title: Case C-443/05 P: Appeal brought on  14 December 2005  by Common Market Fertilizers SA (CMF) against the judgment given on  27 September 2005  by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-134/03 and T-135/03 between Common Market Fertilizers SA (CMF) and the Commission of the European Communities

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/26

         Appeal brought on 14 December 2005 by Common Market Fertilizers SA (CMF) against the judgment given on 27 September 2005 by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-134/03 and T-135/03 between Common Market Fertilizers SA (CMF) and the Commission of the European Communities
   (Case C-443/05 P)
   (2006/C 36/52)
   Language of the case: French
   An appeal against the judgment given on 27 September 2005 by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-134/03 and T-135/03 between Common Market Fertilizers SA (CMF) and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 14 December 2005 by Common Market Fertilizers SA (CMF), represented by A. Sutton and N. Flandin, avocats.
   The appellant claims that the Court should:

               —

               set aside the judgment under appeal in its entirety;

               —

               grant all of the claims submitted at first instance by the appellant;

               —

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

         Pleas in law and main arguments:
   In support of its appeal, the appellant points out four errors of law made by the Court of First Instance consisting in:

               —

               an incomplete presentation of the legal context resulting in a misinterpretation of Regulation No 3319/94 (1) as to the conditions required to impose a specific duty, and an incorrect legal interpretation of the nature of the committee consulted;

               —

               an incomplete presentation of the facts resulting in a clear distortion of those facts, and a misapplication of Regulation No 3319/94 as to whether there is a situation of indirect invoicing;

               —

               an incorrect legal interpretation as regards the infringement of essential procedural requirements and specifically as regards the legal nature of the committee consulted; and

               —

               an incorrect legal interpretation as regards the conditions for application of Article 239 of the Community Customs Code (2) and specifically as regards the application of the condition of no obvious negligence.

      (1)  Council Regulation (EC) No 3319/94 of 22 December 1994 imposing a definitive anti-dumping duty on imports of urea ammonium nitrate solution originating in Bulgaria and Poland, exported by companies not exempted from the duty, and collecting definitively the provisional duty imposed (OJ L 350, 31.12.1994, p. 20)

      (2)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1)


title: Case C-321/12: Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands), lodged on 2 July 2012 — F. van der Helder, D. Farrington v College voor zorgverzekeringen (Cvz)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/21

         Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands), lodged on 2 July 2012 — F. van der Helder, D. Farrington v College voor zorgverzekeringen (Cvz)
   (Case C-321/12)
   2012/C 287/39
   Language of the case: Dutch

      Referring court

   Centrale Raad van Beroep

      Parties to the main proceedings

      Appellants: F. van der Helder, D. Farrington

      Respondent: College voor zorgverzekeringen (Cvz)

      Question referred

   Does the phrase ‘legislation [to which] the pensioner has been subject for the longest period of time’ in Article 28(2)(b) of Regulation (EEC) No 1408/71 (1) refer to legislation concerning benefits in respect of sickness and maternity, to legislation concerning cash benefits in respect of old age, or to all legislation concerning the branches of social security mentioned in Article 4 of Regulation No 1408/71 which were applicable pursuant to Title II of that regulation?

      (1)  Council Regulation of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).


title: Case T-212/02: Action brought on 10 July 2002 by Commune de Champagne and Others against Council of the European Union and Commission of the European Communities

text:
28.9.2002             EN                       Official Journal of the European Communities                                      C 233/27
A further party to the proceedings before the Board of Appeal             Grounds of claim:              —    Infringement of Article 43 of
was Juan Espadafor Caba, Granada, Spain.                                                                      Regulation 40/94 ( 1), since
                                                                                there was no satisfactory
                                                                                proof of the genuine use of
                                                                                the opposing trademark.
The applicant claims that the Court should:
                                                                                —    Infringement of Article 8 (1)
                                                                                b of Regulation 40/94 since
—     annul the Decision of the First Board of Appeal of the                                                  there is no danger of con-
      defendant dated 8 April 2002 in case R 1046/2000-1;                                                     fusion with regard to certain
                                                                                goods.
—     order the Office to bear the costs of the proceedings.
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ L 11, p. 1).
Pleas in law and main arguments
Applicant for the Com-        The applicant
munity trade mark:
The Community trade           The word mark ‘VITAFRUIT’ for
mark concerned:               certain goods in classes 5, 29 and
                                                                          Action brought on 10 July 2002 by Commune de Cham-
                              32 (a.o. beers, mineral and aerated         pagne and Others against Council of the European Union
                              waters and other non-alcoholic
                                                                                and Commission of the European Communities
                              drinks, fruit and vegetable drinks,
                              fruit juices; syrups and other prep-
                              arations for making beverages;
                              herbal and vitamin beverages)                                         (Case T-212/02)
Proprietor of the right to    Juan Espadafor Caba                                                   (2002/C 233/50)
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                                                (Language of the case: French)
Trade mark or sign            The national mark ‘VITAFRUT’
asserted by way of oppo-      for goods in classes 30 and 32
sition in the opposition      (a.o. non-alcoholic and non-thera-
proceedings:                  peutic carbonic drinks, fruit and           An action against the Council of the European Union and the
                              vegetable juices without fermen-            Commission of the European Communities was brought
                              tation, lemonades, orangeades,              before the Court of First Instance of the European Communities
                              cold beverages, soda water)                 on 10 July 2002 by Commune de Champagne and Others,
                                                                          Canton de Vaud (Switzerland), represented by Denis Wael-
                                                                          broeck, lawyer.
Decision of the Oppo-         Upheld opposition insofar as it
sition Division:              was based on the goods ‘fruit and
                              vegetable juices without fermen-
                              tation, lemonades, orangeades’              The applicant claims that the Court should:
                              and insofar as it was directed
                              against the goods ‘mineral and
                              aerated waters and other non-               —     annul Article 1 of Decision 2002/309/EC, Euratom
                              alcoholic drinks, fruit and veg-                  Decision of the Council and of the Commission as
                              etable drinks, fruit juices; syrups               regards the Agreement on Scientific and Technological
                              and other preparations for mak-                   Cooperation, of 4 April 2002 on the conclusion of seven
                              ing beverages; herbal and vitamin                 Agreements with the Swiss Confederation in so far as
                              beverages’.                                       the Council and the Commission thereby approved
                                                                                Article 5(8) of Title II of Annex 7 to the Agreement
                                                                                between the European Community and the Swiss Confed-
Decision of the Board of      Dismissal of the appeal by the                    eration on Trade in Agricultural Products (‘the Cham-
Appeal:                       applicant.                                        pagne Clause’);
 ---pagebreak--- C 233/28              EN                    Official Journal of the European Communities                                     28.9.2002
—     in so far as necessary, annul that decision inasmuch as          name ‘Champagne’ has been used in the production of wine in
      the Council and the Commission approved the other                the area for many years and is thus the industrial and
      articles of the Agreement between the European Com-              commercial property of the applicants.
      munity and the Swiss Confederation on Trade in Agricul-
      tural Products, as well as the Agreement on Mutual
      Recognition in Relation to Conformity Assessment                 Furthermore, a total ban on the use by the applicants of
      between the European Community and the Swiss Confed-             the name ‘Champagne’ does not observe the principle of
      eration, the Agreement between the European Com-                 proportionality. The applicants point out that the wine they
      munity and the Swiss Confederation on Certain Aspects            produce is a non-sparkling wine which does not compete
      of Government Procurement, the Agreement on Scientific           with French champagne. There is therefore no likelihood of
      and Technological Cooperation between the European               confusion. In addition, there are less restrictive ways in which
      Community and the European Atomic Energy Com-                    to achieve the same objective, such as by indicating the country
      munity, of the one part, and the Swiss Confederation, of         of origin on the label.
      the other part, the Agreement between the European
      Community and the Swiss Confederation on the Carriage
      of Goods and Passengers by Rail and Road, the Agreement
      between the European Community and the Swiss Confed-
      eration on Air Transport, the Agreement on the Free
      Movement of Persons between the European Community
      and its Member States, of the one part, and the Swiss
      Confederation, of the other part;
                                                                       Action brought on 12 July 2002 by SNF S.A. against the
                                                                                Commission of the European Communities
—     declare that the European Community, as represented by
      the Council and the European Commission, is liable and
      order the defendants to compensate in full the applicant                                 (Case T-213/02)
      wine growers for all damage arising from the ‘Champagne
      Clause’;
                                                                                (2002/C 233/51)
—     order the Council and the Commission to pay the costs.                             (Language of the case: English)
                                                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                        European Communities on 12 July 2002 by SNF S.A.,
                                                                       represented by Koen Van Maldegem and Claudio Mereu at
                                                                       McKenna Long & Aldridge LLP in Brussels, Belgium
The applicants are, on the one hand, owners of vineyards in
the municipality of Champagne, in the canton of Vaud in                The applicant claims that the Court should:
Switzerland and, on the other, acting in defence of the interests
of those wine growers.                                                 —     order the partial annulment of the Twenty-Sixth Com-
                                                                             mission Directive 2002/34/EC of 15 April 2002 adapting
                                                                             to technical progress Annexes II, III and VII to Council
                                                                             Directive 76/768/EEC on the approximation of the laws
                                                                             of the Member States relating to cosmetic products (1), so
By the contested decision, the Council and the Commission
                                                                             as to remove polyacrylamides from the measure;
approved seven bilateral agreements between the Community
and the Swiss Confederation; one of those agreements concerns
agricultural trade. One of the annexes to that agreement               —     order the Commission to pay all costs and expenses in
includes a provision prohibiting use of the name ‘Champagne’                 these proceedings.
for wine originating in the canton of Vaud.
                                                                       Pleas in law and main arguments
In support of their arguments, the applicants allege, first,
breach of general principles of law including right to their
identity, to property and to the freedom to pursue professional        The applicant seeks the partial annulment of the above-
activities. The word ‘Champagne’ is also protected in Swiss            mentioned Directive due to the fact that the Commission has
law, where it is an appellation communale d’origine contrôlée          placed restrictions on the use of the applicant’s products,
(registered municipal designation of origin). Moreover, the            polyacrylamides, as ingredients in cosmetic products. The


