title: Case C-79/13: Request for a preliminary ruling from the Arbeidshof te Brussel (Belgium) lodged on 15 February 2013 — Federaal agentschap voor de opvang van asielzoekers v Selver Saciri and Others

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/26

         Request for a preliminary ruling from the Arbeidshof te Brussel (Belgium) lodged on 15 February 2013 — Federaal agentschap voor de opvang van asielzoekers v Selver Saciri and Others
   (Case C-79/13)
   2013/C 114/40
   Language of the case: Dutch

      Referring court

   Arbeidshof te Brussel

      Parties to the main proceedings

      Applicant: Federaal agentschap voor de opvang van asielzoekers

      Defendants: Selver Saciri, Danijela Dordevic, Danjel Saciri (represented by: Selver Saciri and Danijela Dordevic), Sanela Saciri (represented by: Selver Saciri and Danijela Dordevic), Denis Saciri (represented by: Selver Saciri and Danijela Dordevic), Openbaar Centrum voor Maatschappelijk Welzijn van Diest

      Questions referred

               1.

               When a Member State elects, pursuant to Article 13(5) of Directive 2003/9 (1) of 27 January 2003 laying down minimum standards for the reception of asylum seekers, to provide the material support in the form of a financial allowance, does the Member State then still have any responsibility to ensure that the asylum applicant, in one way or another, enjoys the minimum protection measures of the Directive as contained in Articles 13(1), 13(2), 14(1), 14(3), 14(5) and 14(8) of the Directive?

               2.

               Should the financial allowance, provided for by Article 13(5) of the Directive, be granted from the date of the application for asylum and the reception request, or from the expiry of the period provided for in Article 5(1) of the Directive, or from another date. Should the financial allowance be of such a nature that it allows the asylum seeker, in the absence of material reception facilities provided by the Member State or by an institution designated by the Member State, to provide for his own accommodation at all times, if necessary in the form of hotel accommodation, until such time as he is offered permanent accommodation or as he is able to acquire more permanent accommodation himself?

               3.

               Is it compatible with the Directive that a Member State only grants the material reception facilities to the extent that the existing reception structures, as established by the State, are able to ensure that accommodation, and refers the asylum seeker who does not find place there for assistance which is available to all the residents of the State, without providing for the necessary statutory rules and structures so that institutions which have not been established by the State itself are effectively able to extend a dignified reception to the asylum applicants within a short period?

      (1)  Council Directive 2003/9/EC (OJ 2003 L 31, p. 18).


title: Case C-162/05 P: Order of the Court of  12 January 2006  — Entorn, Societat Limitada Enginyeria i Serveis v Commission of the European Communities (Appeal — EAGGF — Financial participation in a demonstration project concerning the introduction of new cultivation techniques in sumac production — Withdrawal of financial aid)

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/3

         Order of the Court of 12 January 2006 — Entorn, Societat Limitada Enginyeria i Serveis v Commission of the European Communities
   (Case C-162/05 P) (1)

   (Appeal - EAGGF - Financial participation in a demonstration project concerning the introduction of new cultivation techniques in sumac production - Withdrawal of financial aid)
   (2006/C 154/05)
   Language of the case: Spanish
   Parties

      Appellant: Entorn, Societat Limitada Enginyeria i Serveis (represented by: M. Belard-Kopke Marques-Pinto, avocat)

      Other party to the proceedings: Commission of the European Communities (represented by: L. Visaggio and F. Jimeno Fernández, Agents)
   Re:
   Appeal against the judgment of the Court of First Instance (Second Chamber) of 18 January 2005 in Case T-141/01 Entorn v Commission refusing an application to annul a decision of the Commission withdrawing financial aid from the European Agricultural Guidance and Guarantee Fund (EAGGF), ‘Guidance’ Section, granted to the appellant for a demonstration project concerning the introduction of new cultivation techniques in sumac production
   Operative part of the order

               1.

               The appeal is dismissed;

               2.

               Entorn, Societat Limitada Enginyeria i Serveis is ordered to pay the costs.

      (1)  OJ C 143 of 11.6.2005.


title: Assignment of Judges to the Chambers

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/2

         Assignment of Judges to the Chambers
   2009/C 267/06
   At its meetings on 8 and 9 October 2009, the Court decided to assign the Judges to the Chambers as follows:

                  First Chamber

               Mr Tizzano, President,
               Mr Borg Barthet, Mr Ilešič, Mr Levits, Mr Kasel, Mr Safjan and Ms Berger, Judges

                  Second Chamber

               Mr Cunha Rodrigues, President,
               Mr Rosas, Mr Lõhmus, Mr Ó Caoimh, Ms Lindh and Mr Arabadjiev, Judges

                  Third Chamber

               Mr Lenaerts, President,
               Ms Silva de Lapuerta, Mr Juhász, Mr Arestis, Mr Malenovský, Mr von Danwitz and Mr Švaby, Judges

                  Fourth Chamber

               Mr Bonichot, President,
               Mr Timmermans, Sir Konrad Schiemann, Mr Kūris, Mr Bay Larsen and Ms Toader, Judges

                  Fifth Chamber

               Mr Levits, President,
               Mr Borg Barthet, Mr Ilešič, Mr Kasel, Mr Safjan and Ms Berger, Judges

                  Sixth Chamber

               Ms Lindh, President,
               Mr Rosas, Mr Lõhmus, Mr Ó Caoimh and Mr Arabadjiev, Judges

                  Seventh Chamber

               Ms Silva de Lapuerta, President,
               Mr Juhász, Mr Arestis, Mr Malenovský, Mr von Danwitz and Mr Šváby, Judges

                  Eighth Chamber

               Ms Toader, President,
               Mr Timmermans, Sir Konrad Schiemann, Mr Kūris and Mr Bay Larsen, Judges


title: Case T-480/13: Action brought on 30 August 2013 — You-View.tv/OHMI — YouView TV (YouView+)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/58

         Action brought on 30 August 2013 — You-View.tv/OHMI — YouView TV (YouView+)
   (Case T-480/13)
   2013/C 344/107
   Language in which the application was lodged: English

      Parties

      Applicant: You-View.tv (Antwerp, Belgium) (represented by: S. Criel, lawyer)

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

      Other party to the proceedings before the Board of Appeal: YouView TV Ltd (London, United Kingdom)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2013 given in Case R 2112/2012-4;

               —

               Order the defendant to pay the costs incurred by the present proceedings.

      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: Word mark ‘YouView+’ for goods and services in Classes 9, 16, 38, 41 and 42 — Community trade mark application No 10 286 061

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

      Mark or sign cited in opposition: Figurative mark in red and white containing verbal elements ‘You View You-View.tv’ for services in Classes 35, 38 and 41 — Benelux trade mark No 838 408

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 8(1)(b) and 8(5) CTMR.


title: Case T-448/11: Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS)

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/25

         Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS)
   (Case T-448/11)
   2011/C 298/46
   Language in which the application was lodged: English

      Parties

      Applicant: Golden Balls Ltd (London, United Kingdom) (represented by: M. Edenborough, QC, and S. Smith, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Intra-Presse (Boulogne-Billancourt, France)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 June 2011 in case R 1432/2010-1, in so far as it held that the appeal before the Board of Appeal was successful in respect of certain goods and services in classes 9, 28 and 41; and

               —

               Order the defendant to pay the applicant’s costs occasioned by this appeal, or alternatively, order the other party to the proceedings before the Board of Appeal to pay the applicant’s costs occasioned by this appeal.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned:: The word mark ‘GOLDEN BALLS’ for goods and services in classes 9, 28 and 41 — Community trade mark application No 6036503

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Community trade mark registration No 4226148 of the word mark ‘BALLON D’OR’, for amongst others goods and services in classes 9, 14, 16, 18, 25, 28, 38 and 41

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Annulled the decision of the Opposition Division and partially accepted the opposition and the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there is a perceived conflict between the Community trade mark application and the earlier mark.


title: Case T-309/13: Judgment of the General Court of 22 October 2015 — Enosi Mastichoparagogon v OHIM — Gaba International (ELMA) (Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark ELMA — Earlier Community word mark ELMEX — Refusal to register — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/29

         Judgment of the General Court of 22 October 2015 — Enosi Mastichoparagogon v OHIM — Gaba International (ELMA)
   (Case T-309/13) (1)

   ((Community trade mark - Opposition proceedings - International registration designating the European Community - Word mark ELMA - Earlier Community word mark ELMEX - Refusal to register - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 406/28)
   Language of the case: English

      Parties

      Applicants: Enosi Mastichoparagogon Chiou (Chios, Greece) (represented by: A.-E. Malami, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Geroulakos and J. Crespo Carrillo, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Gaba International Holding GmbH (Therwil, Switzerland) (represented by: G. Schindler, M. Zintler and P. Nagel, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 26 March 2013 (Case R 1539/2012-4) relating to opposition proceedings between Gaba International Holding GmbH and Enosi Mastichoparagogon Chiou.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Enosi Mastichoparagogon Chiou to pay the costs.

