title: Action brought on 11 January 1996 by the Commission of the European Communities against the Kingdom of Spain (Case C-5/96)

text:
16 . 3 . 96             EN                    Official Journal of the European Communities                                          No C 111
Pleas in law and main arguments:                                         The applicant claims that the Court should :
It is clear from Article 4 ( 1 ) of Directive 79/409/EEC that the        1 . declare that, by failing to adopt and bring into force or,
designation of special protection areas is the primary means                   in the alternative, to notify within the prescribed period
whereby the Member States must ( seek to ) ensure the                          the laws, regulations or administrative provisions
survival and reproduction of the bird species mentioned in                     necessary to comply with Council Directive
Annex I thereto . The fact that in a Member State some                         90/658/EEC (') of 4 December 1990, in particular
populations of such species are declining justifies the                        Article 8 thereof, and those necessary to comply with
suspicion that the Member State has not complied with its                      Directive 93/16/EEC ( 2 ) of 5 April 1993 , in particular
obligation to achieve the appropriate result. In fact, in the                  Articles 3 and 9(3 ) and ( 4 ) thereof, which correspond to
Netherlands, populations of nine of the bird species                           Articles 3 and 9 ( a ) ( 1 ) and ( 2 ) respectively of Directive
mentioned in Annex I have fallen by over 50% .                                 75/362/EEC ( 3 ) as amended by Article 1 of Directive
                                                                               90/568/EEC, the Kingdom of Spain has failed to fulfil its
Under the last subparagraph of Article 4(1 ), Member States                    obligations under Articles 5 and 189 of the Treaty
must classify the most suitable territories in number and size                 establishing the European Community .
as special protection areas . With a view to a coherent general
system of special protection areas, the Commission had                   2 . order the defendant to pay the costs .
scientific surveys carried out by the Secretariat de la flore et
de la faune of the Musee national d'histoire naturelle in                Pleas in law and main arguments:
Paris, which drew up an inventory of habitats which should
be classified, on ornithological criteria , as special protection        The mandatory nature of the third paragraph of Article 189
areas; that list was updated in 1989 and 1994 by the                     and the first paragraph of Article 5 of the EC Treaty requires
International Council for Bird Preservation ('Inventory of               Member States to adopt the measures necessary to comply
Important Bird Areas in the European Community' —                        with the directives which are addressed to them within the
IBA89 and IBA94 ). As regards the legal relevance of IBA89               period prescribed therein. That period expired on 1 July
and IBA94, the Commission considers that the objectives of               1991 without the Kingdom of Spain having brought into
Article 4(1 ) would be best served if the Member States were             force the necessary provisions.
in fact to classify all the areas mentioned in the inventory as
special protection areas . Since, however, the Member States             (') OJ No L 353 , 17. 12 . 1990 , p . 73 .
enjoy a certain discretionary power in this field, it does not           ( 2 ) OJ No L 165 , 7. 7 . 1993 , p . 1 .
seem to the Commission to be possible to impose that                     ( 3 ) OJ No L 167, 30 . 6 . 1975 , p . 1 .
maximum result by law. On the other hand, there may be a
breach of the obligation of classification if a Member State
manifestly disregards the number and size of the IBA89 and
IBA94 areas. This is particularly so if a Member State
classifies as special protection areas under half, in terms
both of number and of total size, of the areas listed in IBA89           Reference for preliminary ruling from the Bundes
and IBA94 . Special protection areas must, moreover, be                  verwaltungsgericht by order of that court of 3 1 August 1995
sufficiently varied and representative to offer protection for           in the case of Badische Erfrischungs-Getranke GmbH 8t Co.
all the bird species listed in Annex I. The number and size of                           KG v. Land Baden-Wiirttemberg
the special protection areas classified by the Netherlands are                                      ( Case C- 17/96 )
not sufficient to meet those requirements .
                                                                                ( 96/C 77/ 14
                                                                         Reference has been made to the Court of Justice of
                                                                         the European Communities by order of the
                                                                         Bundesverwaltungsgericht ( Federal Administrative Court)
                                                                         — Third Senate — of 3 1 August 1 995 , received at the Court
Action brought on 11 January 1996 by the Commission of                   Registry on 19 January 1996 , for a preliminary ruling in the
the European Communities against the Kingdom of                          case of Badische Erfrischungs-Getranke GmbH & Co . KG
                                 Spain                                   v. Land Baden-Wurttemberg on the following questions :
                          ( Case C-5/96
                            ( 96/C 77/ 13 )                              1 . Is Article 1 ( 1 ) of Council Directive 80/777/EEC of
                                                                                15 July 1980 { l ) in conjunction with Annex I thereto
                                                                               ( Section I. Definition ) to be interpreted as meaning that
                (Language of the case: Spanish)                                water — apart from ' old water' covered by the second
                                                                               subparagraph of paragraph 2 of Section I. Definition of
An action against the Kingdom of Spain was brought before                      Annex I — is to be recognized as being natural mineral
the Court of Justice of the European Communities on                            water only if it has properties favourable to health and,
11 January 1996 by the Commission of the European                              if so, are those provisions to be interpreted as meaning
Communities, represented by B. J. Drijber and J. R. Vidal                      that those properties must be proved ?
Puig, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gomez de               2 . May the properties favourable to health which may be
la Cruz, of its Legal Service .                                                necessary also ensue from the absence or low content of


title: Case C-77/03: Action brought on 20 February 2003 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 101/22                  EN                          Official Journal of the European Union                                        26.4.2003
Q ues ti o n 1                                                                Pleas in law and main arguments
Is it compatible with point 8(a)(iii) of Article 4 of the                     Article 249 EC, under which a directive shall be binding, as to
First Medicinal Products Directive (Directive 65/65/EEC ( 1), as              the result to be achieved, upon each Member State, carries by
amended) for a product to be authorised under the abridged                    implication an obligation on the Member States to observe the
application procedure when a salt of the active substance in                  period for compliance laid down in the directive. That period
the product is changed from the one used in the reference                     expired on 17 July 2001 without Ireland having enacted the
product?                                                                      provisions necessary to comply with the directive referred to
                                                                              in the conclusions of the Commission.
Q ues ti o n 2                                                                (1 ) OJ L 201 of 17.7.1998, p. 88.
Can the abridged application procedure be used when an
applicant, on its own initiative or at the request of national
health authorities, submits additional documentation in the
form of certain pharmacological or toxicological tests or
clinical trials with a view to demonstrating that the product is
‘essentially similar to’ the reference product?                               Action brought on 20 February 2003 by the Commission
                                                                              of the European Communities against the Federal Repub-
                                                                                lic of Germany
( 1) Council Directive 65/65/EEC of 26 January 1965 on the approxi-
     mation of provisions laid down by Law, Regulation or Adminis-
     trative Action relating to proprietary medicinal products (OJ B 22                                  (Case C-77/03)
     of 9.2.1965, p. 369).
                                                                                (2003/C 101/37)
                                                                              An action against the Federal Republic of Germany was
                                                                              brought before the Court of Justice of the European Communi-
Action brought on 19 February 2003 by the Commission                          ties on 20 February 2003 by the Commission of the European
         of the European Communities against Ireland                          Communities, represented by Claudia Schmidt, of the Euro-
                                                                              pean Commission’s Legal Service, acting as Agent, with an
                                                                              address for service in Luxembourg at the office of Carlos
                             (Case C-75/03)                                   Gómez de la Cruz, also of the European Commission’s Legal
                                                                              Service, Wagner Centre C 254, Kirchberg.
                            (2003/C 101/36)
                                                                              The applicant claims that the Court should:
An action against Ireland was brought before the Court of                     1.    declare that, by failing to bring into force the laws,
Justice of the European Communities on 19 February 2003 by                          regulations and administrative provisions necessary to
the Commission of the European Communities, represented                             comply with Directive 98/71/EC ( 1) of the European
by Nicola Yerrell, acting as agent, with an address for service                     Parliament and of the Council of 13 October 1998 on
in Luxembourg.                                                                      the legal protection of designs and/or by failing to inform
                                                                                the Commission of those provisions, the Federal Republic
                                                                                of Germany has failed to fulfil its obligations under that
The Applicant claims that the Court should:                                         directive;
(1) find that Ireland has failed in its obligations under the EC              2.    order the Federal Republic of Germany to pay the costs.
       Treaty by failing to adopt the laws, regulations and
       administrative provisions necessary to comply with
       Council Directive 98/50/EC of 29th June 1998 amending
       Directive 77/187/EEC on the approximation of the laws                  Pleas in law and main arguments
       of the Member States relating to the safeguarding of
       employees’ rights in the event of transfers of undertakings,
       businesses or parts of businesses (1), or by failing to                The period for transposition expired on 28 October 2001.
       ensure that employers’ and employees’ representatives
       have introduced the necessary provisions by agreement,
       and/or by failing to inform the Commission thereof; and                (1 ) OJ L 289 of 28.10.1998, p. 28.
(2) condemn Ireland to bear the costs of the procedure.


title: Case C-358/14: Action brought on 22 July 2014  — Republic of Poland v European Parliament and Council of the European Union

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/42

         Action brought on 22 July 2014 — Republic of Poland v European Parliament and Council of the European Union
   (Case C-358/14)
   2014/C 315/69
   Language of the case: Polish

      Parties

      Applicant: Republic of Poland (represented by: B. Majczyna)

      Defendants: European Parliament, Council of the European Union

      Form of order sought

   The applicant claims the Court should:

               —

               declare invalid Article 2.25, Article 6(2)(b), Article 7(1) to (5), (7), first sentence, and (12) to (14), and Article 13(1)(c) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC; (1)

               —

               order the European Parliament and the Council of the European Union to pay the costs.