title: Case C-391/99: Action brought on 13 October 1999 by Portuguese Republic against Commission of the European Communities

text:
C 302/14                EN                     Official Journal of the European Communities                                    21.10.2000
J.C. Moitinho de Almeida, D.A.O. Edward, L. Sevón (Rappor-               Action brought on 27 December 1999 by Portuguese
teur) and R. Schintgen, Presidents of Chambers, and                       Republic against Commission of the European Communi-
P.J.G. Kapteyn, C. Gulmann, A. La Pergola, J.-P. Puissochet,                                              ties
G. Hirsch, P. Jann, H. Ragnemalm, M. Wathelet, V. Skouris
and F. Macken, Judges; J. Mischo, Advocate General; R. Grass,                                       (Case C-509/99)
Registrar, has made an order on 21 June 2000, the operative
part of which is as follows:                                                                        (2000/C 302/26)
1.    The action is dismissed.                                            An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
2.    The French Republic is to pay the costs.                            Communities on 27 December 1999 by the Portuguese Repub-
                                                                          lic, represented by Luı́s Fernandes, Director of the Legal
(1) OJ C 63 of 4.3.2000.                                                  Services of the Directorate General for Community Affairs at
                                                                          the Ministry of Foreign Affairs, and Maria Luı́sa Duarte,
                                                                          Professor at the Law Faculty of the University of Lisbon, acting
                                                                          as Agents, and by Miguel Galvão Teles and Mário Marques
                                                                          Mendes, of the Lisbon Bar, with an address for service in
                                                                          Luxembourg at the Portuguese Embassy, 24 Rue Guillaume
                                                                          Schneider.
Action brought on 13 October 1999 by Portuguese                           The applicant claims that the Court should:
Republic against Commission of the European Communi-
                                ties                                      1.    find the present application admissible and
                          (Case C-391/99)                                       (a)   declare non-existent Commission Decision of
                                                                                20 October 1999 (C (1999) 3370 final) relating to
                          (2000/C 302/25)                                             a procedure pursuant to Article 21 of Council
                                                                                Regulation (EEC) No 4064/89 (1) of 21 December
                                                                                1989 on the control of concentrations between
An action against the Commission of the European Communi-                             undertakings (Case IV/M 1616 — A. Champali-
ties was brought before the Court of Justice of the European                          maud/BSCH)
Communities on 13 October 1999 by the Portuguese Repu-
blic, represented by Luı́s Fernandes, Director of the Legal                     (b) in the alternative, declare the abovementioned
Services of the Directorate General for Community Affairs at                          Decision void.
the Ministry of Foreign Affairs, and Maria Luı́sa Duarte,
Professor at the Law Faculty of the University of Lisbon, acting          2.    Order the Commission to pay the costs.
as Agents, with an address for service in Luxembourg at the
Portuguese Embassy, 24 Rue Guillaume Schneider.                           By Order of 14 September 2000, the President of the Court of Justice
                                                                          of the European Communities ordered the removal of the case from
The applicant claims that the Court should:                               the Register of the Court.
1.    find the present application admissible and                         (1) OJ 1989 L 395, p. 1.
      (a)   declare non-existent Commission Decision of
            20 July 1999 (C (1999) 2406 final) relating to
            a procedure pursuant to Article 21 of Council
            Regulation (EEC) No 4064/89 (1) of 21 December
            1989 on the control of concentrations between
            undertakings (Proc. IV/M 1616 — A. Champali-                  Reference for a preliminary ruling by the Bundesverwal-
            maud/BSCH)                                                    tungsgericht by order of 27 April 2000 in the case of
                                                                          Stratmann GmbH & Co. KG v Landrätin of Wesel Local
      (b) in the alternative, declare the abovementioned                                               Authority
            Decision void.
                                                                                (Case C-284/00)
2.    Order the Commission to pay the costs.
                                                                                (2000/C 302/27)
By Order of 13 September 2000, the President of the Court of Justice
of the European Communities ordered the removal of the case from          Reference has been made to the Court of Justice of the
the Register of the Court.                                                European Communities by order of 27 April 2000 by the
                                                                          Bundesverwaltungsgericht (Federal Administrative Court),
(1) OJ 1989 L 395, p. 1.                                                  which was received at the Court Registry on 19 July 2000, for
                                                                          a preliminary ruling in the case of Stratmann GmbH & Co. KG
                                                                          v Landrätin (Administrative Head) of Wesel Local Authority
                                                                          on the following question:


title: Case C-363/15 P: Appeal brought on 13 July 2015 by Louis Vuitton Malletier against the judgment of the General Court (Second Chamber) delivered on 21 April 2015 in Case T-359/12: Louis Vuitton Malletier v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/13

         Appeal brought on 13 July 2015 by Louis Vuitton Malletier against the judgment of the General Court (Second Chamber) delivered on 21 April 2015 in Case T-359/12: Louis Vuitton Malletier v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG
   (Case C-363/15 P)
   (2015/C 414/16)
   Language of the case: English

      Parties

      Appellant: Louis Vuitton Malletier (represented by: P. Roncaglia, G. Lazzeretti, F. Rossi, N. Parrotta, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG

      Form of order sought

   The appellant claims that the Court should:

               —

               Annul the judgment of the General Court of the European Union (Second Chamber) of April 21, 2015, in Case T-359/12, served upon the Appellant on April 29, 2015;

               —

               Order OHIM to pay the costs incurred by the Appellant during these proceedings;

               —

               Order Nanu-Nana to pay the costs incurred by the Appellant during these proceedings.

      Pleas in law and main arguments

               1.

               By means of the present appeal Louis Vuitton Malletier (hereafter referred to as ‘Louis Vuitton’ or the ‘Appellant’') requests that the Court of Justice annul the decision of the General Court of the European Union (Second Chamber) of April 21, 2015, in Case T-359/12 (the ‘judgment under appeal’), whereby the General Court dismissed Louis Vuitton application against the decision of the First Board of Appeal of OHIM of May 4, 2012, in Case R 1855/2011-1, which had declared Community trademark registration No. 370445 (figurative) invalid in its entirety, for lack of distinctive character.

               2.

               The present appeal is aimed at showing that the General Court erred in concluding that the provision of Article 7(1)(b) CTM Regulation (1) is applicable to the contested trademark, as well as in concluding that the provisions of Article 7(3) and Article 52(2) CTM Regulation do not apply in the case at issue.

