title: Case T-190/03: Action brought on 21 May 2003 by Sanni Olesen against the Commission of the European Communities

text:
2.8.2003                 EN                            Official Journal of the European Union                                         C 184/47
—     The contested decision does not take account of the fact                 Action brought on 21 May 2003 by Sanni Olesen against
      that, in the years concerned, in the public utilities sector                    the Commission of the European Communities
      there were a number of de jure and de facto monopolies
      such as to exclude a market open to competition. The
      Commission merely assumed, without putting forward                                                (Case T-190/03)
      any evidence, the presence of an open competitive
      market. In that regard, the Court should find that the
      Commission has failed to provide adequate reasons inas-                                          (2003/C 184/102)
      much as it has found competition to have been infringed
      on a single ground: the alleged damage suffered by those
      undertakings which are not beneficiaries of the measures                                    (Language of the Case: French)
      provided for by the legislation in question in the event
      that they should compete with the beneficiary undertak-
      ings for the same contracts.
                                                                               An action against the Commission of the European Commu-
                                                                               nities was brought before the Court of First Instance of the
                                                                               European Communities on 21 May 2003 by Sanni Olesen,
                                                                               resident in Brussels, represented by Sébastien Orlandi, Albert
—     Since the inquiry was opened only in so far as concerned                 Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an
      exclusively the local public utilities market where it was               address for service in Luxembourg.
      assumed that there was open competition, the final deci-
      sion could not assess the impact of the measures on
      other markets which were not concerned by the decision
                                                                               The applicant claims that the Court should:
      to initiate the procedure. Finally, the measures in question
      cannot be deemed incompatible with the common market
      in so far as those undertakings could, in theory, have                   —     annul the Commission's decision of 19 April 2002 not to
      operated in a market other than that of local public                           grant her an expatriation allowance from her entry into
      utilities, which is the only one under formal investigation.                   service on 3 March 2002;
                                                                               —     order the Commission to pay the costs.
—     The provision which limits the ‘tax moratorium’ to only
      three years does not introduce any new State aid, rather it
      merely amends a tax regime which has been applicable to
      a defined category of taxpayer since 1925.
                                                                               Pleas in law and main arguments
                                                                               The applicant in this case, a Grade A official with the
—     Should the Court find that this is a case of State aid, it               Commission, opposes the Commission's decision not to grant
      should, pursuant to Article 87(3)(c) of the Treaty, be                   her an expatriation allowance because she worked in Belgium
      declared compatible with the common market inasmuch                      from 15 June 1995. Since that date she has lived in Belgium
      as the measures are inherent in the nature and/or general                and has had her main occupation there, as a freelance lecturer
      structure of the system in question. Indeed, a change in                 for the Commission's Directorate-General for Education and
      the general system of local public utilities could not have              Culture and as representative in Brussels of the town of
      been successfully carried out if the undertakings which                  Odense (ODENSE KOMMUNE — Denmark).
      had to become companies with a majority public share-
      holding had not been afforded the chance to become
      gradually acquainted with the mechanisms which govern
                                                                               In support of her claims, the applicant pleads breach of
      private law.
                                                                               Article 4(1)(a) of Annex VII to the Staff Regulations. She
                                                                               submits in this connection that:
                                                                               —     the status of freelance lecturer, characterised by a direct
In its application, the applicant also alleges infringement of                       legal link between her and the institution, corresponds to
Article 86(2) of the Treaty inasmuch as it was held in the                           a situation arising from work done for an international
decision that that provision did not apply to the measures in                        organisation;
question.
                                                                               —     under their charters of autonomy, Danish towns may
 1
( ) Commission Decision 2003/193/EC of 5 June 2002 on State aid                      open representations abroad and consequently the appli-
    granted by Italy in the form of tax exemptions and subsidised loans              cant's occupation as representative of the town of Odense
    to public utilities with a majority public capital holding (OJ 2003              must be regarded as ‘work done for another State’,
    L 77, p. 21).                                                                    namely the Kingdom of Denmark.


title: Case C-601/12 P: Judgment of the Court (Seventh Chamber) of 27 February 2014 — Ningbo Yonghong Fasteners Co. Ltd v Council of the European Union, European Commission and European Industrial Fasteners Institute AISBL (EIFI) (Appeal — Dumping — Regulation (EC) No 384/96 — Second subparagraph of Article 2(7)(c) — Imports of certain iron or steel fasteners originating in China — Market economy treatment — Time-limit for adoption of the related decision exceeded — Effect)

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/12

         Judgment of the Court (Seventh Chamber) of 27 February 2014 — Ningbo Yonghong Fasteners Co. Ltd v Council of the European Union, European Commission and European Industrial Fasteners Institute AISBL (EIFI)
   (Case C-601/12 P) (1)

   ((Appeal - Dumping - Regulation (EC) No 384/96 - Second subparagraph of Article 2(7)(c) - Imports of certain iron or steel fasteners originating in China - Market economy treatment - Time-limit for adoption of the related decision exceeded - Effect))
   2014/C 112/13
   Language of the case: English

      Parties

      Appellant: Ningbo Yonghong Fasteners Co. Ltd (represented by: F. Graafsma and J. Cornelis, advocaten)

      Other parties to the proceedings: Council of the European Union (represented by: J.-P. Hix and S. Boelaert, Agents, assisted by G. Berrisch, Rechtsanwalt), European Commission (represented by: M. França and T. Maxian Rusche, Agents), and European Industrial Fasteners Institute AISBL (EIFI) (represented by: J. Bourgeois, avocat)

      Re:

   Appeal brought against the judgment of 10 October 2012 in Case T-150/09 Ningbo Yonghong Fasteners Co. Ltd v Council, by which the General Court (Seventh Chamber) dismissed an action for the partial annulment of Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ningbo Yonghong Fasteners Co. Ltd to pay the costs incurred by the Council of the European Union in the present proceedings;

               3.

               Orders the European Commission and the European Industrial Fasteners Institute AISBL (EIFI) each to bear its own costs.

      (1)  OJ C 71, 9.3.2013.


title: Case T-233/05: Order of the Court of First Instance (Fifth Chamber) of 1 February 2008 — Nomura Principal Investment and Nomura International v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/46

         Order of the Court of First Instance (Fifth Chamber) of 1 February 2008 — Nomura Principal Investment and Nomura International v Commission
   (Case T-233/05) (1)

   (2008/C 92/90)

      Language of the case: English

   The President of the Court of First Instance (Fifth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 217, 3.9.2005.


title: Case T-94/07: Action brought on 26 March 2007 — EREF v Commission

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/31

         Action brought on 26 March 2007 — EREF v Commission
   (Case T-94/07)
   (2007/C 117/50)
   Language of the case: English
   Parties

      Applicant: European Renewable Energies Federation (EREF) ASBL (Brussels, Belgium) (represented by: D. Fouquet, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               The decision K(2006) 4963 final of the European Commission, dating from 24 October 2006, is declared null and void;

               —

               the Financial Vehicle in question in its present shape and structure is declared unlawful state aid.

               —

               Alternatively, the Commission is ordered to open a formal investigation procedure pursuant to Article 88(2) EC for Case NN 62/B/2006.

               —

               The European Commission is ordered to pay all procedural costs, including the costs of the claimant.

         Pleas in law and main arguments
   In 2004 the applicant filed a complaint with the Commission claiming among others that different aspects of the financement of a new nuclear power plant under construction in Finland was state aid that had not been notified. In 2006, the Commission split the file into two cases numbered NN 62/A/2006 and NN 62/B/2006.
   In the present case, the applicant seeks the annulment of Commission Decision C(2006) 4963 final, which concerns state aid Case NN 62/B/2006, by which the Commission found that a credit facility granted by a consortium of five banks and a loan granted by AB Svensk Exportkredit (‘SEK’) did not constitute aid within the meaning of Article 87(1) EC.
   The applicant submits that the Commission's split of the file into two separate cases is unlawful from a procedural as well as a substantive point of view. According to the applicant, it was only possible to give the credit facility and the loan at such a low interest rate because of a guarantee from the French export credit insurance agency COFACE. However, the state aid aspects of COFACE's involvement were dealt with under Case NN 62/A/2006. The applicant therefore claims that the splitting up of the file into two separate cases thus taking the guarantee element out of Case NN 62/B/2006 lead the Commission to the misunderstanding that the granting of the credit facility and the SEK loan at such a low interest rate could not constitute state aid simply because the participating banks were, according to the Commission, privately owned.
   Moreover, the applicant submits that even disregarding the guarantee from COFACE the credit facility as well as the loan granted by SEK constitutes state aid since:

               —

               the credit facility was granted at a low interest rate with the participation of the banks BLB and BNP Paribas, which the applicant alleges are both public banks; and

               —

               the loan from SEK was given by a 100 % state owned bank at an interest rate below market conditions.

