title: Reference for preliminary ruling from the Bundesverwaltungsgericht by order of that court of 31 August 1995 in the case of Badische Erfrischungs-Getränke GmbH & Co. KG v. Land Baden-Württemberg (Case C-17/96)

text:
16 . 3 . 96             EN                    Official Journal of the European Communities                                          No C 111
Pleas in law and main arguments:                                         The applicant claims that the Court should :
It is clear from Article 4 ( 1 ) of Directive 79/409/EEC that the        1 . declare that, by failing to adopt and bring into force or,
designation of special protection areas is the primary means                   in the alternative, to notify within the prescribed period
whereby the Member States must ( seek to ) ensure the                          the laws, regulations or administrative provisions
survival and reproduction of the bird species mentioned in                     necessary to comply with Council Directive
Annex I thereto . The fact that in a Member State some                         90/658/EEC (') of 4 December 1990, in particular
populations of such species are declining justifies the                        Article 8 thereof, and those necessary to comply with
suspicion that the Member State has not complied with its                      Directive 93/16/EEC ( 2 ) of 5 April 1993 , in particular
obligation to achieve the appropriate result. In fact, in the                  Articles 3 and 9(3 ) and ( 4 ) thereof, which correspond to
Netherlands, populations of nine of the bird species                           Articles 3 and 9 ( a ) ( 1 ) and ( 2 ) respectively of Directive
mentioned in Annex I have fallen by over 50% .                                 75/362/EEC ( 3 ) as amended by Article 1 of Directive
                                                                               90/568/EEC, the Kingdom of Spain has failed to fulfil its
Under the last subparagraph of Article 4(1 ), Member States                    obligations under Articles 5 and 189 of the Treaty
must classify the most suitable territories in number and size                 establishing the European Community .
as special protection areas . With a view to a coherent general
system of special protection areas, the Commission had                   2 . order the defendant to pay the costs .
scientific surveys carried out by the Secretariat de la flore et
de la faune of the Musee national d'histoire naturelle in                Pleas in law and main arguments:
Paris, which drew up an inventory of habitats which should
be classified, on ornithological criteria , as special protection        The mandatory nature of the third paragraph of Article 189
areas; that list was updated in 1989 and 1994 by the                     and the first paragraph of Article 5 of the EC Treaty requires
International Council for Bird Preservation ('Inventory of               Member States to adopt the measures necessary to comply
Important Bird Areas in the European Community' —                        with the directives which are addressed to them within the
IBA89 and IBA94 ). As regards the legal relevance of IBA89               period prescribed therein. That period expired on 1 July
and IBA94, the Commission considers that the objectives of               1991 without the Kingdom of Spain having brought into
Article 4(1 ) would be best served if the Member States were             force the necessary provisions.
in fact to classify all the areas mentioned in the inventory as
special protection areas . Since, however, the Member States             (') OJ No L 353 , 17. 12 . 1990 , p . 73 .
enjoy a certain discretionary power in this field, it does not           ( 2 ) OJ No L 165 , 7. 7 . 1993 , p . 1 .
seem to the Commission to be possible to impose that                     ( 3 ) OJ No L 167, 30 . 6 . 1975 , p . 1 .
maximum result by law. On the other hand, there may be a
breach of the obligation of classification if a Member State
manifestly disregards the number and size of the IBA89 and
IBA94 areas. This is particularly so if a Member State
classifies as special protection areas under half, in terms
both of number and of total size, of the areas listed in IBA89           Reference for preliminary ruling from the Bundes
and IBA94 . Special protection areas must, moreover, be                  verwaltungsgericht by order of that court of 3 1 August 1995
sufficiently varied and representative to offer protection for           in the case of Badische Erfrischungs-Getranke GmbH 8t Co.
all the bird species listed in Annex I. The number and size of                           KG v. Land Baden-Wiirttemberg
the special protection areas classified by the Netherlands are                                      ( Case C- 17/96 )
not sufficient to meet those requirements .
                                                                                ( 96/C 77/ 14
                                                                         Reference has been made to the Court of Justice of
                                                                         the European Communities by order of the
                                                                         Bundesverwaltungsgericht ( Federal Administrative Court)
                                                                         — Third Senate — of 3 1 August 1 995 , received at the Court
Action brought on 11 January 1996 by the Commission of                   Registry on 19 January 1996 , for a preliminary ruling in the
the European Communities against the Kingdom of                          case of Badische Erfrischungs-Getranke GmbH & Co . KG
                                 Spain                                   v. Land Baden-Wurttemberg on the following questions :
                          ( Case C-5/96
                            ( 96/C 77/ 13 )                              1 . Is Article 1 ( 1 ) of Council Directive 80/777/EEC of
                                                                                15 July 1980 { l ) in conjunction with Annex I thereto
                                                                               ( Section I. Definition ) to be interpreted as meaning that
                (Language of the case: Spanish)                                water — apart from ' old water' covered by the second
                                                                               subparagraph of paragraph 2 of Section I. Definition of
An action against the Kingdom of Spain was brought before                      Annex I — is to be recognized as being natural mineral
the Court of Justice of the European Communities on                            water only if it has properties favourable to health and,
11 January 1996 by the Commission of the European                              if so, are those provisions to be interpreted as meaning
Communities, represented by B. J. Drijber and J. R. Vidal                      that those properties must be proved ?
Puig, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gomez de               2 . May the properties favourable to health which may be
la Cruz, of its Legal Service .                                                necessary also ensue from the absence or low content of
 ---pagebreak--- No C 77/8                 EN                  Official Journal of the European Communities                                           16 . 3 . 96
       the constituents referred to in paragraph 1 ( a ) of              Travail ( Labour Court ), Nivelles, of 16 January 1996 ,
       Section I of Annex I ( for example, in the case of water          which was received at the Court Registry on 22 January
       with a low sodium content)?                                       1996, for a preliminary ruling in the case of Vito Casano
                                                                         against ( 1 ) Institut National d'Assurance Maladie Invalidite
3 . How are the expressions 'properties favourable to                    and ( 2 ) Union Nationale des Mutualites Libres on the
       health' in paragraph 2 of Section I of Annex I and                following questions:
       'certain effects' in paragraph 1 ( a ) of Section I ( see also
       point 1.4.1 of Section II of Annex I ) to be differentiated
       from one another ?                                                1 . Where an authority in a Member State does not comply
                                                                             with Article 51 of Council Regulation ( EEC )
(') OJ No L 229, 1980, p. 1 .                                                No 1408/71 on the application of social security
                                                                             schemes to employed persons, to self-employed persons
                                                                             and to members of their families moving within the
                                                                             Community ( ] ), is the adjustment to the entitlement of
                                                                             the invalid worker affected to take effect from the date
Action brought on 19 January 1996 by the Commission of                       on which the invalidity benefit first became payable or
the European Communities against the Kingdom of                              from the date falling two years prior to the worker's
                                Belgium                                      application for rectification, as laid down by the
                                                                             national legislation of the Member State concerned, in
                           ( Case C- 18/96 )
                                                                             this case, Article 106 of the Law of 9 August 1963
                             ( 96/C 77/ 15 )                                 setting up and organizing a scheme for compulsory
                                                                             insurance against sickness and invalidity ?
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
19 January 1996 by the Commission of the European                        2 . Is it for the national legislation of each Member State to
Communities, representend by Hendrik van Lier and                            determine the limitation period applicable to claims by
Jean-Francis Pasquier, acting as Agents, with an address for                 migrant workers for invalidity pensions ?
service in Luxembourg at the office of Carlos Gomez de la
Cruz, of its Legal Service, Wagner Centre, Kirchberg.                    (') OJ, English Special Edition 1971(11 ), p. 416 .
The Commission of the European Communities claims that
the Court should :
— declare that, by failing to adopt within the prescribed
      period the laws, regulations or administrative provisions
      necessary to comply with Council Directive
      91/338/EEC ( 1 ) of 18 June 1991 relating to restrictions          Reference for a preliminary ruling by the Social Security
      on the marketing and use of certain dangerous
                                                                         Commissioner, by decision of 17 January 1996, in the case
      substances and preparations, the Kingdom of Belgium                 of Kelvin Albert Snares against the Adjudication Officer
      has failed to fulfil its obligations under the Treaty,
                                                                                ( Case C-20/96 )
— order the Kingdom of Belgium to pay the costs.                                                    ( 96/C 77/ 17
Pleas in law and main arguments:
                                                                         Reference has been made to the Court of Justice of the
The pleas in law and main arguments are analogous to those               European Communities by a decision of the Social Security
in Case C-5/96 (2); the time limit for transposition expired             Commissioner of 17 January 1996 , which was received at
on 31 December 1992 .                                                    the Court Registry on 22 January 1996 , for a preliminary
                                                                         ruling in the case of Kelvin Albert Snares against the
O OJ No L 186 , 12 . 7. 1991 , p . 59 .                                  Adjudication Officer, on the following questions:
( 2 ) See Case C-5/96 above .
                                                                         1 . Is the effect of the terms of Articles 4 ( 2 ) ( a ) and 10 ( a ) of
                                                                             Council Regulation ( EEC ) No 1408/71 of 14 June 1971
                                                                             on the application of social security schemes to
Reference for a preliminary ruling by the Tribunal du                        employed persons and their families moving within the
Travail, Nivelles, by judgment of that court of 16 January                   Community (*), as inserted by Regulation ( EEC ) No
1996 in the case of Vito Casano v. ( 1 ) Institut National                   1247/92 ( 2 ) with effect from 1 June 1992 , to remove
d'Assurance Maladie Invalidite and ( 2 ) Union Nationale des                 from the scope of Article 4 ( 1 ) of Regulation ( EEC ) No
                          Mutualites Libres                                  1408/71 a benefit which prior to 1 June 1992 would
                                                                             have been accepted, in the case of a person who by
                           ( Case C- 19/96 )                                 reason of previous occupational activity was or had
                               96/C 77/16                                    been covered by the social security legislation of the
                                                                             relevant Member State, as falling within the scope of
Reference has been made to the Court of Justice of the                       Article 4(1 ), with the consequence that a person who
European Communities by judgment of the Tribunal du                          after 1 June 1992 becomes entitled to such a benefit


