title: Judgment of the Court of First Instance of 30 September 2003 in Case T-243/01: Sony Computer Entertainment Europe Ltd v Commission of the European Communities (Action for annulment — Common Customs Tariff — Tariff headings — Game console ﾔ Classification in the Combined Nomenclature)

text:
C 289/20                EN                          Official Journal of the European Union                                             29.11.2003
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 10 September 2003
                       of 18 September 2003
                                                                            in Case T-165/01 Hans McAuley v Council of the Euro-
                                                                                pean Union (1)
in Case T-73/01: Spyridon de Athanassios Pappas v                           (Staff report — Guide to staff reports — Change of assessor
    Committee of the Regions of the European Union (1)                      during the period covered by the report — Substantial
                                                                                irregularities)
(Officials — Recruitment — Post of Secretary General                                                  (2003/C 289/42)
of the Committee of the Regions — Vacancy notice —
                       Recruitment procedure)                                                   (Language of the case: French)
                          (2003/C 289/41)                                   In Case T-165/01: Hans McAuley, an official of the Council of
                                                                            the European Union, residing in Brussels, represented by J.-
                                                                            N. Louis and S. Orlandi, lawyers, with an address for service in
                                                                            Luxembourg, against Council of the European Union (Agents:
                     (Language of the case: French)                         F. Anton and A. Pillette) — application for annulment of the
                                                                            Council’s decision of 15 September 2000 drawing up the
                                                                            applicant’s final staff report for the period 1 July 1997 to
                                                                            30 June 1999 — the Court of First Instance (Fourth Chamber),
                                                                            composed of V. Tiili, President, P. Mengozzi and M. Vilaras,
                                                                            Judges; I. Natsinas, Registrar, has given a judgment on 10 Sep-
In Case T-73/01, Spyridon de Athanassios Pappas, former                     tember 2003, in which it:
official of the Commission of the European Communities,
residing in Brussels (Belgium), represented by M.-A. Lucas,                 1.    Annuls the Council’s decision of 15 September 2000 drawing
lawyer, v Committee of the Regions of the European Union,                         up the applicant’s final staff report for the period 1 July 1997
(Agents: P. Cervilla and D. Waelbroeck) — application for                         to 30 June 1999;
annulment of the decision of the Committee of the Regions of
13 June 2000 appointing Mr Vincenzo Falcone to the post of                  2.    Orders the Council to pay the costs.
Secretary General of the Committee of the Regions (Recruit-
ment notice 2000/C 28 A/01) and rejecting the applicant’s                   (1) OJ C 289 of 13 October 2001.
candidature for that post, and of the decision rejecting the
applicant’s complaint, — the Court of First Instance (Third
Chamber), composed of K. Lenaerts, President of the Chamber,
J. Azizi and M. Jaeger, Judges; Registrar: D. Christensen,
Administrator, delivered a judgment on 18 September 2003,
the operative part of which is as follows:
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 30 September 2003
1.    The decision of the Committee of the Regions of 13 June 2000
      appointing Mr Vincenzo Falcone to the post of Secretary               in Case T-243/01: Sony Computer Entertainment Europe
      General of the Committee of the Regions (Recruitment notice               Ltd v Commission of the European Communities (1)
      2000/C 28 A/01) and rejecting the candidature of Mr Pappas
      for that post is annulled.                                            (Action for annulment — Common Customs Tariff — Tariff
                                                                            headings — Game console — Classification in the Combined
                                                                                Nomenclature)
2.    The Committee of the Regions shall pay the costs.
                                                                                (2003/C 289/43)
(1) OJ 2001 C 161 of 2.6.01.                                                                   (Language of the case: English)
                                                                            In Case T-243/01, Sony Computer Entertainment Europe Ltd,
                                                                            established in London (United Kingdom), represented by P. De
 ---pagebreak--- 29.11.2003                EN                          Official Journal of the European Union                                            C 289/21
Baere, lawyer, with an address for service in Luxembourg, v                   1.    Annuls the decision adopting the decision adopting the appli-
Commission of the European Communities (Agent: R. Wain-                             cant’s definitive staff report for the period 1 July 1995 to
wright): Application for annulment of Commission Regulation                         30 June 1997.
(EC) No 1400/2001 of 10 July 2001 concerning the classifi-
cation of certain goods in the Combined Nomenclature (OJ                      2.    Orders the Commission to pay the applicant EUR 1 500 by
2001 L 189, p. 5); corrigendum published in the German,                             way of compensation for non-material damages.
English, Finnish, Portuguese and Swedish editions (OJ 2001
L 191, p. 49), the Court of First Instance (Third Chamber),
composed of: K. Lenaerts, President, J. Azizi and M. Jaeger,                  3.    Orders the Commission to pay the costs.
Judges; J. Plingers, Administrator, for the Registrar, has given a
judgment on 30 September 2003, in which it:
                                                                              (1) OJ 2002 C 56 of 2.3.02.
1.    Annuls Commission Regulation (EC) No 1400/2001 of
      10 July 2001 concerning the classification of certain goods in
      the Combined Nomenclature (OJ 2001 L 189, p. 5) in so far
      as it classifies the console described in column 1 of the table in
      the Annex to that regulation under CN Code 9504 10 00 and
      the accompanying CD-ROM under CN Code 8524 39 90;
2.    Dismisses the request for production of the defendant’s legal
      opinion;                                                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
3.    Orders the defendant to pay all the costs.
                                                                                of 30 September 2003
(1) OJ C 3 of 5.1.2002.
                                                                              in Case T-214/02, María-Angeles Martínez Valls v Euro-
                                                                                pean Parliament (1)
                                                                              (Community officials — Competition — Non-admission to
                                                                                oral tests — Access to documents)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2003/C 289/45)
                        of 30 September 2003
                                                                                (Language of the case: French)
in Case T-296/01, Antonio Tatti v Commission of the
                     European Communities (1)
(Community officials — Staff report — Tardiness —                             In Case T-214/02, María-Angeles Martínez Valls, residing in
Irregularities in reporting procedure — Action for annul-                     Brussels (Belgium), represented by Georges Vandersanden and
                    ment — Action for damages)                                L. Levi, lawyers, against the European Parliament (Agents:
                                                                              H. von Hertzen and D. Moore) — application, first, for
                                                                              annulment of the letters of 3 April and 31 May 2002 by which
                            (2003/C 289/44)                                   the Selection Board found that the applicant had obtained
                                                                              insufficient marks in the written tests in competition PE/90/A
                      (Language of the case: French)                          and, with respect to the letter of 31 May 2002, by which the
                                                                              Selection Board rejected the applicant’s request seeking access
                                                                              to certain documents and, second, for compensation for the
                                                                              loss suffered as a result of those letters, the Court of First
In Case T-296/01, Antonio Tatti, official of the Commission                   Instance (Fifth Chamber), composed of R. García-Valdecasas,
of the European Communities, residing in Overijse (Belgium),                  President, and P. Lindh and J.D. Cooke, Judges, I. Natsinas,
represented by L. Vogel, lawyer, with an address for service                  Administrator for the Registrar, has given a judgment on
in Luxembourg, against the Commission of the European                         30 September 2003, in which it:
Communities (Agent: C. Berardis-Kayser), application, first, for
annulment of the decision adopting the applicant’s definitive
staff report for the period 1 July 1995 to 30 June 1997 and,                  1.    Holds that there is no need to rule on the application for
second, for damages, the Court of First Instance (Fourth                            annulment of the letter of 31 May 2002 in so far as it rejects
Chamber), composed of V. Tiili, President, and P. Mengozzi                          the request for access to documents.
and M. Vilaras, Judges; D. Christensen, Administrator, for the
Registrar, has given a judgment on 30 September 2003, in                      2.    Orders the Parliament to pay the applicant EUR 1 by way of
which it:                                                                           damages for non-material damage.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/51