         Finally, the applicant invokes a lack of reasoning and a manifest error of assessment.


title: Case C-317/05: Reference for a preliminary ruling from the Sozialgericht Köln by order of that court of 8 August 2005 in G. Pohl-Boskamp GmbH & Co. KG v Gemeinsamer Bundesausschuss; joined parties: (1) AOK-Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesverband der Betriebskrankenkassen, (4) Bundesverband der landwirtschaftlichen Krankenkassen, (5) Verband der Angestellten-Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband e.V., (7) Bundesknappschaft, (8) Seekrankenkasse, (9) Federal Republic of Germany, represented by the Federal Ministry of Health and Social Security

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/6

         Reference for a preliminary ruling from the Sozialgericht Köln by order of that court of 8 August 2005 in G. Pohl-Boskamp GmbH & Co. KG v Gemeinsamer Bundesausschuss; joined parties: (1) AOK-Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesverband der Betriebskrankenkassen, (4) Bundesverband der landwirtschaftlichen Krankenkassen, (5) Verband der Angestellten-Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband e.V., (7) Bundesknappschaft, (8) Seekrankenkasse, (9) Federal Republic of Germany, represented by the Federal Ministry of Health and Social Security
   (Case C-317/05)
   (2005/C 281/12)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Sozialgericht Köln (Social Court, Cologne) (Germany) of 8 August 2005, received at the Court Registry on 17 August 2005, for a preliminary ruling in the proceedings between G. Pohl-Boskamp GmbH & Co. KG and Gemeinsamer Bundesausschuss; joined parties: (1) AOK-Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesverband der Betriebskrankenkassen, (4) Bundesverband der landwirtschaftlichen Krankenkassen, (5) Verband der Angestellten-Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband e.V. (7) Bundesknappschaft, (8) Seekrankenkasse, (9) Federal Republic of Germany, represented by the Federal Ministry of Health and Social Security, on the following questions:

               1.

               Is Council Directive 89/105/EEC (1) of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems ('the transparency directive') to be interpreted as precluding rules of a Member State which, following the exclusion of non-prescription medicinal products from the range of benefits provided by the national health system, empower an authority under that system to adopt rules derogating from that exclusion in respect of certain medicines without making provision for a procedure under Article 6(1), second sentence, and 6(2) of the transparency directive?

               2.

               Is Directive 89/105/EEC of 21 December 1988 to be interpreted as granting the manufacturers of the medicinal products referred to in point 1 above a subjective right vis-à-vis the public authorities, in particular a right to a decision, containing a statement of reasons and information as to the available avenues of appeal, on the inclusion of one of their medicinal products on a list of the type mentioned above, even though the rules of the Member State make no provision for any corresponding decision-making or appeal procedures?

      (1)  OJ 1989 L 40, p. 8.


title: Action brought on 26 October 1995 by Dimitrios Coussios against the Commission of the European Communities (Case T-200/95)

text:
No C 351 / 16         EN                   Official Journal of the European Communities                                  30 . 12 . 95
Action brought on 26 October 1995 by Dimitrios Coussios               Action brought on 27 October 1995 by Heinrich Gottmann
  against the Commission of the European Communities                  against the Council of the European Union and the
                        ( Case T-200/95                                         Commission of the European Communities
                          ( 95/C 351 /31 )                                                   ( Case T-202/95 )
                                                                                ( 95/C 351 /32 )
                 (Language of the case: Greek)                                       (Language of the case: German)
                                                                      An action against the Council of the European Union and
                                                                      the Commission of the European Communities was brought
An action against the Commission of the European                      before the Court of First Instance of the European
Communities was brought before the Court of First                     Communities on 27 October 1995 by Heinrich Gottmann,
Instance on 26 October 1995 by Dimitrios Coussios,                    residing at Volkmarsen-Külte ( Federal Republic of
represented by Georgios Sakellaropoulos, of the Athens Bar,           Germany ), represented by Bernd Meisterernst, Mechtild
with an address for service in Luxembourg at the Chambers             Düsing, Dietrich Manstetten, Dr Frank Schulze and Dr
of Aloyse May, 31 Grand Rue .                                         Winfried Haneklaus, Rechtsanwälte, Münster, with an
                                                                      address for service in Luxembourg at the Chambers of
                                                                      Dupong & Associés, 14a Rue des Bains .
The applicant claims that the Court should :
                                                                      The applicant claims that the Court should :
— declare the application admissible,                                 ( 1 ) order the defendants jointly and severally to pay to the
                                                                             applicant milk quota compensation ( SLOM-III ) for the
                                                                             period from 2 April 1984 to 29 July 1993 , amounting
                                                                             to DM 41 078,16 , together with 8% interest from
— declare the implied refusal by the Commission to lift the
                                                                              19 May 1992 , and to pay the costs of the
     ban on the applicant's entering the Commission 's
     buildings invalid,                                                      proceedings;
                                                                       ( 2 ) join the present case to Case T-77/93 Hülseberg and
                                                                             Others v. Council and Commission of the EC, which is
— award the applicant an amount of ECU 300 000 for                           currently pending, and likewise stay the proceedings .
     non-material harm suffered,
                                                                       Pleas in law and main arguments adduced in support:
— order the Commission to pay the costs .
                                                                       The pleas in law and main arguments are the same as those
                                                                       in Case T-20/94 .
 Pleas in law and main arguments adduced in support:
 The applicant is an official of the Commission who has
 incured the disciplinary penalty of dismissal ; that penalty          Action brought on 27 October 1995 by Bernard Connolly
 has been challenged before the Court of First Instance and               against the Commission of the European Communities
 the case is still pending. In the present action the applicant                                Case T-203 / 95 )
 seeks a declaration of invalidity with regard to the implied
 refusal by the Commission to allow him entry into its                                           ( 95 /C 351 /33 )
 buildings, although he works as a company representative
 and needs to come to meetings with the competent                                      (Language of the case: French)
 authorities of the Commission . In the applicant's view, the
 Commission's refusal constitutes an abuse of rights and                An action against the Commission of the European
 power, since it imposes a second ancillary punishment for              Communities was brought before the Court of First
 which no provision is made in the Staff Regulations of                 Instance of the European Communities on 27 October 1995
 officials . Furthermore, it constitutes a negation of the              by Bernard Connolly, residing at Everberg ( Belgium ),
 constitutional right to freedom of communication and free              represented by Jacques Sambon and Pierre-Paul van
 development of the personality . The applicant also claims             Gehuchten, of the Brussels Bar, with an address for service
 payment of financial compensation for the non-material                 in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du
  harm that he has suffered and is suffering as a result of the         Fort Rheinsheim .
  Commission 's conduct .
                                                                        The applicant claims that the Court should:
                                                                         — annul the decisions of 6 and 27 September 1995 and
                                                                             4 October 1995 ,


title: Case T-73/06: Judgment of the Court of First Instance of 21 October 2008 — Cassegrain v OHIM (Shape of a bag) (Community trade mark — Application for a Community figurative mark — Shape of a bag — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/29

         Judgment of the Court of First Instance of 21 October 2008 — Cassegrain v OHIM (Shape of a bag)
   (Case T-73/06) (1)

   (Community trade mark - Application for a Community figurative mark - Shape of a bag - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)
   (2008/C 313/50)
   Language of the case: French
   Parties

      Applicant: Jean Cassegrain SAS (Paris, France) (represented by: Y. Coursin and T. van Innis, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 8 December 2005 (Case R 687/2005-2) concerning the registration of the figurative sign Shape of a bag as a Community trade mark.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Jean Cassegrain SAS to pay the costs.

