title: Case T-134/00: Action brought on 18 May 2000 by Kværner Warnow Werft GmbH against the Commission of the European Communities

text:
22.7.2000             EN                     Official Journal of the European Communities                                     C 211/23
— order the Commission to draw up corrected pay slips as                — In the alternative, annul the Commission Decision in so
    from October 1999 and to pay default interest the                        far as the Commission wrongly used as the basis of its
    increased amounts; and                                                   calculation of the demand for repayment a total amount
                                                                             of aid approved of DEM 1 246 900 000 (less an adjust-
— order the Commission to pay the costs.                                     ment for DEM 10 500 000 competition aid not granted
                                                                             and DEM 27000 000 aid on closure) instead of the
                                                                             total amount of the operating aid actually granted (DEM
Pleas in law and main arguments                                              230 984 000) with previous demands for repayment (DEM
                                                                             83 000 000) being taken into account;
The applicant challenges the appointing authority’s refusal,
which took the form of failure to reply, to transfer 35 % of his        — Order the Commission to pay the costs.
net salary to the account opened by him in the United
Kingdom in order to meet the university education costs of his
sons. The appointing authority has only acceded to the
applicant’s request to the extent of transferring 19 % of his           Pleas in law and main arguments
salary to the abovementioned account.
                                                                        The pleas in law and main arguments are essentially the same
In support of his claims, the applicant alleges that the following      as in Case T-227/99 (2) with the exception of the argument
have been infringed:                                                    concerning the irregular composition of the Commission.
— Article 17(2)(a) and (b) of Annex VII to the Staff Regula-
    tions and additional provisions;                                    (1) OJ L 120, 20.5.2000, p. 12.
                                                                        (2) OJ C 6, 8.1.2000, p. 27.
— the principle of proportionality,
— the principle of equal treatment,
— the principle of non-discrimination on grounds of nationa-
    lity.
The applicant also alleges misuse of powers and failure to
observe the obligation to state the grounds on which measures           Action brought on 19 May 2000 by Carmelo Morello
are taken.                                                                  against Commission of the European Communities
                                                                                (Case T-135/00)
                                                                                (2000/C 211/49)
Action brought on 18 May 2000 by Kværner Warnow
Werft GmbH against the Commission of the European                                          (Language of the case: French)
                         Communities
                        (Case T-134/00)                                 An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance on 19 May
                                                                        2000 by Carmelo Morello, residing in Brussels, represented by
                        (2000/C 211/48)                                 Jacques Sambon and Pierre Paul Van Gehuchten, of the Brussels
                                                                        Bar.
                  (Language of the case: German)
                                                                        The applicant claims that the Court of First Instance should:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              — Annul the Commission decision to appoint another official
European Communities on 18 May 2000 by Kværner Warnow                        to post COM/069/99 IV/C1 ‘Telecommunications and
Werft GmbH of Rostock-Warnemünde, Germany, represented                       post, coordination of the information society’, being an
by Dr Michael Schütte, Rechtsanwalt, of Bruckhaus Westrick                   A3 Head of Unit post;
Heller Löber, Brussels.
                                                                        — Annul the Commission decision not to accept the appli-
The applicant claims that the Court should:                                  cant’s application for post COM/069/99 IV/C1 ‘Telecom-
                                                                             munications and Post, coordination of the information
— Annul Commission Decision C (2000) 516 fin. of                             society’, being an A3 Head of Unit post, and all the
    15 February 2000 on aid granted by Germany to Kværner                    measures preparatory to that decision which themselves
    Warnow Werft GmbH (1),                                                   proved to be improper;


title: Case C-403/07: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 31 August 2007 — Metherma GmbH & Co. KG v Hauptzollamt Düsseldorf

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/13

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 31 August 2007 — Metherma GmbH & Co. KG v Hauptzollamt Düsseldorf
   (Case C-403/07)
   (2007/C 283/22)
   Language of the case: German
   Referring court
   Bundesfinanzhof
   Parties to the main proceedings

      Applicant: Metherma GmbH & Co. KG

      Defendant: Hauptzollamt Düsseldorf
   Question referred
   Interpretation of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1).
   Can bars of tungsten or molybdenum which have been ‘obtained simply by sintering’ and which fall respectively under subheadings 8101 94 00 and 8102 94 00 of the Combined Nomenclature be processed into scrap falling respectively under subheadings 8101 97 00 and 8102 97 00 of the Combined Nomenclature by being broken up or shattered?

      (1)  OJ 1987 L 256, p. 1.


title: Case C-481/99: Reference for a preliminary ruling by the Bundesgerichtshof by order of that court of 30 November 1999 in the case of Georg and Helga Heininger against Bayerische Hypo- und Vereinsbank AG

text:
C 79/6                   EN                 Official Journal of the European Communities                                        18.3.2000
          (g) a contractual restriction has or has not been            the Court Registry on 20 December 1999, for a preliminary
              imposed by the proprietor and made legally bind-         ruling in the case of Georg and Helga Heininger against
              ing upon the first purchaser prohibiting sale for        Bayerische Hypo- und Vereinsbank AG on the following
              the purposes of resale to anyone other than the          questions:
              ultimate consumer.
                                                                       1. Does Council Directive 85/577/EEC of 20 December 1985
     B. does the issue of whether or not there was consent by               to protect the consumer in respect of contracts negotiated
          the proprietor to the placing of those goods on the               away from business premises (OJ 1985 L 372, p. 31 —
          market within the EEA. within the meaning of the                  ‘directive on doorstep-selling’ also cover mortgages on
          Directive, depend on some further or other factor or              land (S.3(2)(2) of the Verbraucherkreditgesetz — consumer
          factors, and if so which?                                         credit law) and, as regards the right of cancellation provided
                                                                            for in Article 5, does it take precedence over Council
(1) First Council Directive 89/104/EEC of 21 December 1988 to               Directive 87/102/EEC of 22 December 1986 for the
    approximate the laws of the Member States relating to trade             approximation of the laws, regulations and administrative
    marks (OJ L 40 of 11. 2.1 989, p. 1).                                   provisions of the Member States concerning consumer
                                                                            credit (OJ 1987 L 42, p. 48 ‘consumer-credit directive’)?
                                                                       2. If the Court answers Question 1 in the affirmative,
                                                                            Is the national legislature precluded by the directive on
                                                                            doorstep-selling from applying the time-limit placed in
Reference for a preliminary ruling by the High Court of                     S. 7(2)(3) of the consumer credit law on the right of
Justice (England & Wales), Chancery Division (Patent                        cancellation also in cases where the subject-matter of a
Court), by order of that court of 22 July 1999, in the case                 doorstep transaction was the grant of a mortgage loan
of 1) Levi Strauss & Co. (a US corporation existing under                   within the meaning of S. 3(2)(2) of the consumer credit
the laws of the State of Delaware) and 2) Levi Strauss                      law and where the disclosure of information, as provided
                 (UK) Ltd against Costco UK Ltd                             for in Article 4 of the directive, was not made?
                           (Case C-416/99)
                            (2000/C 79/11)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division (Patent Court),           Action brought on 21 December 1999 by the Commission
of 22 July 1999, which was received at the Court Registry on           of the European Communities against the French Republic
29 October 1999, for a preliminary ruling in the case of 1)
Levi Strauss & Co. (a US corporation existing under the laws                                     (Case C-483/99)
of the State of Delaware) and 2) Levi Strauss (UK) Ltd against
Costco UK Ltd on questions which are identical to those in
                                                                                (2000/C 79/13)
Case   C-415/99 (1),   1) Levi Strauss & Co. (a US corporation
existing under the laws of the State of Delaware) and 2) Levi          An action against the French Republic was brought before the
Strauss (UK) Ltd against 1) Tesco Stores Ltd and 2) Tesco plc.         Court of Justice on 21 December 1999 by the Commission of
                                                                       the European Communities, represented by Maria Patakia, of
                                                                       its Legal Service, acting as Agent, with an address for service
(1) See p. 5 of this Official journal.
                                                                       in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                       Wagner Centre, Kirchberg.
                                                                       The applicant claims that the Court should:
                                                                       (1) declare that, by maintaining in force Articles 2(1) and
Reference for a preliminary ruling by the Bundesgerichts-                   (2)(iii) of Decree 93-1298 of 13 December 1993, accord-
hof by order of that court of 30 November 1999 in the                       ing to which the following rights attach to the ‘golden
case of Georg and Helga Heininger against Bayerische                        share’ held by the French State in the State company
                   Hypo- und Vereinsbank AG                                 Elf-Aquitaine:
                           (Case C-481/99)                                  (a) any shareholding which exceeds the ceilings applying
                                                                                to the direct or indirect holding by a natural or legal
                            (2000/C 79/12)                                       person, acting alone or in conjunction with others, of
                                                                                one tenth, one fifth or one third of the capital of, or
Reference has been made to the Court of Justice of the                           voting rights in, the company must first be approved
European Communities by order of the Bundesgerichtshof                           by the Minister for Economic Affairs (Article 2(1) of
(Federal Supreme Court) of 30 November 1999, received at                         the Decree);