         Action brought on 11 February 2004 by Alex Milbert and seven other applicants against Commission of the European Communities
   (Case T-47/04)
   (2004/C 94/138)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 February 2004 by Alex Milbert and seven other applicants, residing in Luxembourg and in Belgium, represented by Gilles Bounéou and Frédéric Frabetti, lawyers, with an address for service in Luxembourg.
   The applicants claim that the Court should:

               —

               Annul the evaluation procedure 2001 - 2002 in so far as it concerns the applicants;

               —

               In the alternative, annul the applicants' career development report (REC/CDR) for the period 1.7.2001-31.12.2002;

               —

               Make an order as to costs, expenses and fees and order the Commission of the European Communities to pay them.

         Pleas in law and main arguments
   In support of their action, the applicants plead a breach of Articles 26 and 43 of the Staff Regulations, of the General Provisions for the implementation of Article 43 of the Staff Regulations, of the Evaluation Guide and of the specific guide for the staff evaluation procedure 2001 - 2002.
   The applicants also claim that there has been a breach of the principles of non-discrimination, of the prohibition of arbitrary proceedings and of the obligation to state reasons, a misuse of powers and a breach of the principle of the protection of legitimate expectations and of the rule patere legem quam ipse fecisti and also a breach of the duty to have regard for the welfare of officials.


title: Case C-33/07: Reference for a preliminary ruling from the Tribunalul Dâmboviţa (Romania) lodged on 24 January 2007 — Ministerul Administraţiei şi Internelor — Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/6

         Reference for a preliminary ruling from the Tribunalul Dâmboviţa (Romania) lodged on 24 January 2007 — Ministerul Administraţiei şi Internelor — Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa
   (Case C-33/07)
   (2007/C 140/10)
   Language of the case: Romanian
   Referring court
   Tribunalul Dâmboviţa
   Parties to the main proceedings

      Applicant: Ministerul Administraţiei şi Internelor — Direcţia Generală de Paşapoarte Bucureşti

      Defendant: Gheorghe Jipa
   Questions referred

               (1)

               Must Article 18 EC (consolidated version published in OJ 2002 C 325 of 24.12.2002) be interpreted as meaning that the legislation in force in Romania (Articles 38 and 39 of Law 248/2005 on the conditions for the free movement of Romanian citizens abroad) places obstacles in the way of the free movement of persons?

               2

                           (a)

                           Do Articles 38 and 39 of Law 248/2005 (national legislation), which prevent a person (who is a Romanian citizen and, now, a citizen of the Union) from moving freely in another State (in this case, a Member State of the European Union), constitute an obstacle to the free movement of persons upheld by Article 18 EC?

                           (b)

                           May a Member State of the European Union (in this case Romania) place a limitation on the exercise of the right of freedom of movement of citizens within the territory of another Member State?

               3

                           (a)

                           Does the concept of ‘illegal residence’ used in the national provisions of Government Decree 825/2005 approving the Agreement between the Government of Romania, of the first part, and the Governments of the Kingdom of Belgium, of the Grand Duchy of Luxembourg and of the Kingdom of the Netherlands, of the other part, on the readmission of persons who are in an illegal situation (the provision on the basis of which the readmission of the defendant was ordered, his situation being that of ‘illegal residence’) fall within the grounds of ‘public policy’ or ‘public security’ provided for in Article 27 of Directive 2004/38/EEC, (1) so that a restriction on the freedom of movement of such a person may be imposed?

                           (b)

                           If the foregoing question is answered in the affirmative, must Article 27 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States be interpreted as meaning that the Member States may impose restrictions on the freedom of movement and residence of a citizen of the Union on grounds of ‘public policy’ and ‘public security’ automatically, without that person's ‘personal conduct’ being examined?

      (1)  OJ L 158, p. 77.


title: Case C-125/09: Judgment of the Court (Fifth Chamber) of 26 April 2012 — European Commission v Republic of Cyprus (Failure of a Member State to fulfil obligations — Electronic communications networks and services — Directives 2002/21/EC and 2002/20/EC — Rights of way — Failure to transpose within the prescribed period)

text:
               16.6.2012

               EN

               Official Journal of the European Union

               C 174/4

         Judgment of the Court (Fifth Chamber) of 26 April 2012 — European Commission v Republic of Cyprus
   (Case C-125/09) (1)

   (Failure of a Member State to fulfil obligations - Electronic communications networks and services - Directives 2002/21/EC and 2002/20/EC - Rights of way - Failure to transpose within the prescribed period)
   2012/C 174/03
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: G. Zavvos, A. Nijenhuis and H. Krämer, acting as Agents)

      Defendant: Republic of Cyprus (represented by: K. Lykourgos and A. Pantazi-Lamprou, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 11(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Infringement of Article 4(1) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21) — Grant and authorisation of rights to install facilities on, over or under public or private property in favour of an undertaking authorised to provide electronic communications networks

      Operative part of the judgment

   The Court:

               1.

               Finds that, by failing to ensure the grant of rights of way on, over or under public property on the basis of transparent procedures, applied without discrimination and without delay, in accordance with Article 11(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and Article 4(1) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), the Republic of Cyprus failed to fulfil its obligations under those directives;

               2.

               Orders the Republic of Cyprus to pay the costs.

      (1)  OJ C 141, 20.6.2009.


title: Reference for a preliminary ruling by the Cour d'Appel Bruxelles (Ninth Chamber) by judgment of that court of 30 April 1998 in the case of Sebago Inc. and S.A. Ancienne Maison Dubois et Fils against S.A. G-B Unic (Case C-173/98)