      (1)  OJ C 2263, 3.8.2013.


title: Reference for a preliminary ruling by the Corte dei Conti - Division for the monitoring of undertakings - by order of that court of 26 November 1998 in a case concerning the applicability to RAI - Radiotelevisione Italiana SpA - of Community and national law relating to the award of public contracts (Case C-440/98)

text:
C 48/12                EN                   Official Journal of the European Communities                                  20.2.1999
       private storage aid have been examined and a certain            Reference for a preliminary ruling by the Corte dei Conti
       number of such boxes have been found to contain                 Ð Division for the monitoring of undertakings Ð by
       ineligible material contrary to Regulation (EEC)                order of that court of 26 November 1998 in a case
       No 2675/88 and there is evidence of a deliberate and            concerning the applicability to RAI Ð Radiotelevisione
       persistent policy of including such ineligible material         Italiana SpA Ð of Community and national law relating
       rolled up inside particular cuts in particular                                  to the award of public contracts
       production plants, is the Competent Authority                                           (Case C-440/98)
       entitled pursuant to Regulations (EEC) No 2220/85
       and (EEC) No 2675/88 to extrapolate the results of                                       (1999/C 48/21)
       such examination across the production of such cuts
       in the particular production plants and to reject as            Reference has been made to the Court of Justice of the
       eligible for private storage aid a quantity of meat             European Communities by an order of the Corte dei Conti
       based on such extrapolation and to forfeit the                  (Italian Court of Auditors) Ð Division for the monitoring
       securities given in respect of the advance payments             of undertakings, which was received at the Court Registry
       made on such quantities plus 20 %, or is the                    on 3 December 1998, for a preliminary ruling in a case
       Competent Authority confined to extrapolating the               concerning the applicability to RAI Ð Radiotelevisione
       results of the examination of boxes in one APS                  Italiana SpA Ð of Community and national law relating
       contract across the production of the relevant cuts             to the award of public contracts, on the following
       within that APS contract as the case may be?                    questions:
                                                                       1.    Whether or not the RAI Ð Radiotelevisione Italiana
                                                                             S.p.a. Ð is required to observe the procedures for the
9.     Where there is evidence of a persistent and deliberate                award of contracts laid down in Council Directive
       policy by an operator to include in boxes of                          93/38/EEC (1), as amended and supplemented, in
       particular cuts of boneless meat in particular                        relation to the so-called excluded sectors, having
       production plants, material which may not be stored                   regard also to the fact that Annex 17(h) to the
       pursuant to Article 4(4) of Regulation (EEC)                          legislative decree which transposed that directive
       No 2675/88 and the APS contract entered into by                       (No 158 of 17 March 1995) excludes from the
       the operator with the Competent Authority and                         matters to which that directive applies persons
       examination revealed significant quantities of such                   engaged in radio-broadcasting and television
       ineligible material has been stored, does Commission                  services';
       Regulation (EEC) No 1091/80 (6) and in particular
       Article 5.2(c) thereof, authorise the Competent
                                                                       2.    Whether Ð if the first question is answered in the
       Authority to forfeit the amount of the contract
                                                                             negative Ð the RAI Ð Radiotelevisione Italiana
       securities referable to the production of the relevant
                                                                             S.p.a. Ð must be regarded as definitively excluded
       cuts of meat in such production plants.
                                                                             from the list of persons who are required to observe
                                                                             Community procedures for public contracts or
                                                                             whether, on the contrary, it is subject to the general
                                                                             rules laid down by Community Directives
                                                                             93/37/EEC (2) concerning the award of public works
(1) Commission Regulation (EEC) No 1964/82 of 20 July 1982                   contracts, 92/50/EEC (3) concerning the award of
    laying down the conditions for granting special export refunds           public service contracts and 93/36/EEC (4) concerning
    on certain cuts of boned meat of bovine animals (OJ L 212,               the award of public supply contracts, as amended
    21.7.1982, p. 48).                                                       and supplemented;
(2) Commission Regulation (EEC) No 2675/88 of 29 August 1988
    providing for the grant of private storage aid fixed at a
    standard rate in advance in respect of carcases, half-carcases,    3.    Whether or not, for the abovementioned purposes,
    hindquarters and forequarters from adult male bovine animals             the RAI Ð Radiotelevisione Italiana S.p.a. Ð falls
    (OJ L 239, 30.8.1988, p. 20).                                            within the Community concept of body governed by
(3) Council Regulation (EEC) No 565/80 of 4 March 1980 on the                public law' since, whilst it is true that, in order to
    advance payment of export refunds in respect of agricultural             meet needs in the general interest relating to the
    products (OJ L 62, 7.3.1980, p. 5).                                      performance of public service tasks, it certainly
(4) Commission Regulation (EEC) No 3665/87 of 27 November                    carries on an activity of an industrial or commercial
    1987 laying down common detailed rules for the application
                                                                             nature' which is open to the market, it must
    of the system of export refunds on agricultural products (OJ
    L 351, 14.12.1987, p. 1).                                                nevertheless be observed that the abovementioned
(5) Commission Regulation (EEC) No 2220/85 of 22 July 1985                   entity, as well as being characterised by the special
    laying down common detailed rules for the application of the             operational and organisational rules referred to in the
    system of securities for agricultural products (OJ L 205,                grounds of this order, enjoys a special system of State
    3.8.1985, p. 5).                                                         financing in the form of the subscription fee.
(6) Commission Regulation (EEC) No 1091/80 of 2 May 1980
    laying down detailed rules for granting private storage aid for
                                                                       (1 ) OJ L 199, 9.8.1993, p. 84.
    beef and veal (OJ L 114, 3.5.1980, p. 18).
                                                                       (2 ) OJ L 199, 9.8.1993, p. 54.
                                                                       (3 ) OJ L 209, 24.7.1992, p. 1.
                                                                       (4 ) OJ L 199, 9.8.1993, p. 1.


title: Case C-163/07 P: Appeal brought on 26 March 2007 by Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar against the order of the Court of First Instance (Fourth Chamber) of 17 January 2007 in Case T-129/06 Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar v Commission of the European Communities

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/7

         Appeal brought on 26 March 2007 by Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar against the order of the Court of First Instance (Fourth Chamber) of 17 January 2007 in Case T-129/06 Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar v Commission of the European Communities
   (Case C-163/07 P)
   (2007/C 129/10)
   Language of the case: German
   Parties

      Appellants: Diy-Mar Insaat Sanayi ve Ticaret Ltd Sirketi and Musa Akar (represented by: C. Şahin, lawyer)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               set aside the order of the Court of First Instance of the European Communities of 17 January 2007 in Case T-129/06 (1), served on the appellants on 26 January 2007, and annul the contested decision of the respondent of 23 December 2005 No MK/KS/DELTUR/(2005)/SecE/D/1614;

               —

               alternatively, to uphold the pleas in law raised by the appellant at first instance and to set aside the order of the Court of First Instance referred to above and annul the contested decision of the respondent of 23 December 2005 No MK/KS/DELTUR/(2005)/SecE/D/1614 in so far as incompatible with those pleas in law;

               —

               in the further alternative, to set aside the order of the Court of First Instance referred to above and to refer the matter back to the Court of First Instance;

               —

               order the respondent to pay the costs.