      (1)  OJ C 108, 6.5.2006.


title: Case C-119/13 and C-120/13: Judgment of the Court (Third Chamber) of 4 September 2014 (reference for a preliminary ruling from the Amtsgericht Wedding — Germany) — eco cosmetics GmbH & Co. KG v Virginie Laetitia Barbara Dupuy (C-119/13), Raiffeisenbank St. Georgen reg. Gen. mbH v Tetyana Bonchyk (C-120/13) (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 1896/2006 — European order for payment procedure — Invalid service — Effects — European order for payment declared enforceable — Opposition — Review in exceptional cases — Time-limits)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/10

      Judgment of the Court (Third Chamber) of 4 September 2014 (reference for a preliminary ruling from the Amtsgericht Wedding — Germany) — eco cosmetics GmbH & Co. KG v Virginie Laetitia Barbara Dupuy (C-119/13), Raiffeisenbank St. Georgen reg. Gen. mbH v Tetyana Bonchyk (C-120/13)
      (Case C-119/13 and C-120/13) (1)

      ((Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 1896/2006 - European order for payment procedure - Invalid service - Effects - European order for payment declared enforceable - Opposition - Review in exceptional cases - Time-limits))
      (2014/C 395/12)
      Language of the case: German

         Referring court

      Amtsgericht Wedding

         Parties to the main proceedings

         Applicants: eco cosmetics GmbH & Co. KG (C-119/13), Raiffeisenbank St. Georgen reg. Gen. mbH (C-120/13)

         Defendants: Virginie Laetitia Barbara Dupuy (C-119/13), Tetyana Bonchyk (C-120/13)

         Operative part of the judgment

      Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure must be interpreted as meaning that the procedures laid down in Articles 16 to 20 thereof are not applicable where it appears that a European order for payment has not been served in a manner consistent with the minimum standards laid down in Articles 13 to 15 of that regulation.
      Where it is only after a European order for payment has been declared enforceable that such an irregularity is exposed, the defendant must have the opportunity to raise that irregularity, which, if it is duly established, will invalidate the declaration of enforceability.

         (1)  OJ C 164, 8.6.2013.


title: Case T-326/15: Action brought on 22 June 2015 — DIMA Verwaltungs v OHIM (Shape of a container)

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/9

         Action brought on 22 June 2015 — DIMA Verwaltungs v OHIM (Shape of a container)
   (Case T-326/15)
   (2015/C 328/08)
   Language of the case: German

      Parties

      Applicant: DIMA Verwaltungs GmbH (Hamburg, Germany) (represented by: T. Kerkhoff, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Three-dimensional Community trade mark (Shape of a container) — Application for registration No 12 649 174

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 20 April 2015 in Case R 2567/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the defendant to resume the registration procedure;

               —

               in the alternative, declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the registration and refer the case back to the Board of Appeal;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case T-310/06: Judgment of the Court of First Instance of 15 November 2007 — Hungary v Commission of the European Communities (Agriculture — Common organisation of the markets in cereals — Taking-over of cereals by intervention agencies — Upgrading of the criteria of the quality for maize — Introduction of a new criterion of specific weight for maize — Breach of the principle of protection of legitimate expectations — Manifest error of assessment)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/39

         Judgment of the Court of First Instance of 15 November 2007 — Hungary v Commission of the European Communities
   (Case T-310/06) (1)

   (Agriculture - Common organisation of the markets in cereals - Taking-over of cereals by intervention agencies - Upgrading of the criteria of the quality for maize - Introduction of a new criterion of specific weight for maize - Breach of the principle of protection of legitimate expectations - Manifest error of assessment)
   (2007/C 315/73)
   Language of the case: Hungarian
   Parties

      Applicant: Republic of Hungary (represented by: J. Fazekas, R. Somssich and K. Szíjjártó, Agents)

      Defendant: Commission of the European Communities (represented by: F. Clotuche-Duvieusart and Z. Pataki, Agents)
   Re:
   Partial annulment of Commission Regulation (EC) No 1572/2006 of 18 October 2006 amending Regulation (EC) No 824/2000 establishing procedures for the taking-over of cereals by intervention agencies and laying down methods of analysis for determining the quality of cereals (OJ 2006 L 290, p. 29)
   Operative part of the judgment
   The Court:

               1.

               Annuls the provisions of Commission Regulation (EC) No 1572/2006 of 18 October 2006 amending Regulation (EC) No 824/2000 establishing procedures for the taking-over of cereals by intervention agencies and laying down methods of analysis for determining the quality of cereals relating to the criterion of specific weight for maize, viz:

                           —

                           in Article 1(1), the words ‘and, in the case of maize, with the traditional methods applied’;

                           —

                           in Article 1(3)(b), the words ‘73 kg/hl for maize’;

                           —

                           in line ‘E. Minimum specific weight (kg/hl)’ of the table in point 1 of the Annex, the value ‘71’ for maize;

                           —

                           in table III in point 2 of the Annex, the reduction values for the intervention price for maize.

               2.

               Orders the Commission to bear its own costs and to pay those incurred by the applicant, including the costs relating to the interlocutory proceedings.

      (1)  OJ C 326, 30.12.2006.


title: Case T-439/07: Judgment of the General Court of 27 June 2012 — Coats Holdings v Commission (Competition — Agreements, decisions and concerted practices — Markets for zip fasteners and ‘other fasteners’ — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information — Evidence — Single and continuous infringement — Limitation period — Rights of the defence — Fines — Guidelines)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/12

         Judgment of the General Court of 27 June 2012 — Coats Holdings v Commission
   (Case T-439/07) (1)

   (Competition - Agreements, decisions and concerted practices - Markets for zip fasteners and ‘other fasteners’ - Decision finding an infringement of Article 81 EC - Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information - Evidence - Single and continuous infringement - Limitation period - Rights of the defence - Fines - Guidelines)
   2012/C 243/20
   Language of the case: English

      Parties

      Applicant: Coats Holdings Ltd (Uxbridge, Middlesex (United Kingdom)) (represented by: W. Sibree, C. Jeffs, K. O’Connell, and J. Boyce, Solicitors, and D. Anderson QC)

      Defendant: European Commission (represented by: F. Castillo de la Torre and K. Mojzesowicz, acting as Agents)

      Re:

   Application for, primarily, annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) in so far as it concerns the applicant and, in the alternative, annulment or reduction of the fine imposed on the applicant

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Coats Holdings Ltd to pay the costs.

      (1)  OJ C 37, 9.2.2008.


26.4.2003              EN                   Official Journal of the European Union                                   C 101/31
        Removal from the register of Case C-331/02 ( 1)             from the register of Case C-339/02: Commission of the
                                                                    European Communities v Portuguese Republic.
                        (2003/C 101/53)
                                                                    (1 ) OJ C 305 of 7.12.2002.
By order of 31 January 2003 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-331/02: Commission of the
European Communities v United Kingdom of Great Britain
and Northern Ireland.
                                                                            Removal from the register of Case C-344/02 ( 1)
( 1) OJ C 274 of 9.11.2002.
                                                                                (2003/C 101/55)
        Removal from the register of Case C-339/02 ( 1)             By order of 6 February 2003 the President of the Court of
                                                                    Justice of the European Communities ordered the removal
                        (2003/C 101/54)                             from the register of Case C-344/02: Commission of the
                                                                    European Communities v French Republic.
By order of 13 February 2003 the President of the Court of
Justice of the European Communities ordered the removal             (1 ) OJ C 261 of 26.10.2002.


title: Case F-140/11: Order of the Civil Service Tribunal of 28 June 2012 — BK v Commission

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/42

         Order of the Civil Service Tribunal of 28 June 2012 — BK v Commission
   (Case F-140/11) (1)

   2012/C 287/80
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 65, 3.3.12, p. 25.


title: Case T-270/06: Action brought on 25 September 2006 — Lego Juris v OHIM — Mega Brands (Lego brick)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/55

         Action brought on 25 September 2006 — Lego Juris v OHIM — Mega Brands (Lego brick)
   (Case T-270/06)
   (2006/C 294/114)
   Language in which the application was lodged: English
   Parties

      Applicant: Lego Juris A/S (Billund, Denmark) (represented by: V. von Bomhard, A. Renck and T. Dolde, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Mega Brands Inc. (Montreal, Canada)
   Form of order sought

               —

               Annul the decision of the Grand Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) of 10 July 2006 in case No R 856/2004-G; and

               —

               order that the costs of the proceedings be borne by the defendant.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘LEGO brick’ for products in class 28 claiming the ‘colour red’ — Community Trade mark No 107 029

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: Mega Brands Inc.

      Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: The applicant advances a single plea in law in support of its application. Precisely, the applicant contends that the contested decision violates Article 7(1)(e)(ii) CTMR of Council Regulation (EC) No 40/94 in so far as it allegedly misinterprets the said provision as well as its rationale and, in addition, to the extent that it applies it to something that is not the subject of the trade mark protection granted by the registration at issue.


title: Case C-169/11: Reference for a preliminary ruling from the Tribunale di Frosinone (Italy) lodged on 7 April 2011 — Criminal proceedings against Patrick Conteh

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/8

         Reference for a preliminary ruling from the Tribunale di Frosinone (Italy) lodged on 7 April 2011 — Criminal proceedings against Patrick Conteh
   (Case C-169/11)
   2011/C 173/16
   Language of the case: Italian

      Referring court

   Tribunale di Frosinone

      Party to the main proceedings

   Patrick Conteh

      Question referred

   Are Articles 15 and 16 of Directive 2008/115/EC (1) to be interpreted as precluding a Member State from applying to an illegally staying third country national who does not cooperate in the administrative return procedure measures involving deprivation of liberty, on the basis of measures which are other than detention measures and as defined by national law, without the pre-conditions and safeguards laid down in Articles 15 and 16 of Directive 2008/115, on grounds of failure to comply with a removal order issued by the competent administrative authority in accordance with Article 8(3) of that directive?

      (1)  OJ 2008 L 348, p. 98.


title: Case F-101/13: Judgment of the Civil Service Tribunal (Third Chamber) of 25 September 2014 — Osorio and Others v EEAS (Civil Service — Remuneration — Staff of the EEAS employed in a third country — Decision of the Appointing Authority amending the list of third countries for which the living conditions are equivalent to those normal in the European Union — Act of general application — Admissibility of the action — Annual assessment of the living conditions allowance — Withdrawal)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/65

      Judgment of the Civil Service Tribunal (Third Chamber) of 25 September 2014 — Osorio and Others v EEAS
      (Case F-101/13) (1)

      ((Civil Service - Remuneration - Staff of the EEAS employed in a third country - Decision of the Appointing Authority amending the list of third countries for which the living conditions are equivalent to those normal in the European Union - Act of general application - Admissibility of the action - Annual assessment of the living conditions allowance - Withdrawal))
      (2014/C 395/78)
      Language of the case: French

         Parties

         Applicants: Carla Osorio (Pointe aux Canonniers, Mauritius) and others (represented by: S. Orlandi, lawyer)

         Defendant: European External Action Service (represented by: S. Marquardt and M. Silva, acting as Agents)

         Re:

      Application for annulment of the decision of the Appointing Authority of 19 December 2012, taking effect on 1 July 2013, no longer to grant the living conditions allowance provided for in Article 10 of Annex X to the Staff Regulations to officials employed in the Republic of Mauritius.

         Operative part of the judgment

      The Tribunal:

                  1.

                  Dismisses the action;

                  2.

                  Orders Ms Osorio and the other applicants whose names appear in annexe to bear their own costs;

                  3.

                  Orders the European External Action Service to bear its own costs.

         (1)  OJ C 367, 14.12.2013, p. 41.


title: Case F-101/10: Action brought on 15 October 2010 — Massez and Others v Court of Justice

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/63

         Action brought on 15 October 2010 — Massez and Others v Court of Justice
   (Case F-101/10)
   ()
   2011/C 30/124
   Language of the case: French

      Parties

      Applicants: Lieven Massez (Luxembourg, Luxembourg) and Others (represented by: A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Court of Justice of the European Union

      Subject-matter and description of the proceedings

   Annulment of the applicants’ salary adjustment slips for the period from July to December 2009 and the salary slips issued since 1 January 2010 within the framework of the annual adjustment of the remuneration and pensions of officials and other servants pursuant to Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

      Form of order sought

               —

               Annul the decision of the Complaints Committee of the Court of Justice of 29 June 2010 rejecting the applicants’ complaints regarding their salary adjustment slips for the period from July to December 2009 and their salary slips issued since 1 January 2010;

               —

               to the extent necessary, annul the decisions of the Court of Justice on the establishment of the applicants’ salary adjustment slips for the period from July to December 2009 and salary slips since 1 January 2010;

               —

               order the Court of Justice to pay the applicants the arrears of remuneration, plus default interest;

               —

               order the Court of Justice to pay the costs.


title: Case C-418/12 P: Appeal brought on 14 September 2012 by TME SpA — Termomeccanica Ecologia against the order of the General Court (Third Chamber) delivered on 4 July 2012 in Case T-329/11 TME SpA — Termomeccanica Ecologia v Commission

text:
               1.12.2012

               EN

               Official Journal of the European Union

               C 373/3

         Appeal brought on 14 September 2012 by TME SpA — Termomeccanica Ecologia against the order of the General Court (Third Chamber) delivered on 4 July 2012 in Case T-329/11 TME SpA — Termomeccanica Ecologia v Commission
   (Case C-418/12 P)
   2012/C 373/03
   Language of the case: Italian

      Parties

      Appellant: TME SpA — Termomeccanica Ecologia (represented by: C. Malinconico, S. Fidanzia and A. Gigliola, lawyers)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside the order of the General Court of 4 July 2012 in Case T-329/11, notified on 9 July 2012, for the reasons set out in the grounds of the application, and accordingly;

               —

               Annul the decision of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of Community principles and directives on the award of public procurement contracts and of the ‘Practical Guide to contract procedures financed from the General Budget of the European Communities in the context of external actions’ (PRAG);

               —

               order the European Commission to pay damages in the amount of EUR 18 955 106, or such greater or lesser amount as may be considered appropriate by the Court, by way of compensation for the damage sustained by TME as a result of the breach of Community law on the part of the European Commission itself;

               —

               in the alternative, order the European Commission to pay compensation for the loss of opportunity suffered by TME, equivalent to EUR 3 791 021, or to pay such greater or lesser amount as may be considered appropriate by the Court;

               —

               in the further alternative, order the European Commission to pay compensation for the delay attributable to the European Commission in the performance of its duties, quantifiable as the overall amount represented by the legal fees incurred by TME, equal to EUR 73 044,32, or such greater or lesser amount as may be considered appropriate by the Court;

               —

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

      Pleas in law and main arguments

   The Commission was required, under Clause 2.4.12 of the PRAG and Volume I, Clause 37, of the offer document, to deliver an ‘opinion’ on the procedure which was challenged by TME. The Commission did not fulfil that obligation.
   Moreover, the Commission erred by failing to intervene to remedy the clear breach of Community law and recover the funds granted to the Romanian State in connection with the contract at issue, following the complaint lodged by TME on 10 December 2008.


title: Case T-486/14: Judgment of the General Court of 28 January 2016 –Stavytskyi v Council (Common foreign and security policy — Restrictive measures adopted in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies covered by the freezing of funds and economic resources — Inclusion of the applicant’s name — Proof that inclusion on the list is justified)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/39

         Judgment of the General Court of 28 January 2016 –Stavytskyi v Council
   (Case T-486/14) (1)

   ((Common foreign and security policy - Restrictive measures adopted in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies covered by the freezing of funds and economic resources - Inclusion of the applicant’s name - Proof that inclusion on the list is justified))
   (2016/C 098/51)
   Language of the case: English

      Parties

      Applicant: Edward Stavytskyi (Brussels, Belgium) (represented by: J. Grayston, Solicitor, and by P. Gjørtler, G. Pandey, D. Rovetta and M. Gambardella, lawyers)

      Defendant: Council of the European Union (represented by: V. Piessevaux and J.-P. Hix, acting as Agents)

      Re:

   Application for annulment of Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 111, p. 91) and of Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 111, p. 33), in so far as the applicant’s name was included on the list of persons, entities and bodies covered by those restrictive measures.

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as they concern Mr Edward Stavytskyi;

               2.

               Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Stavytskyi.