text:
4.7.98               EN                 Official Journal of the European Communities                                   C 209/25
Nicolas Schmit, Conseiler d'EÂtat, Director of International             Ð liberalises group practice, and also does so in
Economic Relations and Cooperation, acting as Agent,                         countries which did not authorise that form of
with an address for service in Luxembourg at the Ministry                    practice and that means of access, namely Italy
of Foreign Affairs, 6 Rue de la CongreÂgation.                               and Greece;
                                                                         Ð removes the obligation on migrants to acquire
The Grand Duchy of Luxembourg claims that the Court                          knowledge of the law of the host country.
should:
                                                                   Ð     Infringement of the duty to state reasons: The
(a) annul Directive 98/5/EC of the European Parliament                   contested directive offers no justification for the
     and of the Council (1) in its entirety, particularly                choice made by the Community legislature in placing
     Articles 2, 5 and 10 thereof, for infringement of the               on the same level, from the point of view of
     Treaty, omission of one of the required legal bases                 establishment, migrant lawyers practising under their
     and failure to state reasons,                                       original title and those opting for integration and to
                                                                         use the title of the host State. The third, fifth, ninth
                                                                         and tenth recitals are not a sufficient statement of
(b) order the defendants to pay the costs.                               reasons in that respect.
                                                                   (1) OJ L 77, 14.3.1998, p. 36.
Pleas in law and main arguments adduced in support:                (2) OJ L 19, 24.1.1989, p. 16.
Ð    Infringement of Article 52 of the EC Treaty: By not
     imposing any requirement for even the most minimal
     training in the law of the host State, Directive 98/5/
     EC establishes an unwarranted difference in
     treatment between nationals and migrants which                Reference for a preliminary ruling by the Cour d'Appel
     cannot be justified under Article 52 of the Treaty. In        Bruxelles (Ninth Chamber) by judgment of that court of
     reality, the contested directive extends to the system        30 April 1998 in the case of Sebago Inc. and S.A.
     of establishment the advantages enjoyed by providers             Ancienne Maison Dubois et Fils against S.A. G-B Unic
     of services' within the meaning of Article 59 of the                                (Case C-173/98)
     Treaty, which are by definition temporary. Such an
     extension constitutes a distortion of the freedom of                                   (98/C 209/51)
     establishment.
                                                                   Reference has been made to the Court of Justice of the
Ð    Infringement of the second sentence of Article 57(2)          European Communities by judgment of the Cour d'Appel
     of the EC Treaty: That sentence imposes the                   de Bruxelles (Court of Appeal, Brussels) of 30 April 1998,
     requirement of unanimity where harmonisation                  received at the Court Registry on 11 May 1998, in the
     amends the existing principles laid down by law               case of Sebago Inc. and S.A. Ancienne Maison Dubois et
     governing training and the conditions of access for           Fils against S.A. G-B Unic, for a preliminary ruling on the
     natural persons to the professions. The contested             following questions:
     directive seriously affects such principles in the great
     majority of Member States. It removes the need for a          Is Article 7(1) of the First Council Directive 89/104/EEC
     migrant lawyer to be qualified, even minimally, in the        of 21 December 1988 to approximate the laws of the
     purely national law of the host State and introduces          Member States relating to trade marks (OJ L 40 of
     an inordinate derogation from a legislative principle         11.2.1989, p. 1) to be interpreted as meaning that the
     fundamental to the legal profession, common to all            right conferred by the trade mark entitles its proprietor to
     the Member States, whereby the profession is to be            oppose the use of his trade mark in relation to authentic
     one in which access is reserved for persons duly              goods which have not been put on the market in the
     qualified in national law, or the equivalence of whose        European Economic Community (extended to Norway,
     qualifications has been recognised, with, where               Iceland and Liechtenstein by virtue of the Agreement of
     appropriate, proof of the acquisition of missing              2 May 1992 establishing the European Economic Area) by
     knowledge by means of the test provided for by                the proprietor or with his consent, where:
     Council Directive 89/48/EEC (2).
                                                                   Ð the goods bearing the trade mark come directly from a
     Moreover, the contested directive distorts the                    country outside the European Community or the
     conditions for access of natural persons, in that it:             European Economic Area,
     Ð authorises full practice of such persons in an              Ð the goods bearing the trade mark come from a
         established capacity under the home-country                   Member State of the European Community or the
         professional    title, which      was     previously          European Economic Area in which they are in transit
         impossible in the great majority of Member                    without the consent of the proprietor of the trade
         States;                                                       mark or his representative,
 ---pagebreak--- C 209/26             EN                 Official Journal of the European Communities                                    4.7.98
Ð if the goods were acquired in a Member State of the                  principles contained in Article 4 of Directive 91/156/
    European Community or of the European Economic                     EEC apply and to what extent?
    Area in which they were put on sale for the first time
    without the consent of the proprietor of the trade
    mark or his representative,                                    Ð Does the activity carried on by the person under
                                                                       investigation, namely the storage of 160 kg of lead
                                                                       batteries for more than one month, without any
Ð or where goods bearing the trade mark which are                      notification to the supervisory authorities, constitute
    identical to the authentic goods bearing the same trade            temporary storage under the terms of the directive?
    mark but are imported in parallel either directly or
    indirectly from countries outside the European                 (1) OJ L 78, 26.3.1991, p. 32.
    Community or the European Economic Area are, or
    have already been, marketed within the Community or
    the European Economic Area by the proprietor of the
    trade mark or with his consent,
Ð or where goods bearing the trade mark which are                  Reference for a preliminary ruling from the         Pretura
    similar to the authentic goods bearing the same trade          Circondariale, Udine (Ufficio del Giudice per le   indagini
    mark but are imported in parallel either directly or           preliminari), by order of that court of 20 April   1998 in
    indirectly from countries outside the European                 the criminal proceedings pending before it          against
    Community or the European Economic Area are, or                                      Francesca Bizzaro
    have already been, marketed within the Community or
    the European Economic Area by the proprietor of the                                   (Case C-177/98)
    trade mark or with his consent.                                                         (98/C 209/53)
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Pretura
                                                                   Circondariale (District Magistrates Court), Udine, by
                                                                   order of that court of 20 April 1998, which was received
Reference for a preliminary ruling from the Pretura
                                                                   at the Court Registry on 11 May 1998, for a preliminary
Circondariale, Udine (Ufficio del Giudice per le indagini
                                                                   ruling in the criminal proceedings pending before it
preliminari), by order of that court of 20 April 1998 in
                                                                   against Francesca Bizzaro, on the following questions:
the criminal proceedings pending before it against Paolo
                            Lirussi
                      (Case C-175/98)                              Ð What is the difference (if any) between temporary
                                                                       storage and storage of waste pending further
                        (98/C 209/52)                                  operations (or storage of materials) within the
                                                                       producer's premises, and what are the criteria for
                                                                       determining in a given case which of those forms of
Reference has been made to the Court of Justice of the                 storage is involved?
European Communities by an order of the Pretura
Circondariale (District Magistrates Court), Udine, by
order of that court of 20 April 1998, which was received           Ð Is temporary storage excluded from waste
at the Court Registry on 11 May 1998, for a preliminary                management' in the sense contemplated in Article 1(d)
ruling in the criminal proceedings pending before it                   of Directive 91/156/EEC (1) and from all the
against Paolo Lirussi, on the following questions:                     obligations in relation thereto, including the
                                                                       notification of temporary storage to the supervisory
                                                                       authorities?
Ð What is the difference (if any) between temporary
    storage and storage of waste pending further
    operations (or storage of materials) within the                Ð Is temporary storage subject to supervision and, if so,
    producer's premises, and what are the criteria for                 to what type of measures; in that regard do the
    determining in a given case which of those forms of                principles contained in Article 4 of Directive 91/156/
    storage is involved?                                               EEC apply and to what extent?
Ð Is temporary storage excluded from waste                         Ð Does the activity carried on by the person under
    management' in the sense contemplated in Article 1(d)             investigation, namely the storage of 87.5 kg of sludge
    of Directive 91/156/EEC (1) and from all the                       containing halogenated solvents for more than two
    obligations in relation thereto, including the                     months, constitute temporary storage under the terms
    notification of temporary storage to the supervisory               of the directive?
    authorities?
                                                                   (1) OJ L 78, 26.3.1991, p. 32.
Ð Is temporary storage subject to supervision and, if so,
    to what type of measures; in that regard do the


title: Case T-129/07: Action brought on 17 April 2007 — Ireland v Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/35

         Action brought on 17 April 2007 — Ireland v Commission
   (Case T-129/07)
   (2007/C 140/59)
   Language of the case: English
   Parties