         Pleas in law and main arguments
   The appellants base their appeal against the order of the Court of First Instance on the following grounds.
   The Court is not required, in appraising the facts in proceedings before, it to have regard only to the contentions of the parties and to decide the case solely on the basis of evidence put forward by them. Rather, Article 21 of the Statute of the Court of Justice makes it clear that the Courts of the European Communities are under an obligation to appraise the facts of the proceedings and can, on their own initiative, not only take active steps, but are also under a duty to do so when the circumstances require.
   Since, in the present case, the Court of First Instance did not assess whether the respondent had set out proper reasons in the contested decision, and the appellants learned only of the failure to observe formal requirements only after one month had expired, that is to say, after the end of the prescribed period, it infringed Article 21 of the Statute of the Court of Justice, Article 64 of its Rules of Procedure and substantive Community law regarding the principles relating to the scope of the presumption of legality of legal acts and the doctrine of the apparent existence of an act. Where acts of the administration contain particularly serious and blatant errors, Community law requires that these be treated as null and void.
   Had the appellants been properly informed of the remedies available to them, they would have instructed a qualified lawyer and accordingly brought proceedings within the prescribed period. The contention of the Court of First Instance that the appellants and their Turkish lawyers had not used the care that is required of an applicant who is aware of all relevant matters did not relieve the respondent of the duty to provide details of the remedies that were available.

      (1)  OJ 2007 C 212, p. 29.


title: Case C-161/03: Reference for a preliminary ruling by the Commission de Conciliation et d'Expertise Douaniere (France) by decision of that Court of 18 March 2003 in the case of Customs against CAFOM and SAMSUNG Electronics France

text:
C 135/18                 EN                        Official Journal of the European Union                                            7.6.2003
2.    Annul the respondent ECB’s formal warning of 28 Febru-               Reference for a preliminary ruling by the Commission de
      ary 2002;                                                            Conciliation et d’Expertise Douaniere (France) by decision
                                                                           of that Court of 18 March 2003 in the case of Customs
                                                                               against CAFOM and SAMSUNG Electronics France
3.    Order the defendant to pay the costs.
                                                                                (Case C-161/03)
Pleas in law and main arguments
                                                                                (2003/C 135/26)
The Court of First Instance of the European Communities
failed to recognise that the contested measure is an act
adversely affecting the person concerned against which an
action lies under Article 42(1) of the Conditions of Employ-
ment for staff of the ECB.                                                 Reference has been made to the Court of Justice of the
                                                                           European Communities by decision of the Commission de
                                                                           Conciliation et d’Expertise Douaniere (Customs Arbitration
                                                                           and Advisory Committee) (France) of 18 March 2003, received
                                                                           at the Court Registry on 8 April 2003, for a preliminary ruling
Contrary to the findings of the order under appeal the                     in the case of Customs against CAFOM and SAMSUNG
contested measure is not merely a preparatory act in a multi-              Electronics France on the following questions:
stage procedure which may culminate in dismissal. Rather it is
a direct and immediate infringement (a) of the general right to
protection of personality and (b) of the applicant’s right to
protection of data.                                                        1.    Is Article 27 of Protocol 4 annexed to the EC/Hungary
                                                                                Agreement of 13 March 1993 to be interpreted as
                                                                                meaning that the authorities of the importing State must
(a)   First the applicant’s general right to protection of person-               apply the preferential arrangement established by that
      ality is directly and immediately affected because the ECB                 Agreement when the authorities of the exporting State,
      did not confront the applicant at the appropriate time                     to whom they have addressed queries concerning specific
      with the allegations which formed the subject-matter of                    facts on which the granting of the arrangement depends,
      a reproach. The applicant was thus precluded from                          merely declare that the products to which the certificates
      responding to the allegations and obtaining immediate                      of origin which they have issued relate fulfil the conditions
      clarification in regard to them. Secondly, the reproach is                 for granting the arrangement?
      said to be based on inaccurate factual assertions, thus
      constituting a direct and immediate infringement of the
      general right to protection of personality.
                                                                           2.    Is a reply furnished by the authorities of the exporting
                                                                                State after the expiry of the 10-month period referred to
                                                                                in Article 27(7) of the [Protocol] to be taken into account
(b)   In the contested order the Court of First Instance failed to               in determining whether the goods in question qualify for
      recognise the direct and immediate infringement of the                     the preferential arrangement?
      applicant’s right to data protection. The applicant’s right
      to be informed, prior to collection of personal data
      concerning him, of the purpose pursued thereby was
      infringed by the contested act.                                      3.    May it be inferred from Article 27(2) of the [Protocol]
                                                                                that, if the request for verification is made by the
                                                                                authorities of the importing State more than two years
                                                                                after the disputed operations, the fact that the authorities
                                                                                of the exporting State are unable to carry out that
In particular, the Court of First Instance failed to recognise that              investigation since they have not kept the necessary
that infringement is not remedied even where at the end of the                   documents must mean that the goods qualify for the
procedure under Article 2.2.5 of the ECB Staff Rules it is                       preferential arrangement?
decided not to proceed with dismissal.


title: Case T-325/16: Action brought on 24 June 2016 — České dráhy v Commission

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/26

         Action brought on 24 June 2016 — České dráhy v Commission
   (Case T-325/16)
   (2016/C 314/36)
   Language of the case: Czech

      Parties

      Applicant: České dráhy, a.s. (Prague, Czech Republic) (represented by: K. Muzikář and J. Kindl, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul decision C(2016) 2417 final of the European Commission of 18 April 2016 (Case AT.40156 — Falcon);

               —

               order the Commission to pay České dráhy the costs of these proceedings in full.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested decision on an inspection concerning participation in anti-competitive conduct, or the inspection itself, constitutes an arbitrary and disproportionate interference in the private sphere of the applicant

                           —

                           The contested decision was adopted contrary to the principle of proportionality, since the crucial information may already be found in the file of the procedure before the national body for the protection of economic competition, and two private-law procedures are also being carried on in the same case. The aim pursued by the contested decision could moreover be achieved in a less intrusive manner which would limit the extent of the infringement of the applicant’s fundamental rights.

               2.

               Second plea in law, alleging that the contested decision does not satisfy the requirements laid down for the standard of the statement of reasons and the definition of the subject-matter and purpose of the inspection

                           —

                           In the contested decision the Commission defined the subject-matter and purpose of the inspection inadmissibly broadly. It also gave insufficient reasons for the contested decision. In the statement of reasons for the contested decision the Commission did not describe specifically the facts and hypotheses it intended to ascertain by means of the inspection. Nor did it specify any circumstantial evidence to support its suspicions. The definition of the subject-matter and purpose of the inspection in the contested decision and its statement of reasons did not enable the applicant to determine its corresponding obligations sufficiently precisely. The contested decision thus also interferes with the applicant’s rights of defence.

               3.

               Third plea in law, alleging that no evidence, even circumstantial, exists to give grounds for suspicion of anticompetitive conduct by the applicant which would support the adoption of the contested decision and the carrying out of an inspection, and the evidence collected in the procedure before the national body for the protection of economic competition in fact excludes such suspicion.

               4.

               Fourth plea in law, alleging that the Commission did not have power to adopt the contested decision or carry out the inspection, since the alleged anticompetitive conduct of the applicant cannot in any event affect trade between Member States and the applicant cannot in the present case have a dominant position in the internal market or a substantial part of it.

               5.

               Fifth plea in law, alleging that the adoption of the contested decision and the carrying out of an inspection more than four years after the commencement of the procedure before the national body for the protection of economic competition is contrary to the principle of legal certainty and the principle of the protection of legitimate expectations.

               6.

               Sixth plea in law, alleging that the contested decision and the associated approach of the Commission interfered with the applicant’s rights guaranteed by Article 7 of the Charter (or Article 8 of the ECHR) and Article 48 of the Charter (or Article 6 of the ECHR).