      Pleas in law and main arguments

   The Republic of Poland submits in its action that the contested provisions contain complex and novel rules set out for the first time in Directive 2014/40/EU, the objective of which is, by means of the establishment of a prohibition of the marketing of tobacco products with characterising flavours and through the fixing of measures accompanying that prohibition, to exclude entirely such products, including menthol cigarettes, from the internal market. In view of the share held by menthol cigarettes in the European Union market for tobacco products, that prohibition brings with it very serious repercussions for the manufacture of menthol cigarettes.
   The Republic of Poland raises the following objections to the contested provisions:

               First: breach of Article 114 TFEU. The prohibition of the marketing of menthol cigarettes was introduced even though there are no discrepancies between national legal provisions which could restrict the movement of goods. This prohibition does not contribute to improving the functioning of the internal market but, on the contrary, results in the creation of obstacles which did not exist before the directive was adopted.

               Second: infringement of the principle of proportionality. The prohibition of the marketing of menthol cigarettes is not an appropriate means for attaining the objectives pursued by the directive. Furthermore, this prohibition runs counter to the requirement that measures taken must be necessary for attaining the objectives pursued. The costs involved in introducing the prohibition exceed by far any potential advantages.

               Third: infringement of the principle of subsidiarity. The prohibition of the marketing of menthol cigarettes runs counter to the principle of subsidiarity, in that the issue of menthol cigarette consumption, in regard to both the influence on public health and the potential social and economic costs of the prohibition of their sale, has a local character which is confined to a narrow group of Member States. For that reason, this issue has to be resolved at national level, and exclusively in those Member States in which there is a high level of consumption and manufacture of those products.

      (1)  OJ 2014 L 127, p. 1.


title: Case C-517/09: Reference for a preliminary ruling from the Collège d’autorisation et de contrôle du Conseil supérieur de l'audiovisuel (Belgium) lodged on 11 December 2009 — RTL Belgium SA (formerly TVI SA) v Conseil supérieur de l’audiovisuel

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/19

         Reference for a preliminary ruling from the Collège d’autorisation et de contrôle du Conseil supérieur de l'audiovisuel (Belgium) lodged on 11 December 2009 — RTL Belgium SA (formerly TVI SA) v Conseil supérieur de l’audiovisuel
   (Case C-517/09)
   2010/C 51/30
   Language of the case: French

      Referring court

   Collège d’autorisation et de contrôle du Conseil supérieur de l'audiovisuel

      Parties to the main proceedings

      Applicant: RTL Belgium SA (formerly TVI SA)

      Defendant: Conseil supérieur de l’audiovisuel

      Question referred

   Can the notion of ‘effective control both over the selection of the programmes and over their organisation’ in Article 1(c) of the Directive of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (1) [as amended by Directive 2007/65/EC] (the Audiovisual Media Services Directive) be interpreted as meaning that a company established in a Member State and licensed by the government of that Member State to provide an audiovisual media service does in fact exercise such control, even though it delegates, with an option to further delegate, to a third company established in another Member State, against payment of an indeterminate sum equal to the total advertising revenue generated by the broadcasting of that service, the actual production of all the programmes specific to that service, the communication to the public of programme scheduling information and the provision of financial and legal services, human resources, the management of infrastructure and other personnel-related services, and even though it is apparent that it is at the head offices of that third company that decisions are taken and implemented concerning the putting together of programmes and any deletions from or changes to the programming schedule in response to current events?

      (1)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298 p. 23)


title: Case T-487/13: Action brought on 6 September 2013 — Navarra de Servicios y Technologías v Commission

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/34

         Action brought on 6 September 2013 — Navarra de Servicios y Technologías v Commission
   (Case T-487/13)
   2013/C 313/64
   Language of the case: Spanish

      Parties

      Applicant: Navarra de Servicios y Technologías SA (Pamplona, Spain) (represented by: A. Andérez González, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should annul the contested decision in so far as it affects the applicant, and order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging breach of Article 107(1) TFEU.
               The applicant alleges, in that respect, that there was no State aid, since in the present case there is no State intervention through the transfer of State resources, no advantage in favour of undertakings carrying out an economic activity and no distortion of competition or threat to trade between the Member States.

               2.

               Second plea in law, alleging breach of Article 107(2) TFEU and of the Protocol on the system of public broadcasting in the Member States annexed to the Treaty of Amsterdam of 2 October 1997.
               In this respect, the applicant alleges that

                           —

                           the services of general economic interest, in respect of whose configuration, organisation and funding the Member States have a wide margin of discretion, are of a lawful nature.

                           —

                           it did not obtain a more favourable competitive position;

                           —

                           the Altmark criteria were observed in the present case, in that there are clearly defined, and expressly transferred, public service obligations and a detailed and an objective economic quantification was carried out that does not exceed the costs incurred in the discharge of the public service obligation.

               3.

               Third plea in law, alleging breach of Article 107(3)(c) TFEU, in that there is an objective of common interest in the present case, in respect of which the disputed measure is suitable and proportionate and does not provoke unnecessary distortions on the market.

               4.

               Fourth plea in law, alleging misuse of power between the objective of the contested decision and the ultimate purpose pursued through it, as well as a manifest disproportion between the theoretical aim pursued and the consequences of its application, which are contrary to the general interest and favour the commercial and economic interests of a specific operator or operators.


title: Case C-130/08: Action brought on 31 March 2008 — Commission of the European Communities v Hellenic Republic

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/25

         Action brought on 31 March 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-130/08)
   (2008/C 128/46)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: M. Kontou-Durande)

      Defendant: Hellenic Republic
   Form of order sought

               —

               declare that, by failing to adopt the laws, regulations and administrative measures necessary to ensure, in every case, examination of the merits of applications for asylum of third-country nationals who, in accordance with Article 16(1)(d) of Regulation (EC) No 343/2003, are transferred to Greece so as to be taken back for examination of their applications, the Hellenic Republic has failed to fulfil its obligations under Article 3(1) of Regulation No 343/2003;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments

               1.

               The United Nations High Commissioner for Refugees drew the Commission's attention to the question whether Greek legislation relating to the procedure for recognising foreign nationals as refugees is compatible with Regulation No 343/2003 in cases where the foreign national arbitrarily has left the country and a decision discontinuing the procedure for consideration of asylum has been made in his regard.

               2.

               This problem results from Article 2(8) of Presidential Decree No 61/99 (FEK (Official Gazette) A 63) of 6 April 1999, which concerns discontinuance of the procedure for consideration of asylum. That provision treats arbitrary departure of the applicant for asylum without his giving notice as a withdrawal and the procedure for examination of the application is discontinued by a decision of the Secretary General of the Ministry of Public Order that is notified to the person concerned as a person whose whereabouts are unknown. That decision can be set aside only if the applicant presents himself to the competent authorities again no later than three months from notification of the decision, and provided that he adduces evidence showing that his absence was due to force majeure.

               3.

               The passage of an applicant for asylum, without his giving notice, from the Member State in which he has submitted the application for asylum to another Member State is one of the typical situations that Regulation No 343/2003 seeks specifically to regulate so as to ensure that the merits of his application are examined by the State considered responsible for examining the application, under Article 16(1) of the regulation.

               4.

               However, the requirements imposed by Article 2(8) of the presidential decree have the combined effect of making it impossible in practice to challenge a discontinuance decision before the courts and to have real access to the procedure for determining a refugee's status.

               5.

