surprising in the present case, since the appellant had already expressed its intention to do so.
   Having decided as it did, namely in dismissing its action in its entirety, the General Court infringed Article 60 of Regulation No 207/2009 and Rules 61, 62, 63, 64, 65 and 70 of Regulation No 2868/95.

      (1)  Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Judgment of the Court of First Instance of 16 September 2004 in Case T-274/01: Valmont Nederland BV v Commission of the European Communities (State aid — Concept — Benefit — Land sale price — Financing for a car park)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/14

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 16 September 2004
   in Case T-274/01: Valmont Nederland BV v Commission of the European Communities (1)

   (State aid - Concept - Benefit - Land sale price - Financing for a car park)
   (2004/C 284/29)
   Language of the case: Dutch
   In Case T-274/01: Valmont Nederland BV, established in Maarheeze (Netherlands), represented by A. Van Landuyt, A. Prompers and G. Van de Wal, lawyers, against Commission of the European Communities (Agents: initially by G. Rozet and H. Speyart, and subsequently by G. Rozet and H. Van Vliet, with an address for service in Luxembourg) — application for the annulment of Commission Decision 2002/142/EC on the State aid implemented by the Netherlands in favour of Valmont Nederland BV (OJ 2002 L 48, p. 20), — the Court of First Instance (Fourth Chamber, Extended Composition), composed of H. Legal, President, V. Tiili, A.W.H. Meij, M. Vilaras and N.J. Forwood, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it:

               1.

               Annuls Commission Decision 2002/142/EC of 18 July 2001 on the State aid implemented by the Netherlands in favour of Valmont Nederland BV;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 3 of 5.1.2002.


title: Case C-155/99: Reference for a preliminary ruling from the Pretura di Treviso, Oderzo Division, by order of that court of 7 April 1999, in the case of Giuseppe Busolin and Others against Ispettorato Centrale Repressione Frodi - Ufficio di Conegliano - Ministero delle Risorse Agricole, Alimentari e Forestali