title: Case T-577/08: Judgment of the General Court of 26 March 2010 — Proges v Commission (Public service contracts — Community tendering procedure — Programme for creation of land use models — Rejection of tenderer’s bid — Action for annulment — Interest in bringing proceedings — Admissibility — Award criteria)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/33

         Judgment of the General Court of 26 March 2010 — Proges v Commission
   (Case T-577/08) (1)

   (Public service contracts - Community tendering procedure - Programme for creation of land use models - Rejection of tenderer’s bid - Action for annulment - Interest in bringing proceedings - Admissibility - Award criteria)
   2010/C 134/55
   Language of the case: Italian

      Parties

      Applicant: Proges — Progetti di sviluppo Srl (Rome, Italy) (represented by: M. Falcetta, lawyer)

      Defendant: European Commission (represented by: N. Bambara and E. Manhaeve, Agents, assisted by A. Dal Ferro, lawyer)

      Re:

   Application for annulment of the Commission decision of 29 October 2008 not to accept the tender submitted by the applicant in a tendering procedure relating to the implementation of a programme for the creation of land use models, and also a claim for damages for the losses incurred by the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders Proges — Progetti di sviluppo Srl to bear its own costs and to pay those incurred by the Commission.

      (1)  OJ C 44, 21.2.2009.


title: JUDGMENT OF THE COURT of 20 March 1997 in Case C-24/95 (reference for a preliminary ruling from the Bundesverwaltungsgericht): Land Rheinland-Pfalz v. Alcan Deutschland GmbH, in the presence of the Oberbundesanwalt beim Bundesverwaltungsgericht (State aid - Recovery - Application of national law - Limits)

text:
No C 142/4             EN                   Official Journal of the European Communities                                     10 . 5 . 97
               JUDGMENT OF THE COURT                                        aid incompatible with the common market and
                       of 20 March 1997                                     ordering recovery, even where such recovery is
                                                                            excluded by national law because the gain no longer
in Case C-24/95 (reference for a preliminary ruling from                    exists, in the absence of bad faith on the part of the
the Bundesverwaltungsgericht ): Land Rheinland-Pfalz v.                     recipient of the aid.
Alcan Deutschland GmbH, in the presence of the
    Oberbundesanwalt beim Bundesverwaltungsgericht (')
                                                                       H OJ No C 74 , 25 . 3 . 1995 .
(State aid — Recovery — Application of national law —
                              Limits)
                          197IC 142/07)
                (Language of the case: German)
                                                                                JUDGMENT OF THE COURT
                                                                                of 20 March 1997
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)                    in Case C-57/95 : French Republic, supported by the
                                                                       Kingdom of Spain v. Commission of the European
                                                                                Communities ( ] )
In Case C-24/95 : reference to the Court under Article 177
                                                                       (Commission       communication       — Internal market —
of the EC Treaty from the Bundesverwaltungsgericht
( Federal Administrative Court) for a preliminary ruling in                                       Pension funds)
the proceedings pending before that court between Land                                            ( 97/C 142/08 )
Rheinland-Pfalz and Alcan Deutschland GmbH, in the
presence of the Oberbundesanwalt beim Bundesverwal
tungsgericht, on the interpretation of Articles 92 and 93 ( 3 )
of the EC Treaty with regard to the obligation of national                              (Language of the case: French)
authorities to recover unlawful State aid where national
rules protecting the recipient of aid give rise to difficulties
— the Court, composed of: G. C. Rodriguez Iglesias,
President, J. C. Moitinho de Almeida and J. L. Murray,                   (Provisional translation; the definitive translation will be
Presidents of Chambers, P. J. G. Kapteyn, C. Gulmann,                            published in the European Court Reports)
D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P. Jann
( Rapporteur ), H. Ragnemalm and M. Wathelet, Judges;
F. G. Jacobs, Advocate-General; H. A. Rühl, Principal                  In Case C-57/95 : French Republic (Agents : Edwige
Administrator, for the Registrar, has given a judgment on              Belliard and Claude Chavance ), supported by the
20 March 1997, in which it has ruled:                                  Kingdom of Spain ( Agents: Alberto Jose Navarro
                                                                       Gonzalez and Rosario Silva de Lapuerta ) v. Commission
                                                                       of the European Communities ( Agent: Dimitrios
 1 . Community law requires the competent authority to                 Gouloussis ) — application for annulment of Commission
      revoke a decision granting unlawful aid, in accordance           Communication 94/C 360/08 on an internal market for
      with a final decision of the Commission declaring the            pension funds ( OJ No C 360, 17. 12 . 1994, p. 7 ) — the
      aid incompatible with the common market and                      Court, composed of: G. C. Rodriguez Iglesias, President,
      ordering recovery, even if the authority has allowed             J. C. Moitinho de Almeida , J. L. Murray and L. Sevón
      the time-limit laid down for that purpose under                  ( Presidents of Chambers ), C. N. Kakouris, P. J. G.
      national law in the interest of legal certainty to elapse.       Kapteyn ( Rapporteur ), C. Gulmann, G. Hirsch, P. Jann ,
                                                                       H. Ragnemalm and M. Wathelet, Judges; G. Tesauro,
                                                                       Advocate-General ; L. Hewlett, Administrator, for the
2 . Community law requires the competent authority to -                Registrar, has given a judgment on 20 March 1997, in
      revoke a decision granting unlawful aid, in accordance           which it :
      with a final decision of the Commission declaring the
      aid incompatible with the common market and
      ordering recovery, even if the competent authority is
                                                                       1.   annuls the Commission Communication on an internal
      responsible for the illegality of the aid decision to such
      a degree that revocation appears to be a breach of                    market for pension funds (94/C 360/08);
      good faith towards the recipient, where the latter
      could not have had a legitimate expectation that the
      aid was lawful because the procedure laid down in                2 . orders the Commission to pay the costs.
      Article 93 of the Treaty had not been followed.
                                                                       (') OJ No C 101 , 22 . 4 . 1995 .
3 . Community law requires the competent authority to
      revoke a decision granting unlawful aid, in accordance
      with a final decision of the Commission declaring the


title: Case C-403/11: Action brought on 27 July 2011 — European Commission v Kingdom of Spain

text:
               1.10.2011

               EN

               Official Journal of the European Union

               C 290/6

         Action brought on 27 July 2011 — European Commission v Kingdom of Spain
   (Case C-403/11)
   2011/C 290/09
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: G. Valero Jordana and I. Hadjiyiannis, Agents)

      Defendant: Kingdom of Spain

      Form of order sought

   The Commission claims that the Court should:

               —

               Declare that the Kingdom of Spain has failed to fulfil its obligations under Article 13(1), (2), (3) and (6) (with the exception of the river basin district of Catalonia), Article 14(1)(c) (with the exception of the river basin management plans for the river basin district of Catalonia, the Balearic Islands, Tenerife, Guadiana, Guadalquivir, Andalusian Mediterranean basin, Tinto-Odiel-Piedras, Guadalete-Barbate, Galicia-Costa, Miño-Sil, Duero, Cantábrico Occidental and Cantábrico Oriental), and Article 15(1) (with the exception of the river basin district of Catalonia) of Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (‘the directive’).