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 24 January 1995 in Case T-5/93: Roger Tremblay, François Lucazeau and Harry Kestenberg v. Commission of the European Communities (Competition - Copyright - Regulation (EEC) No 17 - Rejection of a complaint - Obligations concerning the investigation of complaints - Community interest)

text:
 No C 74/10            ( EN                  Official Journal of the European Communities                                        25 . 3 . 95
 represented by Michel Gautreau, of the Paris Bar, with an              Pierrot Schiltz, 4 Rue Beatrix de Bourbon, v. Commission of
 address for service in Luxembourg at the Chambers of Rita              the European Communities (Agents : Julian Currall and
 Reichling, 11 Boulevard Royal, v. Commission of the                    Géraud de Bergues ) — application for the annulment of the
 European Communities (Agents: J. Currall and G. de                     Commission Decision of 12 November 1992 rejecting the
 Bergues ) — application for the annulment of the                       applications made by the applicants under Article 3 (2) of
 Commission Decision of 20 October 1992 rejecting the                   Council Regulation ( EEC ) No 17 of 6 February 1962, First
 application made by the applicant under Article 3 (2 ) of              Regulation implementing Articles 85 and 86 of the
 Council Regulation ( EEC ) No 17 of 6 February 1962, First             Treaty ( 2 ), concerning the conduct of the Societe des
 Regulation implementing Articles 85 and 86 of the                      Auteurs, Compositeurs et Editeurs de Musique — the Court
 Treaty (2 ), concerning the conduct of the Societe des                 of First Instance (Second Chamber), composed of: J. L. Cruz
 Auteurs, Compositeurs et Editeurs de Musique — the Court               Vilaça, President, C. P. Briët, A. Kalogeropoulos, D. P. M.
 ( Second Chamber), composed of: J. L. Cruz Vilaça,                     Barrington and A. Saggio, Judges, H. Jung, Registrar, has
 President of the Chamber, C. P. Briët, A. Kalogeropoulos,              given a judgment on 24 January 1995 , in which it:
 D. P. M. Barrington and A. Saggio, Judges; H. Jung,
 Registrar, has given a judgment on 24 January 1995 , in
 which it:                                                              1 . annuls the Commission Decision of 12 November 1 992
                                                                              in so far as it rejects the applicants ' allegation that the
                                                                              market has been partitioned as a result of an alleged
 1 . annuls the Commission Decision of20 October 1 992 in                     agreement between Societe des Auteurs, Compositeurs
       so far as it rejects the. applicant's allegation that the              et Editeurs de Musique and the copyright-management
       market has been partitioned as a result of an alleged                  societies in the other Member States;
       agreement between Societe des Auteurs, Compositeurs
       et Editeurs de Musique and the copyright-management
       societies in the other Member States;                            2 . dismisses the remainder of the application;
 2. dismisses the remainder of the application;                         3 . orders the Commission to bear its own costs and to pay
                                                                              one half of the applicant's costs, the applicants to bear
 3 . orders the Commission to bear its own costs and to pay                   the other half of their costs and the intervener to bear its
                                                                              own costs .
       one halfofthe applicant's costs, the applicant to bear the
       other half of its costs.
                                                                        0 ) OJ No C 43 , 16 . 2 . 1993 .
 (!) OJ No C 43 , 16 . 2 . 1993 .                                       ( 2 ) OJ, English Special Edition 1959-62, p. 87.
 (2 ) OJ, English Special Edition 1959-62, p. 87.
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 24 January 1995                                                      of 2 February 1995
in Case T-5/93 : Roger Tremblay, Francois Lucazeau and                 in Case T-106/92: Erik Dan Frederiksen v. European
Harry Kestenberg v. Commission of the European                                                     Parliament (M
                          Communities ( J )                             (Officials — Temporary posting — Lawfulness —
 (Competition — Copyright — Regulation (EEC) No 17 —                   Infringement of Article 1 76 of the Treaty — Misuse of
Rejection of a complaint — Obligations concerning the                                                 powers)
      investigation of complaints — Community interest)                                             95/C 74/19 )
                            ( 95/C 74/18 )
                                                                                (Language of the case: French)
                  (Language of the case: French)
                                                                       In Case T-106/92 : Erik Dan Frederiksen, an official of the
In Case T-5/93 : Roger Tremblay, of Vernantes ( France ),              European Parliament, residing at Howald (Luxembourg),
Francois Lucazeau, of La Rochelle (France ), Harry                     represented by Georges Vandersanden, of the Brussels Bar,
Kestenberg,         of     Saint-Andre-les-Vergers      ( France ),    with an address for service in Luxembourg at the Chambers
represented by Jean-Claude Fourgoux, of the Paris and                  of Alex Schmitt, 62 Avenue Guillaume, v. European
Brussels Bar, with an address for service in Luxembourg at             Parliament (Agents : J. Campinos and D. Petersheim,
the Chambers of Pierrot Schiltz, 4 Rue Beatrix de Bourbon,             subsequently E. Perillo and D. Petersheim) — application
supported by Syndicat des Exploitants de Lieux de Loisirs              for the annulment of the decision of the European
( SELL), whose head office is in Paris, represented by                 Parliament of 16 June 1992 appointing Mrs X temporarily
Jean-Claude Fourgoux, of the Paris and Brussels Bars, with             to the post of Language Adviser in the Danish Translation
an address for service in Luxembourg at the Chambers of                Division — the Court of First Instance (Fifth Chamber),


title: Case T-94/11: Action brought on 22 February 2011 — AU Optronics v Commission

text:
               16.4.2011

               EN

               Official Journal of the European Union

               C 120/14

         Action brought on 22 February 2011 — AU Optronics v Commission
   (Case T-94/11)
   2011/C 120/34
   Language of the case: English

      Parties

      Applicant: AU Optronics Corp. (Hsinchu, Taiwan) (represented by: B. Hartnett, Barrister and O. Geiss, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               annul Commission Decision C(2010) 8761 final of 8 December 2010 in Case COMP/39.309 — LCD — Liquid Crystal Displays, insofar as it relates to the applicant;

               —

               in the alternative, reduce the fine imposed on the applicant; and

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission failed to establish, to the requisite legal and evidential standard, that the Commission had jurisdiction to apply Article 101 TFEU and Article 53 EEA Agreement, as:

                           —

                           The Commission failed to establish territorial jurisdiction;

                           —

                           The Commission failed to establish that the alleged agreement had an immediate, substantive and foreseeable effect in the EEA.

               2.

               Second plea in law, alleging that the Commission manifestly erred in law and in fact when applying Article 101 TFEU and Article 53 EEA Agreement.

               3.

               Third plea in law, alleging that the Commission breached the applicant’s right of defence.

               4.

               Fourth plea in law, alleging that the Commission erred when determining the duration of the infringement.

               5.

               Fifth plea in law, alleging that the Commission manifestly erred in determining the basic amount of the fine, in particular as:

                           —

                           The Commission manifestly erred in calculating the value of sales;

                           —

                           The Commission manifestly erred by failing to take into account the applicant’s individual conduct when assessing the gravity of the infringement.

               6.

               Sixth plea in law, alleging that the Commission failed to provide adequate reasoning when assessing the gravity of the infringement.

               7.

               Seventh plea in law, alleging that the Commission misapplied the 2002 Leniency Notice (1), as:

                           —

                           The Commission manifestly erred by not finding that the applicant’s cooperation represented very significant added value that merits a reduction at or near the top end of the 20 %-30 % range;

                           —

                           The Commission manifestly erred in law by basing its decision on criteria not provided for in the 2002 Leniency Note; and

                           —

                           As a consequence, the Commission infringed the applicant’s rights of defence.

               8.

               Eighth plea in law, alleging that the Commission breached the applicant’s right to a fair trail and, as a result, breached Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the European Convention on Human Rights, as:

                           —

                           The applicant was denied the opportunity to examine or cross-examine witnesses;

                           —

                           The applicant was denied the opportunity to comment on the calculation of the fine imposed on it;

                           —

                           The fine as imposed following an oral hearing that was not public and which the decision-maker did not attend; and

                           —

                           The contested decision was adopted by an administrative body, and no judicial body has jurisdiction to review all aspects of it.

      (1)  Commission notice on immunity from fines and reduction of fines in cartel cases (Text with EEA relevance) (OJ 2002 C 45, p. 3)


title: Action brought on 26 January 1996 by Benjamin Laurence Lay against the Council of the European Union and the Commission of the European Communities (Case T-10/96)