      Applicant: Ireland (represented by: D. O'Hagan, E. Alkin, Agents, and P. McGarry, Barrister)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul pursuant to Article 230 of the Treaty, in whole or in part, Commission Decision C(2007) 286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, implemented by France, Ireland and Italy respectively, insofar as it concerns the exemption from excise duty on mineral oils used as fuel for alumina production in the Shannon region implemented by Ireland;

               —

               order the Commission to pay the costs of these proceedings.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2007) 286 final of 7 February 2007 by which the Commission found that the exemptions from excise duty granted by France, Ireland and Italy in respect of heavy fuel oils used in the production of alumina as from 1 January 2004 constitute State aid within the meaning of Article 87(1) EC and that a certain part of this aid was incompatible with the common market.
   In support of its application, the applicant invokes four pleas in law.
   Firstly, the applicant submits that the Commission was wrong when it concluded that Ireland had not demonstrated that the exemptions fall within the nature and logic of the domestic taxation system.
   Secondly, the applicant claims that the Commission failed to carry out a proper competition analysis in support of its conclusion that the Irish measure can be assumed to affect intra-community trade and to distort or threaten to distort competition.
   Thirdly, the applicant alleges that the contested decision infringes the principle of legal certainty in circumstances where the Council had already authorised the specific derogation until the end of 2006.
   Finally, the applicant contends that the Commission erred in law in concluding that the State aid concerned constitutes new aid, as opposed to existing aid.


title: Case C-371/14: Judgment of the Court (Fourth Chamber) of 17 December 2015 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — APEX GmbH Internationale Spedition v Hauptzollamt Hamburg-Stadt (Reference for a preliminary ruling — Commercial policy — Dumping — Gas-fuelled, non-refillable pocket flint lighters — Regulation (EC) No 1225/2009 — Article 11(2) — Expiry — Article 13 — Circumvention — Implementing Regulation (EU) No 260/2013 — Validity — Extension of an anti-dumping duty at a date on which the regulation which imposed it is no longer in force — Change in the pattern of trade)

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/13

         Judgment of the Court (Fourth Chamber) of 17 December 2015 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — APEX GmbH Internationale Spedition v Hauptzollamt Hamburg-Stadt
   (Case C-371/14) (1)

   ((Reference for a preliminary ruling - Commercial policy - Dumping - Gas-fuelled, non-refillable pocket flint lighters - Regulation (EC) No 1225/2009 - Article 11(2) - Expiry - Article 13 - Circumvention - Implementing Regulation (EU) No 260/2013 - Validity - Extension of an anti-dumping duty at a date on which the regulation which imposed it is no longer in force - Change in the pattern of trade))
   (2016/C 068/16)
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: APEX GmbH Internationale Spedition

      Defendant: Hauptzollamt Hamburg-Stadt

      Operative part of the judgment

   Council Implementing Regulation (EU) No 260/2013 of 18 March 2013 extending the definitive anti-dumping duty imposed by Regulation (EC) No 1458/2007 on imports of gas-fuelled, non-refillable pocket flint lighters originating in the People’s Republic of China to imports of gas-fuelled, non-refillable pocket flint lighters consigned from the Socialist Republic of Vietnam, whether declared as originating in the Socialist Republic of Vietnam or not, is invalid.

      (1)  OJ C 372, 20.10.2014.


title: Case C-353/09 P: Order of the Court (Fifth Chamber) of 15 February 2011 — Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Cloetta AB, legal successor to Cloetta Fazer AB (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Invalidity proceedings — Community word mark CENTER SHOCK — Earlier national word mark CENTER — Examination of the likelihood of confusion)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/6

         Order of the Court (Fifth Chamber) of 15 February 2011 — Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Cloetta AB, legal successor to Cloetta Fazer AB
   (Case C-353/09 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Invalidity proceedings - Community word mark CENTER SHOCK - Earlier national word mark CENTER - Examination of the likelihood of confusion)
   2011/C 252/09
   Language of the case: English

      Parties

      Appellant: Perfetti Van Melle SpA (represented by: P. Perani and P. Pozzi, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Novais Gonçalves, acting as Agent), Cloetta AB, legal successor to Cloetta Fazer AB (represented by: M. Fammler, Advocate, M. Treis, R. Niebel and E.M. Strobel, Rechstanwälte)

      Re:

   Appeal brought against the judgment of 1 July 2009 in Case T-16/08 Perfetti Van Melle v OHIM — Cloetta Fazer dismissing an action for annulment brought by the proprietor of Community word mark ‘CENTER SHOCK’ for goods in Class 30 against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 7 November 2007 (Case R 149/2006-4) dismissing the appeal against the decision of the Cancellation Division granting the application for a declaration of invalidity of that mark made by the proprietor of the earlier national word marks ‘CENTER’ and ‘CLOETTA CENTER’ for goods in, inter alia, Class 30 — Infringement of Article 8(1)(b) of Regulation (EC) No 40/94

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Perfetti Van Melle SpA shall pay the costs.

      (1)  OJ C 267, 7.11.2009.


title: Case C-348/06 P: Judgment of the Court (Third Chamber) of 21 February 2008 — Marie-Claude Girardot v Commission of the European Communities (Appeal — Temporary staff — Action for damages — Loss of an opportunity to be recruited — Actual and certain damage — Determination of extent of reparation for damage)

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/5

         Judgment of the Court (Third Chamber) of 21 February 2008 — Marie-Claude Girardot v Commission of the European Communities
   (Case C-348/06 P) (1)

   (Appeal - Temporary staff - Action for damages - Loss of an opportunity to be recruited - Actual and certain damage - Determination of extent of reparation for damage)
   (2008/C 92/08)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: D. Martin and F. Clotuche-Duvieusart, agents)

      Other party to the proceedings: Marie-Claude Girardot (represented by: C. Bernard-Glanz and S. Rodrigues, lawyers)
   Re:
   Appeal against the judgment of the Court of First Instance (First Chamber) of 6 June 2006 in Case T-10/02 Girardot v Commission, by which that Court fixed the level of compensation to be paid by the Commission to Ms Marie-Claude Girardot under the interim judgment of the Court of First Instance of 31 March 2004 at EUR 92 785, together with interest as from 6 September 2004, at the rate fixed by the European Central Bank for its main refinancing operations, plus two percentage points — Infringement of Article 236 EC and of the conditions governing the liability of the Commission — Method of calculation of the sum payable by a Community institution to compensate for the loss of an opportunity to be recruited in that institution resulting from an unlawful decision on its part
   Operative part of the judgment
   The Court:

               1.

               Dismisses the main appeal and the cross-appeal.

               2.

               Orders the Commission of the European Communities to pay the costs of the main appeal.

               3.

               Orders Mrs Girardot to pay the costs of the cross-appeal.

