title: Case T-1/04: Action brought on 2 January 2004 by Electronics for Imaging, Inc., against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
6.3.2004              EN                          Official Journal of the European Union                                              C 59/33
In support of their claims the applicants submit that the                       as it refused the application for registration of VELOCITY
Commission, having only limited discretion, was obliged, in                     as a trade mark on the basis of Articles 7(1)(b) and (c) of
accordance with the principle of sound administration, to deal                  the CTMR;
diligently and impartially with the complaint in this case. They
argue that in that respect, that the Commission’s discretion in           —     order the Office to bear its own costs and pay those of
the matter at issue must correspond to the objective of                         the Applicant.
establishing a scheme which ensures that competition is not
distorted in the common market, so that the Member States
do not adopt, in favour of one undertaking, measures which
may give rise to the elimination or restriction of effective
competition in the market at issue.                                       Pleas in law and main arguments
                                                                          Trade mark concerned:           Verbal trade mark ‘VELOCITY’ —
This application also takes account of the fact that the                                                  Application No 1661842.
Commission itself has assessed the conditions of competition
in the referral decision, so as to include all the criteria which         Products or services:           Products and services in classes 9,
may be used for the purpose of determining whether the                                                    16, 37 and 42.
measures adopted maintain or preserve competition in the
markets at issue, and also that it has accepted commitments
                                                                          Challenged        Decision      Refusal of registration by the
which are substantially different in another current and very
                                                                          before the Board of             examiner.
similar case (M.2876 Newscorp/telepiú), and that therefore it
                                                                          Appeal:
cannot be claimed that the measures adopted by the Spanish
Government maintain or preserve competition in the markets
concerned.                                                                Pleas in law:                   Infringement of Article 7 (1) (b)
                                                                                and (c) of Regulation No 40/94.
(1) OJ L 395 of 30.12.89, p. 1.
                                                                          Action brought on 7 January 2004 by Simonds Farsons
                                                                          Cisk Plc., against the Office for Harmonisation in the
                                                                              Internal Market (Trade Marks and Designs) (OHIM)
Action brought on 2 January 2004 by Electronics for
Imaging, Inc., against Office for Harmonisation in the                                               (Case T-3/04)
    Internal Market (Trade Marks and Designs) (OHIM)
                                                                                (2004/C 59/53)
                          (Case T-1/04)
                                                                          (Language of the case to be determined pursuant to article 131(2) of
                         (2004/C 59/52)                                   the Rules of Procedure — language in which the case was submitted:
                                                                                English)
                  (Language of the case: English)
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) (OHIM) was brought before
                                                                          the Court of First Instance of the European Communities on
An action against the Office for Harmonisation in the Internal            7 January 2004 by Simonds Farsons Cisk Plc., Mriehel, Malta,
Market (Trade Marks and Designs) (OHIM) was brought before                represented by Ms M. Bagnall and Mr I. Wood, Solictors and
the Court of First Instance of the European Communities on                Mr R. Hacon, Barrister. SA Spa Monopole, Compagnie fermière
2 January 2004 by Electronics for Imaging, Inc., Foster City,             de Spa, en abrégé SA Spa Monopole NV., was also a party to
California, USA, represented by Mr S. Malynicz, Barrister.                the proceedings before the Board of Appeal.
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the decision of the Fourth Board of Appeal dated              —     annul the Decision of the First Board of Appeal of
      25 August 2003, case number R 0793/2002-4 in so far                       4 November 2003;


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/36

         Removal from the register of Case C-241/03 (1)

   (2004/C 94/104)
   By order of 12 December 2003 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-241/03: Commission of the European Communities v Kingdom of the Netherlands.

