title: Case C-526/07 P: Appeal brought on 27 November 2007 by Philippe Combescot against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-250/04 Combescot v Commission

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/12

         Appeal brought on 27 November 2007 by Philippe Combescot against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-250/04 Combescot v Commission
   (Case C-526/07 P)
   (2008/C 37/16)
   Language of the case: Italian
   Parties

      Appellant: Philippe Combescot (represented by: A. Maritati and V. Messa, avvocati)

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

               —

               declare, by varying the decision of the Court of First Instance delivered on 12 September 2007 in Case T-250/04, that there is damage to the profession and health of the applicant as a result of the unlawful rejection of his application to take part in the competition for appointment to the post of Head of Delegation in Colombia; determine the non-material damage in a different manner, and consequently assess the compensation payable in accordance therewith; accordingly, uphold the form of order already sought in the proceedings at first instance, which read: ‘recognise that Mr Combescot has suffered damage to his image and professional reputation, and that the illegal decision excluding him from the competition has had serious adverse effects on the balance of his mind; and award him the sum of EUR 100 000,00 as compensation for damage’;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   Philippe Combescot, an official, has brought an appeal against the decision of the Court of First Instance of the European Communities (Second Chamber) delivered on 12 January 2007 in Case T-250/04, the other party to the proceedings being the Commission of the European Communities.
   The appeal concerns the exclusion of Philippe Combescot, then the Advisor resident in Guatemala, from competition COM/091/03 for appointment to the post of Head of Delegation in Colombia (‘the exclusion decision’).
   The Court held that that decision was unlawful and, therefore, that the application for damages brought by the applicant was justified, but it excluded the heads of damage relating to professional life and health, and merely recognised unspecified non-material damage in respect of which the sum of EUR 3 000 000 was paid to the applicant.
   By the present appeal, counsel for the applicant ask the Court to reverse the decision of the Court of First Instance of the European Communities in so far as it excludes damage to professional life and health and therefore quantifies damages on the basis only of the non-material damage complained of; accordingly, it asks the Court to state that the official, following his unlawful exclusion from the competition, has suffered obvious damage to his career as well as his professional image, that, however, the exclusion decision has caused suffering and mental anguish which in turn has caused a severe state of depression, as substantiated in the case-file and, above all, verified by the institution's own experts. The applicant therefore asks the Court to make an overall assessment of the factual circumstances surrounding the matter, considering them all to be relevant for the purposes of appraising, even only on the grounds of fairness, the non-material damage in a much higher sum, directly proportional also to the career prospects lost by the official as a result of the exclusion decision and the foreseeable serious consequences caused by the same.
   The applicant therefore maintains the application for damages as specified in the form of order sought in the application in the present proceedings.
   It contests the conclusions reached by the Court in relation to the absence of actual damage to professional life, pointing out, moreover, that information relating to the selection criteria applied by the Commission to appoint the Head of Delegation in Colombia was never communicated to the applicant, despite his having requested it.
   As regards compensation for physical damage, the evidence of the effect of the unlawful conduct on the state of Mr Combescot's health derives from the temporal link between the same. The exclusion from the competition is, furthermore, the most recent in a series of harassment on the part of the Commission towards the official. Finally, in determining the non-material damage, the applicant requests a proportionate assessment of the same on the basis of the principles of fairness in the determination of damage, which takes account of the harmful consequences in terms not only of anxiety and stress, but also of hardship suffered by the official following his exclusion from the competition.


title: Case T-129/08: Action brought on 31 March 2008 — Sahlstedt and Others v Commission

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/35

         Action brought on 31 March 2008 — Sahlstedt and Others v Commission
   (Case T-129/08)
   (2008/C 128/75)
   Language of the case: Finnish
   Parties

      Applicants: Markku Sahlstedt (Karkkila, Finland), Juha Kankkunen (Laukaa, Finland), Mikko Tanner (Vihti, Finland), Toini Tanner (Helsinki, Finland), Liisa Tanner (Helsinki, Finland), Eeva Jokinen (Helsinki, Finland), Aili Oksanen (Helsinki, Finland), Olli Tanner (Lohja, Finland), Leena Tanner (Helsinki, Finland), Aila Puttonen (Ristiina, Finland), Risto Tanner (Espoo, Finland), Tom Järvinen (Espoo, Finland), Runo K. Kurko (Espoo, Finland), Maa- ja metsätaloustuottajain keskusliitto MTK ry (Helsinki, Finland), Maataloustuottajain Keskusliiton Säätiö (Helsinki, Finland) (represented by: K. Marttinen, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision which is the subject of this action in so far as it concerns all the SCI sites in the Republic of Finland mentioned in that decision;

               —

               alternatively, should the Court not consider the foregoing possible, annul the decision in so far as it concerns the specific SCI sites set out section 6.2.2.7 of the application;

               —

               requests for information and measures of inquiry:
               If the dispute is not decided solely on the basis of the evidence submitted in this application in favour of the applicants, in accordance with the above principal heads of claim, the Court of First Instance of the European Communities should:

                           1.

                           order the Commission of the European Communities to provide the applicants, in CD-Rom format, with the proposals submitted to it by Finland, including all the areas included in the contested decision together with all information referred to in recital (7) in the preamble to the contested decision,

                           2.

                           order the Commission of the European Communities to provide to the applicants, in CD-Rom format, scientific data concerning habitats and other information in its possession relating to all the areas of the Republic of Finland referred to in recital (8) in the preamble to the contested decision, together with, in paper format, the maps and the information referred to in recital (9) in the preamble thereto,

                           3.

                           order the Commission of the European Communities to provide the applicants, in CD-Rom format, with all the documents relating to the sites in the Republic of Finland drawn up during the cooperation mentioned in recital (10) in the preamble to the contested decision, or made available to the Commission at that time, together with paper copies of the maps, and

                           4.

                           order the Commission of the European Communities to provide the applicants with the opinion of the Habitats Committee mentioned in recital (15) in the preamble to the contested decision.

               —

               order the Commission to pay the applicants' costs in full, together with statutory interest.

         Pleas in law and main arguments
   The applicants submit that the decision (1) is contrary to Community law, in particular Articles 3 and 4 of the Habitats Directive and Annex III thereto, referred to in Article 4. The grounds alleging non-conformity of the decision with Community law are set out in four principal pleas:

               (a)

               The Habitats Directive does not permit earlier decisions relating to the list of sites of Community importance (‘SCI sites’) to be annulled by way of new decisions in the manner and on the grounds set out. The procedural rules in the Habitats Directive are also binding on the Commission. Any other interpretation would lead to legal uncertainty in relation to national implementing measures and the legal protection of landowners.

               (b)

               According to Article 3 of the Habitats Directive, the Natura 2000 network is a coherent European network of protected areas which is intended to guarantee a favourable conservation status as defined in the directive. The coherence of the network is guaranteed and the favourable conservation status achieved by the fact that Article 4 of and Annex III to the directive, relating to the choice of sites, are detailed technical substantive law rules which are binding on both the Member States and the Commission. Areas cannot be selected as SCI sites without following those two stages. Given the favourable conservation status which was designated as a coherent objective, sites in each Member State must be selected in accordance with uniform criteria corresponding to Article 4 of and Annex III to the Habitats Directive.

               (c)

               Stage 1 in Annex III (the Member State stage) and Stage 2 thereof (the Commission stage) form a whole consisting of acts accompanied by legal effects. The decision relating to sites of Community importance in Stage 2 of the procedure is not in accordance with the Habitats Directive if the proposal in Stage 1 does not satisfy the conditions laid down by the directive.

               (d)

               When the Republic of Finland was preparing its proposal relating to the boreal region as an SCI site, neither Article 4 of the Habitats Directive nor the provisions relating to Stage 1 in Annex III to the directive were observed. As the Republic of Finland's proposal was accepted in its entirety, and as regards all the sites, by decision of the Commission, the Commission decision relating to the SCI sites is also contrary to the directive on that ground alone.