title: Case C-535/16: Order of the Court of 27 April 2017 (reference for a preliminary ruling from the Tribunalul Specializat Mureş (Romania)) — Michael Tibor Bachmann v FAER IFN SA (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Consumer protection — Directive 93/13/EEC — Article 2(b) — Unfair terms in consumer contracts — Notion of ‘consumer’ — Natural person having concluded an agreement for novation with a credit institution in order to meet repayment obligations to that institution in respect of credit obtained by a commercial company)

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/15

         Order of the Court of 27 April 2017 (reference for a preliminary ruling from the Tribunalul Specializat Mureş (Romania)) — Michael Tibor Bachmann v FAER IFN SA
   (Case C-535/16) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Consumer protection - Directive 93/13/EEC - Article 2(b) - Unfair terms in consumer contracts - Notion of ‘consumer’ - Natural person having concluded an agreement for novation with a credit institution in order to meet repayment obligations to that institution in respect of credit obtained by a commercial company))
   (2017/C 213/17)
   Language of the case: Romanian

      Referring court

   Tribunalul Specializat Mureş (Romania)

      Parties to the main proceedings

      Applicant: Michael Tibor Bachmann

      Defendant: FAER IFN SA

      Operative part of the order

   Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a natural person who, following a novation agreement, has undertaken by contract to repay to a lending institution loans originally granted to a company for purposes inherent in that company’s business activity, where that natural person has no evident link with that company but acted in that way on the basis of his links, outside his trade, business or profession, with the person who controlled that company and also with the person who signed contracts ancillary to the original loan contracts (contracts of guarantee, contracts providing immovable property as security/mortgages).

      (1)  OJ C 38, 6.2.2017.


title: Case C-381/13 P: Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-53/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/33

         Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-53/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission
   (Case C-381/13 P)
   2013/C 260/61
   Language of the case: Portuguese

      Parties

      Appellant: Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) (represented by: N. Morais Sarmento and L. Pinto Monteiro, advogados)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               set aside the judgment under appeal in its entirety;

               —

               annul the contested decision in its entirety;

               —

               order the Commission to bear its own costs in addition to those incurred by the appellant.

      Grounds of appeal and main arguments

         Failure to adopt a decision within a reasonable period of time

   (i)   The proceedings are time-barred
   The appellant submits that the contested decision was adopted after the four-year limitation period for proceedings, as set out in Article 3 of Council Regulation (EC, Euratom) No 2988/95, (1) had expired. Equally, even if there had been a possible interruption of the limitation period for proceedings, more than twice the limitation period had expired without any decision being taken in accordance with the fourth subparagraph of Article 3(1) of Regulation No 2988/95. Since the corresponding right was thus time-barred, the contested decision should be declared unlawful and unenforceable.
   (ii)   Infringement of the principle of legal certainty
   The appellant considers that the fact that the Commission allowed more than 20 years to pass between the alleged irregularities and the adoption of the contested decision amounts to a failure to observe the principle of legal certainty. That fundamental principle of European Union law provides that all individuals have the right to have their cases dealt with by the European Union institutions within a reasonable period of time.
   (iii)   Infringement of the rights of the defence
   The appellant considers that its rights of defence have been infringed in so far as, given that more than 20 years had passed between the alleged irregularities and the adoption of the final decision, the appellant was deprived of its right to submit its observations in good time, namely at a point in time when it was still in possession of documents enabling it to justify the expenses which the Commission deemed ineligible.

      (1)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).


title: Case C-244/13: Judgment of the Court (Second Chamber) of 10 July 2014 (request for a preliminary ruling from the High Court — Ireland) — Ewaen Fred Ogieriakhi v Minister for Justice and Equality, Ireland, Attorney General, An Post (Reference for a preliminary ruling — Directive 2004/38/EC — Article 16(2) — Right of permanent residence for family members of a Union citizen who are third-country nationals — Situation where spouses no longer live together — Immediate installation with other partners during a continuous period of residence of five years — Regulation (EEC) No 1612/68 — Article 10(3) — Conditions — Infringement of EU law by a Member State — Examination of the nature of the infringement at issue — Need for a reference for a preliminary ruling)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/15

         Judgment of the Court (Second Chamber) of 10 July 2014 (request for a preliminary ruling from the High Court — Ireland) — Ewaen Fred Ogieriakhi v Minister for Justice and Equality, Ireland, Attorney General, An Post
   (Case C-244/13) (1)

   ((Reference for a preliminary ruling - Directive 2004/38/EC - Article 16(2) - Right of permanent residence for family members of a Union citizen who are third-country nationals - Situation where spouses no longer live together - Immediate installation with other partners during a continuous period of residence of five years - Regulation (EEC) No 1612/68 - Article 10(3) - Conditions - Infringement of EU law by a Member State - Examination of the nature of the infringement at issue - Need for a reference for a preliminary ruling))
   2014/C 315/22
   Language of the case: English

      Referring court

   High Court (Ireland)

      Parties to the main proceedings

      Applicant: Ewaen Fred Ogieriakhi

      Defendants: Minister for Justice and Equality, Ireland, Attorney General, An Post

      Operative part of the judgment

               1.

               Article 16(2) 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a third-country national who, during a continuous period of five years before the transposition date for that directive, has resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded as having acquired a right of permanent residence under that provision, even though, during that period, the spouses decided to separate and commenced residing with other partners, and the home occupied by that national was no longer provided or made available by his spouse with Union citizenship;

               2.

               The fact that, in relation to a claim for damages for infringement of EU law, a national court has found it necessary to seek a preliminary ruling on a question concerning the EU law at issue in the proceedings on the substance must not be considered a decisive factor in determining whether there was an obvious infringement of that law on the part of the Member State.

      (1)  OJ C 189, 29.6.2013.


title: Case C-27/08: Judgment of the Court (Fifth Chamber) of 30 April 2009 (reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)) — BIOS Naturprodukte GmbH v Saarland (Directive 2001/83/EC — Article 1(2)(b) — Concept of medicinal product by function — Dosage of the product — Normal conditions of use — Risk to health — Ability to restore, correct or modify physiological functions in human beings)

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/10

         Judgment of the Court (Fifth Chamber) of 30 April 2009 (reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)) — BIOS Naturprodukte GmbH v Saarland
   (Case C-27/08) (1)

   (Directive 2001/83/EC - Article 1(2)(b) - Concept of ‘medicinal product by function’ - Dosage of the product - Normal conditions of use - Risk to health - Ability to restore, correct or modify physiological functions in human beings)
   2009/C 153/20
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: BIOS Naturprodukte GmbH

      Defendant: Saarland

      Re:

   Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 1(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 34) — Definition of medicinal product — Product containing a substance having a therapeutic effect in high doses, while capable of being harmful in lower doses, like the dose recommended by the manufacturer — Boswellia extract

      Operative part of the judgment

   Article 1(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, must be interpreted as meaning that a product which includes in its composition a substance which has a physiological effect when used in a particular dosage is not a medicinal product by function where, having regard to its content in active substances and under normal conditions of use, it constitutes a risk to health without, however, being capable of restoring, correcting or modifying physiological functions in human beings.