      (1)  OJ C 171 of 19.07.2003.


title: Action brought on 13 September 1996 by Volkswagen AG and Volkswagen Sachsen GmbH against the Commission of the European Communities (Case T-143/96)

text:
No C 336/30          EN                  Official Journal of the European Communities                                      9 . 11 . 96
Action brought on 12 September 1996 by Bergpracht                   Instance of the European Communities on 13 September
Milchwerk GmbH & Co. KG, Hochland Reich, Summer &                    19 96 by Volkswagen AG, Wolfsburg ( Federal Republic of
Co. KG, Milchwerk Crailsheim eG, Milchwerk Geislingen               Germany ), and Volkswagen Sachsen GmbH, Mosel
eG, Wendelstein Käsewerk Molkerei Ziegenhain GmbH &                 ( Federal Republic of Germany ), represented by Michael
Co. KG and Zentral-Molkerei Aurich GmbH against the                 Schütte and Martina Maier, Rechtsanwälte, of Messrs
        Commission of the European Communities                      Bruckhaus Westrick Stegemann, Brussels , with an address
                      ( Case T-141 /96 )                            for service in Luxembourg at the Chambers of Messrs Bonn
                                                                    & Schmitt, 62 Avenue Guillaume .
                         ( 96/C 336/63 )
              (Language of the case: German)                        The applicant claims that the Court should :
                                                                    — annul Article 2 of Decision COM(96 ) 1844 final of the
An action against the Commission of the European                         Commission of 26 June 1996 ,
Communities was brought before the Court of First
Instance of the European Communities on 12 September                — annul Article 3 ( 2 ) of Decision COM(96 ) 1844 final of
 1996 by Bergpracht Milchwerk GmbH & Co . KG, Tettnang                   the Commission of 26 June 1996 in so far as the
( Federal Republic of Germany ), Hochland Reich, Summer
                                                                         combined effective aid intensity, expressed in terms of
& Co . KG, Heimenkirch ( Federal Republic of Germany ),
                                                                         the gross subsidy equivalent, is limited to 22,3 % for
Milchwerk Crailsheim eG, Crailsheim ( Federal Republic of                Mosel II and 20,8 % for Chemnitz II ,
Germany ), Milchwerk Geislingen eG, Geislingen/Steige
( Federal Republic of Germany ), Wendelstein Käsewerk               — annul Article 1 of Decision COM(96 ) 1844 final of the
Molkerei Ziegenhain GmbH & Co . KG, Bad Aibling
                                                                         Commission of 26 June 1996 in so far as the amount of
( Federal Republic of Germany ) and Zentral-Molkerei
                                                                         the direct investment grants declared compatible with
Aurich GmbH, Aurich ( Federal Republic of Germany ),
                                                                         the common market is limited to DM 418,7 million,
represented by Jürgen Salzwedel and Michael Loschelder,
Rechtsanwälte , of Messrs Gaedertz Vieregge Quack Kreile ,
                                                                    — order the Commission to pay the costs .
Cologne, with an address for service in Luxembourg at the
Chambers of Marc Loesch , of Messrs Loesch & Wolter, 1 1
Rue Goethe .                                                        Pleas in law and main arguments adduced in support:
The applicant claims that the Court should :                        1 . Erroneous and incomplete findings of fact
— annul the registration of the name ' feta ' in the list of        The decision did not take into account the initial situation
    protected designations of origin pursuant to Article 1 of       which Volkswagen AG found to exist with regard to the
    Commission Regulation ( EC ) No 1107/96 of 12 June              'green-field ' investments in Mosel II and Chemnitz II . The
    1996 on the registration of geographical indications and        findings of fact were erroneous in so far as they concerned
    designations of origin under the procedure laid down by         the drawbacks          associated with new investment in a
    Article 17 of Council Regulation ( EEC ) No 2081 /92 ,          less-favoured region, particularly as regards suppliers, the
                                                                    training of the workforce, the setting-up of the logistics
— order the Commission of the European Communities to               needed for the commercial production of vehicles and an
    pay the costs.                                                  efficient infrastructure . As a result, the Commission
                                                                    wrongly assumed that what was involved was investment in
Pleas in law and main arguments adduced in support:                 extensions to the paint-shop and final assembly plants in
                                                                    Mosel II and the extension of Chemnitz II .
The pleas in law and main arguments are the same, in
general terms, as those in Case T-l 39/96 MD Foods Amba             Consequently, the decision was adopted in breach of
and Others v. Commission and Case T-140/96 Societe
                                                                    essential procedural requirements within the meaning of the
Anonyme des Caves et Producteurs Réunis de Roquefort                second paragraph of Article 173 of the EC Treaty .
( Aveyron ) and Others v. Commission .
                                                                    2 . Incorrect application of Article 92 ( 2 ) ( c ) of the EC
                                                                         Treaty
                                                                    The decision is illegal inasmuch as the Commission failed to
Action brought on 13 September 1996 by Volkswagen AG                apply Article 92 ( 2 ) ( c ) of the EC Treaty . The Commission 's
and Volkswagen Sachsen GmbH against the Commission of               view that the exceptional factors referred to by
                the European Communities                            Article 92 ( 2 ) ( c ) of the Treaty must be strictly construed,
                        Case T-143/96 )                             and that they should not be applied to regional aid for new
                                                                    investment projects, is wrong in law, in two respects . First,
                        ( 96/C 336/64 )                             the Commission wrongly failed to apply Article 92 ( 2 ) ( c ) of
                                                                    the Treaty at all , without providing a statement of reasons
              (Language of the case: German)                        for this in a manner corresponding to the requirements of
                                                                    Article 190 of the EC Treaty . Second , had the Commission