text:
C 204/26                EN                         Official Journal of the European Communities                                     17.7.1999
— The Portuguese legislation does not impose the obligation                   Reference for a preliminary ruling from the Pretura di
     to seek prior authorisation from the competent authorities               Treviso, Oderzo Division, by order of that court of 7
     for the operation of coal gasification and liquefaction                  April 1999, in the case of Giuseppe Busolin and Others
     plants, as provided for in Article 3(1) and point 1.3 of                 against Ispettorato Centrale Repressione Frodi — Ufficio
     Annex I to the directive. The fact that, possibly, there are             di Conegliano — Ministero delle Risorse Agricole, Ali-
     no coal gasification and liquefaction plants in Portugal at                                    mentari e Forestali
     the present time is irrelevant.
— The Portuguese legislation does not impose the obligation                                           (Case C-155/99)
     to seek prior authorisation from the competent authorities
     for the operation of plants for the manufacture of asbestos,
     as provided for in Article 3(1) and point 3.3 of Annex I to
     the directive.                                                                                (1999/C 204/48)
(1) OJ L 188 of 16 July 1984, p. 20.                                          Reference has been made to the Court of Justice of the
                                                                              European Communities, by order of the Pretura di Treviso,
                                                                              Oderzo Division, of 27 April 1999, for a preliminary ruling in
                                                                              the case of Giuseppe Busolin and Others against Ispettorato
                                                                              Centrale Repressione Frodi — Ufficio di Conegliano —
                                                                              Ministero delle Risorse Agricole, Alimentari e Forestali on the
                                                                              following questions:
                                                                              — whether the Commission’s decision to allocate the quantity
                                                                                for compulsory distillation between the various production
                                                                                regions for the wine year 1993/94 (as referred to in
Reference for a preliminary ruling by the Tribunal de                             Regulation (EC) No 343/94) (1) was invalid for infringe-
Première Instance de Tournai by judgment of that court                            ment of Article 39(11)(b) of Regulation (EEC)
of 31 March 1999 in the case of Floridienne S.A. and                              No 822/87(2) (as amended by Regulation (EEC)
           Berginvest S.A. against the Belgian State                              1972/87) (3) through failure to ascertain the existence of
                                                                                the statutory prerequisite under that same legislation,
                                                                                namely a significant difference between the quantities
                           (Case C-142/99)                                        available/normal consumption ratio for 1993/94 and the
                                                                                same ratio for the reference years 1981/82, 1982/83 and
                                                                                1983/84;
                           (1999/C 204/47)
Reference has been made to the Court of Justice of the                        — whether the Commission’s decision to allocate the quantity
European Communities by judgment of the Tribunal de                               for compulsory distillation between the various production
Première Instance, Tournai (Court of First Instance, Tournai)                     regions for the year 1993/94 (pursuant to Regulation (EC)
of 31 March 1999, received at the Court Registry on 21 April                      No 343/94) was valid, given that it appears to be defective
1999, for a preliminary ruling in the case of Floridienne S.A.                    for infringement of Article 190 (or for an ‘inadequate
and Berginvest S.A. v Belgian State on the following question:                    statement of reasons’) of the EC Treaty in that neither
                                                                                Regulation No 343/94 nor the measures and documents
                                                                                underlying refer to any assessment as to the existence of
                                                                                the statutory precondition that the ratio between quantities
‘Must share dividends and interest on loans always be excluded                    available and normal consumption for the year 1993/94
from the denominator of the fraction (1) used to calculate the                    should differ significantly from that for the reference years
deductible proportion, even where the company receiving such                      1981/82, 1982/83 and 1983/84;
dividends and interest has involved itself in the management of
the undertakings paying or allocating them, save in the exercise
of its rights as shareholder?’
                                                                              — whether Regulation (EC) No 343/94, requiring Italy to
                                                                                distil 12 150 000 hl, is invalid for infringement of the
                                                                                principle of reasonableness, manifest error and inconsist-
                                                                                ency in relation to the object pursued, in the light of the
(1) The fraction referred to in Article 19 of the Sixth Council Directive         system of calculation used by the Commission ... on
    77/388/EEC of 17 May 1977 on the harmonisation of the laws                    account of the unreasonableness and illogicality of the
    of the Member States relating to turnover taxes — Common
    system of value tax : uniform basis of assessment (OJ 1977 L 145,             updating of the percentage of 85 (4), comparing parameters
    p. 1).                                                                        that were entirely divorced from the reality of the wine
                                                                                market in 1993/94. Moreover, for the reasons and in the
                                                                                light of the calculations given above, the same rules also
                                                                                appear to be invalid as being discriminatory against Italy