      (1)  OJ C 92, 12.4.2008.


title: Action brought on 8 December 1995 by the Commission of the European Communities against the Portuguese Republic (Case C-385/95)

text:
3 . 2 . 96                 EN |                 Official Journal of the European Communities                                  No C 31 /15
( a ) Must a taxable farmer, who in 1990 extensified his                           conditions to be met by ornamental plant
        potato production in Brandenburg ( Federal Republic of                     propagating material and ornamental plants
        Germany) to such an extent that at least 20 % of his                       pursuant to Council Directive 91 /682/EEC, and
        potato crop was not harvested by him, be regarded as
        having supplied a service to a specific recipient within                — Commission Directive 93/61 /EEC (4 ) of 2 July 1993
        the meaning of Article 6 ( 1 ) of the Sixth Council                         setting out the schedules indicating the conditions to
        Directive of 17 May 1977 ( 77/388/EEC ) on the                              be met by vegetable propagating and planting
        harmonization of the laws of the Member States                             material, other than seed pursuant to Council
        relating to turnover taxes ( J ) ('the Sixth Directive')?                  Directive 92/33/EEC ,
( b ) Does a subsidy paid for the extensification of potato                     the Portuguese Republic has failed to fulfil its
        production on the basi? of the decree of 13 July 1990                   obligations under the Treaty.
        promoting the extensification of agricultural
        production constitute a payment chargeable to tax                  2 . order the Portuguese Republic to pay the costs of the
        pursuant to Article 11 . A ( 1 ) ( a ) of the Sixth                     proceedings .
        Directive ?
                                                                           Pleas in law and main arguments adduced in support:
 ( c ) If the answer to question ( a ) is in the affirmative:
                                                                           The pleas in law and main arguments are analogous to those
        Does the service supplied qualify for taxation at the              in Case C-360/95 ( 5 ); the timelimit for transposition expired
        reduced rate provided for by the fourth sentence of                on 1 January 1994 (Directive 92/45/EEC ) and 31 December
        Article 12 ( 3 ) ( a ) in conjunction with Annex H to the          1993 respectively.
        Sixth Directive ?
                                                                           (•)  OJ No  L 268 , 14 . 9 . 1992 , p . 35 .
 ( 1 ) OJ No L 145 , 13 . 6 . 1977, p . 1 .                                (2 ) OJ No  L 250 , 7 . 10 . 1993 , p . 1 .
                                                                           (3)  OJ No  L 250, 7 . 10 . 1993 , p. 9 .
                                                                           (4)  OJ No  L 250 , 7 . 10 . 1993 , p . 19 .
                                                                           (5)  OJ No  C 16 , 20 . 1 . 1996 , p . 7.
 Action brought on 8 December 1995 by the Commission of
 the European Communities against the Portuguese
                                   Republic                                Reference for a preliminary ruling from the
                             ( Case C-385/95 )                             Bundesverwaltungsgericht by order of that court of 29
                                ( 96/C 31 /30 )                            September 1995 in the case of Süleyman Eker v. Land
                                                                           Baden-Württemberg, parties to the proceedings: ( 1 )
                                                                           Oberbundesanwalt beim Bundesverwaltungsgericht, ( 2 )
 An action against the Portuguese Republic was brought                     Vertreter des öffentlichen Interesses bei den Gerichten
  before the Court of Justice of the European Communities on               der       allgemeinen          Verwaltungsgerichtsbarkeit     in
  8 December 1995 by the Commission of the European                                                Baden-Württemberg
  Communities, represented by Antonio Caeiro, Legal
  Adviser, acting as Agent, with an address for service in                                            ( Case C-386/95 )
  Luxembourg at the office of Carlos Gomez de la Cruz, of its                                            96/C 31 /31
  Legal Service, Wagner Centre, Kirchberg.
                                                                            Reference has been made to the Court of Justice of the
  The applicant claims that the Court should :                              European Communities by an order of the First Senate of the
                                                                            Bundesverwaltungsgericht ( Federal Administrative Court )
  1 . declare that, by not adopting within the prescribed                   of 29 September 1995 , which was received at the Court
        period all the measures necessary to comply fully with              Registry on 11 December 1995 , for a preliminary ruling in
        the following directives :                                          the case of Siileyman Eker v. Land Baden-Wiirttemberg,
                                                                            parties to the proceedings : ( 1 ) Oberbundesanwalt beim
        — Council Directive 92/45/EEC ( ] ) of 16 June 1992 on              Bundesverwaltungsgericht, ( 2 ) Vertreter des offentlichen
            public health and animal health problems relating to            Interesses bei den Gerichten der allgemeinen Verwaltungs
            the killing of wild game and the placing on the                 gerichtsbarkeit in Baden-Wiirttemberg, on the following
            market of wild-game meat,                                       question:
        — Commission Directive 93/48/EEC ( 2 ) of 23 June                   Does a Turkish worker fulfil the requirements of the first
            1993 setting out the schedule indicating the                    indent of Article 6 ( 1 ) of Decision No 1/80 of the
            conditions to be met by fruit plant propagating                 EEC/Turkey Association Council even if during the first
            material and fruit plants intended for fruit                    year of employment he has, with the permission of the
            production,         pursuant     to  Council     Directive      national authorities , worked without interruption but for
            92/34/EEC ,                                                     different employers and wishes to continue employment
                                                                            with his last employer ?
        — Commission Directive 93/49/EEC ( 3 ) of 23 June
             1993 setting out the schedule indicating the


title: Case C-477/06: Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Kokkoris D. Tsanas K. EPE and Others v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/9

         Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Kokkoris D. Tsanas K. EPE and Others v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   (Case C-477/06)
   (2007/C 20/12)
   Language of the case: Greek
   Referring court
   Efetio Athinon
   Parties to the main proceedings

      Appellants: Kokkoris D. Tsanas K. EPE and Others

      Respondent: GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   Questions referred:

               1.

               Where the refusal of an undertaking holding a dominant position to meet fully the orders sent to it by pharmaceutical wholesalers is due to its intention to limit their export activity and, thereby, the harm caused to it by parallel trade, does the refusal constitute per se an abuse within the meaning of Article 82 EC? Is the answer to that question affected by the fact that the parallel trade is particularly profitable for the wholesalers because of the different prices, resulting from State intervention, in the Member States of the European Union, that is to say by the fact that pure conditions of competition do not prevail in the pharmaceuticals market, but a regime which is governed to a large extent by State intervention? Is it ultimately correct for a national court to apply Community competition rules in the same way to markets which function competitively and those in which competition is distorted by State intervention?

               2.

               If the Court holds that limitation of parallel trade, for the reasons set out above, does not constitute an abusive practice in every case where it is engaged in by an undertaking holding a dominant position, how is possible abuse to be assessed? In particular:

               2.1

               Do the percentage by which normal domestic consumption is exceeded and/or the loss suffered by an undertaking holding a dominant position compared with its total turnover and total profits constitute appropriate criteria? If so, how are the level of that percentage and the level of that loss determined (the latter as a percentage of turnover and total profits), above which the conduct in question may be abusive?

               2.2

               Is an approach entailing the balancing of interests appropriate, and, if so, what are the interests to be compared? In particular:

                           (a)

                           is the answer affected by the fact that the ultimate consumer/patient derives limited financial advantage from the parallel trade and

                           (b)

                           is account to be taken, and to what extent, of the interests of social insurance bodies in cheaper medicinal products?

               2.3

               What other criteria and approaches are considered appropriate in the present case?