      (1)  Commission Decision 2008/24/EC of 12 November 2007 adopting, pursuant to Council Directive 92/43/EEC, a first updated list of sites of Community importance for the Boreal biogeographical region (OJ 2008 L 12, p. 118).


title: Case T-109/10: Action brought on 5 March 2010 — Luxembourg v Commission

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/39

         Action brought on 5 March 2010 — Luxembourg v Commission
   (Case T-109/10)
   2010/C 134/67
   Language of the case: French

      Parties

      Applicant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent, and P. Kinsch, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the contested decision in so far as it applies to the Grand Duchy of Luxembourg;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The applicant seeks the annulment, in so far as it applies to the Grand Duchy of Luxembourg, of Commission Decision C(2009) 10712 of 23 December 2009 reducing the assistance granted to the Community Initiative Interreg II/C ‘Rhine/Meuse Flooding*’ in the Kingdom of Belgium, Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands by the European Regional Development Fund (ERDF) under Commission Decision C(97) 3742 of 18 December 1997 (ERDF No. 970010008).
   In support of its action, the applicant puts forward two pleas in law.
   By the first plea in law, the applicant claims that if the actions for annulment brought by the Dutch and German authorities are upheld, the Grand Duchy of Luxembourg should benefit as a result. If it is found that the errors and weaknesses, allegedly systematic, which the Commission’s audit was thought to have revealed in the functioning of the program in question in the Netherlands and Germany, do not in reality exist, the very basis of the decision’s reasoning fails and with it the linear financial correction applied to the projects implemented in Luxembourg.
   The second plea in law alleges the illegality of the extension, to the Grand Duchy of Luxembourg, of a financial adjustment* that might be justified only in respect of other Member States. No anomalies have been found in the operation* of the program in the Grand Duchy of Luxembourg. The fact that Luxembourg agreed to participate in a joint project with Germany, Belgium, France and the Netherlands does not justify the negative effects, in terms of financial adjustment* of its own projects, of errors or weaknesses that were discovered during the audit of Dutch or German projects, and which consist almost exclusively in alleged breaches of provisions of the procedure for awarding public contracts. Despite the fact that this is a matter of joint participation by five Member States in the same program, procedures for public procurement* awarding public contracts come within the exclusive responsibility of the national authorities of the Member States concerned.


title: Case T-108/01: Action brought on 10 May 2001 by Free Trade Foods N.V. v Commission of the European Communities

text:
11.8.2001              EN                     Official Journal of the European Communities                                         C 227/25
Action brought on 10 May 2001 by Free Trade Foods N.V.                         17 December 1997 (2) whose provisions the contested
        v Commission of the European Communities                               regulation also declares applicable.
                         (Case T-108/01)
                                                                         (1) Commission Regulation (EC) No 396/2001 providing for the
                                                                             continued application of safeguard measures for imports from the
                         (2001/C 227/48)                                     overseas countries and territories of sugar sector products with
                                                                             EC/OCT cumulation of origin for the period 1 March to 30 June
                                                                             2001, OJ L 058 of 28.2.2001, pp. 13 to 15.
                                                                         (2) Commission Regulation (EEC) No 2553/97 of 17 December 1997
                    (Language of the case: Dutch)                            on rules for issuing the import licences for certain products
                                                                             covered by CN codes 1701, 1702, 1703and 1704 and qualifying
                                                                             as CP/OCT originating products, OJ 349 of 19.12.1997, pp. 26
An action against the Commission of the European Communi-
                                                                             to 30.
ties was brought before the Court of First Instance of the
European Communities on 10 May 2001 by Free Trade Foods
N.V., whose registered office is at Curação (Dutch Antilles),
represented by M. Slotboom and N.J. Helder, Lawyers, Rot-
terdam.
The applicant claims that the Court should:
1)    Annul Regulation No 396/2001 of 27 February 2001                   Action brought on 18 May 2001 by Fleuren Compost N.V
      [providing for the continued application of safeguard                      v Commission of the European Communities
      measures for imports from the overseas countries and
      territories of sugar sector products with EC/OCT cumu-
      lation of origin for the period 1 March to 30 June 2001];                                   (Case T-109/01)
2)    declare that the Community is liable for the damage                                         (2001/C 227/49)
      suffered by Free Trade Foods N.V. as a result of Regulation
      No 396/2001 of 27 February 2001;
3)    order the Commission to pay the costs.                                                (Language of the case: Dutch)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Pleas in law and main arguments
                                                                         European Communities on 18 May 2001 by Fleuren Compost
                                                                         N.V., whose registered office is at Middelharnis (Netherlands),
                                                                         represented by Jules Stuyck, Lawyer, Brussels.
Free Trade Foods N.V. owns a sugar factory on Curação which
is geared to the processing of C-sugar originating in the
Community and which acquires OCT origin pursuant to                      The applicant claims that the Court should:
EC/OCT cumulation. That sugar can then be imported into the
Community free of duty.                                                  —     Annul the Commission Decision of 13 December 2000
                                                                               concerning the aid scheme which the Kingdom of the
                                                                               Netherlands has established in favour of six manure
However, pursuant to the Fourth Safeguard Measure (Com-                        processing undertakings, at least in so far as it relates to
mission Regulation No 396/2001 of 27 February 2001 (1)) a                      the applicant;
quota of 3 878 tons applies.
                                                                         —     Order the Commission to pay the costs of the proceed-
                                                                               ings.
In support of its application the applicant submits the
following pleas:
—     infringement of Article 109 of the OCT Decision;                   Pleas in law and main arguments
—     infringement of the precedence established in the EC               The applicant has received, as a manure processing factory,
      Treaty in favour of OCT goods;                                     subsidies from the Netherlands authorities in the framework,
                                                                         according to the applicant, of the Bijdrageregeling Proefprojec-
—     infringement of Article 7(5) of the agreement on safe-             ten Mestverwerking (BPM) [contribution scheme for manure
      guard measures concluded in the context of the WTO,                processing pilot projects]. However, in Decision C(2000)4070
      and of Article 300(7) EC;                                          of 13 December 2000 addressed to the Netherlands authorities,
                                                                         the Commission requested recovery of the subsidy paid to the
—     unlawfulness of Commission Regulation No 2553/97 of                applicant and a number of other undertakings.


title: Case C-23/10: Action brought on 14 January 2010 — European Commission v Portuguese Republic

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/15

         Action brought on 14 January 2010 — European Commission v Portuguese Republic
   (Case C-23/10)
   2010/C 100/24
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: A. Caeiros, Agent)

      Defendant: Portuguese Republic

      Form of order sought

               —

               A declaration that, owing to the systematic acceptance by its customs authorities of customs declarations on the release of fresh bananas into free circulation, when they knew or ought reasonably to have known that the weight declared did not correspond to the bananas true weight, and owing also to the refusal of the Portuguese authorities to make available the own resources corresponding to the loss of revenue and to default interest owed, the Portuguese Republic has failed to fulfil its obligations under Article 68 et seq. of Regulation (EEC) No 2913/92, (1) Article 290a of Regulation (EEC) No 2454/93 (2) and Annex 38b thereto, and under Articles 2, 6, 9, 10 and 11 of Regulations (EEC, Euratom) No 1552/89 (3) and (EC, Euratom) 1150/2000; (4)

               —

               an order that the Portuguese Republic should pay the costs.