               —

               Order the Kingdom of Spain to pay the costs.

      Pleas in law and main arguments

   Infringement of Articles 13 and 15 of the directive:
   Since Spain has not adopted or published national river basin management plans (with the exception of the management plan for the river basin district of Catalonia), the Commission did not receive a copy of these plans either by 22 March 2010, the time-limit laid down in the directive, and has not received them to date. Consequently, the Commission considers that Spain has failed to fulfil its obligations under Article 15(1) of the directive (with the exception of the management plan for the river basin district of Catalonia).
   Infringement of Article 14 of the directive:

               With regard to Article 14(1)(c) of the framework directive, in conjunction with Article 13(6) of that directive, the Commission considers that, in addition to the river basin district of Catalonia whose plan has already been adopted, the public information and consultation process in relation to the draft river basin management plans has already begun in twelve other river basin districts: the Balearic Islands, Tenerife, Guadiana, Guadalquivir, Andalusian Mediterranean basin, Tinto-Odiel-Piedras, Guadalete-Barbate, Galicia-Costa, Miño-Sil, Duero, Cantábrico Occidental and Cantábrico Oriental.

               The Commission concludes that, with the exception of those thirteen river basin districts, Spain has failed to fulfil its obligations under Article 14(1)(c) of the directive.

      (1)  OJ 2000 L 327, p. 1.


title: Case C-134/05: Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Freedom to provide services — Right of establishment — Extrajudicial debt recovery)

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/3

         Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic
   (Case C-134/05) (1)

   (Failure of a Member State to fulfil obligations - Freedom to provide services - Right of establishment - Extrajudicial debt recovery)
   (2007/C 235/04)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa, Agent)

      Defendant: Italian Republic (represented by: I.M. Braguglia and P. Gentili, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 49 EC — National law making it compulsory to obtain a licence in order to carry on the business of extra-judicial credit recovery the validity of which is restricted to the province in which it was granted.
   Operative part of the judgment

               1.

               Declares that, by requiring, within the context of the Consolidated Law on public security (Testo unico delle leggi di pubblica sicurezza), approved by Royal Decree No 773 of 18 June 1931, every undertaking pursuing the activity of extrajudicial debt recovery:

                           —

                           to apply, even though the undertaking holds a licence issued by the Questore of a province, for a new licence for each other province in which it wishes to carry on its activities, unless it confers authority on an authorised agent in that other province, the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC;

                           —

                           to have premises in the territory covered by the licence and to display in those premises a list of the services which may be provided for clients, the Italian Republic has failed to fulfil its obligations under Article 49 EC;

                           —

                           to have premises in each province in which it intends to carry on its activities, the Italian Republic has failed to fulfil its obligations under Article 43 EC;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Commission of the European Communities and the Italian Republic to bear their own respective costs.

      (1)  OJ C 143, 11.6.2005.


title: Case F-42/16: Action brought on 12 August 2016 — ZZ v EIB

text:
               10.10.2016

               EN

               Official Journal of the European Union

               C 371/30

         Action brought on 12 August 2016 — ZZ v EIB
   (Case F-42/16)
   (2016/C 371/33)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: N. Lhoëst, lawyer)

      Defendant: European Investment Bank (EIB)

      Subject-matter and description of the proceedings

   Annulment of the application for compensation made by the applicant in respect of the harm which he alleges he has suffered since November 2013.

      Form of order sought

               (1)

               Order the EIB to pay the applicant a sum equal to eight times his annual salary on the basis of Article 33a of the Staff Regulations and Article 9.1.1 of the Administrative provisions applicable to the staff;

               (2)

               Annul the decision of the EIB of 4 June 2015 closing the applicant’s Optional Supplementary Provident Scheme (OSPS) account with effect from 28 February 2015 and order the EIB to pay the applicant:

                           —

                           a sum equivalent to the payments which the EIB would have continued to make into the applicant’s OSPS account (3 % of the applicant’s annual salary) if the EIB had not closed his account, with effect from 28 February 2015 until the date of actual reopening of the applicant’s OSPS account;

                           —

                           the interest which the capital in the applicant’s OSPS account would have continued to earn if his OSPS account had not been closed on 28 February 2015 and if the applicant and the EIB had been able to continue to make their respective payments up to 3 % of the applicant’s annual salary until the date of actual reopening of the applicant’s OSPS account;

               (3)

               Order the EIB to pay damages assessed ex aequo et bono at EUR 15 000 as compensation for the non-pecuniary damage suffered;

               (4)

               Order the EIB to pay the costs.


title: Case T-629/15: Order of the General Court of 17 June 2016 — Hako v EUIPO (SCRUBMASTER) (EU trade mark — Application for EU word mark SCRUBMASTER — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/37

         Order of the General Court of 17 June 2016 — Hako v EUIPO (SCRUBMASTER)
   (Case T-629/15) (1)

   ((EU trade mark - Application for EU word mark SCRUBMASTER - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Action manifestly lacking any foundation in law))
   (2016/C 305/51)
   Language of the case: German

      Parties

      Applicant: Hako GmbH (Bad Oldesloe, Germany) (represented by: A. Marx, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: D. Hanf, acting as Agent)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 1 September 2015 (Case R 2197/2014-4), concerning an application for registration of the word sign SCRUBMASTER as an EU trade mark.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Hako GmbH shall pay the costs.

      (1)  OJ C 16, 18.1.2016.


title: Joined Cases T-35/10 and T-7/11: Judgment of the General Court of 6 September 2013 — Bank Melli Iran v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Obligation to state reasons — Rights of the defence — Right to effective judicial protection — Legitimate expectations — Review of the restrictive measures adopted — Error of assessment — Equal treatment — Legal basis — Essential procedural requirements — Proportionality)

text:
               19.10.2013

               EN

               Official Journal of the European Union

               C 304/9

         Judgment of the General Court of 6 September 2013 — Bank Melli Iran v Council
   (Joined Cases T-35/10 and T-7/11) (1)

   (Common foreign and security policy - Restrictive measures against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Obligation to state reasons - Rights of the defence - Right to effective judicial protection - Legitimate expectations - Review of the restrictive measures adopted - Error of assessment - Equal treatment - Legal basis - Essential procedural requirements - Proportionality)
   2013/C 304/17
   Language of the case: English

      Parties

      Applicant: Bank Melli Iran (Tehran, Iran) (represented: in Case T-35/10 by L. Defalque, and in Case T-7/11 initially by L. Defalque and S. Woog, and subsequently by L. Defalque and C. Malherbe, lawyers)

      Defendant: Council of the European Union (represented: in Case T-35/10 by M. Bishop and R. Szostak, and in Case T-7/11 initially by M. Bishop and G. Marhic, and subsequently by M. Bishop and B. Driessen, acting as Agents)

      Interveners in support of the defendant: French Republic (represented by: G. de Bergues and É. Ranaivoson, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented: initially by S. Behzadi-Spencer, subsequently by A. Robinson, and finally by A. Robinson and H. Walker, acting as Agents, and by S. Lee, Barrister), and European Commission (represented: in Case T-35/10 by S. Boelaert and M. Konstantinidis, and in Case T-7/11 by S. Boelaert, M. Konstantinidis and F. Erlbacher, acting as Agents)

      Re:

   Application, first, for annulment in part of Council Regulation (EC) No 1100/2009 of 17 November 2009 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran and repealing Decision 2008/475/EC (OJ 2009 L 303, p. 31); Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 281, p. 81); Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007 (OJ 2010 L 281, p. 1); Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71); Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11); and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1); and, secondly, for annulment of any future regulation or decision in force as at the date of closure of the oral procedure which supplements or amends any of the contested measures

      Operative part of the judgment

   The Court:

               1.