               3.

               Firstly, in upholding the Board of Appeal's decision that had declared the contested trademark invalid for not being inherently distinctive the General Court infringed the rules concerning the burden of proof in invalidity proceedings.

               4.

               In particular, the Appellant maintains that to comply with the principles on the presumption of validity enjoyed by registered Community trademarks and the apportion of the burden of proof in invalidity actions, the General Court should have reversed the challenged decision, on the basis that Nanu-Nana had not met its burden, as it had not been able to demonstrate what the norm and customs of the relevant sector were at the date of filing of the contested trademark and therefore that the contested trademark did not depart significantly from them.

               5.

               Secondly, in requiring that evidence of acquired distinctiveness be provided for each of the European Union Member States the General Court openly infringed the CJEU's ruling in the Lindt case, whereby ‘even if it is true (…) that the acquisition by a mark of distinctive character through use must be proved for the part of the European Union in which that mark did not, ab initio, have such character, it would be unreasonable to require proof of such acquisition for each individual Member State’ [see decision of May 24, 2012, Chocoladefabriken Lindt & Sprüngli v OHIM, C-98/11 P, EU:C:2012:307, paragraph 62].

               6.

               In particular, the Appellant points out that if the General Court had applied the ruling of the CJEU in the Lindt case correctly, it would have reached the conclusion that the contested trademark had acquired distinctive character through use and, consequently, it would have reversed the Board of Appeal's decision on this point.

               7.

               In light of the above the Appellant requests that the Court of Justice annul the judgment under appeal and order both the OHIM and Nanu-Nana to pay the costs incurred by the Appellant during these proceedings.

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


title: Case C-431/04: Reference for a preliminary ruling by the Bundesgerichtshof by decision of that court of 29 June 2004 in the case of Massachusetts Institute of Technology

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/33

         Reference for a preliminary ruling by the Bundesgerichtshof by decision of that court of 29 June 2004 in the case of Massachusetts Institute of Technology
   (Case C-431/04)
   (2004/C 300/63)
   Reference has been made to the Court of Justice of the European Communities by decision of the Bundesgerichtshof (Federal Court of Justice) (Germany) of 29 June 2004 received at the Court Registry on 7 October 2004, for a preliminary ruling in the case of Massachusetts Institute of Technology on the following questions:

               1.

               Does the term ‘combination of active ingredients of a medicinal product’ within the meaning of Article 1(b) of Council Regulation 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (1) mean that the components of the combination must all be active ingredients with a therapeutic effect?

               2.

               Is there a ‘combination of active ingredients of a medicinal product’ also where a combination of substances comprising two components of which one component is a known substance with a therapeutic effect for a specific indication and the other component renders possible a pharmaceutical form of the medicinal product that brings about a changed efficacy of the medicinal product for this indication (in-vivo implantation with controlled release of the active ingredient to avoid toxic effects)?

      (1)  OJ L 182, p. 1.


title: Case T-484/14: Action brought on 26 June 2014  — Monthisa Residencial v Commission

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/52

         Action brought on 26 June 2014 — Monthisa Residencial v Commission
   (Case T-484/14)
   2014/C 261/82
   Language of the case: Spanish

      Parties

      Applicant: Monthisa Residencial, SA (Madrid, Spain) (represented by: F. de Artíñano Rodríguez de Torres and J. Martínez Muro, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision in so far as it categorises the measures which, according to that decision, together constitute the ‘Spanish Tax Lease System’ as new State aid that is incompatible with the internal market;

               —

               in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as beneficiaries of the alleged aid and as the sole addressees of the order for recovery;

               —

               in the alternative, annul Article 4 of the contested decision in so far as it orders recovery of the alleged aid in breach of general principles of EU law;

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are similar to those put forward in Case T-700/13 Bankia v Commission.
   In particular, it is alleged that Article 107(1) TFEU and the general principle of EU law relating to the protection of legitimate expectations have been infringed.


title: Action brought on 29 January 1999 by the Commission of the European Communities against the Republic of Austria (Case C-20/99)

text:
27.3.1999                EN                   Official Journal of the European Communities                                       C 86/9
tinente, SGPS, SA and Fazenda PuÂblica, on the following                 Service, acting as Agent, with an address for service in
questions:                                                               Luxembourg at the Office of Carlos Gómez de la Cruz, of
                                                                         its Legal Service, Wagner Centre, Kirchberg.
1. May Articles 10 and 12 of Council Directive
     69/335/EEC (1) be relied on by a private individual in              The applicant claims that the Court should:
     dealings with the State, even if the latter has not
     transposed that directive into national law?
                                                                         1. Declare that, by failing to adopt within the prescribed
                                                                              period the laws, regulations and administrative
2. Must the operations referred to in Article 4(3) of                         provisions necessary to comply with Council Directive
     Directive 69/335/EEC be regarded as covered by the                       90/428/EEC of 26 June 1990 on trade in equidae
     prohibition laid down in Article 10 of the same                          intended for competitions and laying down the
     Community measure, in such a way as to preclude the                      conditions for participation therein (1), the Republic of
     collection, under the directive, not only of the tax on                  Austria has failed to fulfil its obligations under the EC
     the raising of capital but also of any other levy, of                    Treaty and that directive.
     whatever kind, in particular one that is a charge rather
     than a tax?
                                                                         2. Order the defendant to pay the costs.
3. Must Articles 10 and 12(1)(e) of the same directive be
     interpreted as meaning that the fees payable to the                 Pleas in law and main arguments adduced in support:
     notary for recordal in a (legally binding) public
     instrument of resolutions increasing capital or
     amending statutes may not vary according to the
                                                                         On the basis of the mandatory provisions (3) of
     amount of the increase and the amount of the capital,
     respectively?                                                       Article 189 and of Article 5(1) of the EC Treaty, Member
                                                                         States are obliged to transpose the provisions of directives
                                                                         addressed to them into national law within the period
                                                                         prescribed.
4. May those fees Ð see Article 5 of the Schedule of
     Notarial Fees Ð be regarded as depending on the cost
     of the service provided?
                                                                         That period expired for Austria on 1 January 1995, and
                                                                         not all the Austrian Länder have adopted the necessary
                                                                         provisions.
5. What must such cost be construed as comprising?
     Does it include the salary of notaries and of officials in
     their offices, the facilities of such offices and the like?         (1) OJ L 224, 1.8.1990, p. 60.
6. Is it permitted and, consequently legal, having regard
     to Articles 10 and 12(1) of the said directive, for any
     fee to be charged in excess of that cost? And if so, to
     what extent?
                                                                         Reference for a preliminary ruling by the Pretura Circon-
(1) Council Directive 69/335/EEC concerning indirect taxes on the        dariale di Pinerolo by order of that Court of 15 January
    raising of capital (OJ English Special Edition 1969 (II), p. 412).   1999 in the case of Cristoforo Bertinetto against Biraghi
                                                                                SpA
                                                                                (Case C-22/99)
                                                                                (1999/C 86/18)
Action brought on 29 January 1999 by the Commission of                   Reference has been made to the Court of Justice of the
the European Communities against the Republic of                         European Communities by order of the Pretura Circonda-
                               Austria                                   riale (District Magistrate's Court) (Pinerolo) of 15 January
                          (Case C-20/99)                                 1999, received at the Court Registry on 1 February 1999,
                                                                         for a preliminary ruling in the case of Cristoforo
                          (1999/C 86/17)                                 Bertinetto against Biraghi SpA on the following question:
An action against the Republic of Austria was brought                    Does Article 3 of Council Regulation No 804/68 (1)
before the Court of Justice of the European Communities                  preclude the Italian State from regulating by statute the
on 29 January 1999 by the Commission of the European                     terms of intertrade agreements designed to fix milk prices
Communities, represented by Michael Niejahr, of its Legal                in advance in accordance with the procedures and legal


title: Case C-508/99: Reference for a preliminary ruling from the Verwaltungsgerichtshof by order of that court of 16 December 1999 in the case of Palais am Stadtpark Hotelbetriebsges.m.b.H. & CO KG v Finanzlandesdirektion für Wien, Niederösterreich und Burgenland