      (1)  OJ C 249, 14.10.2006.


title: Order of the Court of First Instance of 19 January 2001 in Case T-126/00: Confederazione Generale dell'Industria Italiana (Confindustria) and Others v Commission of the European Communities (Time-limit for bringing an action — Manifest inadmissibility)

text:
C 150/28                EN                       Official Journal of the European Communities                                         19.5.2001
to extend the applicant’s contract as a member of the                       1.    Cases T-112/00 and T-122/00 are joined.
temporary staff and a claim for compensation for the non-
material damage alleged caused to her — the Court of                        2.    The application is dismissed as inadmissible.
First Instance (Fourth Chamber), composed of P. Mengozzi,
President, V. Tiili and R.M. Moura Ramos, Judges; H. Jung,                  3.    The applicants are to pay the costs.
Registrar, made an order on 2 February 2001, the operative
part of which is as follows:                                                4.    There is no need to adjudicate on the application of the
                                                                                European Crop Protection Association (ECPA) for leave to
1.    The application is dismissed as inadmissible;                               intervene.
2.    Each of the parties shall bear its own costs.
                                                                            (1) OJ C 192 of 8.7.2000.
(1) OJ C 163 of 10.6.00.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 19 January 2001
                        of 24 January 2001
                                                                            in Case T-126/00: Confederazione Generale dell’Industria
in Cases T-112/00 and T-122/00: Iberotam SA and Others                      Italiana (Confindustria) and Others v Commission of the
      v Commission of the European Communities (1)                                             European Communities (1)
(Action for annulment — Directive 91/414/EEC — Placing                      (Time-limit for bringing an action — Manifest inadmissi-
on the market of plant protection products — Regulation                                                     bility)
(EC) No 451/2000 — Work programme for the evaluation
of existing active substances on the market (second and third
                                                                                (2001/C 150/56)
                   stages) — Inadmissibility)
                          (2001/C 150/55)                                                       (Language of the case: Italian)
                   (Language of the case: French)                           In Case T-126/00: Confederazione Generale dell’Industria
                                                                            Italiana (Confindustria), Confederazione Generale Italiana del
                                                                            Commercio, del Turismo, dei Servizi e delle PMI (Confcommer-
In Cases T-112/00 and T-122/00: Iberotam SA, established in
                                                                            cio), Confartigianato, Associazione Bancaria Italiana (ABI),
Barcelona (Spain), Probelete SA, established in Murcia (Spain),
                                                                            established in Rome, Associazione Nazionale fra le Imprese
Agripraza SA, established at Torres Vedras (Portugal), Protex
                                                                            Assicuratrici (ANIA), established in Milan (Italy), and Banco di
SA, established at Wijnegem (Belgium), Laboratoire d’Achat
                                                                            Napoli SpA, established in Naples (Italy), represented by
pour l’Agriculture (LAPA), established at Omicourt (Belgium),
                                                                            A. Pappalardo, of the Trapani Bar, and M. Merola, of the Rome
Afrasa SA, established at Fuente del Jarro-Paterna (Spain),
                                                                            Bar, with an address for service in Luxembourg at the
Herbex SA, established at Sintra (Portugal), European Crop
                                                                            Chambers of A. Lorang, 51 Rue Albert 1er, v Commission of
Care Association (ECCA), established at Eghezee (Belgium),
                                                                            the European Communities (Agents: G. Rozet and V. Di
represented by M. Roca Junyent and J, Roca Sagarra, of the
                                                                            Bucci) — application for annulment of Commission Decision
Barcelona Bar, with an address for service in Luxembourg at
                                                                            2000/128/CE of 11 May 1999 concerning aid granted by Italy
the Chambers of V. Gillen, 13 Rue Aldringen, applicants in
                                                                            to promote employment (OJ 2000 L 42, p. 1) — the Court
Case T-112/00, and K & N Efthymiadis SA, established in
                                                                            of First Instance (Second Chamber, Extended Composition),
Thessaloniki (Greece), represented by M. Roca Junyent and
                                                                            composed of: A.W.H. Meij, President, and K. Lenaerts,
J, Roca Sagarra, of the Barcelona Bar, with an address for
                                                                            A. Potocki, M. Jaeger and J. Pirrung, Judges; H. Jung, Registrar,
service in Luxembourg at the Chambers of V. Gillen, 13 Rue
                                                                            made an order on 19 January 2001, the operative part of
Aldringen, applicant in Case T-122/00, v Commission of the
                                                                            which is as follows:
European Communities (Agents: G. Berscheid and A.-M. Alves
Vieira) — application for annulment of Commission Regu-
                                                                            1.    The action is dismissed as manifestly inadmissible.
lation (EC) No 451/2000 of 28 February 2000 laying down
the detailed rules for the implementation of the second and
                                                                            2.    The applicant shall bear the costs.
third stages of the work programme referred to in Article 8(2)
of Council Directive 91/414/EEC (OJ 2000 L 55, p. 25) — the
Court of First Instance (Fourth Chamber), composed of:                      (1) OJ C 192 of 8.7.2000.
P. Mengozzi, President, and V. Tiili and R.M. Moura Ramos,
Judges; H. Jung, Registrar, made an order on 24 January 2001,
the operative part of which is as follows:


title: Case F-10/10: Action brought on 29 January 2010 — Hecq v Commission

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/70

         Action brought on 29 January 2010 — Hecq v Commission
   (Case F-10/10)
   2010/C 100/103
   Language of the case: French

      Parties

      Applicant: André Hecq (Chaumont-Gistoux, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   The annulment of the Commission’s decision rejecting an application for reimbursement of 100 % of various medical costs.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the implied decision, which the appointing authority is deemed to have adopted on 7 April 2009, rejecting the applicant’s application, dated 7 December 2008, by which he requested the reimbursement in their entirety, pursuant to Article 73 of the Staff Regulations, of three instances of medical treatment, namely a psychiatrist’s appointment of 6 October 2008, medication prescribed by the same psychiatrist and issued to the applicant on 21 October 2008 and a doctor’s appointment of 1 December 2008;

               —

               So far as necessary, annul the decision adopted by the appointing authority on 20 October 2009 by which that authority rejected the applicant’s complaint brought on 25 June 2009, against that implied decision of 7 April 2009;

               —

               Order the European Commission to pay the costs.


title: Case C-228/10: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 10 May 2010 — Union of European Football Associations (UEFA), British Sky Broadcasting Ltd v Euroview Sport Ltd

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/16

         Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 10 May 2010 — Union of European Football Associations (UEFA), British Sky Broadcasting Ltd v Euroview Sport Ltd
   (Case C-228/10)
   ()
   2010/C 209/25
   Language of the case: English

      Referring court

   High Court of Justice (Chancery Division)

      Parties to the main proceedings

      Applicants: Union of European Football Associations (UEFA), British Sky Broadcasting Ltd

      Defendant: Euroview Sport Ltd

      Questions referred

   1.   Illicit Device

               (a)

               Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, does that device become an ‘illicit device’ within the meaning of Art. 2(e) of Directive 98/84/EC (1) if it issued to give access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider?

               (b)

               What is the meaning of ‘designed or adapted’ within Article 2(e) of the Directive?

         2.   Cause of Action
   When a first service provider transmits programme content in encoded form to a second service provider who broadcasts that content on the basis of conditional access, what factors are to be taken into account in determining whether the interests of the first provider of a protected service are affected, within the meaning of Article 5 of Directive 98/84/EC?
   In particular,
   Where a first undertaking transmits programme content (comprising visual images, ambient sound and English commentary) in encoded form to a second undertaking which in turn broadcasts to the public the programme content (to which it has added its logo and on occasion an additional audio commentary track):

               (a)

               Does the transmission by the first undertaking constitute a protected service of ‘television broadcasting’ within the meaning of Article 2(a) of Directive 98/84/EC and Article lea) of Directive 89/552 EEC (2)?

               (b)

               Is it necessary for the first undertaking to be a broadcaster within the meaning of Article l(b) of Directive 89/552/EEC in order to be considered as providing a protected service of television broadcasting within the first indent of Article 2(a) of Directive 98/841EC?