               Joins Cases T-35/10 and T-7/11 for the purpose of the judgment;

               2.

               Dismisses the actions;

               3.

               Orders Bank Melli Iran to bear its own costs and to pay those incurred by the Council of the European Union;

               4.

               Orders the French Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

      (1)  OJ C 100, 17.4.2010.


title: Case C-38/99: Action brought on 10 February 1999 by the Commission of the European Communities against the French Republic

text:
C 136/4                   EN                    Official Journal of the European Communities                                         15.5.1999
Judges; A. La Pergola, Advocate General; H. von Holstein,                                      ORDER OF THE COURT
Deputy Registrar, has given a judgment on 9 March 1999, in
which it has ruled:                                                                                of 2 March 1999
It is contrary to Articles 52 and 58 of the EC Treaty for a Member
State to refuse to register a branch of a company formed in accordance     in Joined Cases C-231/98 and C-232/98 (reference for a
with the law of another Member State in which it has its registered        preliminary ruling from the Tribunal de Grande Instance
office but in which it conducts no business where the branch is            d’Épinal: SA Lamboley (C-231/98), Bouctot (C-232/98) v
intended to enable the company in question to carry on its entire                           Administration des Impôts (1)
business in the State in which that branch is to be created, while
avoiding the need to form a company there, thus evading application        (Article 104(3) of the Rules of Procedure — Manifestly
of the rules governing the formation of companies which, in that                                   identical question)
State, are more restrictive as regards the paying up of a minimum
share capital. That interpretation does not, however, prevent the
authorities of the Member State concerned from adopting any                                         (1999/C 136/07)
appropriate measure for preventing or penalising fraud, either in
relation to the company itself, if need be in cooperation with the
Member State in which it was formed, or in relation to its members,                            (Language of the case: French)
where it has been established that they are in fact attempting, by
means of the formation of a company, to evade their obligations            In joined Cases C-231/98 and C-232/98: reference to the
towards private or public creditors established in the territory of the    Court under Article 177 of the EC Treaty from the Tribunal de
Member State concerned.                                                    Grande Instance d’Épinal (France) for a preliminary ruling in
                                                                           the proceedings pending before that court between SA Lam-
(1) OJ C 228, 26.7.1997.                                                   boley (C-231/98), Bouctot (C-232/98) and Administration des
                                                                           Impôts on the interpretation of Article 95 of the EC Treaty —
                                                                           the Court, composed of: G. C. Rodrı́guez Iglesias, President,
                                                                           P. J. G. Kapteyn, J.-P. Puissochet, G. Hirsch and P. Jann,
                                                                           Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                           Almeida, C. Gulmann, J. L. Murray, D. A. O. Edward, H.
                     ORDER OF THE COURT                                    Ragnemalm, L. Sevón and M. Wathelet (Rapporteur), Judges;
                                                                           F. G. Jacobs, Advocate General; R. Grass, Registrar, made an
                                                                           order on 2 March 1999, the operative part of which is as
                            of 2 March 1999                                follows:
in Case C-422/98 (reference for a preliminary ruling from
the Tribunal de Première Instance de Bruxelles): Colonia                   Article 95 of the EC Treaty does not preclude the application of
Versicherung AG Zweigniederlassung München and                             national rules on motor vehicle taxation which provide for an increase
                      Others v Belgian State (1)                           in the progression coefficient of the kind at issue in the main
                                                                           proceedings, in so far as that increase does not have the effect of
    (Reference for a preliminary ruling — Inadmissibility)                 favouring the sales of vehicles of domestic manufacture over the sale
                                                                           of vehicles imported from other Member States.
                            (1999/C 136/06)
                                                                           (1) OJ C 278, 5.9.1998.
                     (Language of the case: French)
In Case C-422/98: reference to the Court under Article 177 of
the EC Treaty from the Tribunal de Première Instance de
Bruxelles for a preliminary ruling in the proceedings pending
before that court between Colonia Versicherung AG Zweignie-
derlassung München and Others v Belgian State on the
interpretation of Article 30 of the EC Treaty — the Court,                 Action brought on 10 February 1999 by the Commission
composed of: G. C. Rodrı́guez Iglesias, President, P. J. G. Kap-           of the European Communities against the French Republic
teyn, J.-P. Puissochet, G. Hirsch and P. Jann (Rapporteur),
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
Almeida, C. Gulmann, J. L. Murray, D. A. O. Edward, H. Ragne-                                        (Case C-38/99)
malm, L. Sevón and M. Wathelet, Judges; G. Cosmas, Advocate
General; R. Grass, Registrar, has made an order on 2 March                                          (1999/C 136/08)
1999, the operative part of which is as follows:
The reference for a preliminary ruling made by the Tribunal de             An action against the French Republic was brought before the
Première Instance de Bruxelles, by judgment of 10 November 1998,           Court of Justice of the European Communities on 10 February
is inadmissible.                                                           1999 by the Commission of the European Communities,
                                                                           represented by Paolo Stancanelli, of its Legal Service, and
                                                                           Olivier Couvert-Castéra, a national civil servant on secondment
(1) OJ C 20, 23.1.1999.                                                    to the Legal Service, acting as Agents, with an address for
                                                                           service in Luxembourg at the office of Carlos Gómez de la
                                                                           Cruz, Wagner Centre, Kirchberg.
 ---pagebreak--- 15.5.1999              EN                    Official Journal of the European Communities                                        C 136/5
The Commission of the European Communities claims that                      species have not completed their reproduction and rearing
the Court should:                                                           cycles; thus, the regulatory provisions in issue have been
                                                                            adopted in disregard of the objectives laid down by the
                                                                            directive 79/409/EEC and must therefore be annulled’. The
— declare that, by failing correctly to transpose Article 7 of              dates for the early opening of the season for hunting water
    Council Directive 79/409/EEC of 2 April 1979 on the                     fowl, as fixed by Law No 98-549 of 3 July 1998, are
    conservation of wild birds (1), by omitting to communicate              essentially the same as those applying under the previous
    all the transposition measures relating to the whole of its             legal arrangements. Thus, they are vitiated by the same
    territory and by failing correctly to implement the aforesaid           defect, namely, the fact of being determined according to
    provision, the French Republic has failed to fulfil its                 inappropriate factors and the fact of being too early.
    obligations under Directive 79/409/EEC;                                 Moreover, the fact that the dates for the early opening of
                                                                            the season for hunting water fowl are now fixed directly
                                                                            by the legislature, and that the fixing of early dates is no
— order the French Republic to pay the costs.                               longer simply delegated to the minister with responsibility
                                                                            for hunting, constitutes an aggravated infringement of
                                                                            Article 7 of Directive 79/409/EEC. Indeed, the inclusion in
                                                                            Article L 224-2 of the Rural Code of a table of dates for
Pleas in law and main arguments                                             the early opening of the hunting season in respect of the
                                                                            species in question gives those dates a mandatory and
                                                                            permanent character, whereas, previously, the fixing of
The French legislation concerning the dates of the season for               early dates by the minister with responsibility for hunting
hunting migratory birds, as contained, in particular, in Article            merely constituted an option which the minister could
L 224 of the Rural Code, in the version thereof resulting from              exercise or not exercise as he thought fit;
Law 94-591 of 15 July 1994 and, subsequently, Law 98-549
of 3 July 1998, appears to be clearly contrary to the provisions
of Council Directive 79/409/EEC in several respects, as follows:        — the dates fixed for the closure of the hunting season are
                                                                            too late. The closing dates for the hunting season, as
                                                                            referred to both in the Law of 15 July 1994 and in the Law
— the principle of complete protection laid down by Article                 of 3 July 1998, are not in conformity with the requirements
    7(4) of the directive has not been transposed. The trans-               of Article 7(4) of Directive 79/409/EEC. They enable the
    position of that principle in relation to the hunting season            final closing dates fixed by those laws to overlap with the
    dates fixed under the national legislation is necessary in              scientifically recognised return migration period of 31
    order that the authorities responsible for setting the                  species. The fact that the species of birds in question may
    hunting season dates may do so in accordance with the                   be hunted in France despite the pre-mating migration
    clear provisions of the directive, and in order that all                period having already commenced is liable to cause a
    interested parties may benefit from the full effect of its              depletion of hunting stocks. Such a situation is clearly
    provisions;                                                             contrary to the ban on the hunting of migratory birds
                                                                            ‘during their return to their rearing grounds’ laid down by
                                                                            Article 7(4) of Directive 79/409/EEC. According to the
— the dates fixed for the opening of the hunting season are                 Commission, the fact that the closing dates of the hunting
    too early. Given that the principle of complete protection              season as fixed under French law are not in conformity
    has not been transposed, Article R. 224-6 of the Rural                  with the directive is due to the fact that the criteria
    Code enables the minister with responsibility for hunting               pursuant to which the French authorities have fixed the
    to exercise his discretion to fix an early date for the                 hunting season dates are not exclusively ornithological and
    opening of the season for hunting water fowl, without                   founded on scientific considerations. In fixing the closing
    taking into account the ban on hunting during the rearing               dates for hunting, the French authorities appear to have
    season and the period of reproduction, as laid down by                  taken into consideration other factors, such as the state of
    Article 7(4) of the directive. Thus, in numerous parts of the           conservation of migratory species which are capable of
    territory of the French Republic, a significant proportion of           being hunted. However, as the law stands, and having
    young mallards (anas platyrhyncus) are not yet able to fly at           regard to the interpretation applied by the Court of Justice
    the time of the early opening of the hunting season in                  in its judgment of 19 January 1994 in Case C-435/92,
    respect of surface ducks and limicolae — especially in the              that approach cannot be regarded as consistent with
    regions of Ile-de-France, Upper Normandy, Burgundy,                     Community law. Hunting must cease as soon as the
    Brittany, Aquitaine and Languedoc-Roussillon, where, in                 migration begins;
    various départements, over one in five young birds has not
    yet taken wing. Similarly, in numerous regions of France,
    a significant proportion of young coots (fulica atra) are not       — there has been no communication of any provisions
    yet able to fly at the time of the early opening of the                 transposing the directive in relation to the départements of
    hunting season in respect of other species of water fowl                Lower Rhine, Upper Rhine and Moselle.
    — especially in the regions of Ile-de-France, Burgundy,
    Midi-Pyrénées and Auvergne, where, in various départe-
    ments, over one in five young coots has not yet taken wing.
    The Commission observes in that regard that, by various             (1) OJ L 103, 25.8.1979, p. 1.
    judgments dated 11 May 1998, the French Conseil d’État
    (Council of State) annulled a number of the aforementioned
    ministerial orders, on the ground that the opening of the
    season for hunting water fowl ‘has been authorised in
    respect of a period and areas in which those different