               The Hellenic Republic acknowledged that Greek legislation may create a problem in relation to Regulation No 343/2003 and displayed willingness to take measures in that regard. Thus, it proposed solving the problem by means of the adoption of a presidential decree which would transpose Council Directive 2005/85/EC into national law and would specify that the provisions at issue would not apply in cases where Regulation No 343/2003 applied.

               6.

               At the same time it gave assurances that it would examine the merits of every application for asylum of persons who are transferred for re-examination within the framework of Regulation No 343/2003 and that it would revoke any discontinuance decisions that had been adopted.

               7.

               The Commission takes account of those assurances given by the Hellenic Republic. None the less, it considers that they are not sufficient to guarantee the required legal certainty regarding the correct implementation, in all cases of an application for asylum, of the regulation's provisions and in particular of the examination of the merits of every application for asylum, in such a way as to ensure actual and effective access for refugees to the procedures for making determinations.

               8.

               On the basis of the foregoing, the Commission considers that, by failing to adopt the necessary measures to ensure that it examines the merits of applications for asylum of third-country nationals in respect of whom a discontinuance decision has been issued on the ground of arbitrary departure and whom it has taken back, in accordance with Article 3(1) of Regulation No 343/2003, the Hellenic Republic has failed to fulfil its obligations under that provision.


title: Case C-377/02: Reference for a preliminary ruling by the Raad van State — IXe Kamer (Belgium) by judgment of that Court of 18 October 2002 in the case of NV Firma Leon van Parys against Belgisch Interventie- en Restitutiebureau (BIRB)

text:
11.1.2003               EN                    Official Journal of the European Communities                                          C 7/9
If the answer to the first question is in the negative:                  right in rem), being revoked on the sole ground that, as a result
                                                                         of a legislative amendment which had not yet taken effect at
                                                                         the time at which the abovementioned transaction was carried
2.    Is Article 45(1) of Regulation (EEC) No 1408/71 of the
                                                                         out, that transaction is regarded with retroactive effect as an
      Council of 14 June 1971 (1) on the application of social
                                                                         exempt transaction establishing no right to deduct?
      security schemes to employed persons, to self-employed
      persons and to members of their families moving within
      the Community, as amended and updated by Council
      Regulation (EC) No 118/97 of 2 December 1996 (2), to
      be interpreted as precluding a rule of a Member State
      which requires inter alia, as a condition of entitlement to
      an early old-age pension in the event of unemployment,
      that the worker concerned must have drawn a cash
      benefit on account of his unemployment from the
      unemployment insurance scheme of that Member State                 Reference for a preliminary ruling by the Raad van State
      within a certain period prior to the qualifying date?              — IXe Kamer (Belgium) by judgment of that Court of
                                                                         18 October 2002 in the case of NV Firma Leon van Parys
                                                                          against Belgisch Interventie- en Restitutiebureau (BIRB)
( 1) OJ L 149 [1971], p. 2.
( 2) OJ L 28 [1997], p. 1.
                                                                                (Case C-377/02)
                                                                                (2003/C 7/16)
                                                                         Reference has been made to the Court of Justice of the
Reference for a preliminary ruling by the Hoge Raad der                  European Communities by judgment of the Raad van State
Nederlanden by judgment of that Court of 18 October                      (Council of State) of 18 October 2002, received at the Court
2002 in the case of Stichting ‘Goed Wonen’ against                       Registry on 21 October 2002, for a preliminary ruling in the
                 Staatssecretaris van Financiën                          case of NV Firma Leon van Parys against Belgisch Interventie-
                                                                         en Restitutiebureau (BIRB) (Belgian Intervention and Refund
                                                                         Bureau) on the following questions:
                           (Case C-376/02)
                                                                         1.    Do Council Regulation (EEC) No 404/93 (1) of 13 Febru-
                                                                               ary 1993 on the common organisation of the market in
                            (2003/C 7/15)                                      bananas, as amended by Council Regulation (EC)
                                                                               No 1637/98 ( 2) of 20 July 1998, Commission Regulation
                                                                               (EC) No 2362/98 (3) of 28 October 1998 laying down
                                                                               detailed rules for the implementation of Council Regu-
                                                                               lation (EEC) No 404/93 regarding imports of bananas into
Reference has been made to the Court of Justice of the                         the Community, Commission Regulation (EC) No 2806/
European Communities by judgment of the Hoge Raad der                          98 ( 4) of 23 December 1998 on the issuing of import
Nederlanden (Supreme Court of the Netherlands) of 18 Octo-                     licences for bananas under the tariff quotas and for
ber 2002, received at the Court Registry on 21 October 2002,                   traditional ACP bananas for the first quarter of 1999 and
for a preliminary ruling in the case of Stichting ‘Goed                        on the submission of new applications, Commission
Wonen’ against Staatssecretaris van Financiën on the following                 Regulation (EC) No 102/99 ( 5) of 15 January 1999 on the
question:                                                                      issuing of import licences for bananas under the tariff
                                                                               quotas and for traditional ACP bananas for the first
                                                                               quarter of 1999 (second period) and Regulation (EC)
                                                                               No 608/1999 (6) of 19 March 1999 on the issuing of
Under circumstances such as those set out at paragraph 6.3.4.
                                                                               import licences for bananas under the tariff quotas and
above, do Articles 17 and 20 of the Sixth Directive or
                                                                               for traditional ACP bananas for the second quarter of
the European law principles of the protection of legitimate
                                                                               1999 and on the submission of new applications infringe
expectations and of legal certainty preclude — in a case not
                                                                               Article I, Article XIII:1 and Article XIII:2(d) of GATT
involving fraud or abuse or any question of a change in
                                                                               1994, taken separately or together, inasmuch as they:
planned use, as mentioned in paragraphs 50 and 51 of the
judgment of the Court of Justice in Schloßstraße — the
adjustment of VAT not deducted by a taxable person which he                    —     introduce to the benefit of twelve countries named
paid in respect of (immovable) property which is supplied to                         in the annex to Regulation No 1637/98 a joint
him and which he originally intended for letting (which is not                       quota of a maximum of 857 700 kg [sic] of bananas
subject to VAT), but subsequently used for a transaction                             (‘traditional ACP bananas’) and, moreover, in that
subject to VAT (in the present case, the grant of a usufructuary                     that quota does not accord with a distribution of
 ---pagebreak--- C 7/10                  EN                    Official Journal of the European Communities                                        11.1.2003
            trade that approaches trade without restrictions in          Reference for a preliminary ruling by the Hoge Raad der
            so far as it is included in the system introduced by         Nederlanden by judgment of that Court of 18 October
            Regulation 1637/98, the import of bananas being              2002 in the case of Waterschap Zeeuws Vlaanderen
            regulated solely on the basis of a tariff quota;                           against Staatssecretaris van Financiën
      —     introduce a tariff quota for a total quantity of
            2 535 000 tonnes for third countries and for non-
            traditional ACP bananas and then allocate that tariff                                   (Case C-378/02)
            quota in percentage terms on the basis of a non-
            representative period, since the import of bananas
            in the period from 1994 to 1996 was already subject
            to restrictive conditions?
                                                                                (2003/C 7/17)
2.    Do the regulations referred to in paragraph 1 infringe
      Article 4 of the Framework Agreement of 23 April 1993
      between the European Economic Community and the
      Cartagena Group and its member countries inasmuch as
      by that agreement, the European Community undertook
      to have its relations with Ecuador governed by the
      provisions of GATT and to grant that country most-
      favoured-nation treatment?                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of the Hoge Raad der
                                                                         Nederlanden (Supreme Court of the Netherlands) of 18 Octo-
                                                                         ber 2002, received at the Court Registry on 21 October 2002,
3.    Do the Commission regulations referred to in paragraph 1           for a preliminary ruling in the case of Waterschap Zeeuws
      infringe the principle of the protection of legitimate             Vlaanderen against Staatssecretaris van Financiën on the
      expectations and the principle of good faith in inter-             following questions:
      national public law and international customary law,
      inasmuch as the Commission has not fulfilled the obli-
      gations arising for the Community from GATT 1994, has
      misused legal procedures and has not taken account of              1.     Does a body governed by public law have, as regards a
      judicial proceedings and of the outcome of an inter-                      capital item acquired by it which it supplies for consider-
      national dispute settlement procedure inasmuch as,
                                                                                ation to a third party, in respect of which supply it must
      despite declarations made at the time of the adoption of                  be regarded as a taxable person, a right to adjust the
      Regulation No 1637/98, it has not established a system
                                                                                turnover tax paid in respect of that acquisition pursuant
      under which import licences for bananas are issued to
                                                                                to Article 20 (in particular paragraphs 2 and 3) of the
      ‘genuine importers’?                                                      Sixth Directive (1) in so far as it has used that item for
                                                                                activities in which it engages as a public authority under
                                                                                Article 4(5) of that directive?
4.    Has the Commission exceeded the authority given to it
      by Council Regulation No 404/93, as amended by
      Regulation No 1637/98, by adopting the tariff quota for
      the import of bananas while disregarding the obligations           2.     Does a body governed by public law have, under the
      which arise for the Community from GATT 1994 and                          Sixth Directive, the right wholly to exclude a capital item
      GATS or which must, where appropriate, be taken into                      used partly for activities engaged in as a taxable person
      account, because of its avowed intention to adapt the                     and partly for activities engaged in as a public authority
      regime for the import of bananas into the Community to                    from its capital assets, as the Court of Justice has ruled in
      the applicable WTO agreements, as a positive rule of law                  respect of taxable natural persons?
      to be integrated into Community law?
( 1) OJ L 47 [1993], p. 1.                                               (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
( 2) OJ L 210 [1998], p. 28.                                                  harmonization of the laws of the Member States relating to
( 3) OJ L 293 [1998], p. 32.                                                  turnover taxes — Common system of value added tax: uniform
( 4) OJ L 349 [1998], p. 32.                                                  basis of assessment (OJ L 145 of 13.06.1977, p. 1).
( 5) OJ L 11 [1999], p. 16.
( 6) OJ L 75 [1999], p. 18.