text:
18.3.2000               EN                    Official Journal of the European Communities                                    C 79/13
Action brought on 22 December 1999 by the Commission                     Reference for a preliminary ruling by the College van
of the European Communities against the Portuguese                       Beroep voor het Bedrijfsleven by judgment of that court
                              Republic                                   of 19 October 1999 in the case of Denkavit Nederland BV
                                                                         against (1) Minister van Landbouw, Natuurbeheer en
                                                                           Visserij; (2) Voedselvoorzieningsin- en verkoopbureau
                         (Case C-506/99)
                                                                                (Case C-507/99)
                          (2000/C 79/23)                                                          (2000/C 79/24)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of the College van Beroep
An action against the Portuguese Republic was brought                    voor het Bedrijfsleven (Commercial Court of Appeal) of
before the Court of Justice the European Communities on                  19 October 1999, received at the Court Registry on
22 December 1999 by the Commission of the European                       23 December 1999, for a preliminary ruling in the case of
Communities, represented by António Caeiros, of its Legal               Denkavit Nederland BV against (1) Minister van Landbouw,
Service, and Manuel Desantes, national civil servant on                  Natuurbeheer en Visserij (Minister for Agriculture, Nature
secondment to the Commission’s Legal Service, acting as                  Management and Fisheries); (2) Het Voedselvoorzieningsin- en
Agents, with an address for service in Luxembourg at the office          verkoopbureau (Foodstuffs buying-in and sales agency) on the
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                   following questions:
                                                                         1. Does the fact that the calves in issue come under the
The applicant claims that the Court should:                                  common organisation of the market in beef and veal mean
                                                                             that the (alleged) power on the part of the Netherlands
                                                                             authorities to determine the point in time at which
                                                                             British calves are to be slaughtered must have a basis in
— declare that, by failing to adopt and bring into force the                 Community legislation, in the absence of which the
    laws, regulations and administrative provisions necessary                national authorities do not have any such power?
    to comply with Directive 96/9/EC of the European Parlia-
    ment and of the Council of 11 March 1996 on the legal                2. If the answer to the first question is in the affirmative:
    protection of databases (1) within the period prescribed in              does Article 8 of Directive 90/425/EEC (1) constitute an
    Article 16(1) thereof, the Portuguese Republic has failed to             adequate basis for that power?
    fulfil its obligations under the first paragraph of Article 10
    and the third paragraph of Article 249 of the EC Treaty, as          3. If the second question is answered in the negative: is there
    well as the provisions of Article 16(1) of Directive 96/9/EC;            any other basis for that power in Community law?
— declare, in the alternative, that by failing to inform the             (1) OJ 1990 L 224, p. 29.
    Commission immediately of such measures, the Portuguese
    Republic has failed to fulfil its obligations under those
    provisions;
— order the Portuguese Republic to pay the costs.
                                                                         Reference for a preliminary ruling from the Verwaltungs-
                                                                         gerichtshof by order of that court of 16 December 1999
                                                                         in the case of Palais am Stadtpark Hotelbetriebsges.m.b.H.
Pleas in law and main arguments                                          & CO KG v Finanzlandesdirektion für Wien, Niederöster-
                                                                                reich und Burgenland
                                                                                (Case C-508/99)
The pleas in law and main arguments are analogous with those
set out in Case C-495/99 (2); the period prescribed in Article 16
of Directive 96/9/EC expired on 1 January 1998.                                                   (2000/C 79/25)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Verwaltungsgericht-
(1) OJ 1996 L 77, p. 20.                                                 shof (Higher Administrative Court), Austria, of 16 December
(2) OJ C 63, 4.3.2000, p. 16.                                            1999, which was received at the Court Registry on 24 Decemb-
                                                                         er 1999, for a preliminary ruling in the case of Palais am
                                                                         Stadtpark Hotelbetriebsges.m.b.H. & CO KG v Finanzlandesdi-
                                                                         rektion für Wien, Niederösterreich und Burgenland on the
                                                                         following question:
 ---pagebreak--- C 79/14                EN                   Official Journal of the European Communities                                    18.3.2000
Are the provisions of Council Directive 69/335/EEC of 17 July             for the decision. Since the German Government presented
1969 concerning indirect taxes on the raising of capital (OJ,             its case on the basis of the requirements of old
English Special Edition 1969 (11), p. 412), and in particular             Article 100a(4) EC, which it was entitled to do, the
Article 6, to be interpreted as precluding a Member State from            Commission to must use old Article 100a(4) as the basis
levying capital duty on the limited partners’ contributions to a          for its decision. The fact that old Article 100a(4) EC does
limited trading partnership (KEG) when a private limited                  not lay down a period for the Commission to reply
company (GmbH) joins it as general partner, if the partnership            certainly cannot have the consequence that the Com-
capital on which duty is to be imposed had already been                   mission alone has discretion to determine the period for
subjected, before the entry into force of Directive 69/335/EEC,           replying. Here too the principle of the duty of loyal
to a duty such as that referred to in Paragraph 33, schedule              cooperation under Article 10 EC (new numbering — old
item 16(1) (b) of the Gebührengesetz (Law on Fees) 1957,                  Article 5 EC) must apply.
BGBl. 267/1957?
                                                                          Whilst on its wording old Article 100a(4) only applies to
                                                                          harmonising measures of the Council, according to its
                                                                          scheme and purpose it is also applicable by analogy to
                                                                          directives of the Commission, or at least to those which are
                                                                          issued as a consequence of votes in adaptation committees
                                                                          where the applicant Member State has been out-voted by
Action brought on 28 December 1999 by the Republic                        a qualified majority.
of Germany against the Commission of the European
                           Communities
                                                                          In the alternative: the German application should have
                         (Case C-512/99)                                  been examined under Article 95(4). The term ‘maintain’
                                                                          used therein is to be understood as also including measures
                                                                          adopted as a result of the transposition into national law
                          (2000/C 79/26)                                  of harmonising measures.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European           — Infringement of the right to a hearing and the duty to
Communities on 28 December 1999 by the Federal Republic                   cooperate in Article 10 EC. The Commission failed to
of Germany, represented by Wolf-Dieter Plessing, Minis-                   afford the German Government an opportunity to adjust
terialrat, and Dr Bettina Muttelsee-Schön, Head of Unit, Federal          its observations to a new legal basis, including sup-
Ministry of Finance, Graurheindorfer Str. 108, D-53117 Bonn.              plementing the presentation of its case as necessary, by
                                                                          granting it extra time.
The applicant claims that the Court should:
1. Definitively annul the Commission’s             decision    of      — In the alternative, misapplication of the requirements of
     26.10.1999 — K(1999)3490 final (1);                                  Article 95(5) EC:
2. Order the defendant to pay the costs.
                                                                          — the Commission is wrong to deny that there have been
                                                                              new scientific discoveries as to the carcinogenic effect
Pleas and law and main arguments                                              of certain man-made mineral fibres.
— Inappropriate legal basis: Instead of basing its decision on
     Article 95(EC) the Commission should have relied on                  — the Commission is wrong to deny that there is a
     old Article 100a(4) EC or Article 95(4) EC. The German                   problem specific to Germany. Because of its climate
     Government’s application could only be based on the                      and an environmental policy which encourages
     requirements applicable to the application. The fact that                increased use of insulation, Germany has the highest
     the German Government followed the provisions of old                     use of insulatory materials made from man-made
     Article 100a(4) EC which was applicable at the material                  mineral fibre in the EU. The number of employees
     time cannot work its detriment ex post facto.                            and home workers at risk is therefore likely to be
                                                                              significantly higher than in other Member States.
     The application of old Article 100a(4) EC is also compat-
     ible with the scheme of the Treaty. The rule is closely
     interconnected with old Article 100a(1) EC. Old                   — Error of appraisal in relation to scientific knowledge of
     Article 100a(4) EC governs the right under the Treaty a              man-made mineral fibres. Large parts of the technical
     Member State out-voted by qualified majority on the                  experts’ report do not dispute in detail the state of
     adoption of a harmonising measure to pass derogating                 scientific knowledge as described by Germany. The CSTEE
     national legislation. The link between the two provisions            Committee, on whose opinion the Commission relies,
     established by the Community legislature cannot be dis-              obviously did not have access to the scientific views on
     solved ex post facto by having recourse to a different basis         which the German Government based its application.