      Pleas in law and main arguments

   Article 290a of Regulation (EEC) No 2454/93 provides that: Examination of bananas falling within CN code 0803 00 19 for the purposes of checking the net mass on importation shall involve a minimum of 10 % of declarations per year and per customs office. Examination of bananas shall be carried out at the time of release for free circulation, in accordance with the rules laid down in Annex 38b.
   Annex 38b provides: ‘1. For the purposes of the application of Article 290a, the customs authorities of the customs office at which the declaration for free circulation of fresh bananas is lodged shall determine the net mass, based on a sample of units of packaging for each type of packaging and for each place of origin …’
   Having regard to the Community legislation, in particular, to Article 290a of, and Annex 38b to, Regulation No 2454/93, cited above, which were, as such, the provisions applicable during the period in question, the Commission takes the view that the arguments put forward by the Portuguese authorities to explain why they had not made available the own resources and default interest owing pursuant to Article 11 of Regulation No 1150/2000 cannot be accepted, and that it is unarguable that Article 290a of, and Annex 38b to, Regulation No 2454/93 were quite clear in respect of the weight that must serve as the basis for the application of customs duties.
   Article 290a of, and Annex 38b to, Regulation No 2454/93 unequivocally provide that it is the ‘net mass’, that is to say, the ‘true weight’ of the bananas, which must be indicated in the declaration for the release of bananas into free circulation and that it is that ‘true weight’ which must, in consequence, serve as the basis for the application of customs duties.
   The Commission was under no legal obligation to publish, in the C series of the Official Journal of the European Union, a notice to importers to the effect that they should not use the weight of 18.14 kg or an overall average weight when preparing customs declarations.
   Article 290a of, and Annex 38b to, Regulation No 2454/93 being clear with regard to the question of the weight to be taken into account for the computation of the customs duties, it would be very easy for traders whose usual activity is the importing of bananas and who are, for that reason, aware of the legislation applicable to that activity, to know that the customs declaration that they had to present must state the ‘net mass’, in other words, the true weight of the bananas and not a ‘commercial’ weight which is, as proved in the vast majority of cases, a fictitious weight.
   The Portuguese authorities may not plead that the Commission was at fault in not performing a possible obligation to alert the Member States following information sent to it by the Italian authorities. Without a doubt, it would have been possible for the Portuguese customs authorities, present at the place where the imported bananas were cleared through customs, to discover — without receiving any information at all from the Commission — that, in the vast majority of cases, the true weight was greater than the ‘standard’ weight declared. It fell, therefore, to the Portuguese authorities alone, in the ambit of their sphere of action and inspection, to ascertain whether those declarations were correct.
   Article 13 of the Community Customs Code gives customs authorities the power to carry out ‘all the controls they deem necessary to ensure that customs legislation is correctly applied’.
   The Portuguese authorities knew that it had become common practice for traders to present customs declarations for the release of bananas into free circulation taking as the basis the commercial weight of 18.14 kg per box.
   In those circumstances, the authorities cannot maintain that Article 290a required them to examine only 10 % of declarations for the release of bananas into free circulation.
   The power given to the customs authorities to carry out additional controls of the weight of bananas, over and above the minimum of 10 % required by Article 290a, becomes an obligation to do so when it is shown, during the controls carried out, that there is a danger that incorrect declarations will be accepted, having regard to the object of effective protection of Community own resources.
   When they establish that the weight declared does not correspond to the true weight and that there is a danger that incorrect declarations will be accepted, those authorities must not authorise the release of the bananas into free circulation without checking the weight, even though the minimum control percentage of 10 has already been reached in the customs office during the reference year.
   The declaration of the commercial ‘standard’ weight is of itself enough to call in question the genuineness of the weight declared, so warranting a check by the customs authorities for the purpose of establishing the true weight.
   By virtue of Article 8 of Decision 94/728/EC, Euratom (5) and of their responsibility for collecting Community own resources, it was for the Member States to ensure the creation of an adequate infrastructure with a view to carrying out the checks necessary for bananas released into free circulation to be cleared through customs correctly, that is to say, on the basis of their true weight.
   The Portuguese authorities practice of systematically accepting customs declarations, when they were, or reasonably ought to have been, aware that the weight stated in the customs declaration was not the true weight of the bananas imported, without carrying out any checks at all, and also their refusal to assume any responsibility relating to the financial consequences for the Community budget, are contrary to the principle of effective protection of own resources and the case-law of the Court of Justice.

      (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

      (2)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

      (3)  Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities own resources (OJ 1989 L 155, p. 1).

      (4)  Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1).

      (5)  Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities’ own resources (OJ 1994 L 293, p. 9).


title: Case C-645/13: Request for a preliminary ruling from the Juzgado de Primera Instancia de Barcelona (Spain) lodged on 5 December 2013 — Cajas Rurales Unidas, Sociedad Cooperativa de Crédito v Evaristo Méndez Sena and Others

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/7

      Request for a preliminary ruling from the Juzgado de Primera Instancia de Barcelona (Spain) lodged on 5 December 2013 — Cajas Rurales Unidas, Sociedad Cooperativa de Crédito v Evaristo Méndez Sena and Others
      (Case C-645/13)
      (2014/C 71/12)
      Language of the case: Spanish

         Referring court

      Juzgado de Primera Instancia de Barcelona

         Parties to the main proceedings

         Applicant: Cajas Rurales Unidas, Sociedad Cooperativa de Crédito

         Defendants: Evaristo Méndez Sena, Edelmira Pérez Vicente, Daniel Méndez Sena, Victoriana Pérez Bicéntez

         Questions referred

                  1.

                  Must the legislation of a Member State under which no provision is made for a right of appeal to a higher court in the event of the dismissal of an application, made in the course of mortgage enforcement proceedings, to have a contractual term disapplied on the ground that it is unfair, be interpreted as failing to provide adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers, and as failing to observe the right to take action before the competent national courts for a decision as to whether contractual terms drawn up for general use are unfair, so that those courts can apply appropriate and effective means to prevent the continued use of such terms?

                  2.

                  If the answer to Question 1 is in the affirmative, may the national court — in order to ensure that consumers are adequately and effectively protected against unfair contractual terms — of its own motion grant a consumer the right to have a higher court review the decision at first instance dismissing the application by that consumer to have a contractual term disapplied on the ground that it is unfair?


title: Case T-619/14: Order of the General Court of 16 September 2015 — Bionorica v Commission (Action for failure to act — Consumer protection — Health claims made on foods — Regulation (EC) No 1924/2006 — Botanical substances — Time-limit for bringing an action — No legal interest in bringing proceedings — Act not amenable to review — Inadmissibility)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/32

         Order of the General Court of 16 September 2015 — Bionorica v Commission
   (Case T-619/14) (1)

   ((Action for failure to act - Consumer protection - Health claims made on foods - Regulation (EC) No 1924/2006 - Botanical substances - Time-limit for bringing an action - No legal interest in bringing proceedings - Act not amenable to review - Inadmissibility))
   (2015/C 381/36)
   Language of the case: German

      Parties

      Applicant: Bionorica SE (Neumark, Germany) (represented by: M. Weidner, N. Hußmann and T. Guttau, lawyers)

      Defendant: European Commission (represented by: M. Wilderspin and S. Grünheid, acting as Agents)

      Re:

   Application seeking a declaration that the Commission failed to act in that it unlawfully refrained from ordering the European Food Safety Authority (EFSA) to evaluate the health claims relating to botanical substances as a condition prior to the adoption of the definitive list of authorised health claims in accordance with Article 13(3) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9).

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Bionorica SE shall pay the costs.

      (1)  OJ C 409, 17.11.2014.


title: Case T-28/02: Order of the Court of First Instance of  17 October 2005  — First Data Corp. and Others v Commission of the European Communities (Competition — Article 81 EC — Visa payment card scheme — The  no-acquiring-without-issuing  rule — Negative clearance — Rule abolished during the proceedings — Legal interest in bringing proceedings — No need to adjudicate)

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/20

         Order of the Court of First Instance of 17 October 2005 — First Data Corp. and Others v Commission of the European Communities
   (Case T-28/02) (1)

   (Competition - Article 81 EC - Visa payment card scheme - The ‘no-acquiring-without-issuing’ rule - Negative clearance - Rule abolished during the proceedings - Legal interest in bringing proceedings - No need to adjudicate)
   (2006/C 10/40)
   Language of the case: English
   Parties

      Applicants: First Data Corp. (Wilmington, Delaware, USA), FDR Ltd (Dover, Delaware, United States), and First Data Merchant Services Corp. (Sunrise, Florida, USA) (represented by: initially, P. Bos and M. Nissen, then P. Bos, lawyers)

      Defendant: Commission of the European Communities (represented by: initially, R. Wainwright, W. Wils and V. Superti, then R. Wainwright and T. Christoforou, Agents)
   Application for
   annulment of the fifth indent of Article 1 of Commission Decision 2001/782/EC of 9 August 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No COMP/29.373 — Visa International) (OJ 2001 L 293, p. 24)
   Operative part of the Order

               1.