Avis juridique important

|

E1994P0004

Reference for an advisory opinion by Marknadsdomstolen by order of that court of 30 August 1994 in the case of Konsumentombudsmannen against De Agostini (Svenska) Förlag AB (Case E-4/94)

Official Journal C 347 , 08/12/1994 P. 0013 - 0013

Reference for an advisory opinion by Marknadsdomstolen by order of that court of 30 August 1994 in the case of Konsumentombudsmannen against De Agostini (Svenska) Förlag AB (Case E-4/94) (94/C 347/11)Reference has been made to the EFTA Court by an order of 30 August 1994 of Marknadsdomstolen (the Market Court), Sweden, which was received at the Court Registry on 12 September 1994, for an advisory opinion in the case of Konsumentombudsmannen (the Consumer Ombudsman) against De Agostini (Svenska) Förlag AB, on the following questions:1. Does Article 2 (2) of Council Directive 89/552/EEC (the TV Directive) or the transmitting State principle contained therein prevent a receiving State from taking action against an advertisement which is distributed by an advertiser by means of television broadcasts from other EEA States?2. Is the application of the provision in Section 11 (1) of Radiolagen (the Swedish Radio Act), which prohibits advertising aimed at children, compatible with Article 11 of the EEA Agreement?


title: Case T-442/16: Action brought on 4 August 2016 — Šroubárna Ždánice v Council

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/42

         Action brought on 4 August 2016 — Šroubárna Ždánice v Council
   (Case T-442/16)
   (2016/C 392/55)
   Language of the case: Czech

      Parties

      Applicant: Šroubárna Ždánice a.s. (Kyjov, Czech Republic) (represented by: M. Osladil, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               find that the European Union is obliged to pay the applicant the sum of CZK 75 502 534 as compensation for damage;

               —

               order the European Union to pay the applicant’s costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law, alleging that all the conditions are satisfied for the non-contractual liability for damage of the European Union to be established in accordance with Article 268 TFEU in conjunction with the second paragraph of Article 340 TFEU:

               —

               by imposing an anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China, later extended to imports from Malaysia, the European Union breached its obligations arising from membership of the WTO, specifically laid down in the Anti-Dumping Agreement;

               —

               breaching the Anti-Dumping Agreement produced a breach of Article 216(2) TFEU;

               —

               as a result of the unlawful action by the European Union, the applicant incurred damage in the amount of CZK 75 502 534;

               —

               there was a causal relationship between the amount of damage and the unlawful conduct of the European Union.


title: Joined Cases C-217/13 and C-218/13: Judgment of the Court (Third Chamber) of 19 June 2014 (request for a preliminary ruling from the Bundespatentgericht — Germany) — Oberbank AG (C-217/13), Banco Santander SA (C-218/13), Santander Consumer Bank AG (C-218/13) v Deutscher Sparkassen- und Giroverband eV (Request for a preliminary ruling — Trade marks — Directive 2008/95/EC — Article 3(1) and (3) — Mark consisting of a contourless red colour, registered for banking services — Application for a declaration of invalidity — Distinctive character acquired through use — Evidence — Consumer survey — Time when distinctive character through use is acquired — Burden of proof)

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/12

         Judgment of the Court (Third Chamber) of 19 June 2014 (request for a preliminary ruling from the Bundespatentgericht — Germany) — Oberbank AG (C-217/13), Banco Santander SA (C-218/13), Santander Consumer Bank AG (C-218/13) v Deutscher Sparkassen- und Giroverband eV
   (Joined Cases C-217/13 and C-218/13) (1)

   ((Request for a preliminary ruling - Trade marks - Directive 2008/95/EC - Article 3(1) and (3) - Mark consisting of a contourless red colour, registered for banking services - Application for a declaration of invalidity - Distinctive character acquired through use - Evidence - Consumer survey - Time when distinctive character through use is acquired - Burden of proof))
   2014/C 282/17
   Language of the case: German

      Referring court

   Bundespatentgericht

      Parties to the main proceedings

      Applicants: Oberbank AG (C-217/13), Banco Santander SA (C-218/13), Santander Consumer Bank AG (C-218/13)

      Defendant: Deutscher Sparkassen- und Giroverband eV

      Operative part of the judgment

               1)

               Article 3(1) and (3) 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 precluding an interpretation of national law according to which, in the context of proceedings raising the question whether a contourless colour mark has acquired a distinctive character through use, it is necessary in every case that a consumer survey indicate a degree of recognition of at least 70 %.

               2)

               Where a Member State has not exercised the power laid down in the second sentence of Article 3(3) of Directive 2008/95, the first sentence of Article 3(3) of that directive must be interpreted as meaning that, in the context of invalidity proceedings in respect of a mark which is intrinsically devoid of distinctive character, in order to assess whether that mark has acquired a distinctive character through use, it is necessary to examine whether such character was acquired before the date of filing of the application for registration of that mark. It is irrelevant in that regard that the proprietor of the mark at issue maintains that the mark has, in any event, acquired a distinctive character through use after the date of filing of the application for registration, but before the date of registration of that mark.

               3)

               Where a Member State does not exercise the power laid down in the second sentence of Article 3(3) of Directive 2008/95, the first sentence of Article 3(3) of that directive must be interpreted to the effect that it does not preclude, in the context of invalidity proceedings, the mark at issue from being declared invalid where it is intrinsically devoid of distinctive character and the proprietor of that mark has failed to show that it has acquired a distinctive character following the use which has been made of it before the date of filing of the application for registration.

      (1)  OJ C 189, 29.6.2013.


title: Case C-189/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden, lodged on 8 May 2008 — Zuid-Chemie B.V. v Philippo's Mineralenfabriek N.V./S.A., at present PMF Productions

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/13

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden, lodged on 8 May 2008 — Zuid-Chemie B.V. v Philippo's Mineralenfabriek N.V./S.A., at present PMF Productions
   (Case C-189/08)
   (2008/C 183/25)
   Language of the case: Dutch
   Referring court
   Hoge Raad der Nederlanden
   Parties to the main proceedings

      Appellant: Zuid-Chemie B.V.

      Respondent: Philippo's Mineralenfabriek N.V./S.A.
   Questions referred

               (a)

               Which harm is, in the case of unlawful conduct such as that which forms the basis for Zuid-Chemie's claim, to be treated as the initial harm resulting from that conduct: the harm which arises by virtue of the delivery of the defective product or the harm which arises when normal use is made of the product for the purpose for which it was intended?