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 19 February 1998 in Case T-169/96: Jean-Pierre Pierard v. Commission of the European Communities (Representation of officials and servants of the Commission on administrative bodies and on organs set up under the Staff Regulations - Staff assigned to posts outside the European Union - No need to adjudicate)

text:
11.4.98               EN                 Official Journal of the European Communities                                 C 113/13
3. orders the applicants to bear all the costs.                       JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 19 February 1998
(1) OJ C 386, 31.12.1994 and OJ C 137, 3.6.1995.                    in Case T-142/96: Anne-Marie Toller v. Commission of
                                                                                the European Communities (1)
                                                                    (Officials Ð Opinion of the Invalidity Committee Ð
                                                                    Incompetence Ð Decision ordering removal from post Ð
                                                                    Application for re-examination Ð Material new factor Ð
                                                                                Time-bar Ð Admissibility)
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                                   (98/C 113/32)
                     of 19 February 1998
                                                                                (Language of the case: French)
in Case T-42/96: Eyckeler & Malt AG v. Commission of
                the European Communities (1)
                                                                    In Case T-142/96: Anne-Marie Toller, a former official of
(Action for annulment Ð Importation of high-quality beef            the Commission of the European Communities, residing in
(Hilton beef') Ð Regulation (EEC) No 1430/79 Ð                     Brussels, represented by Benoît Lombart, Eric Boigelot and
Article 13 Ð Commission decision refusing remission of              Daniel Crucq, of the Brussels Bar, with an address for
import duties Ð Rights of the defence Ð Manifest error              service in Luxembourg at the Chambers of Louis Schiltz, 2
                        of assessment)                              rue du Fort Rheinsheim, v. Commission of the European
                                                                    Communities (Agents: Julian Currall and Christine
                         (98/C 113/31)                              Berardis-Kayser) Ð application for annulment of the
                                                                    Commission's decision refusing to re-examine the decision
                                                                    of 1 July 1993 removing the applicant from her post for
               (Language of the case: German)                       incompetence Ð the Court of First Instance (Fourth
                                                                    Chamber), composed of: P. Lindh, President, and K.
                                                                    Lenaerts and J. D. Cooke, Judges; A. Mair, Administrator,
In Case T-42/96: Eyckeler & Malt AG, established in                 for the Registrar, has given a judgment on 19 February
                                                                    1998, in which it:
Hilden (Germany), represented by Dietrich Ehle and
Volker Schiller, Rechtsanwälte, Cologne, with an address
for service in Luxembourg at the Chambers of Marc                   1. dismisses the application as inadmissible,
Lucius, 6 rue Michel Welter, supported by United
Kingdom of Great Britain and Northern Ireland (Agents:
initially Stephanie Ridley, subsequently John Collins and           2. orders the parties to bear their own costs.
David Anderson) against Commission of the European
Communities (Agent: Götz zur Hausen) Ð application for              (1) OJ C 318, 26.10.1996.
annulment of the Commission Decision of 20 December
1995 (K(95) 3391 final) addressed to the Federal Republic
of Germany and concerning an application for remission
of import duties Ð the Court of First Instance (First
Chamber), composed of: A. Saggio, President, B.
Vesterdorf and R. M. Moura Ramos, Judges; J. Palacio
GonzaÂlez, Administrator, for the Registrar, has given a              JUDGMENT OF THE COURT OF FIRST INSTANCE
judgment on 19 February 1998, in which it:                                               of 19 February 1998
                                                                    in Case T-169/96: Jean-Pierre Pierard v. Commission of
                                                                                the European Communities (1)
1. annuls the Commission's Decision of 20 December
     1995 addressed to the Federal Republic of Germany              (Representation of officials and servants of the
     and concerning an application for remission of import          Commission on administrative bodies and on organs set
     duties,                                                        up under the Staff Regulations Ð Staff assigned to posts
                                                                       outside the European Union Ð No need to adjudicate)
                                                                                (98/C 113/33)
2. orders the Commission to pay the costs,
                                                                                (Language of the case: French)
3. orders the United Kingdom of Great Britain and
     Northern Ireland to bear its own costs.                        In Case T-169/96: Jean-Pierre Pierard, an official of the
                                                                    Commission of the European Communities, represented
                                                                    by Nicolas LhoeÈst, of the Brussels Bar, with an address for
(1) OJ C 180, 22.6.1996.                                            service in Luxembourg at the office of Fiduciaire Myson
                                                                    SARL, 30 rue de Cessange, v. Commission of the
                                                                    European Communities (Agents: Gianluigi Valsesia and
                                                                    Christine Berardis-Kayser) Ð application for annulment of
 ---pagebreak--- C 113/14              EN                 Official Journal of the European Communities                                  11.4.98
the decision of the Central Staff Committee of the                  2. orders the parties to bear their own costs.
Commission rejecting the proposals of Mr Chambellant
concerning appointments to organs set up under the Staff            (1) OJ C 74, 8.3.1997.
Regulations and to administrative bodies, and, in so far as
may be necessary, annulment of the decision of the
Commission expressly rejecting the applicant's complaint
Ð the Court of First Instance (Fourth Chamber),
composed of: P. Lindh, President, and K. Lenaerts and
J. D. Cooke, Judges; A. Mair, Administrator, for the
                                                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
Registrar, has given a judgment on 19 February 1998, in
which it:                                                                                of 19 February 1998
                                                                    in Case T-196/97: Donato Continolo v. Commission of
                                                                                the European Communities (1)
1. declares that there is no need to adjudicate on the
     present case,                                                  (Officials Ð Thermal cure Ð Article 59 of the Staff
                                                                             Regulations Ð Sick leave Ð Special leave)
                                                                                (98/C 113/35)
2. orders the Commission to bear its own costs and to
     pay half of the applicant's costs, and the applicant to
     bear the other half of his own costs.                                          (Language of the case: French)
                                                                    In Case T-196/97: Donato Continolo, an official of the
(1) OJ C 388, 21.12.1996.
                                                                    Commission of the European Communities, represented
                                                                    by Jean-NoeÈl Louis, Thierry Demaseure, Ariane Tornel
                                                                    and FrancËoise Parmentier, of the Brussels Bar, with an
                                                                    address for service in Luxembourg at the offices of
                                                                    Fiduciaire Myson SARL, 30 rue de Cessange, v.
                                                                    Commission of the European Communities (Agents:
                                                                    Christine Berardis-Kayser and Florence Duvieusart-
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                    Clotuche) Ð application for annulment of the decision of
                     of 19 February 1998                            the Commission of 24 June 1996 not to grant the
                                                                    applicant additional leave for the purposes of undergoing
in Case T-3/97: Anna Maria Campogrande v. Commission
                                                                    a thermal cure, as confirmed by the decision of 30 January
              of the European Communities (1)
                                                                    1997 rejecting the applicant's complaint Ð the Court of
(Officials Ð Vacancy notice Ð Level of the post to be               First Instance (Fourth Chamber), composed of: P. Lindh,
filled Ð Appointment to a grade A 4/A 5 post of head of             President, and K. Lenaerts and J. D. Cooke, Judges; A.
unit Ð Illegality of the decision of the Commission of              Mair, Administrator, for the Registrar, has given a
      19 July 1988 Ð Rejection of application for post)             judgment on 19 February 1998, in which it:
                        (98/C 113/34)
                                                                    1. dismisses the application,
               (Language of the case: French)                       2. orders the parties to bear their own costs.
                                                                    (1) OJ C 7, 10.1.1998.
In Case T-3/97: Anna Maria Campogrande, an official
of the Commission of the European Communities,
represented by Marc-Albert Lucas, of the LieÁge Bar, with
an address for service in Luxembourg at the Chambers of
Evelyne Korn, 21 avenue de Nassau, v. Commission of the
European Communities (Agents: Gianluigi Valsesia and
Denis Waelbroeck) Ð application for annulment of the                  JUDGMENT OF THE COURT OF FIRST INSTANCE
decision of the Commission appointing Mr Cesare De                                         of 4 March 1998
Montis to the post of Head of Unit 2 (Andean Pact) of
                                                                    in Case T-146/96: Maria da GracËa De Abreu v. Court of
Directorate A (Latin America) of Directorate-General IB
                                                                              Justice of the European Communities (1)
(External relations: Southern Mediterranean, Middle and
Near East, Latin America, South and South-East Asia and             (Probationary officials Ð Appointment of a former
North-South Cooperation) and of the Commission's                    member of the temporary staff Ð Maintenance of
decision rejecting the applicant's application for that post        seniority in step Ð Principle of equality of treatment Ð
Ð the Court of First Instance (Fourth Chamber),                                         Objection of illegality)
composed of: P. Lindh, President, and K. Lenaerts and                                       (98/C 113/36)
J. D. Cooke, Judges; A. Mair, Administrator, for the
Registrar, has given a judgment on 19 February 1998, in
which it:                                                                           (Language of the case: French)
                                                                    In Case T-146/96: Maria da GracËa De Abreu, an official
1. dismisses the action,                                            of the Court of Justice of the European Communities,


title: Judgment of the Court (Sixth Chamber) of 14 December 2000 in Case C-245/97: Federal Republic of Germany v Commission of the European Communities (EAGGF — Clearance of accounts — 1993 financial year — Promotion of milk products)