               There is no need to adjudicate on this case.

               2.

               The applicants and the Commission shall bear their own costs.

      (1)  OJ C 109, 4.5.2002.


title: Action brought on 2 February 1995 by Nuno Do Paço Quesado against the Commission of the European Communities (Case T-15/95)

text:
 No C 87/14            EN                 Official Journal of the European Communities                                      8 . 4 . 95
     under Article 92 ( 3 ) (c), and acting in a manner              — annul, in so far as may be necessary, the decision of the
     inconsistent with its own guidelines on restructuring of             Commission of 19 October 1994 expressly rejecting his
     firms in difficulty,                                                 complaint,
— in holding, contrary to Article 92 ( 1 ), that the third           — order the Commission to pay the costs .
    injection did not constitute State aid, through a
    misapplication of the 'private investor' criterion in a
    manner which is inconsistent with its own guidelines and         Pleas in law and main arguments adduced in support:
    with the behaviour of a true private investor, Union
    Carbide Corporation,                                             The applicant, an official of the Commission in the LA
                                                                     career bracket, contests the decision of the appointing
                                                                     authority classifying him in grade LA 5 , step 1 , in
— in failing to open Article 93 (2 ) proceedings in respect of       consequence of his reinstatement on 1 April 1994 in his
    the third injection, thereby depriving the parties               original service following his secondment, at his own
    concerned of their procedural guarantees under                   request, to the European Centre for the Development of
    Article 93 (2 ) and ( 3 ) as interpreted in the Court's          Vocational Training ( Cedefop ) for a period of seven
    consistent case-law,                                             years .
— in failing to verify and monitor the information and               He points out in that regard that, during that secondment
    proposals put to it by the Italian authorities, thereby          period, he passed a competition held with a view to the
    failing to apply the 'private investor' test correctly and to    drawing up of a reserve list of principal translators/revisers
    ensure that alleged capacity closures had been or would          appointed to grade LA 5 , step 1 , as at 1 October 1990 .
    be made permanent and were of sufficient scale to be in          Consequently, his reinstatement in grade LA 5, step 1 , failed
    the Community interest.                                          to take account, as regards seniority in step, of the period
                                                                     during which he worked at Cedefop .
(!) OJ No C 151 , 2 . 6 . 1994 , p. 3 .                              He asserts in particular that there has been an infringement
                                                                     of the provisions of the Staff Regulations relating to
                                                                     secondment and, more especially, of Article 37 of the Staff
                                                                     Regulations, inasmuch as that Article provides that an
                                                                     official on secondment is to continue to enjoy all his rights
                                                                     under the conditions contained in Articles 38 and 39 . He
                                                                     states in that regard that Article 39 of the Staff Regulations,
                                                                     which governs the secondment of an official at his own
                                                                     request, contains no specific rules as to his right to
                                                                     advancement and his eligibility for promotion. Since that
Action brought on 2 February 1995 by Nuno Do Paqo                   Article constitutes a provision derogating from the ordinary
Quesado against the Commission of the European                       rules, it must be strictly interpreted.
                           Communities
                          (Case T-15/95 )                            It follows that, since officials who are seconded at their own
                           (95/C 87/31 )                             request are not expressly excluded by that provision, they
                                                                    must continue to enjoy the right to automatic advancement
                                                                     in step. To apply any contrary interpretation would be to
                (Language of the case: French)                       disregard the principle of 'career continuity'.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 2 February 1995
by Nuno Do Vaqo Quesado, residing in Trier ( Germany),
represented by Jean-Noel Louis and Veronique Leclercq, of
the Brussels Bar, with an address for service in Luxembourg         Action brought on 7 February 1995 by SA Adia Interim
at the offices of Fiduciaire Myson Sari, 1 Rue Glesener.               against the Commission of the European Communities
                                                                                (Case T-19/95 )
                                                                                ( 95/C 87/32 )
The applicant claims that the Court should:
                                                                                (Language of the case: French)
— annul the decision of the Commission of 1 March 1994
    inasmuch as it classifies the applicant in grade LA 5, step
    1 , with seniority in grade and in step from 1 April            An action against the Commission of the European
    1994,                                                           Communities was brought before the Court of First


title: Case T-160/11 R: Order of the President of the General Court of 13 July 2011 — Petroci v Council (Interim measures — Common Foreign and Security Policy — Restrictive measures taken in view of the situation in Côte d’Ivoire — Freezing of funds — Application for suspension of operation of a measure — No need to adjudicate in the main proceedings — No need to adjudicate)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/49

         Order of the President of the General Court of 13 July 2011 — Petroci v Council
   (Case T-160/11 R)
   (Interim measures - Common Foreign and Security Policy - Restrictive measures taken in view of the situation in Côte d’Ivoire - Freezing of funds - Application for suspension of operation of a measure - No need to adjudicate in the main proceedings - No need to adjudicate)
   2011/C 269/110
   Language of the case: French

      Parties

      Applicant: Société nationale d’opérations pétrolières de la Côte d’Ivoire Holding (Petroci Holding) (Abidjan, Côte d’Ivoire) (represented by: M. Ceccaldi, lawyer)

      Defendant: Council of the European Union (represented by: B. Driessen and A. Vitro, Agents)

      Re:

   Application for interim measures seeking, under Article 278 TFEU, suspension of operation of (i) Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire (OJ 2011 L 11, p. 36) and (ii) Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire (OJ 2011 L 11, p. 1).

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the application for interim measures.

               2.

               The Council of the European Union shall pay the costs.


title: Case C-470/12: Reference for a preliminary ruling from the Okresný súd Svidník (Slovakia) lodged on 19 October 2012 — Pohotovosť, s.r.o. v Miroslav Vašuta

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/12

         Reference for a preliminary ruling from the Okresný súd Svidník (Slovakia) lodged on 19 October 2012 — Pohotovosť, s.r.o. v Miroslav Vašuta
   (Case C-470/12)
   2013/C 46/21
   Language of the case: Slovak

      Referring court

   Okresný súd Svidník

      Parties to the main proceedings

      Applicant: Pohotovosť, s.r.o.

      Defendant: Miroslav Vašuta

      Questions referred

               1.

               Are Articles 6(1), 7(1) and 8 of Council Directive 93/13/EEC (1) on unfair terms in consumer contracts and Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 38 thereof, to be interpreted as precluding national legislation such as Paragraph 37(1) and (3) of the Exekučný poriadok, which does not allow a consumer protection association to intervene in enforcement proceedings?

               2.

               Where the answer to the first question is that that legislation does not conflict with Community law, is Paragraph 37(1) and (3) of the Exekučný poriadok to be interpreted as not precluding the national court from granting a consumer protection association leave to intervene in enforcement proceedings in accordance with Articles 6(1), 7(1) and 8 [of Council Directive 93/13/EEC]?

      (1)  OJ 1993 L 95, p. 29.