title: Case T-554/08: Judgment of the General Court of 24 April 2012 — Evropaïki Dynamiki v Commission (Public service contracts — Call for tenders — Provision of business, technical and project consultancy services for European Union computer applications in the customs, excise and taxation areas — Rejection of a tender — Decision to award the contract to another tenderer — Action for annulment — Inadmissibility — Claim in damages — Selection and award criteria — Duty to state the reasons on which a decision is based — Manifest error of assessment)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/16

         Judgment of the General Court of 24 April 2012 — Evropaïki Dynamiki v Commission
   (Case T-554/08) (1)

   (Public service contracts - Call for tenders - Provision of business, technical and project consultancy services for European Union computer applications in the customs, excise and taxation areas - Rejection of a tender - Decision to award the contract to another tenderer - Action for annulment - Inadmissibility - Claim in damages - Selection and award criteria - Duty to state the reasons on which a decision is based - Manifest error of assessment)
   2012/C 165/26
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, P. Katsimani and M. Dermitzakis, lawyers)

      Defendant: European Commission (represented initially by N. Bambara and E. Manhaeve, and then by E. Manhaeve, acting as Agents, and C. Erkelens, lawyer)

      Re:

   ACTION for annulment of the Commission’s decision of 26 September 2008 rejecting the tender submitted by the consortium formed by the applicant and other companies in response to call for tenders ‘TAXUD/2007/AO-005’ relating to the provision of business, technical and project consultancy services for Community computer applications in the customs, excise and taxation areas (‘TIMEA’), and all consequential decisions, including the decision to award the contract to the successful tenderer, brought pursuant to Articles 225 EC and 230 EC, and a claim in damages brought pursuant to Articles 225 EC, 235 EC and 288 EC.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay its own costs and those incurred by the European Commission.

      (1)  OJ C 55, 7.3.2009.


title: Case T-280/12: Action brought on 28 June 2012 — Flying Holding and Others v Commission

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/24

         Action brought on 28 June 2012 — Flying Holding and Others v Commission
   (Case T-280/12)
   2012/C 258/45
   Language of the case: French

      Parties

      Applicants: Flying Holding NV (Antwerp-Wilrijk, Belgium); Flying Group Lux SA (Luxembourg, Luxembourg) and Flying Service NV (Antwerp-Deurne, Belgium) (represented by: C. Doutrelepont and V. Chapoulaud, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Order the joinder of the present case with Case T-91/12;

               —

               Declare the present action admissible and well founded;

               —

               Annul the decision of the European Commission awarding contract No PMO2/PR/2011/103 to ABELAG AVIATION NV, as set out in contract award notice No 2012/S 83-135396 published on 28 April 2012 in the Supplement to the Official Journal of the European Union (OJ/S — S83);

               —

               Order the European Commission to pay the applicants compensation of EUR 1 014 400, re-estimated following inflation, until the date of delivery of the future judgment of the General Court liquidating the damage, then increased by late-payment interest to be calculated from that date until payment in full;

               —

               Order the European Commission to pay all the costs, including those incurred by the applicants.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Article 89 of the Financial Regulation, (1) by twice consecutively awarding the contract in question to ABELAG AVIATION, in the context of framework contracts, without opening it to effective competition since only ABELAG AVIATION was authorised to enter a bid in both cases.

               2.

               Second plea in law, alleging infringement of the third subparagraph of Article 123(1) of the Implementing Regulation (2) by awarding the contract in question to ABELAG AVIATION without having admitted a sufficient number of tenderers to ensure true competition by comparing different bids and accepting the most advantageous of them.

      (1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

      (2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).


title: Case T-640/11: Action brought on 16 December 2011 — Boehringer Ingelheim International v OHIM (RELY-ABLE)

text:
               25.2.2012

               EN

               Official Journal of the European Union

               C 58/10

         Action brought on 16 December 2011 — Boehringer Ingelheim International v OHIM (RELY-ABLE)
   (Case T-640/11)
   2012/C 58/19
   Language of the case: English

      Parties

      Applicant: Boehringer Ingelheim International GmbH (Ingelheim am Rhein, Germany) (represented by: V. von Bomhard, A. Renck and C. Steudtner, lawyers)

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

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 September 2011 in case R 756/2011-4;

               —

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

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘RELY-ABLE’ for services in classes 38, 41 and 42 — International Registration (IR) No 1044333

      Decision of the Examiner: Rejected the protection of the mark in the European Union for all the services applied for.