text:
4 . 5 . 96             EN                   Official Journal of the European Communities                                 No C 133/23
Action brought on 16 January 1996 by Sveriges Betodlares               The applicants stress that their application for annulment is
Centralforening and Mr Henrikson against the Commission                being lodged as a procedural safeguard . It does not pursue a
                 of the European Communities                           different aim from that in Case T- 1 97/95 , nor is it based on
                          ( Case T-5/96 )                              different reasoning .
                           ( 96/C 133/53 )
                (Language of the case: English)
An action against the Commission of the European                       Action brought on 26 January 1996 by Benjamin Laurence
Communities was brought before the Court of First                      Lay against the Council of the European Union and the
Instance of the European Communities on 16 January 1996                        Commission of the European Communities
by Sveriges Betodlares Centralforening and Mr Henrikson,                                        Case T-10/96 )
represented by Dr Otfried Lieberknecht, Dr Michael Schiitte                                     ( 96/C 133/54 )
and Dr Wolfgang Kirchhoff, with an address for service in
Luxembourg at the Chambers of Bonn & Schmitt, Avenue
Guillaume 62 .                                                                         (Language of the case: English)
                                                                       An action against the Council of the European Union and
The applicants claim that the Court should :                           the Commission of the European Communities was brought
                                                                       before the Court of First Instance of the European
— annul the decision contained in the letter from the                  Communities on 26 January 1996 by Benjamin Laurence
     Commission dated 17 October 1995 VI/040143                        Lay, represented by Alan Maclean and Joanne Keddie,
     ( Reference D ( 95 ) VI/1242/95 ), in so far as it refuses to     Dawson & Co, 2 New Square, Lincoln's Inn, London
     fix, for the 1994/95 marketing year, the specific                 WC2A 3RZ, England .
     agricultural conversion rate applicable to the minimum
     sugarbeet prices also with regard to Sweden, for the              The applicant claims that the Court should :
     period from 1 January 1995 ( that is, the date the
     Accession came into force ) through 30 June 1995 ( the
                                                                       — order damages against the Council and/or the
     end of the 1994/95 sugar marketing year ), and
                                                                           Commission as per a report of D. R. Gasson, included in
                                                                           the application, and
— order the Commission to bear the costs of the
     proceedings .                                                     — order the Council and/or the Commission to pay the
                                                                           costs .
Pleas in law and main arguments:
                                                                       Pleas in law and main arguments
The applicants, the Association of Swedish Sugar Beet                  The applicant complains of the damaging consequences of
Growers and Mr Henrikson, an individual Swedish sugar                  the fact that, unlike the position with respect to SLOM I and
beet grower, seek the fixing of the specific agricultural              II, he, as a SLOM III milk producer, has not been
conversion rate, which has been refused by Regulation ( EC )           compensated for the absence of quota prior to the
No 1734/95 . The refusal was confirmed and restated by the             introduction of SLOM quota .
contested decision .
                                                                       In order to give effect to the judgment of the Court of Justice
On 16 October 1995 , the applicants lodged their                       in Case C-81 /91 Twijnstra , the Council enacted on 19 July
applications for annulment in Case T-197/95 against the                1993 Council Regulation ( EEC ) No 2055/93 , on the basis of
aforementioned Regulation, on the basis that the                       which the applicant was finally allocated SLOM III quota in
Regulation expressly refused to determine a specific                   December 1993 . However, the award was not retroactive
agricultural conversion rate for Swedish crowns and thus               and the quota he finally received in no way compensates him
includes, in that respect, a decision against which an action          for the difficulties caused between 1985 and 1993 on
for annulment may be brought. As it could not be entirely              account of his not being allocated any quota, which meant
excluded that the non-determination of a specific                      that he had to lease quota .
conversion rate for Sweden in Regulation ( EC ) No 1734/95
might be regarded as a ' failure to act' on the part of the            According to the applicant, failure to compensate SLOM III
Commission, to which the rules laid down in Article 175 of             producers for the non-allocation of quota allowing them
the EC Treaty would apply, the applicant Sveriges                      to engage in milk production after the end of the
Betodlares Centralforening submitted, on 4 October 19 95 ,             non-marketing period, is disproportionate to the end
an express request for an agricultural conversion rate for             pursued by a non-marketing scheme . After taking milk out
Sweden for the sugar marketing year 1994/95 . This request             of production for the limited period of time prescribed, the
has resulted in the contested decision .                               existence of that limited non-marketing scheme should not
 ---pagebreak--- No C 133/24          EN                  Official Journal of the European Communities                                      4. 5 . 96
adversely affect the possibility for a part transferee of the       Action brought on 6 February 1996 by John Carvel and
land to produce a proper quantity of milk on it for up to ten       Guardian Newspapers Limited against the Council of the
years from the expiry of that period.                                                       European Union
                                                                                ( Case T-19/96 )
SLOM III producers are a clearly defined group. Just as the                                    ( 96/C 133/56 )
Community legislature has recognized that it must treat
differently those producers who held on to their entire
holdings thoughout the period of their non-marketing                                (Language of the case: English)
schemes and those who transferred a part of it, treating them
as two separate groups for SLOM allocation purposes, the
Community authorities must know that for that group of              An action against the Council of the European Union was
part-transferors there exists a corresponding separate and          brought before the Court of First Instance of the European
                                                                    Communities on 6 February 1996 by John Carvel and
distinct group of 'part-transferees'.
                                                                    Guardian Newspapers Limited, represented by Onno
                                                                    W. Brouwer and Frédéric P. Louis, with an address for
The applicant finally contends that his legitimate                  service in Luxembourg at the Chambers of Marc Loesch,
expectation that he would be able to resume milk                    11 , rue Goethe .
production at the end of the non-marketing scheme with
which he had agreed to comply, has been frustrated by the
Council and the       Commission's     failure  to  introduce       The applicants claim that the Court should:
SLOM III quota until 1993 .
                                                                    — annul the decision of the Council whereby the Council
                                                                         refuses access to the text of the decisions adopted by the
                                                                        Justice and Home Affairs             Council of 29      and
                                                                         30 November 1993 ,
                                                                    — order the Council to pay the applicants' costs pursuant
                                                                         ot Article 87 of the Rules of Procedure of the Court of
Action brought on 26 January 1996 by Donald George                       First Instance .
Gage and David John Gage against the Council of the
European Union and the Commission of the European
                         Communities                                Pleas in law and main arguments
                       ( Case T-11 /96 )
                          96/C 133/55                               The same applicants as in Case T-194/94 resolved by
                                                                    judgment of 19 October 1 995 , challenge the Council's
                                                                    decision in its letter of 27 November 1995 , refusing to
              (Language of the case: English)                       distribute to them the text of the decisions adopted by the
                                                                    Justice and Home Affairs Council of 29 and 30 November
                                                                    1993 .
An action against the Council of the European Union and
the Commission of the European Communities was brought              In the abovementioned judgment, the Court of First
before the Court of First Instance of the European                  Instance found that the defendant, by refusing to send to the
Communities on 26 January 1 996 by Donald George Gage               applicants documents relating to a Justice and Home Affairs
and David John Gage, represented by Alan Maclean and                Council, as well as documents relating to an Agricultural
Joanne Keddie, Dawson & Co, 2 New Square, Lincoln's                 Council, had failed to balance the interest it may have in
Inn, London WC2A 3RZ, England .                                     keeping the said documents confidential, in order to
                                                                    safeguard the confidentiality of its proceedings, with the
The applicant claims that the Court should:                         interest of the applicants in gaining access to those
                                                                    documents. The contested decision in the present case was
                                                                    taken in order to comply with that judgment.
— order damages against the Council and/or the
    Commission as per a report of D R Gasson, included in
    the application, and                                            The applicants submit first of all that the decision
                                                                    constituted by the Council's letter of 27 November 1995
— order the Council and/or the Commission to pay the                infringes Council Decision 93/731 , in so far as the defendant
    costs .                                                         institution, contrary to the wording of that Decision, which
                                                                    lays down rules on access to documents, sent to the
                                                                    applicants a press release containing a list of the decisions
Pleas in law and main arguments                                     taken at the meeting of the Justice and Home Affairs
                                                                    Council on 29 and 30 November 1993 , instead of providing
The pleas in law and main arguments are the same as those           them with the actual text of the documents they had
in Case T- 1 0/96 Benjamin Laurence Lay.                            requested .
                                                                    As a second ground for annulment, the applicants submit
                                                                    that the Council did not provide the applicants with any


title: Case C-19/11: Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Markus Geltl v Daimler AG (Directives 2003/6/EC and 2003/124/EC — Inside information — Notion of ‘precise information’ — Intermediate steps in a protracted process — Reference to circumstances or an event which may reasonably be expected to come into existence or occur — Interpretation of the wording ‘may reasonably be expected’ — Public disclosure of information relating to change of a manager of a company)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/5

         Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Markus Geltl v Daimler AG
   (Case C-19/11) (1)

   (Directives 2003/6/EC and 2003/124/EC - Inside information - Notion of ‘precise information’ - Intermediate steps in a protracted process - Reference to circumstances or an event which may reasonably be expected to come into existence or occur - Interpretation of the wording ‘may reasonably be expected’ - Public disclosure of information relating to change of a manager of a company)
   2012/C 258/08
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Markus Geltl

      Defendant: Daimler AG

      In the presence of: Lothar Meier and Others

      Re:

   Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 1, point 1 of European Parliament and Council Directive 2003/6/EC of 28 January 2003 on insider dealing and market manipulation (OJ 2003 L 96, p. 16) and Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC (OJ 2003 L 339, p. 70) — Interpretation of the expression ‘privileged information’ — Resignation of the chairman of a limited liability company — Whether various consultations and steps prior to the event in question needing to be taken into account in order to assess the precise nature of such information

      Operative part of the judgment

               1.