title: Case C-57/08 P: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fujitsu Siemens Computers GmbH (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) and (5) — Earlier marks including the word sign GATEWAY — Word sign ACTIVY Media Gateway — Absence of similarity of the signs — Lack of likelihood of confusion — Taking into account of the renown of earlier marks when carrying out a global assessment of opposing signs)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/10

         Judgment of the Court (Fifth Chamber) of 11 December 2008 — Gateway, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fujitsu Siemens Computers GmbH
   (Case C-57/08 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) and (5) - Earlier marks including the word sign ‘GATEWAY’ - Word sign ‘ACTIVY Media Gateway’ - Absence of similarity of the signs - Lack of likelihood of confusion - Taking into account of the renown of earlier marks when carrying out a global assessment of opposing signs)
   (2009/C 32/16)
   Language of the case: English
   Parties

      Appellant: Gateway, Inc. (represented by: C.R. Jones, Solicitor)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent), Fujitsu Siemens Computers GmbH
   Re:
   Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 27 November 2007 in Case T-434/05 Gateway, Inc. v OHIM by which the Court of First Instance dismissed an action for annulment brought by the proprietor of the Community and national word and figurative marks containing the word element ‘GATEWAY’ in respect of goods in Classes 9, 16, 35, 36, 37 and 38 against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 14 September 2005 in Case R 1068/2004+1 dismissing the appeal brought by the appellant against the Opposition Division's decision, which rejected the opposition brought by the appellant against the application for registration of the word mark ‘ACTIVY Media Gateway’ in respect of goods in Classes 9, 35, 38 and 42
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Gateway, Inc. to pay the costs.

      (1)  OJ C 171, 5.7.2008.


title: Case T-215/03: Action brought on 13 June 2003 by SIGLA, S.A. against the Office for Harmonisation in the Internal Market (OHIM)

text:
23.8.2003               EN                          Official Journal of the European Union                                          C 200/29
As a result of these breaches, the applicant claims to have                 Action brought on 13 June 2003 by SIGLA, S.A. against
suffered loss. This loss consists firstly of the profits generated          the Office for Harmonisation in the Internal Market
by First Choice as reported in its audited accounts and that                                             (OHIM)
would have accrued to the applicant if the acquisition had not
been prohibited by the Commission. Secondly, the applicant
                                                                                (Case T-215/03)
claims the loss of synergy costs savings that would have been
obtained in consequence of the merger and, thirdly, the costs of
the abortive bid for First Choice which were wasted as a result                                      (2003/C 200/53)
of the Decision of the Commission.
                                                                                (Language of the case: Spanish)
 1
( ) 2000/276/EC: Commission Decision of 22 September 1999
    declaring a concentration to be incompatible with the common
    market and the EEA Agreement (Case IV/M.1524 — Airtours/First
    Choice) (notified under document number C(1999) 3022) (Text             An action against the Office for Harmonisation in the Internal
    with EEA relevance) (OJ L 93 of 2000, p. 1).                            Market (OHIM) was brought before the Court of First Instance
(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on              of the European Communities on 13 June 2003 by SIGLA,
    the control of concentrations between undertakings (text repub-         S.A., with offices in Madrid, represented by E. Armijo Chávarri.
    lished in OJ L 257 of 1990, p. 13).
(3) Judgment of the Court of First Instance of 6 June 2002, Airtours/
    Commission, T-342/99, ECR II-2585.                                      The applicant claims that the Court should:
                                                                            —     annul the decision of the Third Board of Appeal of OHIM
                                                                                no. R 1127/2000-3 of 1 April 2003 on the ground that
                                                                                it is inconsistent with Article 8(5) of Regulation No 40/
                                                                                94;
Action brought on 13 June 2003 by Francesco Contesso                        —     in the alternative, annul the contested decision on the
      against Commission of the European Communities                              ground that it prejudices SIGLA's rights of defence and
                                                                                the principle underlying Article 74 of Regulation No 40/
                           (Case T-213/03)                                        94; and
                           (2003/C 200/52)                                  —     order OHIM to pay the costs.
                     (Language of the case: French)
                                                                            Pleas in law and main arguments
An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 June 2003 by Francesco                           Applicant for Community          ELLENI HOLDING BV
Contesso, residing in Paris, represented by Sebastien Orlandi,              trade mark:
Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers,
with an address for service in Luxembourg.
The applicant claims that the Court should:                                 Community       trade    mark    Word mark ‘VIPS’ Application
                                                                            sought:                          No 459.875 sought for pro-
—      annul the decision drawing up the definitive staff report                                             ducts and services within
       for the period from 1 July 1999 to 30 June 2001;                                                      classes 9, 35 and 42 and, sub-
                                                                                sequently, only for services
—      order the Commission to pay the applicant a token one                                                 within class 42 (computer pro-
       euro for compensation for the non-material damage                                                     gramming services for hotels,
       sustained;                                                                                restaurants and cafes)
—      order the defendant to pay the costs.
                                                                            Proprietor of mark or sign       The applicant
Pleas in law and main arguments                                             cited in the opposition pro-
                                                                            ceedings:
In support of his application, the applicant pleads infringement
of the assessor's prior duty to consult senior assessors before
finalising the staff report, infringement of the assessor's duty to
require them to initial each of the pages and to sign the                   Mark or sign cited in op-        Spanish word mark ‘VIPS’ (re-
definitive staff report, infringement of the duty to give reasons,          position:                        gistration No 551.436) for pro-
in so far as the appeal assessor did not state why he did not                                                ducts of class 42 (supplying
take account of the opinions of the hierarchical superiors                                                   prepared food and drink for
consulted.                                                                                consumption, restaurants, ser-
                                                                                vice stations, canteens, bars and
                                                                                cafeterias and hotel services)
 ---pagebreak--- C 200/30              EN                          Official Journal of the European Union                                         23.8.2003
Decision of the Opposition       Acceptance of the opposition             principle of non-discrimination. The applicant points out that
Division:                        for services falling within              the defendant did not conduct an examination of the compara-
                                 class 42, rejection of the oppo-         tive merits of the applicant with those of the officials of all the
                                 sition for products falling with-        Directorates-General eligible for promotion, but limited itself to
                                 in classes 9 and 35                      the ‘quota’ which had been allocated to the applicant's Direc-
                                                                          torate-General, gave an advantage to officials considered as
                                                                          reserve candidates from the previous year's promotion proce-
                                                                          dure and did not take account of applicant's transfer, during
Decision of the Board of         Action upheld, contested deci-           the reference period, from one Directorate-General to another.
Appeal:                          sion annulled
Pleas in law:                    Infringement of Article 8(5) of
                                 (EC) Regulation No 40/94 and,
                                 in the alternative, infringement
                                 of Article 8(1)(b) of the regula-
                                 tion                                     Action brought on 19 June 2003 by Fédération Nationale
                                                                          de la Coopération Bétail et Viande (FNCBV) against the
                                                                                Commission of the European Communities
                                                                                (Case T-217/03)
                                                                                (2003/C 200/55)
Action brought on 10 June 2003 by Mário Paulo Tenreiro
     against Commission of the European Communities
                                                                                (Language of the case: French)
                         (Case T-216/03)
                         (2003/C 200/54)                                  An action against the Commission of the European Commu-
                                                                          nities was brought before the Court of First Instance of the
                   (Language of the case: French)                         European Communities on 19 June 2003 by the Fédération
                                                                          Nationale de la Coopération Bétail et Viande, (National Coop-
                                                                          erative Association for Livestock and Meat) established in Paris,
                                                                          represented by Robert Collin and Michel Ponsard, lawyers, with
An action against the Commission of the European Commu-                   an address for service in Luxembourg.
nities was brought before the Court of First Instance of the
European Communities on 10 June 2003 by Mário Paulo
Tenreiro, residing in Kraainem (Belgium), represented by                  The applicant claims that the Court should:
Georges Vandersanden, lawyer.
                                                                          —     annul Decision C.38.179/F3 of 2 April 2003 in so far as
The applicant claims that the Court should:                                     it affects the applicant;
—     annul the decision not to promote the applicant in the              —     alternatively quash the fine imposed by that decision;
      2002 promotion procedure, as it appears from the
      absence of the applicant's name in the list of officials
      promoted to grade A4 published in the Administrative                —     in the further alternative reduce it;
      Notice of 14 August 2002 (No 69-2002);
                                                                          —     order the defendant to pay all the costs.
—     declare that the applicant is entitled to the actual promo-
      tion which should have been granted him in the 2002
      promotion procedure, with retrospective effect and full
      restoration of his financial and career rights;
—     order the Commission to pay all the costs.                          Pleas in law and main arguments
                                                                          By its contested decision, the Commission imposed on the
                                                                          applicant and five other French associations of producers and
Pleas in law and main arguments
                                                                          slaughterers a fine based on alleged infringements of
                                                                          Article 81(1) of the EC Treaty, in respect of an agreement to
In support of his action the applicant pleads infringement of             suspend beef imports to France and to fix a minimum price
Article 45(1) of the Staff Regulations and breach of the                  for certain categories of animals.