      (1)  OJ C 303, 8.9.2014.


title: Judgment of the Court of First Instance of 28 June 2005 in Case T-158/03 Industrias Químicas del Vallés, SA v Commission of the European Communities (Directive 91/414/EEC — Plant protection products — Active substances — Metalaxyl — Authorisation procedure — Summary dossier and complete dossier — Time-limits — Principle of proportionality — Misuse of powers)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/35

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 28 June 2005
   in Case T-158/03 Industrias Químicas del Vallés, SA v Commission of the European Communities (1)

   (Directive 91/414/EEC - Plant protection products - Active substances - Metalaxyl - Authorisation procedure - Summary dossier and complete dossier - Time-limits - Principle of proportionality - Misuse of powers)
   (2005/C 217/79)
   Language of the case: Spanish
   In Case T-158/03: Industrias Químicas del Vallés, SA, established in Mollet del Vallés (Spain), represented initially by C. Fernández Vicién, J. Sabater Marotias and P. González-Espejo, and subsequently by C. Fernández Vicién, J. Sabater Marotias and I. Moreno Tapia Rivas, lawyers, against Commission of the European Communities (Agents: S. Pardo Quintillán and B. Doherty, with an address for service in Luxembourg) — action for annulment of Commission Decision 2003/308/EC of 2 May 2003 concerning the non-inclusion of metalaxyl in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant-protection products containing this active substance (OJ 2003 L 113, p. 8) — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 28 June 2005, in which it:

               1.

               Dismisses the action;

               2.

               Orders Industrias Químicas del Vallés, SA to pay the costs, including those relating to the interlocutory proceedings.

      (1)  OJ C 158 of 5.7.2003


title: Judgment of the Court of First Instance of 7 June 2001 in Case T-187/99 Agrana Zucker und Stärke AG v Commission of the European Communities (Action for annulment — State aid — Aid incompatible with the common market — Time-limit for investigation — Act of Accession — Declaration No 31 — Statement of reasons)

text:
15.9.2001               EN                     Official Journal of the European Communities                                          C 259/7
4.    Orders the applicant to pay the Commission the sum of                   JUDGMENT OF THE COURT OF FIRST INSTANCE
      EUR 49 844, plus interest at an annual rate of 7 % as from
      31 January 1999.                                                                              of 7 June 2001
5.    Orders the applicant to bear its own costs and to pay half of       in Case T-187/99 Agrana Zucker und Stärke AG v
      the costs incurred by the Commission.                                       Commission of the European Communities (1)
6.    Orders the Commission to bear half of its own costs.                (Action for annulment — State aid — Aid incompatible
                                                                          with the common market — Time-limit for investigation —
                                                                          Act of Accession — Declaration No 31 — Statement of
(1) OJ C 160 of 5.6.99.
                                                                                reasons)
                                                                                (2001/C 259/09)
                                                                                (Language of the case: German)
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               In Case T-187/99, Agrana Zucker und Stärke AG, established
                                                                          in Vienna (Austria), represented by W. Barfuß and
                                                                          H. Wollmann, lawyers, with an address for service in Luxem-
                          of 14 June 2001                                 bourg, against Commission of the European Communities
                                                                          (Agents: M. Erhart and D. Triantafyllou) — application for
                                                                          annulment of Commission Decision 1999/342/EC of 30 Sep-
in Case T-143/99 Hortiplant SAT v Commission of the
                                                                          tember 1998 concerning aid which Austria plans to grant to
                    European Communities (1)
                                                                          Agrana Stärke- GmbH to build and convert starch production
                                                                          facilities (OJ 1999 L 131, p. 61) — the Court of First Instance
(EAGGF — Cancellation of financial assistance —                           (Fifth Chamber, Extended Composition), composed of P. Lindh,
          Article 24 of Regulation (EEC) No 4253/88)                      President, R. Garcı́a-Valdecasas, J.D. Cooke, M. Vilaras and
                                                                          N. Forwood, Judges; G. Hertzig, Administrator, for the Regis-
                                                                          trar, has given a judgment on 7 June 2001, in which it:
                          (2001/C 259/08)
                                                                          1.    Dismisses the application;
                    (Language of the case: Spanish)                       2.    Orders the applicant to bear its own costs and pay those of the
                                                                                Commission.
In Case T-143/99, Hortiplant SAT, established in Amposta
(Spain), represented by C. Fernández Vicién and Iglesias Roa,            (1) OJ C 314 of 30.10.99.
lawyers, against Commission of the European Communities
(Agents: L. Visaggio and J. Guerra Fernández) — application
for the annulment of the Commission decision of 4 March
1999 to cancel the financial assistance granted to Hortiplant
SAT by Commission Decision C(92) 3125 of 3 December
1992 concerning the granting of aid from the EAGGF
Guidance Section pursuant to Council Regulation (EEC)                         JUDGMENT OF THE COURT OF FIRST INSTANCE
No 4256/88 in the context of a project entitled ‘Initiative in
the form of a pilot project to demonstrate a new and                                               of 14 June 2001
highly efficient method of producing seedlings, as applied to
ornamental and woodland species’ — the Court of First                     in Case T-230/99: Hans McAuley v Council of the Euro-
Instance (Fourth Chamber), composed of P. Mengozzi, Presi-                                          pean Union (1)
dent, V. Tiili and R.M. Moura Ramos, Judges; H. Jung, Registrar,
has given a judgment on 14 June 2001, in which it:                        (Officials — Appointment by way of promotion — Annul-
                                                                          ment — Examination of the comparative merits — Manifest
1.    Dismisses the application.                                                                 error of assessment)
2.    Orders the applicant to bear its own costs and those of the                                  (2001/C 259/10)
      Commission, including those in the proceedings for interim
      relief.
                                                                                (Language of the case: French)
(1) OJ C 226 of 7.8.99.
                                                                          In Case T-230/99: Hans McAuley, an official of the Council
                                                                          of the European Union, residing in Wezembeek-Oppem
                                                                          (Belgium), represented by J-N. Louis, G-F. Parmentier and


title: Case C-335/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittlerer Erzgebirgskreis

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/11

         Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittlerer Erzgebirgskreis
   (Case C-335/06)
   (2006/C 261/20)
   Language of the case: German
   Referring court
   Verwaltungsgericht Chemnitz
   Parties to the main proceedings

      Applicant: Steffen Schubert

      Defendant: Landkreis Mittlerer Erzgebirgskreis
   Questions referred

               1.

               Is a Member State permitted, in conformity with Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC, to require a holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to drive in its territory where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving withdrawn or cancelled for some reason?
               If not:

               2.

               Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason, if the ban on the issue of a new driving licence in that Member State, with which that measure was coupled, had expired before the driving licence was issued in the other Member State and if it is to be concluded on the basis of objective evidence (non-residence in the Member State issuing the driving licence or the failure of an application for the national driving licence to be restored) that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure for the restoration of a driving licence, particularly the need for a medical/psychological report?

      (1)  OJ L 237, p. 1.


title: Case C-64/08: Judgment of the Court (Fourth Chamber) of 9 September 2010 (reference for a preliminary ruling from the Landesgericht Linz (Austria)) — Criminal proceedings against Ernst Engelmann (Freedom to provide services — Freedom of establishment — National rules establishing a system of concessions for the operation of games of chance in casinos — Concessions obtainable solely by public limited companies established in national territory — All concessions granted without any competitive procedure)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/9

      Judgment of the Court (Fourth Chamber) of 9 September 2010 (reference for a preliminary ruling from the Landesgericht Linz (Austria)) — Criminal proceedings against Ernst Engelmann
      (Case C-64/08) (1)

      (Freedom to provide services - Freedom of establishment - National rules establishing a system of concessions for the operation of games of chance in casinos - Concessions obtainable solely by public limited companies established in national territory - All concessions granted without any competitive procedure)
      (2010/C 288/14)
      Language of the case: German

         Referring court

      Landesgericht Linz

         Party in the main proceedings

      Ernst Engelmann

         Re:

      Reference for a preliminary ruling — Landesgericht Linz — Interpretation of Articles 43 EC and 49 EC — National legislation prohibiting, on pain of criminal sanctions, the operation of games of chance in casinos without a concession granted by the competent authority, but restricting the possibility of obtaining such a concession, of a maximum duration of 15 years, to public limited companies established in national territory which do not have any branches abroad

         Operative part of the judgment

                  1.

                  Article 43 EC must be interpreted as precluding legislation of a Member State under which games of chance may be operated in gaming establishments only by operators whose seat is in the territory of that Member State.

                  2.

                  The obligation of transparency flowing from Articles 43 EC and 49 EC and from the principle of equal treatment and the prohibition of discrimination on grounds of nationality precludes the grant without any competitive procedure of all the concessions to operate gaming establishments in the territory of a Member State.