An action against the Commission of the European                    applied Article 92 ( 2 ) ( c ), it would necessarily have
Communities was brought before the Court of First                   concluded that the conditions laid down by that provision
 ---pagebreak--- 9 . 11 . 96                EN                     Official Journal of the European Communities                                  No C 336/31
were fulfilled in the present case and, therefore, that the aid              be based on a uniform assessment of all operational
provided was wholly compatible with the common                               disadvantages over a five-year period .
market .
                                                                             It was only in the light of the Commission's classification of
                                                                             Mosel II and Chemnitz II for aid purposes as new
3 . Infringements of the law and absence of reasons in the                   investments that VW initiated and carried on its investment
     application of Article 92 ( 3 ) of the EC Treaty                        plans in the form previously notified and assigned
                                                                             substantial funds of its own thereto .
Furthermore, the Commission has also infringed
Article 92 ( 3 ) of the EC Treaty, which it regards as                       Overall conclusion
applicable . Consequently, the decision should be annulled
even if it is held that Article 92 ( 2 ) ( c ) is inapplicable and that
                                                                             To sum up, the decision is therefore illegal, inasmuch as the
the compatibility of the aid should have been examined by
                                                                             aid compatible with the common market is limited in its
the Commission in the light of Article 92 ( 3 ).
                                                                             amount to the sums fixed by the Commission in the
                                                                             decision, the aid specific in Article 2 is stated to be
Since Saxony is a development region within the meaning of                   incompatible with the common market, the amount of the
Article 92 ( 3 ) ( a ) of the EC Treaty, the Commission should               aid for direct investment grants is limited by Articles 1 and
in any event have examined the compatibility of the aid                      3 ( 2 ) to DM 418,7 million and the combined effective aid
with the common market primarily in the light of                             intensity, expressed in terms of the gross subsidy equivalent,
Article 92 ( 3 ) ( a ) of the Treaty. The Commission unlawfully              is limited by Article 93 ( 2 ) to 22,3 % for Mosel II and 20,8 %
applied the second alternative in Article 92 ( 3 ) (c ) of the               for Chemnitz II .
Treaty instead of Article 92 ( 3 ) ( a ), despite the fact that
Article 92 ( 3 ) ( c ) is superseded by the latter provision and is
thus not applicable to the regional aid at issue in the present
case .
If Article 92 ( 3 ) ( a ) of the Treaty had been applied, the aid            Action brought on 18 September 1996 by Monika Kawicki
would necessarily have been found compatible with the                                       against the European Parliament
common market, without there being any need for
                                                                                Case T-145 /96 )
considerations relating specifically to the sector in issue .
                                                                                ( 96/C 336/65 )
Moreover, in applying Article 92 ( 3 ) ( c ) of the Treaty, the
Commission based its findings on a cost-benefit analysis in                                  (Language of the case: French)
which the Mosel II and Chemnitz II projects were wrongly
regarded not as wholly 'green-field' investments, despite                    An action against the European Parliament was brought
their having been treated as such over a period of several                   before the Court of First Instance of the European
years , but only in segments as investments in expansion . The               Communities on 18 September 1996 by Monika Kawicki,
Commission failed to see that, from the standpoint of                        residing in Luxembourg, represented by Marc Kleyr, of the
Volkswagen, as the investor, the typical drawbacks                           Luxembourg Bar, with an address for service in
associated with 'green-field ' investments applied . As a                    Luxembourg at his Chambers .
result of that incorrect classification, the disadvantages
which were to be offset by aid were substantially                            The applicant claims that the Court should :
underestimated .
                                                                             — annul :
4 . Breach of the principle of the protection of legitimate                       — the decision of the Invalidity Committee of
     expectations                                                                      31 January 1996
Lastly, on the basis of its previous handling of the aid                          — the decisions of the Head of the Personnel Division of
procedure in respect of the Mosel II/Chemnitz II project, in                           9 February 1996 and 7 May 1996
particular by reason of the cost-benefit analyses previously
carried out during the procedure from 1992 to 1994 , the                          — the decision of the Secretary-General of the
Commission prompted VW to entertain expectations                                       European Parliament of 20 June 1996
meriting protection . By altering its position immediately                        — the decision of the Director-General for Personnel,
before the adoption of its decision and thereby abandoning                             the Budget and Finance of 23 August 1996
its longstanding approach to the matter, without providing
any reasons or detailed explanation therefor, the                            — order the European Parliament to pay to the applicant
Commission violated expectations on the part of VW which                          the outstanding balance of her salary as an official from
merited protection .                                                              29 April 1996 , together with default interest from the
                                                                                date when each monthly salary payment respectively fell
The Commission should have found, on the basis of its                             due until final settlement,
handling of the matter over a number of years , that the
Mosel II and Chemnitz II projects fell to be regarded , in                   — order the European Parliament to pay to the applicant
terms of the law relating to aid, as wholly 'green-field'                         the sum of Bfrs 500 000 or such other sum, including
investments, and thus that the cost-benefit analysis was to                       any greater sum, as the Court may regard as fair and