title: Case C-314/00: Reference for a preliminary ruling by the Oberster Gerichtshof, Republic of Austria by order of that court of 11 May 2000 in the case of Kraft Jacobs Suchard Österreich GesmbH against 1. Eduard Mitsche, 2. Maria Mitsche, 3. Peter Roman

text:
21.10.2000              EN                      Official Journal of the European Communities                                       C 302/19
4.    In so far as necessary, remit the case to the Court of First         2)   If Question 1 is answered in the affirmative:
      Instance for the procedure to be continued;
                                                                                (a)   Is Commission Regulation (EEC) No 1984/83 of
5.    Order the defendants and respondents to bear the costs                          22 June 1983 on the application of Article 85 (3) of
      of the proceedings.                                                             the Treaty to categories of exclusive purchasing
                                                                                agreements (OJ 1983 L 173, p. 5) also generally
                                                                                applicable to agreements of the kind described in
Pleas in law and main arguments                                                       Question 1?
—     Misinterpretation of the concept of ‘direct concern’ within               (b) Is that regulation also applicable if, prior to onward
      the meaning of the fourth paragraph of Article 230 EC:                          selling, the roast coffee purchased is further proces-
      The contested judgment wrongly states that a directive is                       sed for sale as a coffee drink?
      not, before the adoption of national measures and
      independently of them, such as to affect directly the legal          3)   If Question 2 is answered in the affirmative:
      situation of economic operators. With respect to the
      fourth paragraph of Article 230 EC, what matters is                       Is Article 3(d) of Regulation No 1984/83 to be construed
      merely whether the directive as such has a direct effect                  as meaning that agreements of the kind described in
      on the legal situation of an undertaking (without waiting                 Question 1, under which it is the contracting parties’
      until it is transposed by the Member States).                             estimation that the total sales quantity will be supplied
                                                                                within a period of less than five years, are also covered by
—     Incorrect assessment of the effects of the directive on the               the exemption under the regulation or is that the
      appellants’ situation, and hence inadequate reasoning in                  case only if there are also objective grounds for such
      the contested judgment: Directive 98/43 as such already                   expectations?
      constitutes a process which amounts to an expropriation
      (the possibility of advertising for the existing brand               4)   Is Article 85(1) and (2) of the EC Treaty to be interpreted
      ceases, so that its value for diversification products falls              as meaning that an agreement of the kind described in
      to zero). This affects the appellants’ legal situation, not               Question 1 is also invalid inasmuch as, in the event of
      merely their ‘factual situation’.                                         premature termination of the agreement, it provides for
                                                                                repayment of a rebate by the seller paid to the purchaser
                                                                                on commencement of the agreement determined by
                                                                                reference to total contractually agreed sales, and do the
                                                                                aforementioned provisions require that there should be
                                                                                no claim for repayment under that head?
Reference for a preliminary ruling by the Oberster
Gerichtshof, Republic of Austria by order of that court of
11 May 2000 in the case of Kraft Jacobs Suchard Öster-
reich GesmbH against 1. Eduard Mitsche, 2. Maria Mits-
                        che, 3. Peter Roman                                Reference for a preliminary ruling from the Bundesfi-
                                                                           nanzhof, by order of that court of 25 May 2000 in the
                          (Case C-314/00)                                  case of Rudolf Maierhofer against Finanzamt Augsburg-
                                                                                Land
                          (2000/C 302/36)
                                                                                (Case C-315/00)
Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof                                           (2000/C 302/37)
(Supreme Court), Republic of Austria, of 11 May 2000,
received at the Court Registry on 21 August 2000, for a                    Reference has been made to the Court of Justice of the
preliminary ruling in the case of Kraft Jacobs Suchard Öster-             European Communities by order of the Bundesfinanzhof
reich GesmbH against 1. Eduard Mitsche, 2. Maria Mitsche,                  (Federal Finance Court), of 25 May 2000, received at the Court
3. Peter Roman on the following questions:                                 Registry on 21 August 2000, for a preliminary ruling in the
                                                                           case of Rudolf Maierhofer against Finanzamt Augsburg-Land
1)    Is Article 85(1) (now Article 81(1) EC) of the EC Treaty             on the following questions:
      also applicable to purchasing agreements under which,
      over a period of several years, the goods agreed to be               1.   Does the term ‘letting of immovable property’ in
      purchased are to be called down and paid for by the                       Article 133(b) of Directive 77/388/EEC (1) cover the pro-
      purchaser at current ‘list price’, albeit there is a stipulation          vision for consideration of a building constructed from
      for delivery of minimum annual quantities in line with                    prefabricated components which is to be removed follow-
      the buyer’s overall requirements, subject to a specified                  ing the termination of the contract and may be re-used
      permissible variation?                                                    on another site?


title: Case C-20/14: Judgment of the Court (First Chamber) of 22 October 2015 (request for a preliminary ruling from the Bundespatentgericht — Germany) — BGW Beratungs-Gesellschaft Wirtschaft mbH, formerly BGW Marketing- & Management-Service GmbH v Bodo Scholz (Reference for a preliminary ruling — Trade marks — Directive 2008/95/EC — Further grounds for refusal or invalidity — Word mark — Same letter sequence as an earlier trade mark — Addition of a descriptive word combination — Existence of a likelihood of confusion)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/3

         Judgment of the Court (First Chamber) of 22 October 2015 (request for a preliminary ruling from the Bundespatentgericht — Germany) — BGW Beratungs-Gesellschaft Wirtschaft mbH, formerly BGW Marketing- & Management-Service GmbH v Bodo Scholz
   (Case C-20/14) (1)

   ((Reference for a preliminary ruling - Trade marks - Directive 2008/95/EC - Further grounds for refusal or invalidity - Word mark - Same letter sequence as an earlier trade mark - Addition of a descriptive word combination - Existence of a likelihood of confusion))
   (2015/C 414/03)
   Language of the case: German

      Referring court

   Bundespatentgericht

      Parties to the main proceedings

      Applicant: BGW Beratungs-Gesellschaft Wirtschaft mbH, formerly BGW Marketing- & Management-Service GmbH

      Defendant: Bodo Scholz

      Operative part of the judgment

   Article 4(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in the case of identical or similar goods and services, there may be a likelihood of confusion on the part of the relevant public between an earlier mark consisting of a letter sequence, which is distinctive and is the dominant element in that mark of average distinctiveness, and a later mark which reproduces that letter sequence and to which is added a descriptive combination of words, the initial letters of which correspond to the letters of that sequence, with the result that that sequence is perceived by that public as the acronym of that combination of words.

      (1)  OJ C 129, 28.4.2014.


title: Judgment of the Court (Third Chamber) of  9 February 2006  in Case C-473/04: Reference for a preliminary ruling from the Hof van Cassatie in Plumex v Young Sports NV (Judicial cooperation — Regulation (EC) No 1348/2000 — Articles 4 to 11 and 14 — Service of judicial documents — Service through agencies — Service by post — Relationship between the methods of transmission and service — Precedence — Time-limit for an appeal)

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/9

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 9 February 2006
   in Case C-473/04: Reference for a preliminary ruling from the Hof van Cassatie in Plumex v Young Sports NV (1)

   (Judicial cooperation - Regulation (EC) No 1348/2000 - Articles 4 to 11 and 14 - Service of judicial documents - Service through agencies - Service by post - Relationship between the methods of transmission and service - Precedence - Time-limit for an appeal)
   (2006/C 86/15)
   Language of the case: Dutch
   In Case C-473/04: reference for a preliminary ruling under Articles 68 EC and 234 EC from the Hof van Cassatie (Belgium), made by decision of 22 October 2004, received at the Court on 9 November 2004, in the proceedings between Plumex and Young Sports NV — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), A. La Pergola, S. von Bahr and A. Borg Barthet, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 9 February 2006, in which it ruled:

               1.

               Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters must be interpreted as meaning that it does not establish any hierarchy between the method of transmission and service under Articles 4 to 11 thereof and that under Article 14 thereof and, consequently, it is possible to serve a judicial document by one or other or both of those methods.

               2.

               Regulation No 1348/2000 must be interpreted as meaning that, where transmission and service are effected by both the method under Articles 4 to 11 thereof and the method under Article 14 thereof, in order to determine vis-à-vis the person on whom service is effected the point from which time starts to run for the purposes of a procedural time-limit linked to effecting service, reference must be made to the date of the first service validly effected.

      (1)  OJ C 19, 22.01.2005.


title: Case C-440/12: Judgment of the Court (First Chamber) of 24 October 2013 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Metropol Spielstätten Unternehmergesellschaft (haftungsbeschränkt) v Finanzamt Hamburg-Bergedorf (Taxation — VAT — Betting and gaming — Legislation of a Member State under which VAT and a special tax are to be levied cumulatively on the operation of low-prize slot machines — Whether permissible — Basis of assessment — Whether the taxable person can pass on the VAT)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/19

         Judgment of the Court (First Chamber) of 24 October 2013 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Metropol Spielstätten Unternehmergesellschaft (haftungsbeschränkt) v Finanzamt Hamburg-Bergedorf
   (Case C-440/12) (1)

   (Taxation - VAT - Betting and gaming - Legislation of a Member State under which VAT and a special tax are to be levied cumulatively on the operation of low-prize slot machines - Whether permissible - Basis of assessment - Whether the taxable person can pass on the VAT)
   2013/C 367/33
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Metropol Spielstätten Unternehmergesellschaft (haftungsbeschränkt)

      Defendant: Finanzamt Hamburg-Bergedorf

      Re:

   Request for a preliminary ruling — Finanzgericht Hamburg — Interpretation of the first sentence of Article 1(2), Article 73, Article 135(1)(i) and Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Taxation of betting and gaming — Legislation of a Member State under which VAT and a special tax are to be levied cumulatively on the operation of low-prize slot machines

      Operative part of the judgment

               1.

               Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 135(1)(i) thereof, must be interpreted as meaning that value added tax and a special national tax on games of chance may be levied cumulatively, provided that the special national tax cannot be characterised as a tax on turnover;

               2.

               The first sentence of Article 1(2) and Article 73 of Directive 2006/112 must be interpreted as not precluding a national provision or practice whereby, in the operation of gaming machines offering the possibility of winnings, the amount of the cash receipts from those machines is used after a set interval as the basis of assessment;

               3.

               Article 1(2) of Directive 2006/112 must be interpreted as not precluding a national system regulating an unharmonised tax, under which the value added tax owed is to be set in full against that tax.

      (1)  OJ C 389, 15.12.2012.


title: Case C-498/10: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 14 October 2010 — X NV v Staatssecretaris van Financiën

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/19

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 14 October 2010 — X NV v Staatssecretaris van Financiën
   (Case C-498/10)
   ()
   2011/C 13/33
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: X NV

      Defendant: Staatssecretaris van Financiën

      Questions referred

               1.

               Must Article 56 TFEU be interpreted as meaning that a restriction on the freedom to provide services exists if the recipient of a service, provided by a service provider established in another Member State, is obliged under the legislation of the Member State where the service recipient is established and where the service is provided, to withhold tax on the remuneration payable for that service, whereas that withholding obligation does not exist in relation to a service provider who is established in the same Member State as the service recipient?

               2(a)

               If the answer to the previous question has the effect that legislation which provides for the imposition of tax by a service recipient hinders the freedom to provide services, can such a hindrance then be justified by the need to ensure that taxes are levied and collected from foreign companies whose stay in the Netherlands is short and which are difficult to control, with the result that the execution of the taxing powers allocated to the Netherlands becomes problematic?

               2(b)

               In that case, is it relevant that the legislation was later amended for situations such as the one at issue here, in the sense that the tax was unilaterally waived because it proved incapable of being simply and efficiently applied?

               3.

               Does the rule go beyond what is necessary given the opportunities for mutual assistance in the recovery of taxes presented in particular by Directive 76/308/EEC? (1)

               4.

               In answering the foregoing questions, is it relevant that the tax which is payable on the remuneration in the Member State where the service recipient is established can be set off against tax which is payable on that remuneration in that other Member State?

      (1)  Council Directive of 15 March 1976 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of the agricultural levies and customs duties (OJ 1976 L 73, p. 18).


title: Case C-398/02: Action brought on 11 November 2002 by the Commission of the European Communities against the Kingdom of Spain

text:
21.12.2002             EN                    Official Journal of the European Communities                                       C 323/27
Action brought on 8 November 2002 by the Commission                     The applicant claims that the Court should :
of the European Communities against the Portuguese
                             Republic
                                                                        1.    Declare that, by failing to adopt and bring into force
                         (Case C-393/02)                                      within the prescribed period the laws, regulations and
                                                                              administrative provisions necessary to comply with
                         (2002/C 323/39)                                      Articles 4, 9 and 13 of Council Directive 75/442/EEC (1)
                                                                              of 15 July 1975 on waste, as amended by Council
                                                                              Directive 91/156/EEC of 18 March 1991 ( 2), the Kingdom
                                                                              of Spain has failed to fulfil its obligations under that
An action against the Portuguese Republic was brought                         directive;
before the Court of Justice of the European Communities on
8 November 2002 by the Commission of the European
Communities, represented by C. Tufvesson and M. França,                 2.    Order the Kingdom of Spain to pay the costs.
acting as Agents.
The applicant claims that the Court should :
—     Declare that, by failing to adopt and bring into force
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with                Pleas in law and main arguments
      Directive 1999/42/EC of the European Parliament and of
      the Council of 7 June 1999 establishing a mechanism
      for the recognition of qualifications in respect of the
      professional activities covered by the Directives on liberal-     —     Infringement of Article 9 of Directive 75/442/EEC:
      isation and transitional measures and supplementing the                 Although the Spanish authorities in their reply to the
      general systems for the recognition of qualifications (1),              formal notice and the reasoned opinion respectively
      the Portuguese Republic has failed to fulfil its obligations            claimed that the disposal site at La Bañeza had been
      under that directive; and                                               authorised in 1979 to 1980 and that it complied with
                                                                              the requisite conditions, they have not forwarded any
—     Order the Portuguese Republic to pay the costs.                         copies of such authorisation. Accordingly, the Com-
                                                                              mission takes the view that, in the absence of any such
                                                                              information, there was no authorisation or, if it exists,
                                                                              that it cannot be in conformity with the requirements of
Pleas in law and main arguments                                               Article 9 of Directive 75/442/EEC.
The period prescribed for transposing the directive expired on                Moreover, the obligation to obtain authorisation is dis-
31 July 2001.                                                                 charged only when the waste disposal site is finally closed
                                                                              or sealed, but when the period prescribed by the reasoned
                                                                              opinion expired the disposal site at La Bañeza was
( 1) OJ 1999 L 201, p. 77.                                                    still open pending the construction of the Centro de
                                                                              Tratamiento de Residuos (waste disposal processing cen-
                                                                              tre) at San Román de la Vega.
                                                                        —     Infringement of Article 4 of Directive 75/442/EEC:
                                                                              Although the Spanish authorities claim to have carried
Action brought on 11 November 2002 by the Com-                                out a range of work to ‘improve’ the deficient conditions
mission of the European Communities against the                               at the waste disposal site in question, it continues to
                        Kingdom of Spain                                      operate and it is still in its deficient state, entailing a
                                                                              steady deterioration in the environment and causing
                         (Case C-398/02)                                      serious problems for the local population.
                         (2002/C 323/40)
                                                                        —     Infringement of Article 13 of Directive 75/442/EEC:
                                                                              Although, according to Article 14 of Directive 1999/31/
                                                                              EC ( 3), Annex II to that directive is not immediately
An action against the Kingdom of Spain was brought before                     applicable to existing waste disposal sites, its provisions
the Court of Justice of the European Communities on 11 No-                    make clear the type of regular inspections to which
vember 2002 by the Commission of the European Communi-                        Article 13 of Directive 75/442/EEC refers. The Spanish
ties, represented by G. Valero Jordana and M. Konstantinidis,                 authorities have not responded to the request for detailed
acting as Agents, with an address for service in Luxembourg.                  information on the inspections carried out nor have they
 ---pagebreak--- C 323/28               EN                    Official Journal of the European Communities                                        21.12.2002
      provided evidence in that respect, so much so that in             nition of diplomas obtained in other Member States, as
      their reply to the reasoned opinion they make no mention          provided by those two directives.
      whatever of that matter.
                                                                        The arrangements for assimilation under decrees, which do
( 1) OJ 1975 L 194, p. 39.                                              not take account of Directives 89/48 and 92/51, rely only on
( 2) OJ 1991 L 78, p. 32.
( 3) OJ 1999 L 182, p. 1.
                                                                        the examination of diplomas submitted by candidates who are
                                                                        holders of such diplomas and make no provision for the taking
                                                                        into account of any experience acquired in the course of
                                                                        pursuing the profession to make up for any difference with
                                                                        respect to duration or content of training leading to the award
                                                                        of such diplomas. However, Member States are obliged to take
                                                                        into account any professional experience which candidates
Action brought on 12 November 2002 by the Com-                          may possess for the purposes of assimilating a diploma
mission of the European Communities against the French                  obtained in another Member State and access to the regulated
                             Republic                                   profession in question.
                          (Case C-402/02)
                                                                        (1 ) Council Directive 89/48/EEC of 21 December 1988 on a general
                                                                             system for the recognition of higher-education diplomas awarded
                          (2002/C 323/41)
                                                                             on completion of professional education and training of at least
                                                                             three years’ duration (OJ 1988 L 19, p. 16) .
                                                                        (2 ) Council Directive 92/51/EEC of 18 June 1992 on a second general
An action against the French Republic was brought before the                 system for the recognition of professional education and training
Court of Justice of the European Communities on 12 Novem-                    to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25) .
ber 2002 by the Commission of the European Communities,
represented by M. Patakia and D. Martin, acting as Agents,
with an address for service in Luxembourg.
The applicant claims that the Court should :
—     Declare that, by failing to bring into force, in order to         Action brought on 12 November 2002 by the Com-
      grant access to the profession of teacher specialising in         mission of the European Communities against the United
      the hospital public service or, on the other hand, in the                                         Kingdom
      national public service, a procedure for the mutual
      recognition of diplomas and by retaining national legis-
      lation and practice of the committee for the assimilation                                     (Case C-405/02)
      of diplomas which takes no account of the professional
      experience of migrant workers, the French Republic has                                        (2002/C 323/42)
      failed to fulfil its obligations under Directives 89/48/
      EEC (1) and 92/51/EEC ( 2) and Article 39 EC Treaty; and
—     Order the French Republic to pay the costs.
                                                                        An action against the United Kingdom was brought before the
                                                                        Court of Justice of the European Communities on 12 Novem-
                                                                        ber 2002 by the Commission of the European Communities,
Pleas in law and main arguments                                         represented by Maria Patakia and Karen Banks, acting as
                                                                        agents, with an address for service in Luxembourg.
A profession is a regulated profession in a Member State
within the meaning of Directives 89/48 and 92/51 where it is
authorised in that Member State and access thereto or the               The Applicant claims that the Court should:
pursuit thereof is reserved to persons who, directly or
indirectly, meet the statutory conditions governing the rules of        (1) declare that, by failing to adopt all the laws, regulations
that profession. The fact that access to a similar profession in               and administrative provisions necessary to comply with
the private or associative sector is not subject to the same                   Directive 1999/42/EC of the European Parliament and of
condition is irrelevant in that regard. Likewise, the statement                the Council of 7 June 1999 on the establishment of a
made by the French authorities in their reply to the reasoned                  mechanism for the recognition of qualifications in respect
opinion that a profession is not ‘regulated’ unless it is subjected            of the professional activities covered by the Directives on
to a condition regarding the conferment of a diploma arising                   liberalisation and transitional measures and sup-
from a legislative provision of general application is erroneous               plementing the general systems for the recognition of
in law. Since Directives 89/48 and 92/51 are applicable                        qualifications ( 1), or in any event by failing to communi-
inasmuch as they concern access to the regulated profession                    cate them to the Commission, the United Kingdom has
of teachers specialising in the hospital public service and in                 failed to fulfil its obligations under the Directive;
the national civil service, it is incumbent on the French
authorities to provide for a procedure for the mutual recog-            (2) order the United Kingdom to pay the costs of this action.