         (1)  OJ C 116, 9.5.2008.


title: Case C-297/14: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 17 June 2014  — Rüdiger Hobohm v Benedikt Kampik Ltd & Co., Benedikt Aloysius Kampik, Mar Mediterraneo Werbe- und Vertriebsgesellschaft für Immobilien SL

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/22

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 17 June 2014 — Rüdiger Hobohm v Benedikt Kampik Ltd & Co., Benedikt Aloysius Kampik, Mar Mediterraneo Werbe- und Vertriebsgesellschaft für Immobilien SL
   (Case C-297/14)
   2014/C 303/29
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Rüdiger Hobohm

      Defendants: Benedikt Kampik Ltd & Co., Benedikt Aloysius Kampik, Mar Mediterraneo Werbe- und Vertriebsgesellschaft für Immobilien SL

      Question referred

               –

               Can a consumer, pursuant to the second alternative in Article 15(1)(c) of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in conjunction with the second alternative in Article 16(1) of the regulation, bring proceedings in the courts for the place where he is domiciled against the other party to the contract, who pursues commercial or professional activities in another Member State of the European Union if, whilst the contract underlying the proceedings does not fall directly within the scope of such activities of the other party to the contract which are directed to the Member State of the consumer’s domicile, the contract serves, however, to achieve the economic result that is sought by another contract — previously concluded between the parties and already performed — which falls within the scope of the aforementioned provisions?

      (1)  OJ 2001 L 12, p. 1.


title: Case T-519/14: Action brought on 10 July 2014  — Grupo Morera & Vallejo and DSA v Commission

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/49

         Action brought on 10 July 2014 — Grupo Morera & Vallejo and DSA v Commission
   (Case T-519/14)
   2014/C 303/58
   Language of the case: Spanish

      Parties

      Applicants: Grupo Morera & Vallejo, SL (Seville, Spain) and DSA, Defensa y Servicios del Asegurado, SA (Seville, Spain) (represented by: E. Navarro Varona, P. Vidal Martínez and G. Canalejo Lasarte, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the General Court should:

               —

               annul the contested decision under Article 263 TFEU in so far as it declares the existence of State aid and orders its recovery from the investors in the Economic Interest Groupings (EIGs);

               —

               in the alternative, annul Articles 1, 2 and 4.1 of the decision in so far as they describe the investors as beneficiaries that must reimburse the alleged aid;

               —

               in the alternative, declare void the provision made in Article 4.1 of the decision, in fine, ordering recovery of the alleged aid, for infringement of the principles of legal certainty and of the protection of legitimate expectations, since recovery of the aid cannot be ordered with effect from before the publication of the decision to open formal proceedings;

               —

               in the alternative, annul Article 2 of the decision and declare unlawful the methodology, set out in paragraphs 263 and 167 of the decision, used to determine the alleged advantage to be reimbursed by the investors, which should have been adjusted in order to take certain deductions into account;

               —

               declare inoperative, or in the alternative, annul in part Article 4.1 of the decision relating to the prohibition of ‘transfer[ring] the burden of recovery on other subjects’, in so far as it entails a ruling on the prohibition or supposed invalidity of the contractual terms allowing recourse against third parties in respect of the amounts that the investors are required to reimburse to Spain; and

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   The pleas in law and main arguments are similar to those raised in Case T-401/14 Duro Felguera v Commission, Case T-700/13 Bankia v Commission and Case T-500/14 Derivados del Flúor v Commission


title: Case T-242/02: Action brought on 14 August 2002 by Sunrider Corporation against the Office for Harmonisation in the Internal Market

text:
C 261/16                EN                      Official Journal of the European Communities                                    26.10.2002
Article 86(2)(f) of the Staff Regulations for officials of the             Action brought on 29 June 2002 by José Lloris Maeso
European Communities — the President of the Court of First                     against Commission of the European Communities
Instance has made an order on 14 August 2002, in which he:
                                                                                (Case T-165/02)
1.    Dismisses the application for interim measures;
                                                                                (2002/C 261/31)
2.    Orders that costs are reserved.                                                         (Language of the case: Spanish)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 29 June 2002 by José Lloris Maeso,
                                                                           residing in Valencia (Spain), represented by Julián Bosch
                                                                           Abarca, lawyers.
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               The applicant claims that the Court should:
                             INSTANCE
                                                                           —     annul the decision of the selection board for competition
                                                                                COM/A/10/01 (Law) of 2 May 2002, and that he be
                          of 16 July 2002                                        admitted to the next stage of that competition.
in Case T-207/02 R: Nicoletta Falcone v Commission of                      Pleas in law and main arguments
                  the European Communities
                                                                           The applicant in the present case is challenging the decision of
(Procedure for interim relief — Competition procedure —                    the selection board for COM/A/10/01 (Law), notified by letter
            Interim measures — Urgency — None)                             dated 2 May 2002, awarding him in respect of one of the
                                                                           selection tests in that competition, specifically test (a), marks
                                                                           below the minimum required to be admitted to the remainder
                         (2002/C 261/30)                                   of the tests for that competition.
                                                                           In support of his claim, the applicant alleges error in the
                   (Language of the case: Italian)                         marking of the abovementioned test (a).
In Case T-207/02 R: Nicoletta Falcone, residing in Florence
(Italy), represented by M. Condinanzi, lawyer, against Com-
mission of the European Communities (Agents: J. Currall and                Action brought on 14 August 2002 by Sunrider Corpor-
A. Dal Ferro) — application for an interim measure requiring               ation against the Office for Harmonisation in the Internal
the Commission to invite the applicant to complete her                                                  Market
application for admission to the second set of tests in general
competition COM/A/10/01, in the field of law, fixed for
19 July 2002, from which she was excluded by decision of the                                        (Case T-242/02)
jury of 2 May 2002 informing her that she had not been
admitted to the written tests in the said competition — the                                         (2002/C 261/32)
President of the Court of First Instance has made an order on
16 July 2002, in which he:
                                                                                (Language of the case: Greek)
1.    Dismisses the application;
                                                                           An action against the Office for Harmonisation in the Internal
                                                                           Market was brought before the Court of First Instance of the
2.    Orders that costs are reserved.                                      European Communities on 14 August 2002 by Sunrider
                                                                           Corporation, whose registered office is in Torrance, California
                                                                           (USA), represented by Nikolaos Dontas and Maria Bra, Lawyers,
                                                                           with an address for service in Luxembourg.
 ---pagebreak--- 26.10.2002            EN                      Official Journal of the European Communities                                       C 261/17
The applicant claims that the Court should:                              Action brought on 19 August 2002 by Antonia de Jong
                                                                                against Europol
—     allow the present action;
                                                                                (Case T-245/02)
—     annul the contested decision of the First Board of Appeal                                   (2002/C 261/33)
      of the Office for Harmonisation in the Internal Market
      (Trade Marks and Designs) of 30 May 2002; and
                                                                                (Language of the case: Dutch)
—     order the Office in any event to pay, first, the applicant’s
      costs both before the Board of Appeal and before the
                                                                         An action against Europol was brought before the Court of
      Court of First Instance, together with the fees of the             First Instance of the European Communities on 19 August
      lawyers instructed by it, and second, the translation              2002 by Antonia de Jong, residing in The Hague (Netherlands),
      costs incurred by the applicant in the procedures for              represented by Pauline de Casparis and Maria Franciscus
      examination of its application and consideration of its            Baltussen.
      appeal before the Board of Appeal.
                                                                         The applicant claims that the Court should:
                                                                         1.    Set aside Europol’s rejection of the applicant’s complaint
                                                                               brought against the Decision of 23 November 2001 and
Pleas in law and main arguments                                                at the same time annul the contested Decision of
                                                                               23 November 2001;
Community trade mark:         the word mark ‘TOP’ — Appli-
                              cation 604 975                             2.    Principally, order Europol to grant the applicant two
                                                                               additional salary increments with effect from 1 July 2001,
                                                                               and, in the alternative, order Europol to grant the
Goods or services con-        herbal food capsule or powder;                   applicant one additional salary increment with effect
cerned:                       herbal nutritional supplement.                   from 1 July 2001;
                              (Classes 5 and 29)
                                                                         3.    Order Europol to pay to the applicant the amounts due
Decision of the exam-         refusal of the application for regis-            under (2) within 48 hours of pronouncement of the
iner:                         tration                                          judgment to be delivered in this case, plus such statutory
                                                                               interest as is due on those amounts in accordance with
                                                                               Netherlands law;
Decision of the Board of      dismissal of the appeal
Appeal:                                                                  4.    Order Europol to pay to the applicant, within 48 hours
                                                                               of pronouncement of the judgment to be delivered in this
Grounds put forward:          1.    infringement of the audi                   case, the sum of EUR 1 000 as compensation for the
                                    alteram partem rule and of the             non-material damage which she has suffered;
                                    rights of the defence
                                                                         5.    Order Europol to pay the costs incurred by the applicant
                              2.    impermissibly long pro-                    in the present proceedings.
                                    cedure before the Office’s
                                    Boards of Appeal from the
                                    lodging of the appeal to noti-
                                                                         Pleas in law and main arguments
                                    fication of the decision to the
                                    applicant
                                                                         The applicant works for Europol. In the contested decision,
                              3.    non-notification of matters          the defendant refused to grant a salary increase to the applicant
                                    upon which the contested             on the basis of her report.
                                    decision was based
                              4.    insufficient and unclear             The applicant contends that this decision is contrary to
                                    grounds of the contested             Article 29 of the Europol Staff Regulations. According to the
                                    decision                             applicant, the Management Board has failed to lay down the
                                                                         necessary rules for the award of salary increases in accordance
                              5.    suitability for registration of      with that article. The applicant further pleads that the Director
                                    the mark                             exceeded his discretionary powers, inasmuch as the decision-
                                                                         making procedure does not satisfy the requirements of due
                              6.    distinctive character of the         care and impartiality. Lastly, the applicant pleads infringement
                                    mark                                 of the principles of equal treatment and protection of legitimate
                                                                         expectations.