title: Judgment of the Court (Fifth Chamber) 4 March 2004 In Case C-264/02 (Reference for a preliminary ruling from the Tribunal d'instance de Vienne): Cofinoga Mérignac SA v Sylvain Sachithanathan

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/7

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   4 March 2004
   In Case C-264/02 (Reference for a preliminary ruling from the Tribunal d'instance de Vienne): Cofinoga Mérignac SA v Sylvain Sachithanathan (1)

   (Directives 87/102/EEC and 90/88/EEC - Consumer credit - Consumer information - Annual percentage rate of charge - Variable interest rate - Renewal of an agreement)
   (2004/C 94/13)
   Language of the case: French
   In Case C-264/02: References to the Court under Article 234 EC by the Tribunal d'instance de Vienne (France) for a preliminary ruling in the proceedings pending before that court between Cofinoga Mérignac SA and Sylvain Sachithanathan, on the interpretation of Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48), as amended by Council Directive 90/88/EEC of 22 February 1990 (OJ 1990 L 61, p. 14), the Court (Fifth Chamber), composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans and S. von Bahr, Judges; A. Tizzano, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 4 March 2004, in which it has ruled:
   Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, as amended by Council Directive 90/88/EEC of 22 February 1990, does not require, before each renewal, on the existing terms and conditions, of a credit agreement for a specified period entered into in the form of a credit facility that may be drawn down in instalments and is linked to a credit card, that is repayable in monthly instalments and bears an interest rate that is expressed to be variable, that the lender inform the borrower in writing of the current annual percentage rate of charge and of the conditions under which the latter may be amended.

      (1)  OJ C 233 of 28.09.2002.


title: Case F-51/09: Order of the Civil Service Tribunal (Second Chamber) of 15 June 2010 — Petrilli v Commission

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/57

         Order of the Civil Service Tribunal (Second Chamber) of 15 June 2010 — Petrilli v Commission
   (Case F-51/09) (1)

   ()
   2010/C 209/92
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register, following amicable settlement.

      (1)  OJ C 205, 29.8.2009, p. 48.


title: Case C-242/12: Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Belgian Shell NV

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/6

         Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Belgian Shell NV
   (Case C-242/12)
   2012/C 243/10
   Language of the case: Dutch

      Referring court

   Rechtbank te Rotterdam

      Party to the main proceedings

   Belgian Shell NV

      Questions referred

               1.