               Point 1 of Article 1 of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6 as regards the definition and public disclosure of inside information and the definition of market manipulation must be interpreted as meaning that, in the case of a protracted process intended to bring about a particular circumstance or to generate a particular event, not only may that future circumstance or future event be regarded as precise information within the meaning of those provisions, but also the intermediate steps of that process which are connected with bringing about that future circumstance or event;

               2.

               Article 1(1) of Directive 2003/124 must be interpreted as meaning that the notion of ‘a set of circumstances which exists or may reasonably be expected to come into existence or an event which has occurred or may reasonably be expected to do so’ refers to future circumstances or events from which it appears, on the basis of an overall assessment of the factors existing at the relevant time, that there is a realistic prospect that they will come into existence or occur. However, that notion should not be interpreted as meaning that the magnitude of the effect of that set of circumstances or that event on the prices of the financial instruments concerned must be taken into consideration.

      (1)  OJ C 113, 9.4.2011.


title: Judgment of the Court (Fifth Chamber) of 11 December 2003 in Case C-364/01 (Reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch): The heirs of H. Barbier v Inspecteur van de Belastingdienst Particulieren/Ondernemingen buitenland te Heerlen (Interpretation of Articles 48 and 52 of the EEC Treaty (subsequently Articles 48 and 52 of the EC Treaty, now, after amendment, Articles 39 EC and 43 EC), Article 67 of the EEC Treaty (subsequently Article 67 of the EC Treaty, repealed by the Treaty of Amsterdam), Articles 6 and 8a of the EC Treaty (now, after amendment, Articles 12 EC and 18 EC) — Directives 88/361/EEC and 90/364/EEC — Inheritance tax — Requirement of cross-border economic activity — Prohibition of discrimination on the basis of Member State of residence)

text:
C 47/6                   EN                          Official Journal of the European Union                                               21.2.2004
            prohibition on the sale by mail order of medicinal products      Heerlen, on the interpretation of Articles 48 and 52 of the EEC
            which are not subject to prescription in the Member State        Treaty (subsequently Articles 48 and 52 of the EC Treaty, now,
            concerned.                                                       after amendment, Articles 39 EC and 43 EC), Article 67 of the
                                                                             EEC Treaty (subsequently Article 67 of the EC Treaty, repealed
      (c)   Questions 1(a) and 1(b) do not need to be assessed               by the Treaty of Amsterdam), Articles 6 and 8a of the EC
            differently where medicinal products are imported into a         Treaty (now, after amendment, Articles 12 EC and 18 EC) and
            Member State in which they are authorised, having been           the provisions of Council Directive 90/364/EEC of 28 June
            previously obtained by a pharmacy in another Member              1990 on the right of residence (OJ 1990 L 180, p. 26) and
            State from a wholesaler in the importing Member State.           Council Directive 88/361/EEC of 24 June 1988 for the
                                                                             implementation of Article 67 of the Treaty (OJ 1988 L 178,
2.    Article 88(1) of Directive 2001/83/EC of the European                  p. 5), the Court (Fifth Chamber), composed of: P. Jann,
      Parliament and of the Council of 6 November 2001 on the                acting as the President of the Fifth Chamber, D.A.O. Edward
      Community code relating to medicinal products for human use            (Rapporteur) and A. La Pergola, Judges; J. Mischo, Advocate
      precludes a national prohibition on advertising the sale by mail       General; H.A. Rühl, Principal Administrator, for the Registrar,
      order of medicinal products which may be supplied only in              has given a judgment on 11 December 2003, in which it has
      pharmacies in the Member State concerned, such as the                  ruled:
      prohibition laid down in Paragraph 8(1) of the Heilmittelwer-
      begesetz (Law on the advertising of medicinal products), in so
      far as the prohibition covers medicinal products which are not         Community law precludes national legislation concerning the assess-
      subject to prescription.                                               ment of tax due on the inheritance of immovable property situated in
                                                                             the Member State concerned according to which, in order to assess
                                                                             the property’s value, the fact that the person holding legal title was
(1) OJ C 348 of 8.12.2001.                                                   under an unconditional obligation to transfer it to another person
                                                                             who has financial ownership of that property may be taken into
                                                                             account if, at the time of his death, the former resided in that Member
                                                                             State, but may not be taken into account if he resided in another
                                                                             Member State.
                  JUDGMENT OF THE COURT
                                                                             (1) OJ C 331 of 24.11.2001.
                           (Fifth Chamber)
                       of 11 December 2003
in Case C-364/01 (Reference for a preliminary ruling
from the Gerechtshof te ’s-Hertogenbosch): The heirs of
H. Barbier v Inspecteur van de Belastingdienst Particulier-                                    JUDGMENT OF THE COURT
        en/Ondernemingen buitenland te Heerlen (1)
                                                                                (Fifth Chamber)
(Interpretation of Articles 48 and 52 of the EEC Treaty
(subsequently Articles 48 and 52 of the EC Treaty, now,
                                                                                of 7 January 2004
after amendment, Articles 39 EC and 43 EC), Article 67 of
the EEC Treaty (subsequently Article 67 of the EC Treaty,
repealed by the Treaty of Amsterdam), Articles 6 and 8a of                   in Case C-500/01: Commission of the European Communi-
the EC Treaty (now, after amendment, Articles 12 EC and                                           ties v Kingdom of Spain (1)
18 EC) — Directives 88/361/EEC and 90/364/EEC —
Inheritance tax — Requirement of cross-border economic
                                                                             (Failure of a Member State to fulfil its obligations — Market
activity — Prohibition of discrimination on the basis of
                                                                             for telecommunications services — Tariff rebalancing —
                    Member State of residence)
                                                                             Access to the local loop — Directive 90/388/EEC —
                                                                                Article 4(c))
                            (2004/C 47/09)
                     (Language of the case: Dutch)                                                        (2004/C 47/10)
(Provisional translation; the definitive translation will be published                            (Language of the case: Spanish)
                    in the European Court Reports)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-364/01: Reference to the Court under Article 234
EC by the Gerechtshof te ’s-Hertogenbosch (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between the heirs of H. Barbier and Inspecteur van                     In Case C-500/01, Commission of the European Communities
de Belastingdienst Particulieren/Ondernemingen buitenland te                 (Agent: S. Rating) v Kingdom of Spain (Agent: S. Ortiz


title: Case C-452/05: Judgment of the Court (Sixth Chamber) of 23 November 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Pollution and nuisance — Urban waste-water treatment)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/17

         Judgment of the Court (Sixth Chamber) of 23 November 2006 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-452/05) (1)

   (Failure of a Member State to fulfil obligations - Pollution and nuisance - Urban waste-water treatment)
   (2006/C 331/29)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and F. Simonetti, Agents, acting as Agents)

      Defendant: Grand Duchy of Luxembourg (represented by: S. Schreiner, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Incorrect application of Article 5(4) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by being unable to prove that the minimum percentage of reduction of the overall load entering all water-treatment plants is at least 75 % for total nitrogen, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 5(4) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment.

               2.

               Orders the Grand-Duchy of Luxembourg to pay the costs.