title: Case C-119/15: Judgment of the Court (Fifth Chamber) of 21 December 2016 (request for a preliminary ruling from the Sąd Apelacyjny w Warszawie — Poland) — Biuro podróży ‘Partner’ sp. z o.o. sp.k. w Dąbrowie Górniczej v Prezes Urzędu Ochrony Konkurencji i Konsumentów (References for a preliminary ruling — Directive 93/13/EEC — Directive 2009/22/EC — Consumer protection — Erga omnes effect of unfair terms entered in a public register — Financial penalty imposed on a seller or supplier having used a term held to be equivalent to a term in the register — Seller or supplier who was not a party to the proceedings giving rise to the declaration that the term in question was unfair — Article 47 of the Charter of Fundamental Rights of the European Union — Concept of ‘court or tribunal against whose decisions there is no judicial remedy under national law’)

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/7

         Judgment of the Court (Fifth Chamber) of 21 December 2016 (request for a preliminary ruling from the Sąd Apelacyjny w Warszawie — Poland) — Biuro podróży ‘Partner’ sp. z o.o. sp.k. w Dąbrowie Górniczej v Prezes Urzędu Ochrony Konkurencji i Konsumentów
   (Case C-119/15) (1)

   ((References for a preliminary ruling - Directive 93/13/EEC - Directive 2009/22/EC - Consumer protection - Erga omnes effect of unfair terms entered in a public register - Financial penalty imposed on a seller or supplier having used a term held to be equivalent to a term in the register - Seller or supplier who was not a party to the proceedings giving rise to the declaration that the term in question was unfair - Article 47 of the Charter of Fundamental Rights of the European Union - Concept of ‘court or tribunal against whose decisions there is no judicial remedy under national law’))
   (2017/C 053/08)
   Language of the case: Polish

      Referring court

   Sąd Apelacyjny w Warszawie

      Parties to the main proceedings

      Applicant: Biuro podróży ‘Partner’ sp. z o.o. sp.k. w Dąbrowie Górniczej

      Defendant: Prezes Urzędu Ochrony Konkurencji i Konsumentów

      Operative part of the judgment

               1.

               Article 6(1) and Article 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with Articles 1 and 2 of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests and in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the use of standard contract terms with content identical to that of terms that have been declared unlawful by a judicial decision having the force of law and entered in a national register of unlawful standard contract terms from being regarded, in relation to another seller or supplier which was not a party to the proceedings culminating in the entry in that register, as an unlawful act, provided, which it is for the referring court to verify, that that seller or supplier has an effective judicial remedy against the decision declaring the terms compared to be equivalent in terms of the question whether, in the light of all relevant circumstances particular to each case, those terms are materially identical, having regard in particular to their harmful effects for consumers, and against the decision fixing the amount of the fine imposed, where applicable.

               2.

               The third paragraph of Article 267 TFEU must be interpreted as meaning that a court such as the referring court, whose decisions in proceedings such as those in the main proceedings may be the subject matter of an appeal in cassation, cannot be categorised as a ‘court or tribunal against whose decisions there is no judicial remedy under national law’.

      (1)  OJ C 198, 15.6.2015.


title: Case T-424/14: Action brought on 11 June 2014 — ClientEarth v Commission

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/34

         Action brought on 11 June 2014 — ClientEarth v Commission
   (Case T-424/14)
   2014/C 303/43
   Language of the case: English

      Parties

      Applicant: ClientEarth (London, United Kingdom) (represented by: O. Brouwer, F. Heringa and J. Wolfhagen, lawyers)

      Defendant(s): European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the defendant’s decision to refuse access to documents requested by the applicant pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, as communicated to the Applicant on 3 April 2014 in a letter with the reference SG.B.4/LR/rc — sg.dsg2.b.4(2014) 1028887;

               —

               order the Commission to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

   By its present action, the applicant seeks the annulment of the Commission’s decision to refuse access to the Commission’s Impact Assessment Report, as well as the opinion of the Impact Assessment Board on Access to justice in environmental matters regarding the implementation of the third pillar of the Århus Convention into the law of the European Union and the law of the Member States.
   In support of the action, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging that the first subparagraph of Article 4(3) of Regulation No 1049/2001 (1) is not applicable and that the Commission failed to state reasons. The applicant submits that the Commission misinterpreted and erroneously invoked the exception to access to documents of the first subparagraph of Article 4(3) as the requested documents should be distinguished from the Commission’s decision-making process. The applicant further submits that the Commission failed to state reasons as to why the first subparagraph of Article 4(3) is applicable.

               2.

               Second subsidiary plea in law, alleging misapplication of the first subparagraph of Article 4(3) of Regulation No 1049/2001 and failure to state reasons. The applicant submits that even if the first subparagraph of Article 4(3) would apply, the Commission failed to establish that disclosure of the requested documents would undermine the decision-making process and failed to provide a specific explanation in this regard.

               3.

               Third subsidiary plea in law, alleging misapplication of the overriding public interest test of the first subparagraph of Article 4(3) of Regulation No 1049/2001 and failure to state reasons. The applicant submits that even if the first subparagraph of Article 4(3) would apply, the Commission misapplied and misinterpreted the overriding public interest balancing test and failed to show that there was no overriding public interest that favoured disclosure of the requested documents. The applicant further submits that the Commission did not state sufficient reasons in this regard.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Joined Cases C-511/15 and C-512/15: Order of the Court (Sixth Chamber) of 12 October 2016 (request for a preliminary ruling from the Prekršajni sud u Bjelovaru — Croatia) — Renata Horžić (C-511/15), Siniša Pušić (C-512/15) v Privredna banka Zagreb d.d., Božo Prka (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Agreements concerning credit for consumers — Directive 2008/48/EC — Credit agreement for immovable property — Variable interest rates — Obligations on the creditor — National legislation applicable to agreements existing at the date on which that legislation comes into force — Inapplicability of Directive 2008/48)

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/8

         Order of the Court (Sixth Chamber) of 12 October 2016 (request for a preliminary ruling from the Prekršajni sud u Bjelovaru — Croatia) — Renata Horžić (C-511/15), Siniša Pušić (C-512/15) v Privredna banka Zagreb d.d., Božo Prka
   (Joined Cases C-511/15 and C-512/15) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Agreements concerning credit for consumers - Directive 2008/48/EC - Credit agreement for immovable property - Variable interest rates - Obligations on the creditor - National legislation applicable to agreements existing at the date on which that legislation comes into force - Inapplicability of Directive 2008/48))
   (2016/C 475/11)
   Language of the case: Croatian

      Referring court

   Prekršajni sud u Bjelovaru

      Parties to the main proceedings

      Applicants: Renata Horžić (C-511/15), Siniša Pušić (C-512/15)

      Defendants: Privredna banka Zagreb d.d., Božo Prka

      Operative part of the order

   Articles 23 and 30(1) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted as not precluding national provisions, such as those at issue in the main proceedings, which require the creditor, on pain of criminal penalties, to comply with obligations concerning variable interest rates in respect of credit agreements existing at the date on which those provisions came into force, since those credit agreements fall outside the material scope of that directive and, furthermore, those obligations do not constitute an implementation of that directive.