text:
C 118/6                    EN                     Official Journal of the European Communities                                          21.4.2001
      —     Article 16 of Council Directive 78/659/EEC of 18 July                              JUDGMENT OF THE COURT
            1978 on the quality of fresh waters needing protection or
            improvement in order to support fish life, as amended
            most recently by the act concerning the conditions of                                       (Sixth Chamber)
            accession of the Kingdom of Spain and the Portuguese
            Republic and the adjustments to the Treaties,                                            of 14 December 2000
      —     Article 16(1) of Council Directive 80/68/EEC of                  in Case C-245/97: Federal Republic of Germany v Com-
            17 December 1979 on the protection of groundwater                           mission of the European Communities (1)
            against pollution caused by certain dangerous substances,
                                                                             (EAGGF — Clearance of accounts — 1993 financial year
                                                                                — Promotion of milk products)
      —     Article 5(1) and the first paragraph of Article 5(2) of
            Council Directive 82/176/EEC of 22 March 1982 on
            limit values and quality objectives for mercury discharges                                   (2001/C 118/09)
            by the chlor-alkali electrolysis industry,
                                                                                (Language of the case: German)
      —     Article 5(1) and (2) of Council Directive 83/513/EEC of
            26 September 1983 on limit values and quality objectives
            for cadmium discharges,                                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
      —     Article 6(1) of Council Directive 84/156/EEC of 8 March
            1984 on limit values and quality objectives for mercury          In Case C-245/97: Federal Republic of Germany (Agents:
            discharges by sectors other than the chlor-alkali electrolysis   E. Röder and C.-D. Quassowski) v Commission of the European
            industry,                                                        Communities (Agents: K.-D. Borchardt and I. Brinker) —
                                                                             application for the partial annulment of Commission Decision
                                                                             97/333/EC of 23 April 1997 on the clearance of the accounts
                                                                             presented by the Member States in respect of the expenditure
      —     Article 5(1) and (2) of Council Directive 84/491/EEC of          for 1993 on the Guarantee Section of the European Agricul-
            9 October 1984 on limit values and quality objectives for        tural Guidance and Guarantee Fund (EAGGF) (OJ 1997 L 139,
            discharges of hexachlorocyclohexane, and                         p. 30) in so far as it refused to charge to the EAGGF the sums
                                                                             of DEM 608 583,40, representing expenditure on promoting
                                                                             milk, and DEM 485 466,68 for failure to comply with
      —     Article 6(1) and (2) of Council Directive 86/280/EEC of          deadlines for payments to farmers under a scheme for the
            12 June 1986 on limit values and quality objectives for          temporary set aside of arable land — the Court (Sixth
            discharges of certain dangerous substances included in           Chamber), composed of: C. Gulmann, President of the
            List I of the Annex to Directive 76/464/EEC, as amended          Chamber, V. Skouris (Rapporteur) and J.-P. Puissochet, Judges;
            most recently by Council Directive 90/415/EEC of                 N. Fennelly, Advocate General; H.A. Rühl, Principal Adminis-
            27 July 1990,                                                    trator, for the Registrar, has given a judgment on 14 December
                                                                             2000, in which it:
as those provisions are worded pursuant to amendment by Article              1.    Annuls Commission Decision 97/333/EC of 23 April 1997
2(1) of Council Directive 91/692/EEC of 23 December 1991                           on the clearance of the accounts presented by the Member States
standardising and rationalising reports on the implementation of                   in respect of the expenditure for 1993 on the Guarantee Section
certain Directives relating to the environment, the Portuguese Republic            of the European Agricultural Guidance and Guarantee Fund
has failed to fulfil its obligations under the provisions of the directives        (EAGGF) in so far as it refused to charge to the EAGGF the
mentioned above.                                                                   sum of DEM 608 583,40 representing expenditure incurred
                                                                                by the Federal Republic of Germany on promoting milk (budget
                                                                                item 2062).
2.    Orders the Portuguese Republic to pay the costs.
                                                                             2.    Orders the Commission of the European Communities to pay
                                                                                the costs.
(1) OJ C 34 of 5.2.2000.
                                                                             (1) OJ C 295 of 27.9.1997.


title: Case C-592/15: Judgment of the Court (Fourth Chamber) of 15 February 2017 (request for a preliminary ruling from the Court of Appeal of England and Wales (Civil Division) — United Kingdom) — Commissioners for Her Majesty’s Revenue and Customs v British Film Institute (Reference for a preliminary ruling — Value added tax — Sixth Directive 77/388/EEC — Article 13A(1)(n) — Exemptions for certain cultural services — No direct effect — Determination of the exempt cultural services — Discretion of the Member States)

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/9

         Judgment of the Court (Fourth Chamber) of 15 February 2017 (request for a preliminary ruling from the Court of Appeal of England and Wales (Civil Division) — United Kingdom) — Commissioners for Her Majesty’s Revenue and Customs v British Film Institute
   (Case C-592/15) (1)

   ((Reference for a preliminary ruling - Value added tax - Sixth Directive 77/388/EEC - Article 13A(1)(n) - Exemptions for certain cultural services - No direct effect - Determination of the exempt cultural services - Discretion of the Member States))
   (2017/C 112/13)
   Language of the case: English

      Referring court

   Court of Appeal of England and Wales (Civil Division)

      Parties to the main proceedings

      Appellant: Commissioners for Her Majesty’s Revenue and Customs

      Respondent: British Film Institute

      Operative part of the judgment

   Article 13A(1)(n) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, exempting ‘certain cultural services’, must be interpreted as not being of direct effect, so that in the absence of transposition that provision may not be relied on directly by a body governed by public law or other cultural body recognised by the Member State concerned supplying cultural services.

      (1)  OJ C 27, 25.1.2016.


title: Case C-494/03: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 21 November 2003 in the case of Senior Engineering Investments B.V. against Staatssecretaris van Financiën

text:
24.1.2004               EN                          Official Journal of the European Union                                           C 21/23
Reference for a preliminary ruling by the Hoge Raad der                     Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 21 November                        Nederlanden by judgment of that Court of 21 November
2003 in the case of Senior Engineering Investments B.V.                     2003 in the case of Intermodal Transports B.V. against
              against Staatssecretaris van Financiën                                         Staatssecretaris van Financiën
                                                                                (Case C-495/03)
                          (Case C-494/03)
                                                                                (2004/C 21/42)
                           (2004/C 21/41)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Hoge Raad
                                                                            der Nederlanden (Supreme Court of the Netherlands) of
Reference has been made to the Court of Justice of the                      21 November 2003, received at the Court Registry on
European Communities by judgment of the Hoge Raad                           24 November 2003, for a preliminary ruling in the case
der Nederlanden (Supreme Court of the Netherlands) of                       of Intermodal Transports B.V. against Staatssecretaris van
21 November 2003, received at the Court Registry on                         Financiën on the following questions:
24 November 2003, for a preliminary ruling in the case of
Senior Engineering Investments B.V. against Staatssecretaris                1.    Should a national court refer questions on the interpret-
van Financiën on the following questions:                                         ation of the Combined Nomenclature (CN) (1) to the
                                                                                Court of Justice of the European Communities for a
                                                                                preliminary ruling in the case where a party to a dispute
1.     Does Article 4(2)(b) of Council Directive 69/335/EEC (1)                   brought before it concerning classification in the CN of a
       of 17 July 1969, as amended by Council Directive 85/                       certain product invokes a decision by a customs authority
       303/EEC (2) of 10 June 1985, permit capital duty to be                     laid down in binding tariff information issued to a third
       levied on a company in respect of a direct informal                        party in respect of a similar product and the national
       capital contribution made by the parent of that company                    court takes the view that that binding tariff information
       to a subsidiary of that company and, if so, what                           is at variance with the CN?
       circumstances are of relevance in that respect; in particu-
       lar is it relevant whether or not that company must be
       regarded, from an economic point of view, as the real                2.    Must heading 8709 of the CN be interpreted as covering
       recipient of that direct informal capital contribution?                    vehicles such as those in issue in the present case?
2.     Does the freedom of establishment laid down in                       (1) CN: Position under the Combined Nomenclature as referred to in
       Article 52 of the EC Treaty (now, after amendment,                       Article 1 of Council Regulation (EEC) No 2658/87 of 23 July
       Article 43 EC), in conjunction with Article 58 of the EC                 1987 on the tariff and statistical nomenclature and on the
       Treaty (now Article 48 EC), prohibit the tax authorities                 Common Customs Tariff, OJ 1987 L 256.
       of a Member State from pursing a policy which levies no
       capital duty on a company in respect of a direct informal
       capital contribution made by the parent of that company
       to a subsidiary of that company, provided that that
       subsidiary is established in that Member State, and is it
       relevant in this respect — on the assumption that the
       directive permits capital duty to be levied both on that
       company and its subsidiary in a case such as the present             Action brought on 24 November 2003 by the Com-
       — whether or not more capital duty has been levied at                mission of the European Communities against the French
       group level than would have been the case had both that                                           Republic
       company and its subsidiary been established in the
       Netherlands?
                                                                                (Case C-496/03)
(1) Council Directive 69/335/EEC of 17 July 1969 concerning                                           (2004/C 21/43)
    indirect taxes on the raising of capital (OJ L 249 of 3.10.1969,
    p. 25).
(2) Council Directive 85/303/EEC of 10 June 1985 amending Direc-
    tive 69/335/EEC concerning indirect taxes on the raising of capital
    (OJ L 156 of 15.6.1985, p. 23).                                         An action against the French Republic was brought before the
                                                                            Court of Justice of the European Communities on 24 Novem-
                                                                            ber 2003 by the Commission of the European Communities,
                                                                            represented by C.-F. Durand and F. Simonetti, acting as Agents,
                                                                            with an address for service in Luxembourg.