               (b)

               If the latter is the case, can then the place where that harm arose be treated as ‘the place where the harmful event occurred’ within the meaning of Article 5(3) of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters only if that harm consists of physical harm to persons or goods, or is this also possible if (initially) only financial harm has been incurred?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


title: Case T-315/13: Order of the General Court of 16 July 2014  — Kompas MTS v Parliament and Others (Action for damages — Harm allegedly suffered following the transposition into Austrian law of a directive on the manufacture, presentation and sale of tobacco products — Labelling of tobacco products — Restrictions on the import of tobacco products — Action manifestly lacking any basis in law)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/60

         Order of the General Court of 16 July 2014 — Kompas MTS v Parliament and Others
   (Case T-315/13) (1)

   ((Action for damages - Harm allegedly suffered following the transposition into Austrian law of a directive on the manufacture, presentation and sale of tobacco products - Labelling of tobacco products - Restrictions on the import of tobacco products - Action manifestly lacking any basis in law))
   2014/C 315/101
   Language of the case: German

      Parties

      Applicant: Kompas mejni turistični servis d.d. (Kompas MTS d.d.) ((Ljublijana, Slovenia)) (represented by: J. Tischler, lawyer)

      Defendants: European Parliament (represented by: L. Visaggio and P. Schonard, acting as Agents), Council of the European Union (represented by: M. Simm and J. Herrmann, acting as Agents), and European Commission (represented initially by C. Cattabriga and F. Schatz, and subsequently by C. Cattabriga and S. Grünheid, acting as Agents)

      Re:

   Action for damages brought on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU seeking compensation for the harm which the applicant allegedly suffered following the implementation of quantitative restrictions on the import of tobacco products into Austrian territory following the adoption of Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (OJ 2001 L 194, p. 26).

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Kompas mejni turistični servis d.d. (Kompas MTS d.d.) is ordered to bear its own costs and to pay the costs incurred by the European Parliament, the Council of the European Union and the European Commission.

      (1)  OJ C 233, 10.8.2013.


title: Case C-86/10: Reference for a preliminary ruling from the Arbeitsgericht Siegburg (Germany) lodged on 12 February 2010 — Hüseyin Balaban v Zelter GmbH

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/24

         Reference for a preliminary ruling from the Arbeitsgericht Siegburg (Germany) lodged on 12 February 2010 — Hüseyin Balaban v Zelter GmbH
   (Case C-86/10)
   2010/C 113/38
   Language of the case: German

      Referring court

   Arbeitsgericht Siegburg

      Parties to the main proceedings

      Applicant: Hüseyin Balaban

      Defendant: Zelter GmbH

      Question referred

   Should Article 6 of Council Directive 2000/78/EC (1) of 27 November 2000 be interpreted as precluding national legislation which, in the selection of workers to be dismissed on operational grounds, allows age groups to be formed in order to ensure a balanced age structure and to ensure that the selection between comparable workers will be made in such a way that the ratio of the number of workers to be selected from the respective age groups to the total number of comparable workers to be dismissed corresponds to the ratio of the number of workers employed in the respective age groups to the number of all comparable workers of the undertaking?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case C-386/08: Judgment of the Court (Fourth Chamber) of 25 February 2010 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Brita GmbH v Hauptzollamt Hamburg-Hafen (EC-Israel Association Agreement — Territorial scope — EC-PLO Association Agreement — Refusal to apply to products originating in the West Bank the preferential tariff arrangements granted for products originating in Israel — Doubts as to the origin of the products — Approved exporter — Subsequent verification of invoice declarations by the customs authorities of the importing State — Vienna Convention on the Law of Treaties — Principle of the relative effect of treaties)

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/4

         Judgment of the Court (Fourth Chamber) of 25 February 2010 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Brita GmbH v Hauptzollamt Hamburg-Hafen
   (Case C-386/08) (1)

   (EC-Israel Association Agreement - Territorial scope - EC-PLO Association Agreement - Refusal to apply to products originating in the West Bank the preferential tariff arrangements granted for products originating in Israel - Doubts as to the origin of the products - Approved exporter - Subsequent verification of invoice declarations by the customs authorities of the importing State - Vienna Convention on the Law of Treaties - Principle of the relative effect of treaties)
   2010/C 100/06
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Brita GmbH

      Defendant: Hauptzollamt Hamburg-Hafen

      Re:

   Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, signed at Brussels on 20 November 1995 (OJ 2000 L 147, p. 3) and in particular Articles 32 and 33 of Protocol 4 of that agreement, and of the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed at Brussels on 24 February 1997 (OJ 1997 L 187, p. 3) — Refusal to apply the preferential tariff regime granted to goods originating in Israel to goods originating in an Israeli settlement in the West Bank — Power of the authorities of the importing State to verify subsequently the proof-of-origin certificates in the absence of doubts concerning the origin of the goods in question other than those resulting from a divergence of opinion between the parties to the EEC-Israel Association Agreement as to the interpretation of the expression ‘territory of the State of Israel’ and in the absence of previous resort, for the purposes of the interpretation of that expression, to the dispute-settlement procedure provided for under Article 33 of Protocol 4 of that agreement

      Operative part of the judgment

               1.

               The customs authorities of the importing Member State may refuse to grant the preferential treatment provided for under the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, signed in Brussels on 20 November 1995, where the goods concerned originate in the West Bank. Furthermore, the customs authorities of the importing Member State may not make an elective determination, leaving open the questions of which of the agreements to be taken into account — namely, the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, and the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 — applies in the circumstances of the case and of whether proof of origin falls to be issued by the Israeli authorities or by the Palestinian authorities.

               2.

               For the purposes of the procedure laid down in Article 32 of Protocol No 4 appended to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, the customs authorities of the importing State are not bound by the proof of origin submitted or by the reply given by the customs authorities of the exporting State where that reply does not contain sufficient information, for the purposes of Article 32(6) of that protocol, to enable the real origin of the products to be determined. Furthermore, the customs authorities of the importing State are not obliged to refer to the Customs Cooperation Committee set up under Article 39 of that protocol a dispute concerning the territorial scope of that agreement.

      (1)  OJ C 285, 08.11.2008.


title: Case C-303/12: Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 21 June 2012 — Guido Imfeld, Nathalie Garcet v État belge

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/18

         Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 21 June 2012 — Guido Imfeld, Nathalie Garcet v État belge
   (Case C-303/12)
   2012/C 287/33
   Language of the case: French

      Referring court

   Tribunal de première instance de Liège (Belgium)

      Parties to the main proceedings

      Applicants: Guido Imfeld, Nathalie Garcet

      Defendant: État belge

      Question referred

   Is it contrary to Article 39 [EC] that, as a result of the provision made under the Belgian tax system, specifically under Article 155 of the 1992 Income Tax Code and the second subparagraph of Article 134(1) of that Code, and regardless of whether Circular No Ci.RH.331/575.420 of 12 March 2008 is applied, the income earned in Germany by the first applicant — which is exempt from tax [in Belgium] pursuant to Article 17 of the Convention concluded between Germany and Belgium for the avoidance of double taxation — is taken into account for the purposes of calculating the tax payable in Belgium and is used as the basis of assessment for the grant of tax advantages provided for under the 1992 Income Tax Code, and those advantages, such as the tax-free allowance because of the first applicant’s family circumstances, are reduced or granted to a lesser extent than if the income of both applicants were earned in Belgium and if the higher income were that earned by the second applicant, rather than by the first applicant, whereas, in Germany, the income of the first applicant is taxed as though he were a single person and he is accordingly not entitled to all the tax advantages linked to his personal and family circumstances, of which the German tax authorities take account only in part?


title: Case C-118/09: Reference for a preliminary ruling from the Oberste Berufungs- und Disziplinarkommission (Austria) lodged on 1 April 2009 — Robert Koller v Rechtsanwaltsprüfungskommission beim Oberlandesgericht Graz

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/28

         Reference for a preliminary ruling from the Oberste Berufungs- und Disziplinarkommission (Austria) lodged on 1 April 2009 — Robert Koller v Rechtsanwaltsprüfungskommission beim Oberlandesgericht Graz
   (Case C-118/09)
   2009/C 141/48
   Language of the case: German

      Referring court

   Oberste Berufungs- und Disziplinarkommission

      Parties to the main proceedings

      Applicant: Robert Koller

      Defendant: Rechtsanwaltsprüfungskommission beim Oberlandesgericht Graz

      Questions referred

               1.

               Is Directive 89/48/EEC (1) applicable to the case of an Austrian national if he

                           (a)

                           successfully completed his diploma course in law in Austria and was awarded by decision the academic degree of ‘Magister der Rechtswissenschaften’,

                           (b)

                           after taking supplementary examinations at a Spanish university, which however involved less than three years of study, was then granted, by a certificate of recognition from the Ministry of Education and Science of the Kingdom of Spain, the entitlement to use the Spanish title ‘Licenciado en Derecho’, which is equivalent to the Austrian title, and

                           (c)

                           by registering with the Madrid Chamber of Lawyers gained the entitlement to use the professional title ‘abogado’ and actually pursued the profession of a lawyer in Spain for three weeks before making the application and for five months at the most before the first instance decision?