      (1)  OJ C 27, 25.1.2016.


title: Case C-25/13: Order of the Court (Eighth Chamber) of 30 January 2014 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 17 de Barcelona — Spain) — France Telecom España, SA v Organismo de Gestión Tributaria de la Diputación de Barcelona (Request for a preliminary ruling — Electronic communications networks and services — Directive 2002/20/EC — Fee for the private use or the special right of use for the area under and on local public land imposed on operators supplying electronic communications services — Article 99 of the Rules of Procedure of the Court — Answer able clearly to be deduced from the case-law)

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/18

         Order of the Court (Eighth Chamber) of 30 January 2014 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 17 de Barcelona — Spain) — France Telecom España, SA v Organismo de Gestión Tributaria de la Diputación de Barcelona
   (Case C-25/13) (1)

   ((Request for a preliminary ruling - Electronic communications networks and services - Directive 2002/20/EC - Fee for the private use or the special right of use for the area under and on local public land imposed on operators supplying electronic communications services - Article 99 of the Rules of Procedure of the Court - Answer able clearly to be deduced from the case-law))
   2014/C 112/21
   Language of the case: Spanish

      Referring court

   Juzgado de lo Contencioso-Administrativo No 17 de Barcelona — Spain

      Parties to the main proceedings

      Applicant: France Telecom Espana, SA

      Defendant: Organismo de Gestión Tributaria de la Diputación de Barcelona

      Re:

   Request for a preliminary ruling — Juzgado de lo Contencioso Administrativo de Barcelona — Interpretation of Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) (OJ 2002 L 108, p. 21) — Fees for rights to use and to install facilities — Municipal public land — Transfer of rights and transfer of management of use.

      Operative part of the order

   European Union law must be interpreted, in the light of the judgment in Joined Cases C-55/11, C-57/11 and C-58/11 Vodafone España and France Telecom España [2012] ECR, as precluding the application of a fee for the use and operation of resources installed on or under public or private property, within the meaning of Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (the Authorisation Directive), to operators supplying electronic communications services which are not the owners of those resources.

      (1)  OJ C 108, 13.4.2013.


title: Case T-328/04: Judgment of the Court of First Instance of 9 October 2008 — Wilms v Commission (Action for annulment — Action for damages — Staff case — Promotion — Award of priority points)

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/25

         Judgment of the Court of First Instance of 9 October 2008 — Wilms v Commission
   (Case T-328/04) (1)

   (Action for annulment - Action for damages - Staff case - Promotion - Award of priority points)
   (2008/C 313/44)
   Language of the case: French
   Parties

      Applicant: Günter Wilms (Brussels, Belgium) (represented by: M. van der Woude and V. Landes and, subsequently, by M. van der Woude, lawyers)

      Defendant: Commission of the European Communities (represented by: H. Tserepa-Lacombe and V. Joris, Agents, and, subsequently, by V. Joris and G. Berscheid, Agents, and D. Wealbroeck, lawyer)
   Re:
   An action for annulment of:

               —

               the decision of the Director General of the Legal Service of the Commission to award the applicant only one Directorate-General priority point for the 2003 promotion procedure, communicated on 2 July 2003, confirmed by a decision of the appointing authority notified on 19 December 2003;

               —

               the decision of the appointing authority not to award the applicant any special priority points for additional activity in the interests of the institution for the 2003 promotion procedure, notified through the Sysper 2 system on 19 December 2003;

               —

               the following decisions: the decision of the appointing authority to award the applicant a total of 19 points for the 2003 promotion procedure; the merit list of officials in grade A 6 for the 2003 promotion procedure published in Administrative Notices No 69-2003 of 13 November 2003; the list of officials promoted to grade A 5 for the 2003 promotion procedure and published in Administrative Notices No 73-2003 of 27 November 2003 and, in any event, the decision not to include the applicant's name on those lists.

               —

               in so far as it is necessary, the decision of the appointing authority of 14 June 2004 rejecting the complaint brought on 12 February 2004 by the applicant;

               —

               the decision of the appointing authority of 17 April 2007 not to award the applicant any additional priority points for the 2003 promotion procedure;

         and for compensation of EUR 5 000.
   Operative part of the judgment
   The Court:

               1.

               Annuls the decisions of the Commission fixing the total promotion points for the applicant at 19 points and refusing to include his name on the list of officials promoted to grade A 5 for the 2003 promotion procedure;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Commission to pay the costs.

      (1)  OJ C 273, 6.11.2004.


title: Case C-300/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 17 May 2005 in Hauptzollamt Hamburg-Jonas v ZVK Zuchtvieh-Kontor GmbH

text:
               1.10.2005

               EN

               Official Journal of the European Union

               C 243/9

         Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 17 May 2005 in Hauptzollamt Hamburg-Jonas v ZVK Zuchtvieh-Kontor GmbH
   (Case C-300/05)
   (2005/C 243/14)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof of 17 May 2005, received at the Court Registry on 27 July 2005, for a preliminary ruling in the proceedings between Hauptzollamt Hamburg-Jonas and ZVK Zuchtvieh-Kontor GmbH on the following question:
   Is the loading and unloading time part of the ‘travel’ time within the meaning of point 48(4)(d) of the Annex to Directive 91/628/EEC (1) on the protection of animals during transport (as amended by Directive 95/29/EC (2))?

      (1)  OJ 1991 L 340, p. 17.

      (2)  OJ 1995 L 148, p. 52.


title: Case T-287/11: Action brought on 6 June 2011 — Heitkamp BauHolding v Commission

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/21

         Action brought on 6 June 2011 — Heitkamp BauHolding v Commission
   (Case T-287/11)
   2011/C 238/39
   Language of the case: German

      Parties

      Applicant: Heitkamp BauHolding GmbH (Herne, Germany) (represented by: W. Niemann, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the Commission's decision of 26 January 2011, as amended on 15 April 2011, which, to the applicant's knowledge, is yet to be published in the Official Journal of the European Union;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of its action, the applicant relies on the following pleas in law.

               —

               The Sanierungsklausel (Scheme on the fiscal carry-forward of losses in the case of restructuring of companies in difficulty) in Paragraph 8c(1a) of the German Law on Corporation Tax (Körperschaftssteuergesetz; ‘KStG’) is not State aid for the purposes of Article 107 TFEU. In classifying the system of reference the Commission erred in considering that system to be ‘the rules on … loss carry-forward for companies subject to change in their shareholding’. On the contrary, the applicant claims that the system of reference is actually the indefinite carry-forward of losses; the carry-forward is also used for the purposes of corporate taxation as a corollary of the objective net principle.

               —

               The loss of carry-forwards provided for in Paragraph 8c KStG must therefore be classed as an exception, whilst the Sanierungsklausel in Paragraph 8c(1a) KStG, for its part, constitutes an exception to the exception which merely reinstates the general rule, thereby rendering the principle that taxable persons should contribute to State financing in accordance with their means (the Leistungsfähigkeitsprinzip) applicable in cases of corporate restructuring.

               —

               It is true that the defendant acknowledges that ‘the system of reference is the KStG in its current form’, but it fails to appreciate that the legal situation in the Federal Republic was changed by the introduction of the Law on acceleration of growth (the Wachstumsbeschleunigungsgesetz). Since the introduction of the provision on hidden reserves in Paragraph 8c KStG, in healthy undertakings losses can still be deducted and carried forward where the changes made to the shareholding do not exceed the amount of the hidden reserves. Thus, for healthy undertakings, the provision on hidden reserves can be understood as the counterpart of the Sanierungsklausel for undertakings in difficulty, since otherwise, undertakings in need of restructuring would be disadvantaged in structural terms.

               —

               Contrary to the Commission's complaint, the Sanierungsklausel, which treats economically sound undertakings and those in need of restructuring unequally, is not a selective measure, but the concretisation of the principle that taxable persons should contribute to State financing in accordance with their means, which is a constitutional principle which has always been recognised by the German Basic Law (Grundgesetz). In the applicant’s view, it thus forms part of the internal logic of the system of reference. The Sanierungsklausel is thus in conformity with the basic or guiding principles of the German tax system.

               —

               In any case, on the basis of those guiding principles, the introduction of the Sanierungsklausel in Paragraph 8c KStG is a measure which is ‘justified by the nature and the logic of the [German tax] system’ and which, to an extent, revalidates that internal structure.