title: Case T-164/13: Order of the General Court of 12 July 2013 — Sun Capital Partners v OHIM — Sun Capital Partners (SUN CAPITAL)

text:
               12.10.2013

               EN

               Official Journal of the European Union

               C 298/11

         Order of the General Court of 12 July 2013 — Sun Capital Partners v OHIM — Sun Capital Partners (SUN CAPITAL)
   (Case T-164/13) (1)

   2013/C 298/19
   Language of the case: English
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 147, 25.5.2013.


title: Case T-556/08: Action brought on 17 December 2008 — Slovenská pošta v Commission

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/35

         Action brought on 17 December 2008 — Slovenská pošta v Commission
   (Case T-556/08)
   (2009/C 55/64)
   Language of the case: English
   Parties

      Applicant: Slovenská pošta a.s. (Banská Bystrica, Slovak Republic) (represented by: O. Brouwer, C. Schillemans, M. Knapen, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the contested decision;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By means of this application the applicant seeks annulment pursuant to Article 230 EC of Commission Decision C(2008) 5912 final of 7 October 2008 (Case COMP/39.562 — Slovakian Postal Law) by which the Commission found Slovakian postal legislation relating to hybrid mail services contrary to Article 86(1) read in conjunction with Article 82 EC to the extent that it reserves to the applicant the delivery of hybrid mail items.
   The applicant puts forward four pleas in law in support of its claims.
   First, it submits that the Commission violated the Community law principle of sound administration by failing to duly investigate all the facts and interests involved as, in the applicant's opinion, the contested decision is based on a number of assumptions. The applicant further states that the Commission violated the duty to state adequate reasons as laid down in Article 253 EC.
   Second, the applicant claims that the Commission violated the applicant's right to be effectively heard.
   Third, it contends that the Commission committed manifest errors in assessment and interpretation, in fact and in law, of the lawfulness of the granting of exclusive rights in the postal sector as a result of which it gave a wrong application to Articles 86 EC and 82 EC.
   Fourth, the applicant submits that by adopting a fundamentally different and unprecedented approach with regard to the definition of the relevant market, the Commission has violated the principles of legal certainty and legitimate expectations.


title: Case T-296/01: Action brought on 6 December 2001 by Antonio Enrico Tatti against Commission of the European Communities

text:
C 56/12               EN                     Official Journal of the European Communities                                        2.3.2002
                                                       COURT OF FIRST INSTANCE
Action brought on 6 December 2001 by Antonio Enrico                     Action brought on 7 December 2001 by Julia Abad Pérez
 Tatti against Commission of the European Communities                   and Others against the Council of the European Union
                                                                            and the Commission of the European Communities
                        (Case T-296/01)
                                                                                (Case T-304/01)
                         (2002/C 56/23)                                                          (2002/C 56/24)
                  (Language of the case: French)                                           (Language of the case: Spanish)
                                                                        An action against the Council of the European Union and the
An action against the Commission of the European Communi-               Commission of the European Communities was brought
ties was brought before the Court of First Instance of the              before the Court of First Instance of the European Communities
European Communities on 6 December 2001 by Antonio                      on 7 December 2001 by Julia Abad Pérez and Others, all of
Enrico Tatti, residing in Overijse (Belgium), represented by            them established in Spain, represented by Miquel Roca Junyent,
Lucas Vogel, lawyer.                                                    Joan Roca Sagarra and Marta Pons de Vall Alomar, lawyers.
The applicant claims that the Court should:                             The applicants claim that the Court should:
                                                                        —     declare that the Council and the Commission have acted
—     annul the decision of the appointing authority of                       unlawfully and are thus liable under Article 288 EC for
      16 August 2001 rejecting the complaint lodged by the                    having spread the BSE crisis within the territory of the
      applicant on 11 February 2001, challenging the decision                 European Union and, consequently, for the damage
      of the appeal assessor of 21 November 2000 refusing to                  alleged in the present application;
      review the applicant’s staff report;
                                                                        —     order the Council and the Commission jointly and
                                                                              severally to pay compensation for the damage caused to
—     order the defendant to pay damages amounting to                         the applicants as a result of that crisis, quantified in the
      EUR 2 500;                                                              present application in the sum of 19 438 372,69 euros,
                                                                              and for the non-material damage suffered by them
                                                                              (amounting to a further 15 % over and above the
—     order the defendant to pay the costs.                                   aforementioned sum, that is to say, 2 915 755,80 euros);
                                                                              and
                                                                        —     order the Council and the Commission to pay the costs.
Pleas in law and main arguments
                                                                        Pleas in law and main arguments
In support of his claims, the applicant alleges infringement of
Articles 5, 6 and 7 of the general provisions implementing
Article 43 of the Staff Regulations inasmuch as the reporting           The applicants are Spanish stockbreeders. They are claiming
procedure is irregular and in particular that the time-limit to         compensation for the damage and prejudice suffered as a result
which the administration should have adhered in drawing up              of the crisis concerning the so-called ‘mad cow disease’
the staff report was not observed. The applicant further claims         since the outbreak of the first case of bovine spongiform
infringement of Article 43 of the Staff Regulations, manifest           encephalopathy (BSE) in Spain on 22 November 2000, which
error of assessment and breach of the principle of non-                 plunged the Spanish stockbreeding sector into a serious crisis
discrimination. According to the applicant, his staff report was        from which it has still not yet managed fully to recover.
drawn up taking account of arbitrary rules for reporting on
staff which fettered subsequent reporting officers in their
discretion.                                                             According to the applicants, each stockbreeder is currently
                                                                        having to bear:
                                                                        —     the costs of removal and destruction of specified risk
                                                                              material (SRM);


title: Case C-264/99: Action brought on 16 July 1999 by the Commission of the European Communities against the Italian Republic