               2.

               In the event that Question 1 is answered in the affirmative:
               Is it compatible with Directive 89/48/EEC to interpret Paragraph 24 of the Bundesgesetz über den freien Dienstleistungsverkehr und die Niederlassung von europäischen Rechtsanwälten in Österreich (Federal law on the free movement of services and the establishment of European lawyers in Austria, ‘EuRAG’) as meaning that obtaining an Austrian degree in law and attaining the entitlement to use the Spanish title ‘Licenciado en Derecho’ after taking supplementary examinations at a Spanish university over a period of less than three years of study is not sufficient for admission to the aptitude test in Austria under Paragraph 24(1) of the EuRAG without proof of the practice required under national law (Paragraph 2(2) of the Rechtsanwaltsordnung (Lawyers’ Code, ‘RAO’), even if the applicant has been admitted as an ‘abogado’ in Spain without a comparable requirement for practice and had pursued the profession there for three weeks before making the application and for five months at the most before the first instance decision?

      (1)  OJ 1989 L 19, p. 16


title: Case T-202/05: Action brought on 18 May 2005 by Caroline Ogou against Commission of the European Communities

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/33

         Action brought on 18 May 2005 by Caroline Ogou against Commission of the European Communities
   (Case T-202/05)
   (2005/C 193/56)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 May 2005 by Caroline Ogou, resident in Abidjan (Ivory Coast), represented by M.-A. Lucas, lawyer.
   The applicant claims that the Court should:

               —

               annul the notice of competition COM/PB/04 of 6 April 2004 and the instructions relating to the electronic entry procedure to which it refers, or at least Paragraph IX.1 of the notice;

               —

               declare illegal the exclusion of her candidature which resulted from the impossibility with which she was confronted, on 12 May 2004, of obtaining access to the electronic entry form by following the procedure prescribed by the competition notice;

               —

               annul the decision of the ‘Internal Competition Task Force’, which was notified to her by an electronic message of 12 May 2004, rejecting the application, delivery of which she had procured on the same day by another method;

               —

               annul the subsequent formal steps in the competition procedure, in particular;

                           —

                           the list of candidates who meet the requirements of Article 28(a), (b) and (c) of the Staff Regulations, adopted by the Appointing Authority and transmitted to the Selection Board with the applicants' files;

                           —

                           the list, adopted by the Selection Board, of candidates who satisfy the requirements of the competition notice;

                           —

                           the list of suitable candidates adopted by the Selection Board at the conclusion of its work;

                           —

                           and the decisions of appointment which were or will be adopted by the Appointing Authority on that basis;

               —

               annul, if necessary, the decision of 3 February 2005 of the Director-General of Personnel and Administration rejecting her complaint of 12 August 2004 against the preceding contested acts,

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant, a member of the local staff of the Commission, was faced with the impossibility of entering electronically internal competition COM/PB/04 to pass from category C to category B, in accordance with the competition notice, since the Commission had configured the computer system for entering in such away as to obstruct the candidature of local staff.
   The applicant claims that Paragraph III.1 of the competition notice, which provides that officials and temporary staff are eligible and which therefore excludes local staff, is contrary to Articles 4, 27 and 29(1)(b) of the Staff Regulations, as well as to the principle of equal treatment. The obstacle to her entry ‘on line’ is, as a result, illegal. The applicant maintains in that regard that local staff who are in the service of the institution because of a connection under public law, form part of the internal or statutory staff and have, as a rule, the right of access to internal competitions, that they are entrusted with tasks equivalent to those of officials or temporary staff, and that their exclusion from internal competitions is therefore neither justified by the requirements of the posts to be filled nor compatible with the interests of the service.
   The applicant also claims that Paragraph IX of the competition notice, as well as Paragraph 2 of the instructions to candidates are contrary to Articles 2, 4 and 5 of Annex III to the Staff Regulations, because they prescribe a mandatory electronic entry procedure which was such as to exclude her candidature.


title: Action brought on 8 June 1998 by National Association of Licensed Opencast Operators (NALOO) against the Commission of the European Communities (Case T-89/98)