      (1)  OJ C 48 of 25.2.2006.


title: JUDGMENT OF THE COURT of 29 February 1996 in Case C-122/94: Commission of the European Community v. Council of the European Union (Common agricultural policy - State aid)

text:
4 . 5 . 96             EN                   Official Journal of the European Communities                                No C 133 /7
Northern Ireland ( Agent: John D. Colahan, assisted by                 turnover taxes — Common system of value added tax :
Eleanor Sharpston, Barrister ), applications for the                   uniform basis of assessment ( OJ No L 145 , 1977, p . 1 ) — the
annulment of Commission Regulation ( EEC ) No 685/93 of                Court ( Fifth Chamber ), composed of D. A. O. Edward,
24 March 1993 amending Regulation ( EEC ) No 859/89                    President of the Chamber, J. -P. Puissochet, J. C. Moitinho
laying down detailed rules for the application of general and          de Almeida , C. Gulmann ( Rapporteur ), and L. Sevon,
special intervention measures in the beef and veal sector ( OJ         Judges; C. O. Lenz, Advocate-General ; D. Louterman
No L 73 , 1993 , p . 9 ) — the Court ( Fifth Chamber ),                Hubeau, Principal Administrator, for the Registrar, has
composed of D. A. O. Edward , President of the Chamber,                given a judgment on 29 February 1996 , in which it
J. -P. Puissochet, J. C. Moitinho de Almeida ( Rapporteur ),           rules :
C. Gulmann and L. Sevôn, Judges; C. O. Lenz,
Advocate-General ; D. Louterman-Hubeau , Principal
Administrator, for the Registrar, gave a judgment on                   Article 4 of the Sixth Council Directive 77/388/EEC of
29 February 1996 , in which it:                                        17 May 1977 on the harmonization of the laws of the
                                                                       Member States relating to turnover taxes — Common
                                                                       system of value added tax : uniform basis ofassessment must
1 , dismisses the applications;                                        be interpreted as meaning that where the tax authority has
                                                                       accepted that a company which has declared an intention to
                                                                       commence an economic activity giving rise to taxable
2 , order the French Republic and Ireland to pay the costs,            transactions has the status of a taxable person for the
      including those of the interim proceedings;                      purposes of VAT, the commissioning ofa profitability study
                                                                       in respect of the envisaged activity may be regarded as an
                                                                       economic activity within the meaning of that Article, even if
3 , orders the United Kingdom of Great Britain and                     the purpose of that study is to investigate to what degree the
      Northern Ireland to bear its own costs .                         activity envisaged is profitable, and that except in cases of
                                                                       fraud or abuse, the status of taxable person for the purpose
                                                                       of VAT may not be withdrawn from that company
(') OJ No C 184 , 7 . 7 . 1993 .
     OJ No C 203 , 27 . 7 . 1993 .                                     retroactively where, in view ofthe results ofthat study, it has
                                                                       been decided not to move to the operational phase, but to
                                                                       put the company into liquidation with the result that the
                                                                       economic activity envisaged has not given rise to taxable
                                                                       transactions .
                                                                       C ) OJ No C 132 , 14 . 5 . 1994 .
                JUDGMENT OF THE COURT
                         ( Fifth Chamber )
                      of 29 February 1996
in Case C-l 10/94 ( reference for a preliminary ruling
from the Rechtbank van Eerste Aanleg, Bruges ):                                       JUDGMENT OF THE COURT
Intercommunale voor Zeewaterontzilting ( INZO ) v.                                         of 29 February 1996
                          Belgian State (')
                                                                            in Case C-122/94: Commission of the European
( VAT — Concept of economic activity — Status of taxable                    Community v. Council of the European Union ( 1 )
person — Activity confined to a profitability study for a
    project, followed by the abandonment of the project)                        (Common agricultural policy — State aid)
                           ( 96/C 133/ 13 )                                                      ( 96/C 133/ 14 )
                                                                                (Language of the case: French)
                 (Language of the case: Dutch)
                                                                       (Provisional translation; the definitive translation will be
(Provisional translation; the definitive translation will be                    published in the European Court Reports)
           published in the European Court Reports)
                                                                       In Case C-122/94 : Commission of the European
In Case C- 1 10/94 : reference to the Court under Article 177          Communities ( Agents : Xenophon Yataganas and Ben
of the EC Treaty from the Rechtbank van Eerste Aanleg                  Smulders ) v . Council of the European Union ( Agents :
( Court of First Instance ), Bruges ( Belgium ), for a                 Ramon Torrent and Diego Canga Fano ) supported by
preliminary ruling in the proceedings pending before that              French Republic ( Agents : Catherine de Salins and
court between Intercommunale voor Zeewaterontzilting                   Jean-Louis Falconi ) and by the Italian Republic ( Agent:
( INZO ), in liquidation, and Belgian State — on the                   Professor Luigi Ferrari Bravo ) — application for annulment
interpretation of Article 4(1 ) and ( 2 ) of the Sixth Council         of two Council Decisions of 21 February 1994 under the
Directive 77/388/EEC of 17 May 1977 on the                             third subparagraph of Article 93 ( 2 ) of the EC Treaty
harmonization of the laws of the Member States relating to             relating to the grant of special aid for the distillation of
 ---pagebreak--- No C 133/8             EN                  Official Journal of the European Communities                                           4 . 5 . 96
certain wines in Italy and France, the Court, composed of                 Treaty precludes the driving of a motor vehicle by a
President, E. C. Rodriguez Iglesias, C. N. Kakouris and                   person who could have obtained a licence from the host
D. A. O. Edward ( Presidents of Chambers ) G. F. Mancini ,                State in exchange for the licence issued by another
F. A. Schockweiler, P. J. G. Kapteyn ( Rapporteur ),                      Member State but who did not make that exchange
C. Gulmann, J. L. Murray, P. Jann, H. Ragnemalm and                       within the prescribed period from being treated as
L. Sévon, Judges; Advocate-General : G. Cosmas, Registrar:                driving without a licence and thus rendered punishable
L. Hewlett, Administrator, has given a judgment on                        by imprisonment or a fine.
29 February 1996 , in which it:
                                                                      (') OJ No C 233 , 20 . 8 . 1994 .
 1 , dismisses the application;
2 , orders the Commission to pay the costs.
C ) OJ No C 174 , 25 . 6 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Fifth Chamber)
                                                                                of 29 February 1996
                                                                      in Case C-215/94 ( Reference for a preliminary ruling from
               JUDGMENT OF THE COURT                                  the Bundesfinanzhof): Jürgen Mohr v. Finanzamt Bad
                      of 29 February 1996                                                         Segeberg ( 1 )
in Case C-193/94 ( reference for a preliminary ruling made            (VAT — Definition of suppply of services — Definitive
by the Amtsgericht Tiergarten ): Criminal proceedings                 discontinuation of milk production — Compensation
             against Sofia Skanavi and Konstantin                            received under Regulation (EEC) No 1336/86)
                    Chryssanthakopoulos ( 1 )                                                   (9 6/C 133/16 )
(Freedom of movement for persons — Driving licences —
          Obligation to exchange them — Penalties)                                   (Language of the case: German)
                          ( 96/C 133/15 )
                                                                      (Provisional translation; the definitive translation will be
                (Language of the case: German)                                 published in the European Court Reports)
(Provisional translation; the definitive translation will be         In Case C-215/94 : Reference to the Court under Article 177
          published in the European Court Reports)                   of the EC Treaty by the Bundesfinanzhof for a preliminary
                                                                     ruling in the proceedings pending before that court between
In Case C-193/94 : reference to the Court under Article 177          Jürgen Mohr and Finanzamt Bad Segeberg — on the
of the EC Treaty by the Amtsgericht ( Local Court)                   interpretation of Articles 6(1 ) and 1 1 (A) ( 1 ) ( a ) of the Sixth
Tiergarten, Berlin, for a preliminary ruling in the criminal          Council Directive ( 77/388/EEC ) of 17 May 1977 on the
proceedings before that court against Sofia Skanavi and              harmonization of the laws of the Member States relating to
Konstantin Chryssanthakopoulos — on the interpretation               turnover taxes — Common system of value added tax:
of Articles 6 , 8a and 52 of the EC Treaty — the Court,              uniform basis of assessment ( OJ No L 145 , 1977, p . 1 ) the
composed of G. C. Rodriguez Iglesias, President, C. N.               Court ( Fifth Chamber ), composed of D. A . O. Edward,
Kakouris and G. Hirsch, ( Presidents of Chambers ), G. F.            President of the Chamber, J. -P. Puissochet, J. C. Moitinho
Mancini ( Rapporteur), F. A. Schockweiler, J. C. Moitinho            de Almeida, C. Gulmann ( Rapporteur ) and L. Sevón,
de Almeida, C. Gulmann, J. L. Murray, P. Jann,                       Judges; F. G. Jacobs, Advocate-General; H. A. Rühl,
H. Ragnemalm and L. Sevón, Judges; P. Léger,                         Principal Administrator, gave a judgment on 29 February
Advocate-General; D. Louterman-Hubeau, Principal                      1 996 , the operative part of which is as follows :
Administrator, for the Registrar, has given a judgment on
29 February 1996 , the operative part of which is as                 Articles 6 (1 ) and 11 (A) (1 ) (a) of the Sixth Council
follows :                                                            Directive (77/388/EEC) of 17 May 1977, on the
                                                                     harmonization of the laws of the Member States relating to
I . As Community law stands at present and priòr to the              turnover taxes — Common system of value added tax:
     implementation of Council Directive 91 /439/EEC of29            uniform basis of assessment, is to be interpreted as meaning
     July 1991 on driving licences, Article 52 of the EC             that an undertaking to discontinue milk production given by
     Treaty does not preclude a Member State from requiring          a farmer under Regulation (EEC) No 1336/86 of 6 May
     the holder ofa driving licence issued by another Member          1986 fixing compensation for the definitive discontinuation
     State to exchange that licence for a licence of the host        of milk production does not constitute a supply of services.
     Member State within one year of taking up normal                Consequently, any compensation received for that purpose
     residence in that State in order to remain entitled to drive    is not subject to turnover tax.
     a motor vehicle there.
                                                                     0 ) OJ No C 275 , 1 . 10 . 1994 .
2 . In view of the resultant consequences, such as may arise
     in the national legal system in question, Article 52 of the