                                                                                and thus in breach of the prohibition on discrimination in
                                                                                Article 40 of the EC Treaty;
 ---pagebreak--- 17.7.1999              EN                     Official Journal of the European Communities                                       C 204/27
— whether Regulation (EC) No 343/94, requiring Italy to                       — maintaining in force Article 15, Title IV of Law No 409
     distil 12 150 000 hl, is unlawful for infringement of                         of 24 July 1985, which refers to Article 1 of Law
     Article 39(11) (b) of Regulation (EEC) No 822/87 (as                          No 1398 of 14 December 1964, having the effect that
     amended by Regulation (EEC) No 1972/87) for the reasons                       only Italian citizens may remain registered in case of
     set out above;                                                                transfer of residence to another Member State.
— in the ... event that Article 39(11)(b) of Regulation (EEC)            2. Order the Italian Republic to pay the costs.
     No 822/87 (as amended by Regulation (EEC) No 1972/87)
     is to be interpreted as authorising such a system of
     calculation [used in Regulation (EEC) No 343/94] whether            Pleas in law and main arguments
     Article 39(11)(b) is unlawful for infringement of the prin-
     ciple of reasonableness, manifest error and inconsistency           The residence obligation may give rise to discrimination in
     in relation to the object pursued, and for infringement of          relation to medical practitioners established in other Member
     the prohibition on discrimination under Article 40 of the           States, since it can be fulfilled more easily by Italian citizens.
     Treaty;                                                             That obligation makes exercise of the profession of dentist in
                                                                         Italy impossible for a practitioner established in another
— whether Article 39(3) (4) and (11) of Regulation (EEC)                 Member State, even close to the border. By contrast, a dentist
     No 822/87, as amended by Regulation (EC) 1566/93, and               established in Italy — especially in the border area — may
     Regulation (EEC) No 343/94 which implements the former              open a branch surgery in another Member State without being
     measures, are unlawful for infringement of the principle of         subject to any condition of residence in that State. As a
     reasonableness, manifest error, misuse of powers and                consequence, the Italian rules apply more strictly to dentists of
     infringement of the principle of proportionality.                   other Member States than to those established in Italian
                                                                         territory.
(1) Commission Regulation of 15 February 1994 (OJ L 44 of
    17.2.1994, p. 9).                                                    Obligatory cancellation from the register in the event of
(2) Council Regulation of 16 March 1987 (OJ L 84 of 27.3.1987,           residence being transferred abroad has the effect of making it
    p. 26).                                                              impossible for non-residents to open a dental surgery in Italian
(3) OJ L 184 of 3.7.1987, p. 26.                                         territory. Such a measure is discriminatory in that it does not
(4) Referred to in the third indent of Article 39(3) of Regulation       prohibit dentists established and resident in Italy from opening
    No 822/87.                                                           a branch surgery in another Member State on condition that
                                                                         they remain resident in the practising district to which they
                                                                         belong in Italy.
Action brought on 30 April 1999 by the Commission of
  the European Communities against the Italian Republic                  Reference for a preliminary ruling by the Amtsgericht
                                                                         Tauberbischofsheim by order of 13 April 1999 in the
                         (Case C-162/99)                                 proceedings concerning the imposition of a fine on
                                                                                Portugaia Construcoes Lda
                         (1999/C 204/49)
                                                                                (Case C-164/99)
An action against the Italian Republic was brought before the                                      (1999/C 204/50)
Court of Justice of the European Communities on 30 April
1999 by the Commission of the European Communities,
represented by Francesco Ruggeri Laderchi and Bernard Mon-               Reference has been made to the Court of Justice of the
gin, of its Legal Service, acting as Agents, with an address for         European Communities by order of 13 April 1999 from the
service in Luxembourg at the offices of Carlos Gómez de la              Amtsgericht Tauberbischofsheim (Local Court, Tauber-
Cruz, Wagner Centre, Kirchberg.                                          bischofsheim), which was received at the Court Registry on
                                                                         4 May 1999, for a preliminary ruling in the proceedings
                                                                         concerning the imposition of a fine on Portugaia Construcoes
The applicant claims that the Court should:                              Lda on the following questions:
1. Declare that the Italian Republic has failed to fulfil its            1. Is an interpretation of Directive 96/71/EC of the European
     obligations under Articles 39 and 43 (formerly Articles 48               Parliament and of the Council of 16 December 1996
     and 52) of the EC Treaty by:                                             concerning the posting of workers in the framework of the
                                                                              provision of services (OJ 1997 L 18, p. 1) or, if that
     — allowing the Legislative Decree of the Provisional                     directive is not applicable, an interpretation of Article 59
         Head of State No 233 of 13 September 1946, despite                   et seq. of the EC Treaty, under which overriding require-
         amendment by Article 9 of Law No 362 of 8 Novem-                     ments of public interest capable of justifying a restriction
         ber 1991, to remain in force in such a way as leave                  on the freedom to provide services in cases involving the
         dentists practising in Italy still subject to a de facto             posting of employees can lie not only in the social
         residence obligation, and                                            protection of the employees posted but also in the