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in finding that the sign applied for is ‘not particularly fanciful or arbitrary’ and an ‘obvious misspelling of the word reliable’ with the result that it would be perceived as laudatory. It further erred when assuming that misspellings are ‘a frequent feature of promotional messages’ and that this was relevant to the case at hand.


title: Case T-391/03: Action brought on 27 November 2003 by Yves Franchet and Daniel Byk against the Commission of the European Communities

text:
C 21/46                EN                         Official Journal of the European Union                                            24.1.2004
Action brought on 24 November 2003 by CM Capital                          Decision of the Oppo-          Opposition upheld and appli-
Markets Holding, S.A. against the Office for Harmonis-                    sition Division:               cation for registration refused in
ation in the Internal Market (Trade Marks and Designs)                                                   respect of the following services:
                             (OHIM)                                                                      business management, business
                                                                                administration, office functions
                                                                                (Class 35); insurance, financial
                         (Case T-390/03)                                                                 affairs, monetary affairs, banking
                                                                                business,       real-estate    affairs
                                                                                (Class 36); telecommunications
                          (2004/C 21/91)
                                                                                (Class 38); legal services and scien-
                                                                                tific and industrial research
                  (Language of the case: Spanish)                                                        (Class 42).
                                                                          Decision of the Board of       Appeal brought by the applicant
                                                                          Appeal:                        for the mark upheld.
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before                Pleas in law:                  Article 8(1)(b) of Regulation (EC)
the Court of First Instance of the European Communities on                                               No 40/94 incorrectly applied
24 November 2003 by CM Capital Markets Holding, S.A.,                                                    (likelihood of confusion).
established in Madrid, represented by Natalia Moya Fernández
of the Madrid Bar.
The applicant claims that the Court should:
—     annul the decision of the OHIM (First Board of Appeal)
      of 23 September 2003 in Case R-244/2003 and, as a
      consequence, uphold in its entirety the opposition
      brought in opposition proceedings B348914;                          Action brought on 27 November 2003 by Yves Franchet
                                                                          and Daniel Byk against the Commission of the European
—     accept the applicant’s arguments persuading the OHIM                                           Communities
      Opposition Division that the sign concerned should not
      be registered as a mark;
                                                                                (Case T-391/03)
—     order the OHIM to pay the costs and reject the OHIM’s
      arguments.
                                                                                (2004/C 21/92)
                                                                                (Language of the case: French)
Pleas in law and main arguments
Applicant for Com-            Caja de Ahorros de Murcia.
munity trade mark:
                                                                          An action against the Commission of the European Communi-
Community trade mark          Figurative mark for which colour            ties was brought before the Court of First Instance of the
sought:                       is claimed, consisting of the depic-        European Communities on 27 November 2003 by Yves
                              tion of a red square containing             Franchet and Daniel Byk, both residing in Luxembourg,
                              the letters ‘CM’ — Application              represented by Georges Vandersanden and Laure Levi, lawyers.
                              No 1.413.061 for goods and ser-
                              vices in Classes 1 to 42.
                                                                          The applicants claim that the Court should:
Proprietor of mark or         The applicant.
sign cited in the oppo-
sition proceedings:                                                       —     annul the European Commission’s decision of 18 August
                                                                                2003, notified on 21 August 2003, refusing the appli-
                                                                                cants request for access to certain documents held by that
Mark or sign cited in         Spanish figurative mark ‘CAPITAL                  institution, and the Commission’s decision of 1 October
opposition:                   MARKETS CM’, registered under                     2003, refusing the confirmatory application lodged by
                              numbers 2.000.040, 2.000.041,                     the applicants on 8 September 2003;
                              2.000.042 and 2.000.043 for ser-
                              vices in Classes 35, 36, 38 and
                              42.                                         —     order the defendant to pay all of the costs.
 ---pagebreak--- 24.1.2004             EN                         Official Journal of the European Union                                         C 21/47
Pleas in law and main arguments                                          Articles 2 and 4, a breach of the fundamental right of access
                                                                         to documents, a manifest error of assessment, erroneous and
The applicants in this case had submitted a request to the               contradictory reasoning, and a breach of the principle of
appointing authority for access to various documents held by             proportionality.
the Commission regarding investigations carried out as a
consequence of certain irregularities which had been found to            They consider in that regard that the defendant has wrongly
exist in relation to Eurostat. The rejection of this application         given a wide scope to the exceptions it relies on, which is
forms the basis of this case.                                            contrary to case-law. The case in fact involves no current
                                                                         court proceedings within the meaning of that case-law and,
The defendant relies on two exceptions in Article 4 of                   moreover, the European Anti-Fraud Office is an administrative
Regulation (EC) No 1049/2001 of the European Parliament                  service, which compiles administrative files and reports.
and of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents,                   Lastly, they claim that the Commission failed to determine the
and on the protection of court proceedings and of the purpose            requests for access in the light of the specific facts and
of inspections, investigations and audits.                               circumstances of the case by failing to consider the impact that
                                                                         the contents of the documents might have on the exceptions
In support of their position, the applicants claim that there has        relied on, and failed to give proper weight to the interests in
been a breach of Regulation No 1049/2001, in particular of               question.


title: Case T-191/11: Judgment of the General Court of 25 October 2012 — Automobili Lamborghini v OHIM — Miura Martínez (Miura) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Miura — Earlier national word and figurative marks MIURA — Rights of the defence — Right to be heard — Article 75 of Regulation (EC) No 207/2009 — Notification by ordinary mail — Rule 62(1) and (5) of Regulation (EC) No 2868/95)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/23

         Judgment of the General Court of 25 October 2012 — Automobili Lamborghini v OHIM — Miura Martínez (Miura)
   (Case T-191/11) (1)

   (Community trade mark - Opposition proceedings - Application for figurative Community trade mark Miura - Earlier national word and figurative marks MIURA - Rights of the defence - Right to be heard - Article 75 of Regulation (EC) No 207/2009 - Notification by ordinary mail - Rule 62(1) and (5) of Regulation (EC) No 2868/95)
   2012/C 379/39
   Language of the case: German

      Parties

      Applicant: Automobili Lamborghini Holding SpA (Sant’ Agata Bolognese, Italy) (represented by: P. Kather, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel and D. Walicka, agents)

      Other parties to the proceedings before the Board of Appeal of OHIM: Eduardo Miura Martínez and Antonio José Miura Martínez (Seville, Spain)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 21 January 2011 (Case R 161/2010-4) relating to opposition proceedings between Eduardo Miura Martínez and Antonio José Miura Martínez and Automobili Lamborghini Holding SpA.

      Operative part of the judgment

   The General Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 21 January 2011 (Case R 161/2010 4);

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 160, 28.5.2011.


title: Case T-270/12: Action brought on 12 June 2012 — Panalpina Welttransport and Others v Commission

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/30

         Action brought on 12 June 2012 — Panalpina Welttransport and Others v Commission
   (Case T-270/12)
   2012/C 243/53
   Language of the case: English

      Parties

      Applicants: Panalpina Welttransport (Holding) AG (Basel, Switzerland), Panalpina Management AG (Basel, Switzerland) and Panalpina China Ltd (Hong Kong, China) (represented by: S. Mobley, A. Stratakis, T. Grimmer and B. Smith, Solicitors)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission Decision of 28 March 2012 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462 — Freight Forwarding) in its entirety to the extent that it applies to the applicants;

               —

               In the alternative:

                           —

                           insofar as the Court upholds the first and/or the second plea made by the applicants, modify Articles 2(2), 2(3) and 2(4) of the Decision as they pertain to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein;

                           —

                           insofar as the Court upholds the applicants’ third plea, annul or modify Article 1(2)(f) of the Decision to reflect the reduced duration of the infringement, and consequentially modify Article 2(2) of the Decision as it pertains to the applicants, so as to annul or reduce the fine imposed on the applicants therein; and

                           —

                           insofar as the Court upholds the applicants’ fourth plea, modify Articles 2(2), 2(3) and 2(4) of the Decision as it pertains to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein; and, in any event;

               —

               Order that the Commission pay its own costs and the applicants’ costs in connection with these proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on four pleas in law.

               1.

               First plea in law, alleging that the Commission departed from its rules of practice, erred in law and breached its duty to state reasons, the principle of proportionality and the principle of equality in setting the basic amount of the fine by calculating the ‘value of sales’ relevant to the infringement on the basis of total sales to EEA customers.

               2.

               Second plea in law, alleging that the Commission departed from its rules of practice, erred in law and breached its duty to state reasons, the principle of proportionality and the principle of equality in setting the basic amount of the fine by failing to take into account the particularities of the case and the nature of the industry in question (including the impact of the Air Cargo cartel).

               3.