text:
C 234/36              EN                  Official Journal of the European Communities                                      25.7.98
provide an appropriate steatement of reasons for the                 concerned manufactured and exported to the Community
adoption of an anti-dumping duty in this form, thereby               by the applicants.
denying the applicant its fundamental right to a fair
hearing.                                                             The applicants plead infringement of the following articles
                                                                     of Council Regulation (EC) No 384/96 (2):
(1) Council Regulation (EC) No 449/98, OJ L 58 of 27.2.1998,
    p. 15.
(2) OJ L 56 of 6.6.1996, p. 1.                                       Ð Articles 2(8) and 2(9), in that the export price is
                                                                          determined as the price charged by Tata International
                                                                          to unrelated customers in the Community.
                                                                     Ð Article 2(10) in that, as an adjustment pursuant to
                                                                          Article 2(10)(i), a notional commission payment is
Action brought on 7 June 1998 by Kundan Industries                        deducted from the export price.
Limited and Tata International Limited against the
                Council of the European Union                        Ð Article 18(3), in that, owing to continue reliance on
                        (Case T-88/98)                                    information which was known to be incorrect, any
                                                                          reasonably accurate finding was made impossible and,
                         (98/C 234/68)                                    finally,
                (Language of the case: English)                      Ð Article 20(4), because of failure to give adequate
                                                                          disclosure of the essential facts and considerations.
An action against the Council of the European Union was
brought before the Court of First Instance of the European           (1) Council Regulation (EC) No 393/98, OJ L 50 of 20.2.1998,
Communities on 7 June 1998 by Kundan Industries                          p. 1.
Limited and Tata International Limited, represented by               (2) OJ L 56 of 6.6.1996, p. 1.
Jean-FrancËois Bellis and Philippe De Baere, with an
address for service in Luxembourg at the Chambers of
Loesch & Wolter, 11 Rue Goethe.
The applicant claims that the Court should:
                                                                     Action brought on 8 June 1998 by National Association
Ð annul Article 1 of Council Regulation (EC) No 393/98               of Licensed Opencast Operators (NALOO) against the
     of 16 February 1998 imposing a definitive anti-                           Commission of the European Communities
     dumping duty on the imports of stainless steel                                          (Case T-89/98)
     fasteners and parts thereof originating in, inter alia,
     India, in so far as it imposes a definitive anti-dumping                                 (98/C 234/69)
     duty on stainless steel fasteners and parts thereof
     manufactured and exported by the applicants; and                               (Language of the case: English)
Ð order the Council to bear the costs of these                       An action against the Commission of the European
     proceedings.                                                    Communities was brought before the Court of First
                                                                     Instance of the European Communities on 8 June 1998 by
Pleas in law and main arguments adduced in support:                  The National Association of Licensed Opencast Operators
                                                                     (NALOO), represented by Mark Cran QC and Mark
                                                                     Hoskins, with an address for service in Luxembourg at the
The applicants are limited companies established under               Chambers of Victor Gillen, 13 rue Aldringen.
the laws of India. Kundan manufactures stainless steel
fasteners and sells them to Tata International, which,
being an export trading company, exports them to                     The applicant claims that the Court should:
independent importers within the Community.
                                                                     Ð declare that the decision of the Commission of 27 April
By Article 1(2) of the contested regulation (1) a definitive              1998 not to act on the Supplemental Complaint
anti-dumping duty on imports of stainless steel fasteners                 submitted to it by NALOO dated 15 June 1994 is
and parts thereof originating in the People's Republic of                 void in so far as it relates to the complaints made
China, India, the Republic of Korea, Malaysia, Taiwan                     against the CEGB; and
and Thailand has been imposed. On imports of the
products concerned exported by Kundan Industries Ltd./              Ð declare that the decision of the Commission of 27 April
Tata Export Ltd., Mumbai' a definitive duty of 47.4 % has                 1998 not to act on the Supplemental Complaint
been imposed.                                                             submitted to it by NALOO dated 15 June 1994 is
                                                                          void in so far as it relates to the complaints made
The present application for annulment is directed against                 against British Coal; and
Article 1 of the contested regulation in so far as it imposes
a definitive anti-dumping duty on imports of the products            Ð order the Commission to pay the costs.
 ---pagebreak--- 25.7.98             EN                  Official Journal of the European Communities                                 C 234/37
Pleas in law and main arguments adduced in support:                b) order the Commission to pay the following amounts,
                                                                       which are equivalent to (i) the sums of fine payable by
The applicant is a trade association of private mining                 the Commission to the applicants together with (ii)
undertakings. By the application, made under Article 33                interest on those sums calculated at the official
of the ECSC Treaty, the applicant seeks a declaration that             discount rate of the Banque Nationale de Belgique
the decision of the Commission of 27 April 1998 not to                 plus 1 % of the EMCF rate plus 1,5 % from the date
act on the Supplemental Complaint submitted to it by the               of payment of the fines by the Swedish addressees
applicant is void in so far as it relates to the complaints            until 31 May 1993, in compensation for the
made against the Central Electricity generating Board                  Commission's unlawful refusal to discharge the
(CEGB) and British Coal. The Supplemental Complaint,                   obligations arising as a result of the Wood pulp
dated 15 June 1994, dealt with excessive royalties charged             judgment:
by British Coal and discriminatory pricing operated by the
CEGB in relation to the price paid for coal in the licensed            Ð to AssiDomän Kraft Products AB: (i) ECU 130 000
sector.                                                                    plus (ii) BF 4 573 470.13 or ECU 107 867.02;
The applicant submits that Article 63(1) of the ECSC                   Ð to AB Iggesunds Bruk: (i) ECU 30 000 plus (ii) BF
Treaty, in conjunction with Article 4(b) of the ECSC                       1 019 686.33 or ECU 24 117.25;
Treaty, imposes an obligation on the Commission to adopt
a finding in relation to past infringements. Article 66(7)
                                                                       Ð to Korsnäs AB: (i) ECU 30 000 plus (ii) BF
of the ECSC Treaty, in conjunction with Article 4(d) of
                                                                           1 055 459.43 or ECU 24 893.32;
the ECSC Treaty, likewise imposes an obligation on the
Commission to adopt a finding in relation to past
infringements. The imposition of excessive royalties under             Ð to MoDo Paper AB: (i) ECU 30 000 plus (ii) BF
the licence agreements between British Coal and the                        1 055 459.43 of ECU 24 893.32;
licensed operators falls within the scope of Article 65 of
the ECSC Treaty.                                                       Ð to Södra Cell AB: (i) ECU 80 000 plus (ii) BF
                                                                           2 814 464.79 or ECU 66 380.18;
Furthermore, the Commission has manifestly failed to
fulfil its duty properly to consider the Supplemental                  Ð to Stora Kopparbergs Bergslags AB: (i) ECU
Complaint, its evidence and its own prior findings, and is                 190 000 plus (ii) BF 6 684 318.72 or ECU
manifestly in breach of Articles 63(1), 66(7) and 65 of the                157 652.15;
ECSC Treaty.
                                                                       Ð to Svenska Cellulosa AB (SCA): (i) ECU 130 000
Finally, the Commission was not entitled to adopt a                        plus (ii) BF 4 573 470.13 or ECU 107 867.02;
decision on the basis that the applicant had not supplied
sufficient evidence. On the contrary, the applicant had
consistently indicated its readiness to provide further            c) by way of compensation for the loss caused by the
evidence if the Commission so required.                                Commission's inexcusable delay in not discharging by
                                                                       31 May 1993 the obligations arising as a result of the
                                                                       Wood pulp judgment, order the Commission to pay to
                                                                       the applicants (i) compensatory interest in such
                                                                       amounts as the Court considers just and appropriate
                                                                       compensation for their loss, or (ii) default interest at
Action brought on 5 June 1998 by AssiDomän Kraft                       8 % on the amounts set out under (b) above, in either
Products AB and six other Swedish wood pulp companies                  case from 1 June 1993 up until the Court's judgment
   against the Commission of the European Communities                  in this case;
                      (Case T-90/98)
                                                                   d) order the Commission to pay the applicants interest at
                       (98/C 234/70)
                                                                       8 % on such compensation as the Court orders to be
                                                                       paid under subparagraphs (b) and (c) above as from
               (Language of the case: English)
                                                                       the date of the Court's judgment in this case until
                                                                       actual payment;
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 5 June 1998 by             e) order the Commission to pay the applicants' costs.
AssiDomän Kraft Products AB and six other Swedish
wood pulp companies, represented by John Pheasant, with
an address for service in Luxembourg at the Chambers of            Pleas in law and main arguments adduced in support:
Loesch & Wolter, 11 rue Goethe.
                                                                   In 1985 numerous undertakings (amongst them the
The applicants claim that the Court should:                        applicants), active in the wood pulp business, were the
                                                                   addressees of the Commission decision stating that they
a) annul the Commission decision contained in the letter           had committed infringements of Article 85(1) of the EC
     of 26 March 1998 bearing the reference SG(98)D/               Treaty (the Wood pulp decision' (1)). Fines were imposed,
     2434;                                                         which have been paid by the addressees.


title: Case C-262/13: Request for a preliminary ruling from the Amtsgericht Rüsselsheim (Germany) lodged on 14 May 2013 — Ekkehard Aleweld v Condor Flugdienst GmbH

text:
               27.7.2013

               EN

               Official Journal of the European Union

               C 215/7

         Request for a preliminary ruling from the Amtsgericht Rüsselsheim (Germany) lodged on 14 May 2013 — Ekkehard Aleweld v Condor Flugdienst GmbH
   (Case C-262/13)
   2013/C 215/09
   Language of the case: German

      Referring court

   Amtsgericht Rüsselsheim

      Parties to the main proceedings

      Applicant: Ekkehard Aleweld

      Defendant: Condor Flugdienst GmbH

      Questions referred

               1.

               Is there also a right under Article 7 of Regulation No 261/20004 (1) to compensation where the departure of the booked flight is delayed by more than three hours, the passenger rebooks on another airline and the delay on arrival compared with the original flight is thereby appreciably reduced, whilst both the original flight and the replacement flight arrive at the original destination far more than three hours late?

               2.

               If Question 1 is answered in the affirmative: is it decisive in this regard that the period of five hours, specified in Article 6(1)(iii), for application of Article 8(1) of the regulation has or has not expired?

               3.

               Is it material whether the rebooking was made independently by the passenger or with the defendant’s help?

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).


title: Case T-228/10: Action brought on 21 May 2010 — Telefónica v Commission

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/28

         Action brought on 21 May 2010 — Telefónica v Commission
   (Case T-228/10)
   2010/C 195/44
   Language of the case: Spain

      Parties

      Applicant: Telefónica, SA (Madrid, Spain) (represented by: J. Ruiz Calzado, M. Núñez Müller and J. Domínguez Pérez, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul Article 1(1) of the Decision;

               —

               order the Commission to pay all the costs arising from the proceedings.

      Pleas in law and main arguments

   The decision against which these proceedings are brought is the same as that contested in Cases T-219/10 Autogrill España v Commission; T-221/10 IBERDROLA v Commission; and T-227/10 Banco Santander v Commission.
   The pleas in law and the principal arguments are similar to those relied on in those cases.


title: Case C-168/13 PPU: Judgment of the Court (Second Chamber) of 30 May 2013 (request for a preliminary ruling from the Conseil constitutionnel — France) — Jeremy F v Premier ministre (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — Articles 27(4) and 28(3)(c) — European arrest warrant and surrender procedures between Member States — Speciality rule — Application for extension of the European arrest warrant on which the surrender was based or for onward surrender to another Member State — Decision of the judicial authority of the executing Member State to give consent — Appeal with suspensive effect — Whether permitted)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/38

         Judgment of the Court (Second Chamber) of 30 May 2013 (request for a preliminary ruling from the Conseil constitutionnel — France) — Jeremy F v Premier ministre
   (Case C-168/13 PPU) (1)

   (Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - Articles 27(4) and 28(3)(c) - European arrest warrant and surrender procedures between Member States - Speciality rule - Application for extension of the European arrest warrant on which the surrender was based or for onward surrender to another Member State - Decision of the judicial authority of the executing Member State to give consent - Appeal with suspensive effect - Whether permitted)
   2013/C 225/65
   Language of the case: French

      Referring court

   Conseil constitutionnel

      Parties to the main proceedings

      Applicant: Jeremy F

      Defendant: Premier ministre

      Re:

   Request for a preliminary ruling — Conseil constitutionnel — Interpretation of Articles 27 and 28 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) — Extension of the effects of a European arrest warrant — Existence in the requested Member State of an appeal against the decision of the executing judicial authority, in this case the indictment division of a court of appeal — Period of 30 days

      Operative part of the judgment

   Articles 27(4) and 28(3)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as not precluding Member States from providing for an appeal suspending execution of the decision of the judicial authority which rules, within 30 days from receipt of the request, on giving consent either to the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order of a person for an offence committed prior to his surrender pursuant to a European arrest warrant, other than that for which he was surrendered, or to the surrender of a person to a Member State other than the executing Member State, pursuant to a European arrest warrant issued for an offence committed prior to his surrender, provided that the final decision is adopted within the time-limits laid down in Article 17 of the Framework Decision.