title: Removal from the register of C-155/96

text:
C 7/12                EN                Official Journal of the European Communities                                10. 1. 98
          Removal from the register of C-88/96 (1)                          Removal from the register of C-183/96 (1)
                          (98/C 7/32)                                                        (98/C 7/36)
By order of 10 October 1997, the President of the Court            By order of 10 October 1997, the President of the Court
of Justice of the European Communities has ordered the             of Justice of the European Communities ordered the
removal from the register of Case C-88/96 (reference for a         removal from the register of Case C-183/96 (Reference for
preliminary ruling from the Tribunale di Genova, Sezione           a preliminary ruling from the Tribunale di Genova,
Prima Civile): Igino Mazzola Srl v. Amministrazione delle          Sezione prima civile (District Court, Genoa, First Civil
Finanze dello Stato.                                               Section)): Icat Food Srl v. Amministrazione delle Finanze
                                                                   dello Stato.
(1) OJ C 133, 4. 5. 1996.
                                                                   (1) OJ C 210, 20. 7. 1996.
         Removal from the register of C-121/96 (1)
                          (98/C 7/33)                                       Removal from the register of C-204/96 (1)
                                                                                (98/C 7/37)
By order of 23 September 1997, the President of the Court
of Justice of the European Communities has ordered the             By order of 23 September 1997, the President of the Court
removal from the register of Case C-121/96 (reference for          of Justice of the European Communities has ordered the
a preliminary ruling from the Landesarbeitsgericht                 removal from the register of Case C-204/96 (reference for
Hamburg): Sultan Bulut v. Deutsche Bundespost.                     a preliminary ruling from the Bundesarbeitsgericht): E. F.
                                                                   Liebelt GmbH & Co. KG v. Marianne Seidel.
(1) OJ C 158, 1. 6. 1996.
                                                                   (1) OJ C 247, 24. 8. 1996.
         Removal from the register of C-128/96 (1)
                          (98/C 7/34)                                       Removal from the register of C-278/96 (1)
                                                                                (98/C 7/38)
By order of 10 October 1997, the President of the Court
of Justice of the European Communities ordered the
removal from the register of Case C-128/96 (Reference for          By order of 10 October 1997, the President of the Court
a preliminary ruling from the Tribunale di Genova,                 of Justice of the European Communities ordered the
Sezione prima civile (District Court, Genoa, First Civil           removal from the register of Case C-278/96 (Reference for
Section)): Trinity Alimentari Italia SpA v. Amministrazione        a preliminary ruling from the Tribunale di Genova,
delle Finanze dello Stato.                                         Sezione prima civile (District Court, Genoa, First Civil
                                                                   Section)): Vezza SpA v. Amministrazione delle Finanze
                                                                   dello Stato.
(1) OJ C 158, 1. 6. 1996.
                                                                   (1) OJ C 318, 26. 10. 1996.
         Removal from the register of C-155/96 (1)
                          (98/C 7/35)
                                                                            Removal from the register of C-354/96 (1)
                                                                                (98/C 7/39)
By order of 10 October 1997, the President of the Court
of Justice of the European Communities ordered the
removal from the register of Case C-155/96 (Reference for          By order of 23 October 1997, the President of the Sixth
a preliminary ruling from the Tribunale di Genova,                 Chamber of the Court of Justice of the European
Sezione prima civile (District Court, Genoa, First Civil           Communities has ordered the removal from the register
Section)): Icat Food Srl v. Amministrazione delle Finanze          of Case C-354/96: Commission of the European
dello Stato.                                                       Communities v. Italian Republic.
(1) OJ C 180, 22. 6. 1996.                                         (1) OJ C 388, 21. 12. 1996.


title: Case T-586/13: Judgment of the General Court of 16 June 2015 — H. P. Gauff Ingenieure v OHIM (Gauff THE ENGINEERS WITH THE BROADER VIEW) (Community trade mark — Opposition proceedings — Application for Community figurative mark Gauff THE ENGINEERS WITH THE BROADER VIEW — Earlier national and Community word and figurative marks GAUFF — Relative grounds for refusal — Partial refusal to register — Application for restitutio in integrum — Article 81 of Regulation (EC) No 207/2009)

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/21

         Judgment of the General Court of 16 June 2015 — H. P. Gauff Ingenieure v OHIM (Gauff THE ENGINEERS WITH THE BROADER VIEW)
   (Case T-586/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark Gauff THE ENGINEERS WITH THE BROADER VIEW - Earlier national and Community word and figurative marks GAUFF - Relative grounds for refusal - Partial refusal to register - Application for restitutio in integrum - Article 81 of Regulation (EC) No 207/2009))
   (2015/C 262/27)
   Language of the case: German

      Parties

      Applicant: H. P. Gauff Ingenieure GmbH & Co. KG — JBG (Nuremberg, Germany) (represented by: G. Schneider-Rothhaar, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Schifko, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Gauff GmbH & Co. Engineering KG (Nuremberg, Germany) (represented by: A. Molnar, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 5 September 2013 (Case R 118/2013-1) relating to an application for restitutio in integrum.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders H.P. Gauff Ingenieure GmbH & Co. KG — JBG to bear its own costs as well as those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

               3.