21.4.2001             EN                   Official Journal of the European Communities                                 C 118/29
       Removal from the register of Case C-220/00 (1)                        Removal from the register of Case C-248/00 (1)
                       (2001/C 118/76)                                                       (2001/C 118/79)
By order of 14 December 2000 the President of the Court of            By order of 15 January 2001 the President of the Court of
Justice of the European Communities has ordered the removal           Justice of the European Communities has ordered the removal
from the register of Case C-220/00: Commission of the                 from the register of Case C-248/00: Commission of the
European Communities v Portugal.                                      European Communities v France.
(1) OJ C 233 of 12.8.2000.                                            (1) OJ C 233 of 12.8.2000.
       Removal from the register of Case C-275/99 (1)
                                                                             Removal from the register of Case C-411/99 (1)
                       (2001/C 118/77)
                                                                                (2001/C 118/80)
By order of 19 December 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 16 January 2001 the President of the Court of
from the register of Case C-275/99: (reference for a preliminary      Justice of the European Communities has ordered the removal
ruling from Tribunal Administratif de Strasbourg): Société            from the register of Case C-411/99: Commission of the
Adidas Sarragan France v Directeur des Services Fiscaux du            European Communities v Austria.
Bas-Rhin.
                                                                      (1) OJ C 366 of 18.12.1999.
(1) OJ C 281 of 2.10.1999.
                                                                             Removal from the register of Case C-54/00 (1)
       Removal from the register of Case C-236/00 (1)
                                                                                (2001/C 118/81)
                       (2001/C 118/78)
                                                                      By order of 16 January 2001 the President of the Court of
By order of 9 January 2001 the President of the Court of              Justice of the European Communities has ordered the removal
Justice of the European Communities has ordered the removal           from the register of Case C-54/00: Commission of the
from the register of Case C-236/00: Commission of the                 European Communities v Italy.
European Communities v Luxembourg.
(1) OJ C 233 of 12.8.2000.                                            (1) OJ C 211 of 22.7.2000.


title: Judgment of the Court of First Instance of 28 October 1999 in Case T-180/98: Elizabeth Cotrim v European Centre for the Development of Vocational Training (Cedefop) (Temporary staff — Installation allowance — Early termination of contract — Recovery of undue payment)

text:
C 20/20               EN                       Official Journal of the European Communities                                     22.1.2000
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               at Winksele (Belgium), represented by Jean-Noël Louis and
                                                                          Françoise Parmentier, of the Brussels Bar, with an address for
                     of 23 November 1999                                  service in Luxembourg at the offices of Fiduciaire Myson SARL,
                                                                          30 Rue de Cessange, v European Centre for the Development
                                                                          of Vocational Training (Cedefop) (Agent: Bertrand Wägenbaur)
in Case T-129/98: Enrico Sabbioni v Commission of the                     — application for annulment of the decision of the European
                  European Communities (1)                                Centre for the Development of Vocational Training of 9 March
                                                                          1998 demanding reimbursement of a sum corresponding to
(Officials — Automatic transfer — Act adversely affecting                 two thirds of the installation allowance paid to the applicant
   an official — Statement of reasons — Misuse of powers)                 upon her entry into service — the Court of First Instance,
                                                                          composed of C.W. Bellamy, sitting as a single Judge; J. Palacio
                                                                          González, Administrator, for the Registrar, has given a judg-
                         (2000/C 20/39)                                   ment on 28 October 1999, in which it:
                                                                          1. Dismisses the action;
                   (Language of the case: Italian)
                                                                          2. Orders the parties to bear their own costs.
In Case T-129/98: Enrico Sabbioni, an official of the Com-
mission, employed at the Joint Research Centre at Ispra,
residing at Biandronno, Italy, represented by Giuseppe Marche-            (1) OJ C 397 of 19.12.1998.
sini, of the Vicenza Bar, with an address for service in
Luxembourg at the Chambers of Arendt and Medernach, 8-10
Rue Mathias Hardt v Commission of the European Community
(Agent: Gianluigi Valsesia) — application for annulment of the
decisions whereby the Commission transferred the applicant
of its own motion to another division and removed from his
initial duties, and a claim for damages — the Court of First
Instance (Fifth Chamber), composed of J.D. Cooke, President,                    ORDER OF THE COURT OF FIRST INSTANCE
R. Garcı́a-Valdecasas and P. Lindh, Judges; J. Palacio González,
Administrator, for the Registrar, gave a judgment on 23 No-
vember 1999, the operative part of which is as follows:                                          of 8 October 1999
1. The application is dismissed.                                           in Case T-89/99 R: Oliver Valk v European Parliament (1)
2. Each of the parties shall bear its own costs.
                                                                                (No need to adjudicate)
(1) OJ C 327 of 24.10.1998.
                                                                                (2000/C 20/41)
                                                                                (Language of the case: German)
                                                                          In Case T-89/99 R: Oliver Valk, represented by Joachim Kayser,
                                                                          Rechtsanwalt, Körnerstrasse 5, 10785 Berlin, v European
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               Parliament (Agents: Hans Krück and Evelyn Waldherr) —
                                                                          application for interim measures seeking, first, the withdrawal
                      of 28 October 1999                                  of the decision of the selection board of 9 February 1999
                                                                          refusing to admit the applicant to the written tests in Compe-
                                                                          tition PE/86/A (OJ 1998 C 77 A, p. 1) and, second, to allow
in Case T-180/98: Elizabeth Cotrim v European Centre for                  the applicant to take part in the competition procedure — the
   the Development of Vocational Training (Cedefop) (1)                   President of the Court of First Instance has made an order on
                                                                          8 October 1999, the operative part of which is as follows:
(Temporary staff — Installation allowance — Early termi-
      nation of contract — Recovery of undue payment)                     1. It is unnecessary to adjudicate in the application for interim
                                                                               measures;
                         (2000/C 20/40)
                                                                          2. Each party shall bear its own costs.
                   (Language of the case: French)                         (1) OJ C 160 of 5.6.1999.
In Case T-180/98: Elizabeth Cotrim, a probationary official of
the Commission of the European Communities, residing


title: Case C-660/11: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Toscana (Italy) lodged on 27 December 2011 — Daniele Biasci and Others v Ministero dell’Interno, Questura di Livorno

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/18

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Toscana (Italy) lodged on 27 December 2011 — Daniele Biasci and Others v Ministero dell’Interno, Questura di Livorno
   (Case C-660/11)
   2012/C 73/32
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Toscana

      Parties to the main proceedings

      Applicants: Daniele Biasci, Alessandro Pasquini, Andrea Milianti, Gabriele Maggini, Elena Secenti, Gabriele Livi

      Defendants: Ministero dell’Interno, Questura di Livorno

      Questions referred

               1.

               Are Articles 43 EC and 49 EC to be interpreted as in principle precluding legislation of a Member State, such as Article 88 of the Testo unico delle leggi di pubblica sicurezza (Consolidated Law on public security; ‘the TULPS’), under which ‘a permit to organise betting may be granted exclusively to persons holding a licence or authorisation issued by a Ministry or another body to which the law reserves the right to organise and manage betting, and also to persons to whom that responsibility has been entrusted by the licence-holder or by the holder of an authorisation, by virtue of such licence or authorisation’, and Article 2(2b) of Decree-Law No 40 of 25 March 2010, converted by Law No 73/2010, under which ‘Article 88 of the (TULPS), which references to Royal Decree No 773 of 18 June 1931, as subsequently amended, is to be interpreted as meaning that the permit provided for therein, where it is granted for commercial businesses involving gaming and the collection of bets for cash prizes, shall be deemed to be effective only after the operators of those businesses have been granted the appropriate license to carry on such gaming and collect such bets by the Independent Authority for the Administration of State Monopolies of the Ministry of Economic and Financial Affairs’?