text:
2.10.1999               EN                      Official Journal of the European Communities                                       C 281/3
Action brought on 16 July 1999 by the Commission of                        Action brought on 16 July 1999 by the Commission of
  the European Communities against the Italian Republic                     the European Communities against the French Republic
                          (Case C-264/99)                                                          (Case C-265/99)
                          (1999/C 281/04)                                                          (1999/C 281/05)
An action against the Italian Republic was brought before the              An action against the French Republic was brought before the
Court of Justice of the European Communities on 16 July                    Court of Justice of the European Communities on 16 July
1999 by the Commission of the European Communities,                        1999 by the Commission of the European Communities,
represented by Antonio Aresu and Maria Patakia, both of its                represented by Enrico Traversa, Legal Adviser, and Hélène
Legal Service, acting as Agents, with an address for service in            Michard, of its Legal Service, acting as Agents, with an address
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner               for service in Luxembourg at the office of Carlos Gómez de la
Centre, Kirchberg.                                                         Cruz, Wagner Centre, Kirchberg.
The Commission of the European Communities claims that                     The Commission of the European Communities claims that
the Court should:                                                          the Court should:
a) Declare that, by maintaining legislation which requires                 — declare that, by maintaining and applying rules providing
     Community nationals who pursue an activity as hauliers                    for the application of an unfavourable formula for calculat-
     in Italy as service providers to register with Chambers                   ing the power rating for administrative purposes of vehicles
     of Commerce, following authorisation by the Ministero                     fitted with six-speed manual gearboxes and automatic
     dell’Interno, the Italian Republic has failed to fulfil its               five-speed gearboxes, which produces discriminatory or
     obligations under Articles 6, 52 and 59 of the EC Treaty                  protectionist effects vis-à-vis vehicles manufactured in
     (now, after amendment, Articles 12 EC, 43 EC and 49 EC);                  other Member States by comparison with similar or
                                                                               competing national vehicles, and
b) Order the Italian Republic to pay the costs.
                                                                           — by maintaining provisions limiting the K factor for the
                                                                               purposes of calculating the power rating for tax purposes
Pleas in law and main arguments                                                of vehicles for which type-approval was issued on an
                                                                               isolated basis between 1 January 1978 and 12 January
                                                                               1988 and which are regarded as equivalent to type-
                                                                               approved vehicles having an actual power in excess of
a) I n f r i n g e m e n t o f   Article 59 of the EC                          100 kW,
    Treaty           (now,          after          amendment,
    Article 49 EC)                                                         — the French Republic has failed to fulfil its obligations under
                                                                               Article 95 of the EC Treaty (now Article 90 EC);
The requirement that any natural or legal person pursuing an               — order the French Republic to pay the costs.
activity as haulier should register in the appropriate register
held by the regional chamber of commerce does not appear to
be compatible with the principle of freedom to provide
services. Although such obligation to register is not directly             Pleas in law and main arguments
discriminatory, it does constitute an obstacle for economic
operators established in a Member State other than Italy
seeking to pursue their activities in that State.                          (Vehicles fitted with six-speed manual gearboxes or automatic
                                                                           five-speed gearboxes)
                                                                           — Infringement of Article 90 EC: the use, in relation to the
b) I n f r i n g e m e n t o f A r t i c l e s 6 a n d 5 2 o f t h e           models referred to, of the formula for calculating their
     EC Treaty (now, after amendment,                                          power rating for administrative purposes resulting from
     Articles 12 and 43 EC)                                                    the 1956 circular, produces discriminatory or protectionist
                                                                               effects by comparison with similar national vehicles to
                                                                               which the generally more favourable 1977 circular applies.
Article 6 of Law No 1442 lays down rules governing regis-
                                                                               The models in question which are produced in other
tration and provides in particular that, so far as concerns
                                                                               Member States seek to achieve the best performance in
foreign firms and companies and firms in general represented
                                                                               terms of fuel consumption and pollution emission levels.
by foreign nationals, the applicant must produce the authoris-
                                                                               These are parameters which the French legislature expressly
ation issued by the Ministero dell’Interno. That provision
                                                                               sought to take into account in 1977, and which prompted
appears to be incompatible with the fundamental principles
                                                                               it to adopt a more complex new formula for calculating
laid down in Articles 12 EC and 43 EC.
                                                                               vehicle power ratings for administrative purposes. Accord-
                                                                               ing to the information in the Commission’s possession,
                                                                               national production of such vehicles is limited to a single
                                                                               vehicle having an automatic five-speed gearbox.


title: Case C-395/07: Judgment of the Court (Eighth Chamber) of 5 June 2008 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 2004/48/EC — Enforcement of intellectual property rights — Failure to transpose within the prescribed period)

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/5

         Judgment of the Court (Eighth Chamber) of 5 June 2008 — Commission of the European Communities v Federal Republic of Germany
   (Case C-395/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2004/48/EC - Enforcement of intellectual property rights - Failure to transpose within the prescribed period)
   (2008/C 183/08)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: W. Wils and H. Krämer, acting as Agents)

      Defendant: Federal Republic of Germany (represented by: M. Lumma, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, and — Corrigendum — OJ 2004 L 195, p. 16)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, all the provisions necessary to comply with Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 247, 20.10.2007.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 30 January 1997 in Case C-221/95 (reference for a preliminary ruling from the Tribunal du Travail, Tournai): Institut National d'Assurances Sociales pour Travailleurs Indépendants (Inasti) v. Claude Hervein, Hervillier SA (Social security for migrant workers - Determination of the legislation applicable - Definition of employed and self-employed)