title: Case C-230/02: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of that Court of 14 May 2002 in the review procedure between Grossmann Air Service GmbH & Co KG and the Bund (Republic of Austria)

text:
C 219/2                  EN                     Official Journal of the European Communities                                     14.9.2002
Is a CD-ROM drive which is equipped with a jack for                        Question 2:
headphones, a volume control button and a button to insert
and remove CDs, but which cannot by itself reproduce
graphics, audio, data and text, to be classified for the period            In the event that the answer given to Question 1 is no:
1 January 1995 to 21 November 1995 under heading
8521 90 00 in accordance with classification practice laid
down in Commission Regulation (EC) No 2564/95 ( 1), or                     Is the abovementioned provision to be understood as meaning
under heading 8471 93 51 in accordance with the classifi-                  that, if a tenderer’s bid is not eliminated by the contracting
cation practice laid down in Commission Regulation (EC)                    authority, but the review body finds in the course of the review
No 2491/96 (2) and the decision adopted by the Harmonized                  procedure that the contracting authority would have been
System Committee of the World Customs Organization                         bound to eliminate it, the tenderer has been or risks being
(Doc. 40.260 E and Doc. 40.600 E)?                                         harmed by the infringement alleged by him — in this case the
                                                                           finding by the contracting authority that a rival tenderer
                                                                           submitted the best bid — and that he must therefore have the
                                                                           right to bring a review procedure?
( 1) Commission Regulation (EC) No 2564/95 of 27 October 1995
     concerning the classification of certain goods in the combined
     nomenclature (OJ L 262 of 1.11.1995, p. 25).
( 2) Commission Regulation (EC) No 2491/96 of 23 December 1996             (1 ) OJ L 395 [1989], p. 33.
     amending Regulation (EEC) No 2658/87 on the tariff and
     statistical nomenclature and on the Common Customs Tariff (OJ
     L 338 of 28.12.1996, p. 14).
                                                                           Reference for a preliminary ruling by the Bundesverga-
Reference for a preliminary ruling by the Bundesverga-                     beamt (Austria) by order of that Court of 14 May 2002 in
beamt by order of that Court of 14 May 2002 in the case                    the review procedure between Grossmann Air Service
of 1. Tenderer: debis/AC, 2. ARGE Telekom & Partner, 3.                         GmbH & Co KG and the Bund (Republic of Austria)
Tenderer: SIEMENS AUSTRIA CARD against Hauptver-
    band der österreichischen Sozialversicherungsträger
                                                                                (Case C-230/02)
                           (Case C-229/02)
                                                                                (2002/C 219/04)
                           (2002/C 219/03)
                                                                           Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Bundesvergabeamt
European Communities by order of the Bundesvergabeamt                      (Federal Public Procurement Office) of , received at the Court
(Federal Public Procurement Office) of 14 May 2002, received
                                                                           Registry on 20 June 2002, for a preliminary ruling in the
at the Court Registry on 20 June 2002, for a preliminary ruling
                                                                           review procedure between Grossmann Air Service GmbH &
in the case of 1. Tenderer: debis/AC, 2. ARGE Telekom
                                                                           Co KG and the Bund (Republic of Austria) on the following
& Partner, 3. Tenderer: SIEMENS AUSTRIA CARD against
                                                                           questions:
Hauptverband der österreichischen Sozialversicherungsträger
on the following questions:
                                                                           Question 1:
Question 1:
                                                                           Is Article 1(3) of Council Directive 89/665/EEC (1) of
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-               21 December 1989 on the coordination of the laws, regu-
ber 1989 (1) on the coordination of the laws, regulations and              lations and administrative provisions relating to the application
administrative provisions relating to the application of review            of review procedures to the award of public supply and public
procedures to the award of public supply and public works                  works contracts to be interpreted as meaning that the review
contracts to be interpreted as meaning that any person seeking             procedure must be available to any undertaking which has
the award of a specific pending public contract is entitled to             submitted a bid, or applied to participate, in a public procure-
institute a review procedure?                                              ment procedure?
 ---pagebreak--- 14.9.2002              EN                    Official Journal of the European Communities                                         C 219/3
In the event that the answer to Question 1 is no:                       Question 2:
Question 2:
                                                                        In the event that the answer to Question 1 is no:
Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular         Is the abovementioned provision of the Directive to be
public contract if — in addition to its participating in the            construed in such a way that — where a bid was eliminated
public procurement procedure — it takes all steps available to          otherwise than in accordance with the law but the review body
it under national law to prevent the contract from being                in the course of its review procedure assumes and establishes
awarded to another bidder?                                              as a preliminary matter that the bid had properly to be
                                                                        eliminated — the tenderer of that bid is entitled to bring an
Question 3:                                                             application in respect of an alleged infringement of the law —
                                                                        in the present case the contracting authority’s decision to make
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-            the award to another bidder — because owing to the
ber 1989 on the coordination of the laws, regulations and               contracting authority’s defective award procedure the applicant
administrative provisions relating to the application of review         may in any event be presumed to have suffered loss and
procedures to the award of public supply and public works               errors in the award procedure can no longer be remedied
contracts, in conjunction with Article 2(1) thereof, to be              subsequently in the review procedure by substitution of
interpreted as meaning that an undertaking must be afforded             decisions of the contracting authority, and the review pro-
the opportunity in law to seek review of an award procedure             cedure must therefore be available to the applicant?
regarded by it as unlawful or discriminatory even where it is
not capable of performing the totality of the services for which
bids were invited and, for that reason, did not submit a bid in
that award procedure.                                                   (1 ) OJ L 395 [1989], p. 33.
( 1) OJ L 395 [1989], p. 33.
Reference for a preliminary ruling by the Bundesverga-                  Reference for a preliminary ruling by the korkein hallinto-
beamt (Republic of Austria) by order of that Court of                   oikeus by order of that Court of 1st July 2002 in the
14 May 2002 in the case of Neumayer Bau Ges.m.b.H                                  appeal brought by Kauppatalo Hansel Oy
against Abwasserverband Grossraum Bruck an der Leitha
                          — Neusiedl/See
                                                                                (Case C-244/02)
                          (Case C-231/02)
                          (2002/C 219/05)                                                         (2002/C 219/06)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt                   Reference has been made to the Court of Justice of the
(Republic of Austria) of 14 May 2002, received at the Court             European Communities by order of the korkein hallinto-
Registry on 20 June 2002, for a preliminary ruling in the               oikeus (Supreme Administrative Court) of 1st July 2002,
case of Neumayer Bau Ges.m.b.H against Abwasserverband                  received at the Court Registry on 4 July 2002, for a preliminary
Grossraum Bruck an der Leitha — Neusiedl/See on the                     ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:                                                    following questions:
Question 1:
                                                                        1.    Is Council Directive 93/36/EEC (1) of 14 June 1993
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-                  coordinating procedures for the award of public supply
ber 1989 on the coordination of the laws, regulations and                     contracts to be interpreted as meaning that a contracting
administrative provisions relating to the application of review               authority which has commenced a tender procedure on
procedures to the award of public supply and public works                     the basis of the lowest price may discontinue the
contracts ( 1) to be broadly interpreted as meaning that under it             procedure without awarding a contract when it discovers
entitlement to apply for a review procedure must be available                 after examining and comparing the tenders that because
to any person seeking to receive a specific public contract                   of the content of the invitation to tender it is not possible
whose award is pending, irrespective of whether such person                   for it to award a contract on the basis of the invitation to
has suffered or may suffer loss as a result of the alleged                    tender in question in the most advantageous way from
infringement of the law?                                                      the point of view of total costs?