               (c)

               Is Article 5 of Directive 98/84/EC to be interpreted as conferring a civil right of action on the first undertaking in respect of illicit devices which give access to the programme as broadcast by the second undertaking either:

                           (i)

                           because such devices are to be regarded as giving access via the broadcast signal to the first undertaking's own service; or

                           (ii)

                           because the first undertaking is the provider of a protected service whose interests are affected by an infringing activity (because such devices give unauthorised access to the protected service provided by the second undertaking)?

               (d)

               Is the answer to (c) affected by whether the first and second service providers use different decryption systems and conditional access systems?

         3.   Article 6 Directive 2001/29/EC (3) — Technological Measures
   In circumstances where:

               (i)

               copyright works are included in a satellite broadcast

               (ii)

               the broadcast is transmitted in encrypted form

               (iii)

               only for access to the satellite broadcaster's subscribers

               (iv)

               subscribers are provided with a decoder card which allows them to access the broadcast

                           (a)

                           Does encryption constitute ‘technological measures’ within the meaning of Article 6(3) of Directive 2001/29/EC? If so, is it also ‘effective’ within the meaning of Article 6(3) of Directive 2001/29/EC?

                           (b)

                           Does the use of a decoder card, which has been issued by the organisation making the satellite broadcast to a customer pursuant to a subscription agreement in a first Member State in order to obtain access in a second Member State to the broadcast and the copyright works included in the broadcast, amount to ‘circumvention’ of such technological measures in circumstances where the broadcasting organisation does not consent to such use of the decoder card?

                           (c)

                           Is a trader who imports decoder cards into the second Member State and advertises them for sale and use there to be regarded as importing or advertising devices, or providing services, which:

                                       (i)

                                       are promoted, advertised or marketed for the purpose of circumvention within Article 6(2)(a) of the Directive?

                                       (ii)

                                       have only a limited commercially significant purpose or use other than to circumvent within Article 6(2)(b) of the Directive?

                                       (iii)

                                       are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating circumvention within Article 6(2)(c) of the Directive?

                           (d)

                           Are the above circumstances excluded from the scope of Article 6 of Directive 2001/29/EC by reason of the fact that they are more specifically covered by Directive 98/84/EC?

         4.   Reproduction Right
   Where sequential fragments of a film, broadcast, literary work, musical work or sound recording (in this case frames of digital video and audio) are created (i) within the memory of a decoder or (ii) in the case of a film, broadcast and literary work on a television screen and the whole work is reproduced if the sequential fragments are considered together but only a limited number of fragments exist at any point in time:

               (a)

               Is the question of whether those works have been reproduced in whole or in part to be determined by the rule of national copyright law relating to what constitutes an infringing reproduction of a copyright work or is it a matter of interpretation of Article 2 of Directive 2001/29/EC?

               (b)

               If it is a matter of interpretation of Article 2 of Directive 2001/29/EC, should the national court consider all of the fragments of each work as a whole or only the limited number of fragments which exist at any point in time? If the latter, what test should the national court apply to the question of whether the works have been reproduced in substantial part within the meaning of that Article?

               (c)

               Does the reproduction right in Article 2 of Directive 2001/29/EC extend to the creation of transient images on a television screen?

         5.   Independent Economic Significance

               (a)

               Are transient copies of a work created within a satellite television decoder box or on a television screen linked to the decoder box whose sole purpose is to enable a use of the work not otherwise restricted by law to be regarded as having ‘independent economic significance’ within the meaning of Article 5(1) of Directive 2001/29/EC by reason of the fact that such copies provide the only basis upon which the rights holder can extract remuneration for the use of his rights?

               (b)

               Is the answer to Question 5(a) affected by (i) whether the transient copies have any inherent value or (ii) whether the transient copies comprise a small part of a collection of works and/or other subject matter which otherwise may be used without infringement of copyright; or (iii) whether the exclusive licensee of the rights holder in another Member State has already received remuneration for use of the work in that Member State?

         6.   Communication to public by wire or wireless means

               (a)

               Is a copyright work communicated to the public by wire or wireless means within the meaning of Article 3 of Directive 2001/29/EC where a satellite broadcast is received at a commercial premises for example a bar and communicated or shown at those premises via a single television screen and speakers to members of the public present?

               (b)

               Is the answer to Question 6(a) affected if:

                           (i)

                           the members of the pubic present constitute a new public not contemplated by the broadcaster (in this case because a domestic decoder card for use in one Member State is used for a commercial audience in another Member State)?

                           (ii)

                           The members of the public are not a paying audience according to national law?

               (c)

               If the answer to any part of (b) is Yes, what factors should be taken into account in determining whether there is a communication of the work which has originated from a place where members of the audience are not present?

         7.   Fixation Right
   Where sequential fragments of a broadcast (in this case frames of digital video and audio) are created (i) within the memory of a decoder or (ii) on a television screen and an extensive section of the broadcast is reproduced if the sequential fragments are considered together but only a limited number of fragments exist at any point in time:

               (a)

               Is the question of whether those sequential fragments are a fixation of the broadcast to be determined by the rule of national copyright law relating to what constitutes an infringing reproduction of a copyright work or is it a matter of interpretation of Article 7 of Directive 2006/115 (4)?

               (b)

               If it is a matter of interpretation of Article 7 of Directive 2006/115, can such transient copies be considered a ‘fixation’ at all, and if so should the national court consider all of the fragments of each work as a whole or only the limited number of fragments which exist at any point in time? If the latter, what test should the national court apply to the question of whether the a fixation of the broadcast has been made within the meaning of that Article?

               (c)

               Does the fixation right in Article 7 of Directive 2006/115 extend to the creation of transient images on a television screen?

         8.   Defence under Directive 93/83 (5)

   Is it compatible with Directive 93/83/EEC or with Articles 34 and 36 or 56 TFEU if national copyright law provides that when transient copies of works included in a satellite broadcast or of the broadcast itself are created inside a decoder box or on a television screen, there is an infringement of copyright under the law of the country of reception of the broadcast?
   Does it affect the position if the broadcast is decoded using a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?
   9.   Whether UEFA is a broadcaster under Directive 93/83
   Where an organisation (‘the First Organisation’) either transmits or has transmitted on its behalf, signals carrying visual images and audio feed from a live sporting event via an encrypted satellite multilateral feed to an authorised group of broadcasters in different countries, and those broadcasters then transmit (either by terrestrial TV signals or by satellite) programmes of the live sporting event containing the visual images and audio feed but also their own station identifying logo and (according to their own editorial discretion) their own audio commentaries and their own materials during before and after match play and during half-time breaks (‘the Downstream Programmes’):

               (a)

               Does the encrypted multilateral feed constitute a ‘communication to the public by satellite’ within Article 1(2)(a) and 1(2)(c) of Directive 93/83, where decryption means for the feed itself are not made available to the public, but decryption means are made available to decrypt the signals carrying the Downstream Programmes where they are carried by satellite and the Downstream Programmes are unencrypted where they are transmitted from terrestrial transmitters?

               (b)

               Is the First Organisation introducing into its multilateral feed ‘the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth’?

               (c)

               Where Article 1(2)(a) refers to the act of introducing being ‘under the control and responsibility of the broadcasting organisation’, is the First Organisation the or a relevant broadcasting organisation for this purpose, or alternatively can the signals be regarded as being introduced into the multilateral feed under the control and responsibility of the downstream broadcasters?