               2.

               Are Articles 43 EC and 49 EC to be interpreted as in principle also precluding national legislation, such as Article 38(2) of Decree-Law No 223 of 4 July 2006, converted by Law No 248/2006…? (1)

               The question concerning the compatibility of Article 38(2) with the abovementioned principles of Community law relates solely to the parts of that provision in which: (a) there is a general tendency to protect licences issued before the legal framework was amended; (b) obligations are introduced to open new sales points at a distance from those already authorised which could ultimately ensure de facto the maintenance of pre-existing commercial positions. The question further relates to the general interpretation placed on Article 38(2) by the Independent Authority for the Administration of State Monopolies by inserting in licensing agreements (Article 23(3)) a clause relating to lapse of the licence where analogous cross-border activities are engaged in directly or indirectly.

               3.

               If the answer is in the affirmative, that is to say that it considers compatible with Community law the national rules cited in the preceding paragraphs, is Article 49 EC to be interpreted further as meaning that, where the freedom to provide services is restricted for reasons in the public interest, consideration must be given in advance to whether sufficient account is not already taken of this public interest by the legal provisions, checks and investigations to which the service provider is subject in the State in which he is established?

               4.

               If the answer is in the affirmative, as set out in the preceding paragraph, must the referring court take account, in the context of its examination of the proportionality of a similar restriction, of the fact that the relevant provisions of the State in which the service provider is established provide for a degree of control which is equal to or actually exceeds that of the State in which the services are provided?

      (1)  That part of question 2 where the full text of Article 38(2) — published in GURI No 153 of 4 July 2006 — was reproduced has been omitted.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber) of 6 April 1995 in Case T-145/89: Baustahlgewebe GmbH against Commission of the European Communities (Competition - Infringement of Article 85 of the EEC Treaty)

text:
 No C 137/ 18         EN                   Official Journal of the European Communities                                      3 . 6 . 95
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                  Article 85 ofthe EEC Treaty (IV/3 1.553 — Welded steel
                        (First Chamber)                                    mesh) as regards the finding therein that the applicant
                                                                           participated in an agreement intended to limit German
                        of 6 April 1995                                    exports to the Benelux countries;
in Case T-143/89: Ferriere Nord SpA v. Commission of the
                  European Communities ( J )                          2 . reduces the amount of the fine imposed on the applicant
 (Competition — Infringement of Article 85 of the EEC                      by Article 3 of that Decision to ECU 252 000;
                               Treaty)
                                                                      3 . dismisses the application as regards the remaining
                           ( 95/C 137/42 )                                 claims;
               (Language of the Case: Italian)
                                                                      4 . orders the applicant to bear its costs and to pay
In Case T-143/89 : Ferriere Nord SpA, established in                       three-fifths of the Commission 's costs;
Osoppo ( Italy ), represented by Wilma Viscardini Dona, of
the Padua Bar, and Giuseppe Campeis, of the Udine Bar,                5 . orders the Commission to bear two-fifths of its costs.
with an address for service in Luxembourg at the Chambers
of Ernest Arendt, 8—1 0 Rue Mathias Hardt, v. Commission              (>) OJ No C 306 , 5 . 12 . 1989 .
of the European Communities ( Agents : E. Traversa , J.
Currall and A. Dal Ferro ) — application for the annulment
of Commission Decision 89/515/EEC of 2 August 1989
relating to a proceeding under Article 85 of the EEC Treaty
 ( IV/31.553 — Welded steel mesh OJ 1989 L 260 , p. 1 ) — the
Court of First Instance ( First Chamber ), composed of H.
                                                                       JUDGMENT OF THE COURT OF FIRST INSTANCE
Kirschner, President of Chamber, C. W. Bellamy, B.
Vesterdorf, R. Garcia-Valdecasas and K. Lenaerts, Judges,                                     (First Chamber)
H. Jung, Registrar, has given a judgment on 6 April 1995 in                                   of 6 April 1995
which it:
                                                                      in Case T-145/89: Baustahlgewebe GmbH against
 I. dismisses the application;                                               Commission of the European Communities i 1 )
2 . orders the applicant to pay the costs.                             (Competition — Infringement of Article 85 of the EEC
                                                                                Treaty)
(') OJ No C 306 , 5 . 12 . 1989 .                                                               ( 95/C 137/44
                                                                                (Language of the case: German)
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                      In Case T-145/89 : Baustahlgewebe GmbH, established in
                        ( First Chamber )                             Diisseldorf, Germany, represented by Arved Deringer,
                        of 6 April 1995                               Claus Tessin , Hans Jiirgen Herrmann, Joaquim Sedemund
in Case T-144/89 : Cockerill Sambre v. Commission of the              and Frank Montag, Rechtsanwalte, Cologne, with an
                  European Communities (')                            address for service in Luxembourg at the Chambers of
                                                                      Aloyse May, 31 Grand-Rue, against Commission of the
(Competition — Infringement of Article 85 of the                      European Communities ( Agents : N. Koch, B. Langeheine, J.
                               Treaty)                                Currall and A. Bohlke ) — application for the annulment of
                          ( 95/C 137/43 )                             Commission Decision 89/515/EEC of 2 August 1989
                                                                      relating to a proceeding under Article 85 of the EEC Treaty
               (Language of the Case: French)                         ( IV/31.553 — Welded steel mesh, OJ 1989 L 260 , p. 1 ), the
                                                                      Court of First Instance ( First Chamber ), composed of H.
In Case T-144/89 : Cockerill Sambre, formerly Steelinter SA,
established in Brussels, represented by Michel Waelbroeck             Kirschner, President, C. W. Bellamy, B. Vesterdorf, R.
and Alexandre Vandencasteele, of the Brussels Bar, with an            Garcia-Valdecasas and K. Lenaerts, Judges, Registrar, H.
address for service in Luxembourg at the Chambers of                 Jung, gave a judgment on 6 April 1995 , in which the
                                                                      Court :
Ernest Arendt, 8—1 0 Rue Mathias Hardt, v. Commission of
the European Communities ( Agents N. Koch , E. Traversa
and J. Currall ) — application for the annulment of                   1 . annuls Article 1 of Commission Decision 89/515/EEC
Commission Decision 89/515/EEC of 2 August 1989                            of 2 August 1989 relating to a proceeding under
relating to a proceeding under Article 85 of the EEC Treaty                Article 85 of the EEC Treaty (IV/3 1.553 — Welded steel
( IV/31.553 — Welded steel mesh, OJ 1989 L 260 , p. 1 ) —                  mesh) as regards the finding therein that the applicant
the Court of First Instance ( First Chamber), composed of H.               participated in an agreement with Sotralentz SA
Kirschner, President, C. W. Bellamy, B. Vesterdorf, R.                     subjecting to quotas the latter 's exports to the German
Garcia-Valdecasas and K. Lenaerts , Judges , H. Jung,                      market and the finding that an agreement existed
Registrar, gave a judgment on 6 April 1995 , in which the                  between the applicant and Trefilunion to link their
Court :                                                                    future exports to quotas;
1 . annuls Article 1 of Commission Decision 89/515/EEC               2 . reduces the amount of the fine imposed on the applicant
      of 2 August 1989 relating to a proceeding under                      by Article 3 of that Decision to ECU 3 million;
 ---pagebreak--- 3 . 6 . 95          | EN |                 Official Journal of the European Communities                                No C 137/19
3 . dismisses the application as regards the remaining                Milchior, of the Paris Bar, with an address for service in
     claims;                                                          Luxembourg at the chambers of Ernest Arendt, 8—10 Rue
                                                                      Mathias Hardt, v. Commission of the European
4 . orders the applicant to bear its costs and to pay                 Communities ( Agents N. Koch, E. Traversa, J. Currall, A.
     one-third of the Commission 's costs;                            Coutrelis and N. Coutrelis ) — application for the
                                                                      annulment      of  Commission      Decision  89/515/EEC     of
5 . orders the Commission to bear two-thirds of its
     costs .
                                                                      2 August 1989 relating to a proceeding under Article 85 of
                                                                      the EEC Treaty ( IV/3 1.553 — Welded steel mesh, OJ 1989 L
(') OJ No C 306 , 5 . 12 . 1989 .                                     260, p. 1 ) — the Court of First Instance ( First Chamber ),
                                                                      composed of H. Kirschner, President, C. W. Bellamy, B.
                                                                      Vesterdorf, R. Garcia-Valdecasas and K. Lenaerts, Judges,
                                                                      H. Jung, Registrar, gave a judgment on 6 April 1995 , in
                                                                      which the Court:
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                      I. annuls Article 1 of Commission Decision 89/515/EEC
                        ( First Chamber )                                  of 2 August 1989 relating to a proceeding under
                        of 6 April 1995                                    Article 85 ofthe EEC Treaty (IV/3 1.553 — Welded steel
in Case T-147/89: Société Métallurgique de Normandie                       mesh) as regards the finding therein that there was an
       v. Commission of the European Communities ( ] )                     agreement between the applicant and Baustahlgewebe
                                                                           GmbH to subject their future exports to quotas;
(Competition — Infringement of Article 85 of the
                               Treaty)                                2 . reduces the amount of the fine imposed on the applicant
                          ( 95/C 137/45 )                                  by Article 3 of that Decision to ECU 1 235 000;
                (Language of the Case: French)                        3 . dismisses the application as regards the remaining
                                                                           claims;
In Case T-147/89 : Societe Metallurgique de Normandie,
established in Mondeville ( France ), represented by Robert           4 . orders the applicant to bear its costs and to pay
Collin and Richard Milchior, of the Paris Bar, with an                     four-fifths ot the Commission 's costs;
address for service in Luxembourg at the Chambers of                  5 . orders the Commission to bear one-fifth of its costs.
Ernest Arendt, 8—1 0 Rue Mathias Hardt, v. Commission of
the European Communities ( Agents N. Koch, E. Traversa, J.
                                                                      (') OJ No C 306 , 5 . 12 . 1989 .
Currall, A. Coutrelis and N. Coutrelis ) — application for
the annulment of Commission Decision 89/515/EEC of
2 August 1989 relating to a proceeding under Article 85 of
the EEC Treaty ( IV/31.553 — Welded steel mesh, OJ 1989
L 260 , p. 1 ) — the Court of First Instance ( First Chamber ),
composed of H. Kirschner, President, C. W. Bellamy, B.                 JUDGMENT OF THE COURT OF FIRST INSTANCE
Vesterdorf, R. Garcia-Valdecasas and K. Lenaerts, Judges,                                     (First Chamber )
H. Jung, Registrar, gave a judgment on 6 April 1995 , in
which the Court :                                                                             of 6 April 1995
                                                                      in Case T-149/89 : Sotralentz SA v. Commission of the
I. dismisses the application;                                                           European Communities (*)
2 . orders the applicant to pay the costs.                            (Competition — Infringement of Article 85 of the
                                                                                Treaty)
(') OJ No C 306 , 5 . 12 . 1989 .                                                               ( 95/C 137/47 )
                                                                                (Language of the Case: French)
                                                                      In Case T-149/89 : Sotralentz SA, established in Drulingen
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                      ( France ), represented by Xavier de Mello, Philippe Pepy and
                        ( First Chamber )                             Jean Christian Percerou, of the Paris Bar, with an address for
                        of 6 April 1995                               service in Luxembourg at the Chambers of Bruno Decker,
in Case T-148/89 : Trefilunion SA v. Commission of the                16 Avenue Marie-Therese, v. Commission of the European
                  European Communities i 1 )                          Communities (Agents N. Koch, E. Traversa, J. Currall, A.
                                                                      Coutrelis and N. Coutrelis ) — application for the
(Competition — Infringement of Article 85 of the                      annulment      of  Commission      Decision  89/515/EEC     of
                               Treaty)                                2 August 1989 relating to a proceeding under Article 85 of
                          ( 95 /C 137/46 )                            the EEC Treaty (IV/31.553 — Welded steel mesh, OJ 1989 L
                                                                      260 , p. 1 .) — the Court of First Instance ( First Chamber ),
                (Language of the Case: French)                        composed of H. Kirschner, President, C. W. Bellamy, B.
                                                                      Vesterdorf, R. Garcia-Valdecasas and K. Lenaerts, Judges,
In Case T-148/89 : Trefilunion SA, established in Puteaux             H. Jung, Registrar, gave a judgment on 6 April 1995 , in
( France ), represented by Robert Collin and Richard                  which the Court:


title: Case C-365/01: Action brought on 24 September 2001 by the Commission of the European Communities against Ireland

text:
10.11.2001               EN                    Official Journal of the European Communities                                      C 317/21
Action brought on 24 September 2001 by the Com-                           The Commission of the European Communities claims that
   mission of the European Communities against Ireland                    the Court should:
                           (Case C-365/01)                                —     Declare that, by failing to adopt the laws, regulations
                                                                                and administrative provisions necessary to comply with
                                                                                Council Directive 98/8/EC (1) of the European Parliament
                           (2001/C 317/38)                                      and of the Council of 16 February 1998 concerning the
                                                                                placing of biocidal products on the market, or at least by
An action against Ireland was brought before the Court of                       failing to communicate them to the Commission, the
Justice of the European Communities on 24 September 2001                        Grand Duchy of Luxembourg has failed to fulfil its
by the Commission of the European Communities, represented                      obligations under that directive.
by Marie Wolfcarius, acting as agent, with an address for
service in Luxembourg.                                                    —     Order the Grand Duchy of Luxembourg to pay the costs.
The Applicant claims that the Court should:
                                                                          Pleas in law and main arguments
—     declare that by failing to notify the laws, regulations
      or administrative provisions necessary to comply with
      Commission Directive 1999/47/EC(1) of 21 May 1999                   The mandatory nature of the third paragraph of Article 249
      adapting for the second time to technical progress                  EC and the first paragraph of Article 10 EC requires that the
      Council Directive 94/55/EC on the approximation of the              Member States adopt the measures necessary to implement
      laws of the Member States with regard to the transport of           directives addressed to them by the deadline allowed them for
      dangerous goods by road, or in any event by failing to              that purpose. The deadline in question expired on 14 May
      inform the Commission of those measures, Ireland has                1998 without the Grand Duchy of Luxembourg having
      failed to fulfil its obligations under this Directive               adopted the necessary measures.
—     order Ireland to pay the costs.
                                                                          (1) OJ L 123 of 24.4.1998, p. 1.
Pleas in law and main arguments
Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the             Action brought on 27 September 2001 by the Com-
period for compliance laid down in the directive. That period             mission of the European Communities against the United
expired on 1 July 1999 without Ireland having enacted the                                             Kingdom
provisions necessary to comply with the directive referred to
in the conclusions of the Commission.
                                                                                (Case C-374/01)
(1) OJ L 169, 5.7.1999, p. 1.                                                                     (2001/C 317/40)
                                                                          An action against the United Kingdom was brought before the
                                                                          Court of Justice of the European Communities on 27 Septem-
                                                                          ber 2001 by the Commission of the European Communities,
                                                                          represented by Richard Wainwright, acting as agent, with an
                                                                          address for service in Luxembourg.
Action brought on 26 September 2001 by the Com-
mission of the European Communities against the Grand
                       Duchy of Luxembourg                                The Applicant requests that the Court should:
                           (Case C-372/01)                                —     declare that by failing to adopt the laws, regulations or
                                                                                administrative provisions necessary before 14 May 2000
                                                                                to comply with European Parliament and Council Direc-
                           (2001/C 317/39)                                      tive 98/8/EC of 16 February 1998 concerning the placing
                                                                                of biocidal products on the market (1), or in any event by
An action against the Grand Duchy of Luxembourg was                             failing to communicate them to the Commission, the
brought before the Court of Justice of the European Communi-                    United Kingdom has failed to fulfil its obligations under
ties on 26 September 2001 by the Commission of the                              that Directive;
European Communities represented by M. Nolin, acting as
Agent, with an address for service in Luxembourg.                         —     order the United Kingdom to pay the costs.