title: Case T-2/07: Judgment of the General Court of 16 September 2013 — Spain v Commission (Cohesion fund — Regulation (EC) No 1164/94 — Projects concerning the clearance of the hydrographical basin of Júcar (Spain) — Partial withdrawal of financial assistance — Public works contracts — Award criteria — Economically most advantageous tender — Equal treatment — Transparency — Eligibility of expenditure — Determination of the financial corrections — Article H(2) of Annex II of Regulation (EC) No 1164/94 — Proportionality)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/19

         Judgment of the General Court of 16 September 2013 — Spain v Commission
   (Case T-2/07) (1)

   (Cohesion fund - Regulation (EC) No 1164/94 - Projects concerning the clearance of the hydrographical basin of Júcar (Spain) - Partial withdrawal of financial assistance - Public works contracts - Award criteria - Economically most advantageous tender - Equal treatment - Transparency - Eligibility of expenditure - Determination of the financial corrections - Article H(2) of Annex II of Regulation (EC) No 1164/94 - Proportionality)
   2013/C 325/31
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented: initially by J. M. Rodríguez Cárcamo, then A. Rubio González, lawyers in the State legal service)

      Defendant: European Commission (represented: initially by A. Steiblytė and L. Escobar Guerrero, Agents, and M. Canal Fontcuberta, lawyer, then A. Steiblytė and S. Pardo Quintillán, Agents)

      Re:

   Application for annulment of Commission Decision C(2006) 5102 of 20 October 2006, reducing the financial assistance from the Cohesion Fund to the group of projects bearing the reference 2001.ES.16.C.PE.050 and concerning the clearance of the hydrographical basin of Júcar (Spain).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders the Kingdom of Spain to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 56, 10.3.2007.


title: Case T-143/13: Action brought on 13 March 2013 — Zhejiang Heda Solar Technology v Commission

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/23

         Action brought on 13 March 2013 — Zhejiang Heda Solar Technology v Commission
   (Case T-143/13)
   2013/C 123/40
   Language of the case: French

      Parties

      Applicant: Zhejiang Heda Solar Technology Co. Ltd (Fuyang, China) (represented by: V. Akritidis and Y. Melin, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul, pursuant to Article 263 of the Treaty on the Functioning of the European Union, the decision of the European Commission communicated by letter of 3 January 2013, No H4/JN/Ref.t13.000011, informing the applicant that it would not examine the applicant’s request to be granted the status of undertaking operating under market economy conditions, filed pursuant to Article 2(7)(b) of Council Regulation (EC) No 1225/2009, in the antidumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components originating in the People’s Republic of China, opened on 6 September 2012 (AD 590);

               —

               Declare inapplicable to the applicant as regards the present application, by virtue of Article 277 of the Treaty on the Functioning of the European Union, Regulation (EU) No 1168/2012 of the European Parliament and of the Council of 12 December 2012 amending Council Regulation (EC) No 1225/2009 on protection against dumped imports from countries not members of the European Community (OJ 2012 L 344, p. 1);

               —

               And, consequently, order the Commission and any interveners to pay all the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law, alleging breach of the principles of legal certainty, legitimate expectations and proportionality, in that the contested decision withdrew, with retroactive effect, the applicant’s previously acquired right to have its request for the status of undertaking operating under market economy conditions examined by the Commission without there being an overriding interest to justify that withdrawal.


title: Case C-348/11: Reference for a preliminary ruling from the Tribunal d’Instance, Paris (France) lodged on 4 July 2011 — Thomson Sales Europe SA v Administration des Douanes (National Directorate for Customs Intelligence and Investigations)

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/5

         Reference for a preliminary ruling from the Tribunal d’Instance, Paris (France) lodged on 4 July 2011 — Thomson Sales Europe SA v Administration des Douanes (National Directorate for Customs Intelligence and Investigations)
   (Case C-348/11)
   2011/C 282/09
   Language of the case: French

      Referring court

   Tribunal d’Instance, Paris

      Parties to the main proceedings

      Applicant: Thomson Sales Europe SA

      Defendant: Administration des Douanes (National Directorate for Customs Intelligence and Investigations)

      Questions referred

               1.

               Is the investigation carried out by OLAF in Thailand and initiated on the basis of provisions concerning preferential origin invalid since it is contrary to international law, namely to the principle of full sovereignty and the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty of the UN General Assembly of 21 December 1965?

               2.

               Is the investigation carried out by OLAF in Thailand and initiated on the basis of provisions concerning preferential origin invalid where, as in the present case, OLAF did not strictly comply with Article 94 of the regulation implementing the Community Customs Code?

               3.

               Is the investigation carried out by OLAF in Thailand invalid and may the information collected during OLAF’s investigation be used to challenge the origin applicable under ordinary law when:

                           —

                           the information was sought in the context of an investigation on preferential origin;

                           —

                           OLAF infringed Community legislation and in particular Regulation (EC) No 1073/1999 (1) as it did not act ‘in accordance with the cooperation agreements in force, in third countries’;

                           —

                           the competent local authority did not legally commit itself to providing assistance;

                           —

                           the information obtained was not communicated with the agreement of the competent local authority or in compliance with their domestic provisions applicable to the transfer of personal data to third countries;

                           —

                           the investigation was carried out unofficially, in complete confidentiality and without observing the rights of the defence?