         10.   Defence under Article 34 and/or 56 TFEU

               (a)

               If the answer to Question 1 is that a conditional access device made by or with the consent of the service provider becomes an illicit device within the meaning of Article 2(2) of Directive 98/84/EC when it is used outside the scope of the authorisation of the service provider to give access to a protected service, what is the specific matter of the right by reference to its essential function conferred by the Conditional Access Directive?

               (b)

               Do Article 34 or 56 TFEU preclude enforcement of a provision of national law in a first Member State which makes it unlawful to import or sell a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?

               (c)

               Is the answer affected if the satellite decoder card is authorised only for private and domestic use in that other Member State but used for commercial purposes in the first Member State?

               (d)

               If the answer to Question 3 is that the use of a decoder card in the circumstances stated in that Question amounts to the circumvention of an effective technological measure, do Articles 34 or 56 TFEU nonetheless preclude the enforcement of a provision of national law transposing Article 6 of Directive 2001/29/EC?

         11.   Whether the protection afforded to the musical and literary works can be broader than that afforded to the rest of the broadcast

               (a)

               Do Articles 34 and 36 or 56 TFEU preclude enforcement of a provision of national copyright law which makes it unlawful to perform or play in public a musical work where that work is included in a protected service which is accessed and played in public by use of a satellite decoder card where that card has been issued by the service provider in another Member State on the condition that the decoder card is only authorised for use in that other Member State? Does it make a difference if the musical work is an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not protected by national copyright law?

               (b)

               Do Articles 34 and 36 or 56 TFEU preclude enforcement of a provision of national copyright law which makes it unlawful to perform or play in public literary works where those works are included in a protected service which is accessed and played in public by use of a satellite decoder card where that card has been issued by the service provider in another Member State on the condition that the decoder card is only authorised for use in that other Member State? Does it make a difference if the literary works are an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not protected by national copyright law?

         12.   Defence under Article 101 TFEU
   Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, what legal test should the national court apply and what circumstances should it take into consideration in deciding whether the contractual restriction contravenes the prohibition imposed by Article 101(1) TFEU?
   In particular,

               (a)

               Must Article 101(1) TFEU be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing, restricting of distorting competition?

               (b)

               If so, must it also be shown that the contractual obligation appreciably prevents, restricts or distorts competition in order to come within the prohibition imposed by Article 101(1) TFEU?

      (1)  Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access
   OJ L 320, p. 54

      (2)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities
   OJ L 298, p. 23

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

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

      (5)  Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission
   OJ L 248, p. 15


title: Case C-119/06: Judgment of the Court (Third Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Infringement of Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts — Award of a contract without a call for tenders — Award of the contract for healthcare transport services in Tuscany)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/7

         Judgment of the Court (Third Chamber) of 29 November 2007 — Commission of the European Communities v Italian Republic
   (Case C-119/06) (1)

   (Failure of a Member State to fulfil obligations - Infringement of Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts - Award of a contract without a call for tenders - Award of the contract for healthcare transport services in Tuscany)
   (2008/C 22/13)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: X. Lewis and D. Recchia, acting as Agents, and M. Mollina, avocat)

      Defendant: Italian Republic (represented by: I. Braguglia, Agent, and G. Fiengo and S, Varone, avocats)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 11, 15 and 17 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Award of a contract without publication of the appropriate notice — Award of the contract for healthcare transport services in Tuscany
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

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

      (1)  OJ C 131 of 3.6.2006.


title: Case C-60/11: Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ragusa (Italy)) — Criminal proceedings against Mohamed Mrad

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/28

         Order of the President of the Court of 21 June 2011 (reference for a preliminary ruling from the Tribunale di Ragusa (Italy)) — Criminal proceedings against Mohamed Mrad
   (Case C-60/11) (1)

   2011/C 252/66
   Language of the case: Italian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 113, 9.4.2011.


No C 351 /22           EN                   Official Journal of the European Communities                               30 . 12 . 95
European Union and Commission of the European                                  Removal from the register of Joined Cases
Communities .                                                                    T- 18 9/94 , T-190/94 and T-191 /94 (')
                                                                                ( 95/C 351 /43 )
(') 0 | No C 312 , 8 . 11 . 1993 .
                                                                                (Language of the case: French)
      Removal from the register of Case T-561 /93 ( )                  By order of 19 October 1995 the President of the First
                                                                       Chamber ( Extended Composition ) of the Court of First
                           ( 95/C 351 /41 )
                                                                       Instance of the European Communities ordered the removal
              (Language of the case: English)                          from the register of Joined Cases T-l 89/94 , T-190/94
                                                                       and T-191 /94 : Philippe Heno, Michel Manchion and
By order of 16 October 1995 the President of the Second                Jean-Michel Tellier v. Council of the European Union and
Chamber, extended composition , of the Court of First                  Commission of the European Communities .
Instance of the European Communities ordered the removal
from the register of Case T-561 /93 : Tiercé Ladbroke SA v.            (') OJ No C 188 , 9 . 7 . 1994 .
Commission of the European Communities .
(') OJ No C 334 , 9 . 12 . 1993 .
       Removal from the register of Case T-66/94 ( )                        Removal from the register of Case T-154/95 H
                           ( 95/C 351 /42 )                                                      ( 95/C 351 /44 )
               (Language of the case: Italian)                                        (Language of the case: Italian)
By order of 8 November 1995 the President of the Fourth
Chamber ( Extended Composition ) of the Court of First                 By order of 21 November 1995 the President of the Fifth
Instance of the European Communities ordered the removal               Chamber of the Court of First Instance of the European
from the register of Case T-66/94 : Auditel Sri v.                     Communities ordered the removal from the register of Case
Commission of the European Communities .                               T-154/95 : Ittima Maremmana Sari v. Commission of the
                                                                       European Communities .
(') 0 } No C 90 , 26 . 3 . 1994 .
                                                                       (') OJ No C 333 , 9 . 12 . 1995 .


title: Action brought on 1 April 1998 by the European Association of Craft, Small and Medium-Sized Enterprises (UEAPME) against the Council of the European Union (Case T-55/98)