               Third plea in law, alleging that the Commission erred in law by concluding that it had jurisdiction in respect of the advanced manifest system (‘AMS’) infringement prior to 1 May 2004.

               4.

               Fourth plea in law, alleging that the Commission departed from its rules of practice by misapplying its discretion in relation to the settlement procedure.


title: Case C-197/03: Action brought on 12 May 2003 by the Commission of the European Communities against the Italian Republic

text:
C 171/12               EN                       Official Journal of the European Union                                         19.7.2003
to asbestos has resulted in psychological and physical stress;          a renumerative nature, inasmuch as the Italian tax authorities
that damage may be assumed to exist on the basis of                     already levied on registration of such company documents in
information concerning environmental pollution and may                  the years 1985 to 1992 ‘analogous charges which may be
certainly be described as biological and life-threatening dam-          regarded as constituting renumeration for the service provided’.
age. There has in any event been psychological damage
resulting from concern for his life suffered by someone who             The Italian authorities, contrary to the provisions of
fearfully expected to suffer from cancer, that is to say, to die.       Article 11(2) of Law No 448/98, are obliged to reimburse in
                                                                        full to the capital companies who have sought recovery within
                                                                        the periods laid down, the amount of the administrative charge
                                                                        on registration of the instrument of incorporation declared
                                                                        invalid by the Court in Joined Cases C-71/91 and C-178/91
                                                                        Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915,
                                                                        and are not at liberty to reduce that amount by a sum equal to
                                                                        eight times the retroactive annual flat-rate charge provided for
Action brought on 12 May 2003 by the Commission of                      in Article 11(1) of Law No 448/98. The introduction of that
  the European Communities against the Italian Republic                 retroactive annual flat-rate charge constitutes a flagrant breach
                                                                        of the prohibition in Article 10 of Directive 69/335.
                         (Case C-197/03)
                                                                        (b)   The detailed rules for calculating interest on the
                         (2003/C 171/17)                                      amounts to be repaid to the companies
                                                                        The Commission points out that the detailed rules for calculat-
                                                                        ing interest on refunds of the administrative charge on
An action against the Italian Republic was brought before the           registration of a company’s instrument of incorporation
Court of Justice of the European Communities on 12 May                  provided for in Article 11(3) of Law No 448/98 concern only
2003 by the Commission of the European Communities,                     a specific category of actions for restitution, namely those
represented by Enrico Traversa, acting as Agent.                        based on an infringement of Article 10 of Directive 69/335,
                                                                        that is to say a breach of a provision of Community law. Since
                                                                        those detailed rules for calculating interest are manifestly less
The applicant claims that the Court should:                             favourable in contrast to those applicable in the case of
                                                                        analogous actions based on national law, the Commission
—     declare that, by introducing with retroactive effect under        concludes that Article 11(3) of Law No 448/98 constitutes an
      Article 11 of Law No 448/98, an annual flat-rate charge           infringement of the principle of equivalence upheld by the
      on the registration of company documents other than the           Court.
      instrument of incorporation and by providing for rules
      relating to reimbursement of the repealed administrative
      charge on registration of the instrument of incorporation         (c)   Detailed rules for reimbursement of the repealed admin-
      which are discriminatory and restrictive as against com-                istrative charge on registration of the instrument of
      panies entitled to that reimbursement, the Italian Republic             incorporation
      has infringed the obligations imposed on it by
      Article 10(c) of Council Directive 69/335/EEC ( 1) con-
      cerning indirect taxes on the raising of capital and the          In the Commission’s view, the requirements contained in
      principles laid down by the Court of Justice concerning           Article 11(4) and (5) of Law No 448/98 and in implementing
      recovery of charges levied by the Member States in breach         circular No 32/E providing for a commencement date for
      of Community law;                                                 reimbursement procedures, introducing an annual ceiling of
                                                                        amounts earmarked for reimbursement and suspending the
                                                                        reimbursements themselves in cases where proceedings at first
—     order the Italian Republic to pay the costs.
                                                                        instance are still pending, occasion, or are likely to occasion,
                                                                        delays in repayment of the repealed charge on registration of
                                                                        a company’s instrument of incorporation. This deferral of
                                                                        reimbursements and the consequent extension of the duration
Pleas in law and main arguments                                         of judicial proceedings for recovery of the registration charge
                                                                        quite plainly renders excessively difficult the exercise of a right
                                                                        conferred by the Community legal order and, more specifically,
                                                                        the right of capital companies to be subject, on incorporation,
(a)   The annual retroactive flat-rate charge on registration           only to the harmonised tax on contributions and to seek
      of company documents other than the instrument of                 recovery of other non-harmonised indirect taxes prohibited
      incorporation                                                     under Article 10 of Directive 69/335.
The Commission maintains that the retroactive flat-rate charge          The Commission concludes that the Italian legislature, by
on registration of company documents other than the instru-             introducing restrictive rules on reimbursement provided for in
ment of incorporation cannot in any way be deemed to be of              Article 11(4) and (5) of Law No 448/98, has at one and the
 ---pagebreak--- 19.7.2003                EN                      Official Journal of the European Union                                           C 171/13
same time infringed all three principles upheld by the Court in          which requires all the Member States to introduce into their
regard to the recovery of charges levied by the Member States            respective national systems review procedures full available to
in breach of Community law, that is to say not only the                  those who intend to seek reparation of damage suffered or
principle of equivalence and the maintenance of the effects of           who in any event fear that they may suffer harm as a result of
judgments of the Court declaring a charge incompatible with              a decision taken by the tenders committee for the award of a
Community law but also the principle of effectiveness.                   public procurement contract?
( 1) OJ English Special Edition 1969 II, p. 412.
                                                                         Does that interim relief which may be granted by the national
                                                                         administrative courts constitute infringement of Article 2(1)(a)
                                                                         of the Directive, which requires the Member States to take at
                                                                         the earliest opportunity and by way of interlocutory pro-
                                                                         cedures, interim measures with the aim of correcting the
                                                                         alleged infringement or preventing further damage to the
Reference for a preliminary ruling by the Tribunale                      interests concerned, including measures to suspend or to
Amministrativo Regionale per la Lombardia — Sezione                      ensure the suspension of the procedure for the award of a
Staccata di Brescia by order of that Court of 24 April                   public contract or the implementation of any decision taken
2003 in the case of Società DAC S.p.A. against Azienda                   by the contracting authority?
Ospedaliera ‘Spedali Civili’, Brescia; the third party being
                          Pellegrini S.p.A
                                                                         Finally, does that form of interim relief also constitute breach
                          (Case C-202/03)                                of Article 6(2) TEU which, in providing that the Union must
                                                                         respect fundamental rights, as guaranteed by the European
                          (2003/C 171/18)                                Convention for the Protection of Human Rights and Funda-
                                                                         mental Freedoms, has adopted the principle laid down in
                                                                         Articles 6 and 13 of that Convention that judicial protection
                                                                         must be effective, requiring the Member States to guarantee
Reference has been made to the Court of Justice of the                   that full effectiveness in their respective national legal systems?
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Lombardia - Sezione Staccata di Brescia
(Regional Administrative Court for Lombardy, Brescia Div-
ision) of 24 April 2003, received at the Court Registry on               (1 ) OJ L 395, 30.12.1989, p. 33.
13 May 2003, for a preliminary ruling in the case of
Società DAC S.p.A. against Azienda Ospedaliera ‘Spedali Civili’,
Brescia; the third party being Pellegrini S.p.A. on the following
questions:
Is the judicial protection provided in respect of claims based
on Community law, which may be granted by the national
administrative courts in procurement contract proceedings,
and which differs from that provided in the national legal               Reference for a preliminary ruling by the High Court of
order in respect of rights recognised in disputes between                Justice (England and Wales), Queen’s Bench Division
private persons or in disputes between the latter and the public         (Administrative Court) by order of that court dated
authorities over which the ordinary courts have jurisdiction,            12 February 2003, in the case of The Queen on the
contrary to the principle of cooperation enshrined in                    application of Dany Bidar against 1) London Borough of
Article 10 EC, which, in the absence of any harmonised                              Ealing 2) Secretary of State for Education
procedural system, requires that claims based on Community
law must be afforded the same form of protection as claims
based on national law, rather than relief which is purely                                         (Case C-209/03)
interlocutory and therefore less effective compared to the
protection afforded generally in respect of rights under national
law?                                                                                (2003/C 171/19)
Furthermore, in so far as it does not provide, among the
interim measures available, for the possibility of introducing
an application for interim relief ante causam, seeking an order          Reference has been made to the Court of Justice of the
restraining the authorities forthwith from concluding the                European Communities by an order of the High Court
contract at the end of a. tendering procedure, quite irrespective        of Justice (England and Wales), Queen’s Bench Division
of whether or not an action challenging an act in that                   (Administrative Court), dated 12 February 2003, which was
procedure has already been brought, does Article 21 of Law               received at the Court Registry on 15 May 2003, for a
No 1034 of 6 December 1971, as amended by Law No 205                     preliminary ruling in the case of The Queen on the application
of 21 July 2000, constitute sufficient implementation of                 of Dany Bidar against 1) London Borough of Ealing 2) Secretary
Article 1(3) of Directive 98/665/EEC (1) of 21 December 1989,            of State for Education on the following questions:


title: JUDGMENT OF THE COURT (First Chamber) of 19 November 1998 in Case C-252/96 P: European Parliament v. Enrique Gutiérrez de Quijano y Lloréns (Appeals - Proceedings before the Court of First Instance - Prohibition of new pleas - Applicability to the Court of First Instance - Officials - Inter-institutional transfer)

text:
C 20/4                EN                 Official Journal of the European Communities                                    23.1.1999
employment, vocational training and promotion, and                       unfit for work, without paying her salary in full when
working conditions (OJ L 39, 14.2.1976, p. 40) and                       he considers that he cannot provide work for her.
Council Directive 92/85/EEC of 19 October 1992 on the
introduction of measures to encourage improvements in
the safety and health at work of pregnant workers                   (1) OJ C 133, 4.5.1996.
and workers who have recently given birth or are
breastfeeding (tenth individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC) (OJ
L 348, 28.1.1992, p. 1) Ð the Court (Sixth Chamber),
composed of: P. J. G. Kapteyn, President of the Chamber,
G. Hirsch, G. F. Mancini, J. L. Murray (Rapporteur) and
R. Schintgen, Judges; D. Ruiz-Jarabo Colomer, Advocate-
General; H. von Holstein, Deputy Registrar, for the                                JUDGMENT OF THE COURT
Registrar, has given a judgment on 19 November 1998, in                                     (First Chamber)
which it has ruled:
                                                                                of 19 November 1998
                                                                    in Case C-252/96 P: European Parliament v. Enrique
                                                                                GutieÂrrez de Quijano y LloreÂns (1)
1. It is contrary to Article 119 of the EC Treaty and
    Council Directive 75/117/EEC of 10 February 1975                (Appeals Ð Proceedings before the Court of First Instance
    on the approximation of the laws of the Member                  Ð Prohibition of new pleas Ð Applicability to the Court
    States relating to the application of the principle of          of First Instance Ð Officials Ð Inter-institutional transfer)
    equal pay for men and women for national legislation
                                                                                (1999/C 20/05)
    to provide that a pregnant woman who, before the
    beginning of her maternity leave, is unfit for work by
    reason of a pathological condition connected with her
    pregnancy, as attested by a medical certificate, is not                        (Language of the case: Spanish)
    entitled to receive full pay from her employer but
    benefits paid by a local authority, when in the event of
    incapacity for work on grounds of illness, as attested
    by a medical certificate, a worker is in principle                (Provisional translation; the definitive translation will be
    entitled to receive full pay from his or her employer.                    published in the European Court Reports)
                                                                    In Case C-252/96 P: European Parliament (Agents:
2. It is not contrary to Article 119 of the Treaty or               Manfred Peter and JoseÂ Luis Rufas Quintana) Ð Appeal
    Directive 75/117/EEC for national legislation to                against the judgment of the Court of First Instance of the
    provide that a pregnant woman is not entitled to                European Communities (Second Chamber) of 22 May
    receive her pay from her employer where, before the             1996 in Case T-140/94 GutieÂrrez de Quijano y LloreÂns v.
    beginning of her maternity leave, she is absent from            Parliament [1996] ECR-SC II-689 seeking to have that
    work by reason either of routine pregnancy-related              judgment set aside, the other party to the proceedings
    inconveniences, when there is in fact no incapacity for         being: Enrique GutieÂrrez de Quijano y LloreÂns, official of
    work, or of medical recommendation intended to                  the Court of Justice of the European Communities,
    protect the unborn child but not based on an actual             residing in Luxembourg at 53 Rue de Beggen, represented
    pathological condition or on any special risks for the          by Sonia Sequero Marcos, of the MaÂlaga Bar, with an
    unborn child, while any worker who is unfit for work            address for service in Luxembourg at the office of Enrique
    on the grounds of illness is in principle entitled              GutieÂrrez de Quijano Ð the Court (First Chamber),
    thereto.                                                        composed of: D. A. O. Edward, acting as President of the
                                                                    First Chamber, L. Sevón (Rapporteur) and M. Wathelet,
                                                                    Advocate-General: P. LeÂger; Judges; R. Grass, Registrar,
                                                                    has given a judgment on 19 November 1998, in which it:
3. It is contrary to Council Directive 76/207/EEC of
    9 February 1976 on the implementation of the
    principle of equal treatment for men and women as
                                                                    1. Dismisses the appeal;
    regards access to employment, vocational training and
    promotion, and working conditions, and to Council
    Directive 92/85/EEC of 19 October 1992 on the
    introduction of measures to encourage improvements              2. Orders the European Parliament to pay the costs.
    in the safety and health at work of pregnant workers
    and workers who have recently given birth or are
    breastfeeding (tenth individual Directive within the            (1) OJ C 269, 14.9.1996.
    meaning of Article 16(1) of Directive 89/391/EEC) for
    national legislation to provide that an employer may
    send home a woman who is pregnant, although not


title: Case T-174/11: Order of the General Court of 21 March 2012 — Modelo Continente Hipermercados v Commission (Action for annulment — State aid — Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid — Lack of individual concern — Inadmissibility)

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/26

         Order of the General Court of 21 March 2012 — Modelo Continente Hipermercados v Commission
   (Case T-174/11) (1)

   (Action for annulment - State aid - Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions - Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid - Lack of individual concern - Inadmissibility)
   2012/C 133/51
   Language of the case: Spanish

      Parties

      Applicant: Modelo Continente Hipermercados, SA, sucursal en España (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers)

      Defendant: European Commission (represented by: R. Lyal and C. Urraca Caviedes, Agents)

      Re:

   Application for annulment of Article 1(1) of Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48).

      Operative part of the order

               1.

               The action is dismissed;

               2.

               Modelo Continente Hipermercados, SA, sucursal en España, is ordered to pay the costs.

      (1)  OJ C 139, 7.5.2011.


title: Case T-278/12: Action brought on 22 June 2012 — Inter-Union Technohandel v OHIM — Gumersport Mediterranea de Distribuciones (PROFLEX)

text:
               8.9.2012

               EN

               Official Journal of the European Union

               C 273/12

         Action brought on 22 June 2012 — Inter-Union Technohandel v OHIM — Gumersport Mediterranea de Distribuciones (PROFLEX)
   (Case T-278/12)
   2012/C 273/21
   Language in which the application was lodged: English

      Parties

      Applicant: Inter-Union Technohandel GmbH (Landau in der Pfalz, Germany) (represented by: K. Schmidt-Hern and A. Feutlinske, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Gumersport Mediterranea de Distribuciones, SL (Barcelona, Spain)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 March 2012 in case R 413/2011-2; and

               —

               Order OHIM to pay the costs of the applicant.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘PROFLEX’ for goods and service sin classes 9, 12 and 25

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: German trade mark registration No 39628817 for the word mark ‘PROFEX’, for goods in classes 6, 8, 9, 11, 12, 16, 17 and 21

      Decision of the Opposition Division: Partially upheld the opposition

      Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition entirely

      Pleas in law: Infringement of Articles 42(2) and (3) of Council Regulation (EC) No 207/2009 and Rule 22 of Commission Regulation (EC) no 2868/95.