text:
 22 . 3 . 97            EN                  Official Journal of the European Communities                                    No C 94/1
                                                                    I
                                                             (Information)
                                                COURT OF JUSTICE
                                                          COURT OF JUSTICE
                JUDGMENT OF THE COURT                                  on structural improvements in inland waterway transport,
                          (Fifth Chamber)                              and the addressee has not brought an action under the
                                                                       fourth paragraph of Article 1 73 of the EC Treaty against
                        of 30 January 1997                             the decision within the time limit prescribed, that decision
in Case C-l 78/95 (reference for a preliminary ruling from             is binding on the national court.
the Rechtbank van Koophandel, Antwerp): Wiljo NV v.
                          Belgian State (')                             1 OJ No C 189,22 . 7. 1995 .
 (Structural improvements in inland waterway transport —
 Special contribution — Exclusion of 'specialized vessels'
— Commission decision rejecting an application for
 exemption — Decision not contested under Article 1 73 of
 the Treaty — Validity of the decision then contested
                     before the national court)                                       JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                            ( 97/C 94/01 )
                                                                                of 30 January 1997
                 (Language of the case: Dutch)                        in Case C-221/95 (reference for a preliminary ruling from
                                                                      the Tribunal du Travail, Tournai): Institut National
  (Provisional translation; the definitive translation will be        d'Assurances Sociales pour Travailleurs Indépendants
           published in the European Court Reports)                             (Inasti ) v. Claude Hervein, Hervillier SA (')
                                                                       (Social security for migrant workers — Determination of
In Case C-l 78/95 : reference to the Court under Article 177           the legislation applicable — Definition of employed and
of the EC Treaty from the Rechtbank van Koophandel                                               self-employed)
( Commercial Court), Antwerp ( Belgium), for a                                                     97/C 94/02 )
preliminary ruling in the proceedings pending before that
court between Wiljo NV and Belgian State — on the
                                                                                (Language of the case: French)
interpretation of Council Regulation ( EEC ) No 1101/89 of
27 April 1989 on structural improvements in inland
waterway transport ( OJ No L 116, 28 . 4. 1989, p. 25 )                  (Provisional translation; the definitive translation will be
and on the validity of the Commission's decision of 6 May                       published in the European Court Reports)
1993 rejecting an application for exemption from the
special contribution to the scrapping fund set up by                  In Case C-221 /95 : reference to the Court under Article 177
Article 8 ( 1 ) ( a ) of that Regulation — the Court ( Fifth          of the EC Treaty from the Tribunal du Travail ( Labour
Chamber), composed of: C. Gulmann, acting for the                     Court), Tournai ( Belgium), for a preliminary ruling in the
President of the Chamber (Rapporteur), D. A. O. Edward,               proceedings pending before that court between Institut
J.-R Puissochet, P. Jann and M. Wathelet, Judges; F. G.               National d'Assurances Sociales pour Travailleurs Indépen
Jacobs, Advocate-General; D. Louterman-Hubeau,                        dants (Inasti ) and Claude Hervein, Hervillier SA — on the
Principal Administrator, for the Registrar, has given a               interpretation of Article 14a (2 ) of Council Regulation
judgment on 30 January 1997, in which it has ruled:                   ( EEC ) No 1408/71 of 14 June 1971 on the application of
                                                                      social security schemes to employed persons, to self
Where a Commission decision has been addressed to the                 employed persons and to members of their families
owner of a vessel, finding that his vessel is not a                   moving within the Community, as amended and updated
specialized vessel within the meaning of Article 8 (3) (c) of         by Regulation ( EEC) No 2001/83 ( OJ No L 230, 22. 8 .
Council Regulation (EEC) No 1101 /89 of 27 April 1989                 1983 , p. 6 ) — the Court ( Fifth Chamber), composed of: L.
 ---pagebreak--- No C 94/2              EN                  Official Journal of the European Communities                                     22 . 3 . 97
Sevón, President of the First Chamber, acting for the                 quarter of 1995 as a result of tropical storm Debbie ( OJ
President of the Fifth Chamber, D. A. O. Edward, J.-P.                No L 51 , 8 . 3 . 1995 , p. 8 ) — the Court, composed of:
Puissochet ( Rapporteur), P. Jann and M. Wathelet, Judges;            G. C. Rodriguez Iglesias, President, G. E Mancini, J. C.
D. Ruiz-Jarabo Colomer, Advocate-General; R. Grass,                   Moitinho de Almeida ( Rapporteur) and J. L. Murray
Registrar, has given a judgment on 30 January 1997, in                (Presidents of Chambers), P. J. G. Kapteyn, C. Gulmann,
which it has ruled :                                                  D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P. Jann and
                                                                      H. Ragnemalm, Judges; M. B. Elmer, Advocate-General;
                                                                      D. Louterman-Hubeau, Principal Administrator, for the
For the purposes of Articles 14a and 14c of Council                   Registrar, has given a judgment on 4 February 1997, in
Regulation (EEC) No 1408/71 of 14 June 1971 on the                    which it:
application of social security schemes to employed
persons, to self-employed persons and to members of their
families moving within the Community, as amended and                  I . dismisses the applications;
updated by Regulation (EEC) No 2001 /83, 'employed'
and 'self-employed' should be understood to refer to                  2 . orders the applicants to pay the costs;
activities which are regarded as such for the purposes of
the social security legislation of the Member State in                3.   orders the interveners to bear their own costs.
whose territory those activities are pursued.
                                                                      (') OJ No C 54, 4 . 3 . 1995 .
(') OJ No C 208 , 12 . 8 . 1995 .                                         OJ No C 74, 25, 3 . 1995 .
                                                                          OJ No C 208 , 12 . 8 . 1995
               JUDGMENT OF THE COURT
                       of 4 February 1997                                            JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
in Joined Cases C-9/95 , C-23/95 and C-156/95 : Kingdom
of Belgium and Federal Republic of Germany v.                                                 of 6 February 1997
Commission of the European Communities, supported by                  in Case C-205/96:             Commission of the European
the United Kingdom of Great Britain and Northern                                 Communities v. Kingdom of Belgium (')
            Ireland and by the French Republic ( 1 )
                                                                      (Directive 92/42/EEC on efficiency requirements for new
(Bananas — Common organization of the markets —                       hot-water boilers fired with liquid or gaseous fuels —
Natural disaster — Import quota — Adjustment and                                              Non-transposition)
                              allocation)
                                                                                ( 97/C 94/04 )
                            ( 97/C 94/03 )
                                                                                (Language of the case: French)
         (Languages of the case: Dutch and German)
                                                                        (Provisional translation; the definitive translation will be
  (Provisional translation; the definitive translation will be                  published in the European Court Reports)
          published in the European Court Reports)
                                                                      In Case C-205/96: Commission of the European
In Joined Cases C-9/95 , C-23/95 and C-156/95 : Kingdom               Communities (Agents: Richard Wainwright and Jean
of Belgium (Agent: J. Devadder ) and Federal Republic of              Francis Pasquier) v. Kingdom of Belgium (Agent:
Germany (Agent: E. Röder) v. Commission of the                        Raymonde Foucart) — application for a declaration that,
European Communities ( Cases C-9/95 and C-156/95 —                    by failing to adopt within the prescribed period the laws,
Agent: T. van Rijn; Case C-23/95 — Agents : D. Booß and               regulations and administrative provisions necessary to
K.-D . Borchardt) supported in Cases C-9/95 , C-23/95 and             comply with Council Directive 92/42/EEC of 21 May
C-156/95 by the United Kingdom of Great Britain and                   1992 on efficiency requirements for new hot-water boilers
Northern Ireland (Agent: S. Braviner, assisted by D.                  fired with liquid or gaseous fuels ( OJ No L 167, 22 . 6 .
Anderson) and in Case C-156/95 by the French Republic                 1992, p. 17), the Kingdom of Belgium has failed to fulfil
(Agents: C. de Salins and F. Pascal — application for the             its obligations under the EC Treaty — the Court ( Fifth
annulment — in Cases C-9/95 and C-23/95, of                           Chamber), composed of: J. C. Moitinho de Almeida
Commission Regulation ( EC) No 2791 /94 of 16 November                ( Rapporteur), President of the Chamber, C. Gulmann and
1994 on the exceptional allocation of a quantity                      D. A. O. Edward, Judges; N. Fennelly, Advocate-General;
additional to the tariff quota for imports of bananas in              R. Grass, Registrar, has given a judgment on 6 February
                                                                      1997, in which it:
1994 as a result of tropical storm Debbie ( OJ No L 296,
17. 11 . 1994, p. 33 ) and — in Case C-156/95, of
Commission Regulation (EC ) No 510/95 of 7 March 1995                 1 . declares that, by failing to adopt within the prescribed
on the exceptional allocation of a quantity additional to                  period the laws, regulations and administrative
the tariff quota for imports of bananas during the first                   provisions necessary to comply with Council Directive


title: Case T-485/04: Action brought on 10 December 2004 by Association Coopération des Bibliothèques de Bretagne (COBB) against Commission of the European Communities

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/32

         Action brought on 10 December 2004 by Association Coopération des Bibliothèques de Bretagne (COBB) against Commission of the European Communities
   (Case T-485/04)
   (2005/C 57/54)
   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 10 December 2004 by the Association Coopération des Bibliothèques de Bretagne (COBB), established in Rennes (France), represented by J.-P. Martin, lawyer.
   The applicant claims that the Court should:

               —

               annul the subparagraph concerning the COBB of Decision No 1116 dated 9 December 2003 of the Commission of the European Communities.

         Pleas in law and main arguments
   This action is against the Commission's decision which excluded the operation ‘Réseau des périodiques de Bretagne, année 1999’ (Brittany Periodicals Network 1999), for which the applicant had applied for a subsidy from the ERDF, from expenditure eligible under the Programme Objectif 5b Bretagne 1994-1999 (Programme Objective 5b Brittany 1994-1999).
   The applicant sought that financing under a programme of rural and costal development entitled ‘Morgane 2’, which was implemented for the Brittany Region, in respect of Objective 5b for the period 1994-1999. That programme describes all the action eligible for European financing, of which Action 215, which comes within Priority Axis A aimed at mobilising the employment market and, more particularly, within Measure 2 aimed at improving the competitiveness of businesses, by developing remote working and access to teleservices.
   In concrete terms, the operation ‘Brittany Periodicals Network’ consists of putting in place, thanks to a network of establishments, a hardware and software infrastructure managing a database made up of articles from periodicals and studies covering Brittany, in order to make high-quality information on that region accessible, via the Internet, to all decision-makers (elected representatives, heads of undertakings, etc.). Its aim is to support and raise the quality of information and decision of the economic decision-makers with a view to greater competitiveness of undertakings.
   It was only after two agreements granting subsidy had been signed, that the Region's Prefecture notified the applicant of the contested decision.
   In support of its claims, the applicant relies on three pleas in law. The first concerns a mistake in the statement of reasons, the second brings together arguments alleging breach of the principle of the protection of legitimate expectations and the third alleges breach of the duty to state reasons.
   The applicant submits in that regard that:

               —

               contrary to the defendant's statement, the applicant is established in an eligible area, since there is no requirement in Action 215, Axis A concerning the recipient's registered office, and, since, in this case, the area concerned covers the whole of Area 5b, that is to say, ‘the rural and costal world’ of Brittany. Also, Action 215 lists individually the ‘economic development associations and bodies’, which shows that the two expressions cannot be mistaken;

               —

               the agreement granting subsidy signed between the applicant and the Prefecture on 31 December 2001 contained precise assurances which gave rise in the applicant's mind to expectations based on the continuity of the operation in question. Further, a European Union subsidy of EUR 10 976 was actually paid to the applicant in March 2002 under Programme 5b;

               —

               the applicable Community legislation makes no reference either to possible withdrawal of a subsidy or to a demand for repayment thereof under the ERDF;

               —

               the decision complained of confines itself to a gap-filling reference to the reservation issued by the Commission interministérielle de coordination des contrôles (the Interministerial Commission for Coordination of Controls), but contains no reasoned or sufficient explanation enabling the reasons why the Commission held the operation in question to be ineligible to be understood.