               Orders Gauff GmbH & Co. Engineering KG to bear its own costs.

      (1)  OJ C 24, 25.1.2014.


title: Case T-844/16: Action brought on 29 November 2016 — Alpirsbacher Klosterbräu Glauner v EUIPO (Klosterstoff)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/41

         Action brought on 29 November 2016 — Alpirsbacher Klosterbräu Glauner v EUIPO (Klosterstoff)
   (Case T-844/16)
   (2017/C 038/54)
   Language of the case: German

      Parties

      Applicant: Alpirsbacher Klosterbräu Glauner GmbH & Co. KG (Alpirsbach, Germany) (represented by: W. Göpfert, lawyer and S. Hofmann, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: European Union word mark ‘Klosterstoff’– Application for registration No 13 945 944

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 6 October 2016 in Case R 2064/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(b),(c) and (g) of Regulation No 207/2009;

               —

               Infringement of Article 7(2) of Regulation No 207/2009.


title: Case C-135/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 3 April 2008 — Janko Rottmann v Freistaat Bayern

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/13

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 3 April 2008 — Janko Rottmann v Freistaat Bayern
   (Case C-135/08)
   (2008/C 171/22)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: Janko Rottmann

      Defendant: Freistaat Bayern
   Questions referred

               1.

               Does Community law preclude the legal consequence of the loss of Union citizenship (and of the associated rights and fundamental freedoms) resulting from the fact that a revocation, lawful as such under national (German) law, of a naturalisation as a national of a Member State (Germany) acquired by intentional deception has the effect, in combination with the national law on nationality of another Member State (Austria) — as with the claimant in the present case because of the non-revival of the original Austrian nationality — that statelessness supervenes?

               2.

               If Question 1 is answered in the affirmative:
               Must the Member State (Germany) which has naturalised the citizen of the Union and now wishes to revoke the naturalisation obtained by deception, having due regard to Community law, refrain altogether or temporarily from revoking the naturalisation if or as long as revocation would have the legal consequence of loss of Union citizenship (and of the associated rights and fundamental freedoms) described in Question 1, or is the other Member State (Austria) of former nationality obliged, having due regard to Community law, to interpret and apply, or even adjust, its national law so that that legal consequence does not supervene?


title: Case F-82/07: Action brought on 6 August 2007 — Dittert v Commission

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/32

         Action brought on 6 August 2007 — Dittert v Commission
   (Case F-82/07)
   (2007/C 235/59)
   Language of the case: French
   Parties

      Applicant: Daniel Dittert (Luxembourg, Luxembourg) (represented by: B. Cortese and C. Cortese, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision of the Commission of the European Communities to promote the applicant to grade AD 9, and not AD 10, under the 2006 promotion procedure, as confirmed by that Institution's decision of 23 April 2007, rejecting the applicant's complaint No R/132/07;

               —

               order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   The applicant, an established official at the Commission, having been promoted to the old grade A 7 with effect from 1 April 2002, was on 30 April 2004 eligible for promotion to grade A 6. On 1 May 2004, the Appointing Authority replaced grade A 7 in the applicant's staff file with the new grade A*8, stating the reason for the amendment to be the ‘career reform of 1 May 2004’. Subsequently, grade A*8 was renamed AD 8 with effect from 1 May 2006.
   The applicant submits that though the officials promoted in 2004 and those promoted in 2005 or 2006 from the old grade A 7 were all promoted after the entry into force of the amendments to the Staff Regulations, some were appointed to grade A*10/AD 10 while others, including the applicant, were appointed to grade A*9/AD 9. The applicant pleads an infringement of the principles of equal treatment and reasonable career prospects for officials.