               4.

               Are Council Regulation (EC) No 710/95 of 27 March 1995 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the People’s Republic of China, the Republic of Korea, Singapore and Thailand (2) and amending Council Regulation No 2584/98 of 27 November 1998 (3) invalid because the application of zeroing in determining the weighted average dumping margin was referred to neither in their preambles nor in the preamble to the previous regulation, Commission Regulation (EC) No 2376/94 of 27 September 1994 imposing a provisional anti-dumping duty on imports of colour television receivers originating in Malaysia, the People’s Republic of China, the Republic of Korea, Singapore and Thailand (4)?

               5.

               Are Council Regulation (EC) No 710/95 of 27 March 1995 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the People’s Republic of China, the Republic of Korea, Singapore and Thailand and amending Council Regulation No 2584/98 of 27 November 1998 invalid in so far as the Council of the European Union applied, for the purposes of determining the dumping margin for the product covered by the investigation, the zeroing method to the negative dumping margins for each type of product concerned?

      (1)  Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).

      (2)  OJ 1995 L 73, p. 3.

      (3)  OJ 1998 L 324, p. 1.

      (4)  OJ 1994 L 255, p. 50.


title: Case C-696/15 P: Appeal brought on 23 December 2015 by the Czech Republic against the judgment of the General Court (Seventh Chamber) delivered on 8 October 2015 in Joined Cases T-659/13 and T-660/13 –Czech Republic v Commission

text:
               29.2.2016

               EN

               Official Journal of the European Union

               C 78/8

         Appeal brought on 23 December 2015 by the Czech Republic against the judgment of the General Court (Seventh Chamber) delivered on 8 October 2015 in Joined Cases T-659/13 and T-660/13 –Czech Republic v Commission
   (Case C-696/15 P)
   (2016/C 078/09)
   Language of the case: Czech

      Parties

      Appellant: Czech Republic (represented by: M. Smolek, J. Vláčil and T. Müller, acting as Agents)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               set aside the judgment under appeal,

               —

               annul Regulation No 885/2013 (1) and Regulation No 886/2013 (2) in their entirety, and

               —

               order the European Commission to pay the costs.

         In the alternative:

               —

               set aside the judgment under appeal,

               —

               annul Articles 3(1), 8 and 9(1)(a) of Regulation No 885/2013 and Articles 5(1), 9 and 10(1)(a) of Regulation No 886/2013, and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The appellant puts forward three grounds of appeal.
   First ground of appeal: breach of the principle of legal certainty. In the judgment under appeal the General Court erred in law by reaching the conclusion that the obligations under Regulation No 885/2013 and Regulation No 886/2013 do not apply to a Member State which has not yet decided to deploy in its territory the applications and services of intelligent transport systems, even though that conclusion does not follow from those regulations.
   Second ground of appeal: infringement of Article 13(2) of the Treaty on European Union in conjunction with Article 290 of the Treaty on the Functioning of the European Union. In the judgment under appeal the General Court erred in law by reaching the conclusion that, when the Commission adopts acts under delegated powers, it has a wide enough discretion for it not to have to remain within the bounds of the specific delegating provisions.
   Third ground of appeal: procedural errors before the General Court. In the judgment under appeal the General Court badly distorted several arguments put forward by the Czech Republic, and there were some arguments of the Czech Republic which it did not address at all. Those procedural errors had a fundamental effect on the General Court’s assessment of the pleas in law.

      (1)  OJ 2013 L 247, p. 1.

      (2)  OJ 2013 L 247, p. 6.


title: Case C-444/16: Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 8 August 2016 — Immo Chiaradia SPRL v The Belgian State

text:
               7.11.2016

               EN

               Official Journal of the European Union

               C 410/5

         Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 8 August 2016 — Immo Chiaradia SPRL v The Belgian State
   (Case C-444/16)
   (2016/C 410/05)
   Language of the case: French

      Referring court

   Cour d’appel de Mons

      Parties to the main proceedings

      Applicant: Immo Chiaradia SPRL

      Defendant: The Belgian State

      Question referred

   ‘Is the fact that a company issuing a share option may record as income the purchase price of that option in the course of the financial year in which that option is taken up or at the end of its period of validity, in order to take into account the risk borne by the option issuer which results from the commitment he makes, [rather than] in the course of the tax year in which the option is purchased and its final price set — the risk borne by the issuer being valued separately by the recording of a provision — compatible with the accounting rules concerning balance sheets laid down by the Fourth Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies (OJ L 222, 14.08.1978, p. 11), according to which:

               —

               the annual accounts are to give a true and fair view of the company's assets, liabilities, financial position and profit or loss (Article 2(3) of the Directive);

               —

               provisions for liabilities and charges are intended to cover losses or debts the nature of which is clearly defined and which at the date of the balance sheet are either likely to be incurred, or certain to be incurred but uncertain as to amount or as to the date on which they will arise (Article 20(1) of the Directive);

               —

               the principle of prudence must in all circumstances be observed, and in particular:

                           —

                           only profits made at the balance sheet date may be included;

                           —

                           account must be taken of all foreseeable liabilities and potential losses arising in the course of the financial year concerned or of a previous one, even if such liabilities or losses become apparent only between the date of the balance sheet and the date on which it is drawn up (Article 31(1) (c), (aa) and (bb) of the Directive);

               —

               account must be taken of income and charges relating to the financial year, irrespective of the date of receipt or payment of such income or charges (Article 31(1)(d) of the Directive);

               —

               the components of asset and liability items are to be valued separately (Article 31(1)(e) of the Directive);

         …?’


title: Case T-323/13: Action brought on 14 June 2013 — Pure Fishing/OHIM — Łabowicz (NANOFIL)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/31

         Action brought on 14 June 2013 — Pure Fishing/OHIM — Łabowicz (NANOFIL)
   (Case T-323/13)
   2013/C 252/52
   Language in which the application was lodged: English

      Parties

      Applicant: Pure Fishing, Inc. (Spirit Lake, United States) (represented by: J. Dickerson, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Edward Łabowicz (Kłodzko, Poland)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Board of Appeal in case no R1241/2012-2;

               —

               Authorize for registration CTM application no 9611872; and

               —

               Order the defendant to pay the costs of the action.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘NANOFIL’ for goods in class 28 — Community trade mark application No 9 611 872

      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 of the figurative mark ‘NANO’ for goods in class 28

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.


title: Case C-333/08: Action brought on 18 July 2008 — Commission of the European Communities v French Republic

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/16

         Action brought on 18 July 2008 — Commission of the European Communities v French Republic
   (Case C-333/08)
   (2008/C 285/27)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Stromsky, Agent)

      Defendant: French Republic
   Form of order sought

               —

               declare that, by providing, in respect of technological adjuvants and foodstuffs in the preparation of which were used technological adjuvants originating from other Member States where they were lawfully manufactured and/or placed on the market, for a scheme of prior authorisation which does not comply with the principle of proportionality, the French Republic has failed to fulfil its obligations under Article 28 EC;

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   By its action, the Commission complains of the restrictions on trade resulting from the French legislation relating to technological adjuvants. By introducing a system of prior authorisation for those products and for foodstuffs in the preparation of which were used technological adjuvants originating from other Member States where they were lawfully manufactured and/or placed on the market, that legislation makes the marketing of those foodstuffs and adjuvants more onerous and costly, thereby hindering intra-Community trade.
   According to the Commission, a scheme of prior authorisation may, in certain circumstances, be justified on grounds of public health, but such a scheme would, in any event, have to satisfy the criterion of proportionality and comply with the conditions laid down in the case-law, including those set out in Case C-24/00 Commission v France [2004] ECR I-1277. In the present case, a number of those conditions are not satisfied, as the procedures provided for by that legislation are not easily accessible, expeditious and susceptible to challenge by way of legal proceedings in the event of authorisation being refused.