text:
C 184/12              EN                  Official Journal of the European Communities                                    13.6.98
the offices of the Fiduciaire Myson SARL, 30 Rue de                  regard to the purpose for which so-called maternity leave'
Cessange.                                                            was introduced and interpreted the wording of Article 58
                                                                     in a manner inconsistent with its aims.
The applicants claim that the Court should:
                                                                     If Article 58 of the Staff Regulations does not authorise
                                                                     the joint exercise of the right to share maternity leave by
1. annul the appointing authority's decision of 24                   common accord, the applicants claim, in the alternative,
     February 1998 refusing the applicants' request of               that that provision is discriminatory and therefore
     1 December 1997 that they, mother and father of the             unlawful.
     child born to them, be permitted to share a part of the
     postnatal leave provided for by Article 58 of the Staff
                                                                     Also in the alternative, they claim that the Commission
     Regulations in the form of half-time work, according
                                                                     failed to have regard to the interest of the service by
     to the time-table drawn up by them for that purpose;
                                                                     refusing to grant the post-natal leave to the applicants
                                                                     jointly in so far as that implies that it considered it to be
2. award the applicants damages quantified on a fair and             preferable for the mother to be absent from her
     equitable basis in the sum of BF 500 000 by way of              department for at least 16 weeks.
     compensation for the harm suffered;
                                                                     As regards the application for damages, the applicants
                                                                     point out that if the Court considers Article 58 of the Staff
3. order the Commission to pay the costs.                            Regulations to be unlawful, the institution cannot give
                                                                     effect to it, which would enable them to share the post-
                                                                     natal leave. It therefore remains only to hold that the
Pleas in law and main arguments adduced in support:
                                                                     contested decision was vitiated by error and that it caused
                                                                     the applicants harm which should be made good.
The applicants explain that they both work for the
European Communities. On 12 February 1998 their child
was born. In the light of the arrival of their child, the
applicants submitted a joint request for permission to
share, in the form of half-time employment, a part of the
post-natal leave provided for by Article 58 of the Staff             Action brought on 1 April 1998 by the European
Regulations of Officials. The defendant institution refused          Association of Craft, Small and Medium-Sized Enterprises
that request on the ground that Article 58 specifically                (UEAPME) against the Council of the European Union
refers to pregnant women in order better to protect their
health and that sharing that leave would therefore run                                       (Case T-55/98)
counter to the provisions of the Staff Regulations.                                           (98/C 184/23)
The applicants consider that decision to be unlawful in so                           (Language of the case: French)
far as it interprets Article 58 of the Staff Regulations in a
manner which is not consistent with its purpose and, by
                                                                     An action against the Council of the European Union was
doing so, infringes that provision. In the case of a normal
                                                                     brought before the Court of First Instance of the European
pregnancy and delivery, the mother does not need 16
                                                                     Communities on 1 April 1998 by the European
weeks in order to recover and regain her normal
                                                                     Association of Craft, Small and Medium-Sized Enterprises
physiological and physical functions enabling her to
                                                                     (UEAPME), established at Brussels, represented by Francis
restart work. Maternity leave is therefore, for the greater
                                                                     Herbert and Daniel Tomasevic, of the Brussels Bar, with
part, designed in the interests of the child which, during
                                                                     an address for service in Luxembourg at the Chambers of
the early stages of its life, requires the full attendance of
                                                                     Carlos Zeyen, 56-58 Rue Charles Martel.
its parents in order to receive care, affection, attention and
constant supervision. The applicants consider it
indisputable that the father of a child can attend to all            The applicant claims that the Court should:
those tasks, which are in no way specific or particular to
women. The conclusion must therefore be drawn that
Article 58 grants a right to the mother which she may                Ð annul Council Directive 97/81/EC of 15 December
exercise in the manner determined by her, in agreement                    1997 concerning the Framework Agreement on part-
with the child's father, and having regard to the interests               time work concluded by UNICE, CEEP and the
of the service. That is the only interpretation consistent                ETUC;
with the purpose of that provision, in the light of general
principles, secondary legislation, case-law and national             Ð annul the said directive only in so far as it applies to
law in the Member States.                                                 the small and medium-sized enterprises mentioned in
                                                                          Article 2(2) of the Agreement on social policy;
The applicants claim that by denying the father the right
to take leave in order to care for the child, in agreement           Ð make a ruling as to the temporary continuation of the
with the mother, the defendant institution failed to have                 annulled provision pending the adoption of a new
 ---pagebreak--- 13.6.98                EN                 Official Journal of the European Communities                                  C 184/13
     provision in which the UEAPME's right to participate            Action brought on 6 April 1998 by Antonio Giannini
     in negotiations is recognized;                                    against the Commission of the European Communities
                                                                                (Case T-57/98)
Ð order the Council to pay the costs.                                                        (98/C 184/24)
                                                                                (Language of the case: French)
Pleas in law and main arguments adduced in support:
                                                                     An action against the Commission of the European
This action concerns the second directive to implement an            Communities was brought before the Court of First
agreement concluded by management and labour at                      Instance of the European Communities on 6 April 1998
Community level on the basis of the Agreement on social              by Antonio Giannini, residing in Brussels, represented by
policy annexed to the Protocol on social policy annexed to           Marc Dallemagne and Carlo Locchi, of the Brussels Bar.
the Treaty of Rome as amended by the Maastricht Treaty.
The applicant, an employers' association combining small
and medium-sized undertakings at European level,                     The applicant claims that the Court should:
challenges that directive, in so far as it concerns those
undertakings. The first directive pursuant to the
                                                                     Ð rule that the present case is connected with Case
abovementioned agreement (1) was also the subject of an
                                                                         T-282/97 and order that it be joined therewith;
action brought by the same applicant (2).
                                                                     Ð annul the defendant's decision to fill post COM/062/
The pleas in law and main arguments put forward by the                   97 by appointing another person thereto;
applicant in the present case repeat to a large extent those
relied on in Case T-135/96 UEAPME v. Council.
                                                                     Ð annul the defendant's decision No 6872 of
                                                                         18 December 1997 rejecting complaint No R/560/97,
In the applicant's view, the contested directive infringes its           which was notified to the applicant on 6 January
right to participate in negotiations, the freedom of                     1998;
association of small and medium-sized enterprises and the
principles which lie at the basis of social democracy. In its
                                                                     Ð order that the applicant be paid compensation for the
view, the Commission was under an obligation not only to
                                                                         damage suffered by him, amounting to the difference
ascertain the representativeness of the signatories to the
                                                                         between the applicant's current salary and the salary
framework agreement but also and above all to ascertain
                                                                         which he would have received in the post at issue
the representativeness of the other employers and workers
                                                                         since 28 April 1995;
who had also demonstrated a wish to participate in
negotiations, in particular where one of them represents
those enterprises whose interests are specifically                   Ð order the defendant to pay all of the costs.
mentioned in Article 2(2) of the Agreement on social
policy. It is in that way also that the contested directive
breaches that provision.                                             Pleas in law and main arguments adduced in support:
Likewise, the directive at issue infringes Articles 3 and 4          With regard to the facts of the case, the applicant refers to
of the agreement inasmuch as the Commission, in the                  the claims already advanced by him in Case T-282/97 (1),
interests of ensuring balanced support for the parties to            which form, according to the applicant, an integral part of
social dialogue, should have drawn the attention of the              the present application. The applicant pleads misuse of
other partners to the need to include the UEAPME in the              powers, since the contested decision was taken not in the
negotiating process rather than draw a distinction between           interests of the service but with a view to offering one of
general inter-trade organizations and the others.                    the applicant's colleagues a promotion which that
                                                                     colleague did not deserve. According to the applicant, that
                                                                     person did not fulfil, at the time of his appointment, the
                                                                     conditions attaching to the duties which he was carrying
Finally, the applicant claims that the adoption of the
                                                                     out.
directive at issue breaches the principles of patere legem
quam ipse fecisti and equal treatment.
                                                                     In addition, the applicant contests the defendant's refusal
(1) Council Directive 96/34/EC of 3 June 1996 on the framework       to inform him of the merits of the other candidates. The
    agreement on parental leave concluded by UNICE, CEEP and         applicant considers that that refusal can only have been
    the ETUC (OJ L 145, 19.6.1996, p. 4).                            intended to protect the appointment of an official who did
(2) Case T-135/96 UEAPME v. Council (OJ C 318, 26.10.1996,           not possess the qualifications required.
    p. 21).
                                                                     Lastly, the applicant repeats his application for
                                                                     compensation for the material and non-material damage