      (1)  OJ C 156, 1.6.2013.


title: Case C-439/08: Reference for a preliminary ruling from the Hof van Beroep te Brussel (Belgium) lodged on 6 October 2008 — VZW Vlaamse Federatie van Verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers VEBIC , the other parties being: Raad voor de Mededinging and the Minister van Economie

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/19

         Reference for a preliminary ruling from the Hof van Beroep te Brussel (Belgium) lodged on 6 October 2008 — VZW Vlaamse Federatie van Verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers ‘VEBIC’, the other parties being: Raad voor de Mededinging and the Minister van Economie
   (Case C-439/08)
   (2008/C 313/28)
   Language of the case: Dutch
   Referring court
   Hof van Beroep te Brussel (Belgium)
   Parties to the main proceedings

      Applicant: VZW Vlaamse Federatie van Verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers ‘VEBIC’

      Other parties: Raad voor de Mededinging and Minister van Economie
   Questions referred

               1.

               Must [Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, in particular Articles 2, 15(3) and 35(1)] (1) above be interpreted to mean that national competition authorities derive directly from them an entitlement to formulate written observations on arguments raised, in the context of appeal proceedings, against a decision made by them, and that they can themselves present arguments in fact and in law, with the result that this entitlement cannot be excluded by a Member State?

               2.

               Must the same provisions be interpreted to mean that, for the effective application of the competition rules with a view to protecting the public interest, the public enforcement bodies which are designated as the competition authorities are not only entitled but also have a duty to participate in the appeal proceedings against their decisions by stating their position in relation to the arguments raised in fact and in law?

               3.

               If questions (1) and (2) are answered in the affirmative, must these provisions then be interpreted to mean that, in the absence of national provisions concerning the participation by the competition authority in the proceedings before the appeal body, and where various authorities are involved, it is the authority which is competent to take the decisions set out in Article 5 of the Regulation which shall participate in the appeal proceedings against its decision?

               4.

               Are the answers to the above questions different if the competition authority acts, in accordance with national law, as a court of law and/or if the final decision is taken on completion of an investigation by a body belonging to that court and charged with drawing up the objections and a draft decision?

      (1)  OJ 2003 L 1, p. 1.


title: Case F-52/08: Action brought on 4 June 2008 — Plasa v Commission

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/35

         Action brought on 4 June 2008 — Plasa v Commission
   (Case F-52/08)
   (2008/C 183/69)
   Language of the case: French
   Parties

      Applicant: Wolfgang Plasa (Algiers, Algeria) (represented by: G. Vandersanden, lawyer)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   First, annulment of the Commission decision of 8 May 2008 to reassign the applicant to headquarters in Brussels from 1 August 2008 and, second, a claim for damages in respect of the material and non material damage suffered as a result of that decision.
   Form of order sought

               —

               Annul the Commission decision of 8 May 2008 to reassign the applicant to headquarters in Brussels from 1 August 2008;

               —

               Order the Commission to pay damages in respect of the material and non-material damage suffered as a result of that decision, the former begin assessed at EUR 150 000 and the latter at the equivalent of a year of salary, namely EUR 150 000, those two assessments being provisional and subject to increase in the course of the proceedings;

               —

               Order the Commission of the European Communities to pay the costs.


title: Reference for a preliminary ruling by the Pretura Circondariale di Roma, Sezione Distaccata di Tivoli, by orders of that court of 19 and 5 February 1997 in the criminal proceedings against (1) Italia Testa and (2) Mario Modesti (Cases C-128/97 and C-137/97)

text:
14 . 6 . 97             EN                   Official Journal of the European Communities                                No C 181 /3
Reference for a preliminary ruling by the Pretura Circon               which has, in practice, a financial effect equivalent to an
dariale di Roma, Sezione Distaccata di Tivoli, by orders of             increase in the rate of capital duty beyond the ceiling of
that court of 19 and 5 February 1997 in the criminal                    1 % of contributed capital ?
proceedings against ( 1 ) Italia Testa and ( 2 ) Mario Modesti
                ( Cases C-128/97 and C-137/97)                          (') OJ No L 249 , 3 . 10 . 1969 , p . 25 .
                           ( 97/C 181 /04 )
Reference has been made to the Court of Justice of the
European Communities by orders of the Pretura Circonda
riale di Roma, Sezione Distaccata di Tivoli ( District                  Reference for a preliminary ruling by the Tribunale di Ge
Magistrate's Court, Rome, Tivoli Division ) of 19 and                   nova ( Sixth Civil Division ) by order of that court of
5 February 1997, which were received at the Court                       21 March 1997 in the case of Vincenzo Farina v. Credito
Registry on 28 March 1997 and 14 April 1997,                                             Italiano SpA, of Genoa, Italy
respectively, for a preliminary ruling in the criminal                                            ( Case C-138/97 )
proceedings against ( 1 ) Italia Testa ( C-l 28/97 ) and ( 2 )
Mario Modesti ( C-l 37/97) on the following questions :                                             ( 97/C 181 /06
1 . May the national legislation conferring on the SIAE (')             Reference has been made to the Court of Justice of the
     the exclusive right to manage copyright impede or                  European Communities by an order of the Sixth Civil
     prevent the import or export of sound recordings                   Division of the Tribunale di Genova ( District Court,
     which have been lawfully marketed in another State ?               Genoa ), which was received at the Court Registry on
                                                                        14 April 1997, for a preliminary ruling in the case of
                                                                        Vincenzo Farina v. Credito Italiano SpA, on the following
2 . In the context of the Single Market, characterized by               questions :
     the free movement of goods and freedom to provide
     services, may the SIAE require payments in all cases
     and circumstances on behalf of authors, relying on                 1 . Whether the Norme Bancarie Uniforme ( Uniform
     recourse to criminal proceedings in order to give effect                Bank Rules ) laid down by the ABI (') for its members
     to that power and enforce its claims ?                                  in relation to contracts for the opening of current
                                                                             account credit facilities — since they are laid down
                                                                             and applied in a uniform and binding manner by the
(') Italian Society of Authors and Publishers .                              banks belonging to the ABI — are compatible with
                                                                             Article 85 of the Treaty, where they make the credit
                                                                             facility subject to conditions for determination of an
                                                                             interest rate which is not previously determined and is
                                                                             not determinable by the customer, and they are liable
                                                                             adversely to affect trade between the Member States
                                                                             and have as their object and effect the prevention,
Reference for a preliminary ruling by the Commissione                        restriction or distortion of competition within the
Tributaria Provinciale di Livorno by order of that court of                  Common Market ?
20 March 1997 in the case of CAR — Centro Acciai Rive
stiti SRL against Direzione Regionale delle Entrate per la
                  Toscana — Sezione di Livorno
                                                                        2 . What effects any finding of incompatibility in
                                                                             accordance with Question 1 may have on the
                         ( Case C-133/97 )                                   corresponding clauses of the contracts for the opening
                            ( 97/C 181 /05 )                                 of a current account credit facility, concluded
                                                                             ' downstream ' by member banks with individual
                                                                             customers, since, as a group, the banks belonging to
                                                                             the ABI may be regarded, within the meaning and for
Reference has been made to the Court of Justice of the                       the purposes of Article 86 of the Treaty, as holding a
European Communities by order of the Commissione Tri                        joint dominant position in the national credit market,
butaria ( Provincial Tax Court, Leghorn ) of 20 March                        whose specific application of the rules in question ( in
 1997, which was received at the Court Registry on 3 April                   connection with determination of the interest payable
 1997, for a preliminary ruling in the case of CAR — Cen                    on the loan ) is regarded as an abuse ?
tro Acciai Rivestiti SRL against Direzione Regionale delle
Entrate per la Toscana — Sezione di Livorno on the
following question:                                                     3 . Whether the NBU laid down by the ABI for its
                                                                             members in relation to the ' all-embracing' guarantee
                                                                             covering the credit facility — since they are applied in
Does        Directive     69/335/EEC (')        and    subsequent            a uniform and binding manner by the member banks
amendments thereto prohibit not only the application of                      — are, taken as a whole, compatible with Article 85
the tax in question when capital is contributed in excess of                 of the Treaty, in relation to the individual clauses
 1 % of the capital contributed, but also prohibit the                       discussed in the grounds of this order, in that they are
establishment of additional taxes on contributed capital                     liable adversely to affect trade between the Member