               Must a consignment of diesel be categorised as waste within the meaning of the (former (1) and new (2)) WSR (Waste Shipment Regulation) in the following circumstances:

                           (a)

                           the consignment consists of Ultra Light Sulphur Diesel, which has been unintentionally mixed with Methyl Tertiary Butyl Ether;

                           (b)

                           after the consignment is delivered to a buyer, it transpires that — because of the mix — it does not satisfy the specifications agreed between the buyer and the vendor and is therefore ‘off-spec’;

                           (c)

                           the consignment — following a complaint by the buyer — is taken back by the vendor in accordance with the purchase agreement, and the vendor refunds the purchase price;

                           (d)

                           the vendor has the intention — whether or not after mixing it with another product — of placing the consignment back on the market?

               2.

               If the answer to question 1 is in the affirmative:

                           (a)

                           is it possible to specify a point in time in the abovementioned factual circumstances from which this is the case;

                           (b)

                           does the status of the consignment change to a non-waste product at any point in time between the delivery to the buyer and a new blending carried out by or on behalf of the vendor and, if so, at what point?

               3.

               Is it relevant to the answer to question 1:

                           (a)

                           whether the consignment could be used as fuel in the same way as pure ULSD, but because of its lower flashpoint it no longer satisfied the (safety) requirements;

                           (b)

                           whether, as result of the new composition, the consignment could not be stored by the buyer pursuant to an environmental permit;

                           (c)

                           whether the consignment could not be used by the buyer for the purpose for which it had been bought, namely for sale as diesel fuel from the pump;

                           (d)

                           whether or not the buyer intended to return the consignment to the vendor pursuant to the purchase agreement;

                           (e)

                           whether the vendor did in fact intend to take back the consignment with a view to processing it through blending it and to place it back on the market;

                           (f)

                           whether or not the consignment can be restored either to the state originally intended or processed into a product that is marketable for a price approaching that of the market value of the original ULSD consignment;

                           (g)

                           whether that restoration/processing is a common production process;

                           (h)

                           whether the market value of the consignment in the state that it is in at the time that it is taken back by the vendor is (virtually) the same as the price of a product that does satisfy the agreed specifications;

                           (i)

                           whether the consignment taken back can be sold on the market in the state that it is in at the time that is taken back without being processed;

                           (j)

                           whether trade in products such as the consignment is common and is not regarded in relevant trade circles as trade in waste?

      (1)  Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (former WSR) (OJ 1993 L 30, p. 1)

      (2)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (new WSR) (OJ 2006 L 190, p. 1)


title: Case C-277/06: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 June 2006 — Interboves GmbH v Hauptzollamt Hamburg-Jonas

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/20

         Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 June 2006 — Interboves GmbH v Hauptzollamt Hamburg-Jonas
   (Case C-277/06)
   (2006/C 212/34)
   Language of the case: German
   Referring court
   Finanzgericht Hamburg
   Parties to the main proceedings

      Applicant: Interboves GmbH

      Defendant: Hauptzollamt Hamburg-Jonas
   Questions referred

               1.

               Does point 48.7(a) of Chapter VII of the Annex to Directive 91/628/EEC (1) define the basic conditions for transport by sea so that, in principle, — provided that the conditions laid down in points 48.3 and 48.4 of Chapter VII of the Annex to Directive 91/628/EEC, except for journey times and rest periods, are met — the journey times by road before and after transport by sea are not interconnected, even where animals are being transported on so-called roll-on/roll-off ferries?

               2.

               Does point 48.7(b) of Chapter VII of the Annex to Directive 91/628/EEC include a special provision for so-called roll-on/roll-off ferries operating in the Community which applies alongside or in addition to the conditions laid down in point 48.4(a) of Chapter VII of the Annex to Directive 91/628/EEC, so that a new maximum journey time of 29 hours (cf. point 48.4(d) of Chapter VII of the Annex to the Directive) does not commence after arrival of the ferry at the port of destination (the animals having instead to be rested for 12 hours) only if the journey time at sea is such that the voyage has exceeded the general scheme of points 48.2 to 48.4 of Chapter VII of the Annex to the Directive — namely 29 hours in accordance with point 48.4(d)?

      (1)  OJ L 340, p. 17.


title: Case T-212/15: Action brought on 23 April 2015 — Aldi v OHIM — Miquel Alimentació Grup (Gourmet)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/46

         Action brought on 23 April 2015 — Aldi v OHIM — Miquel Alimentació Grup (Gourmet)
   (Case T-212/15)
   (2015/C 198/64)
   Language in which the application was lodged: German

      Parties

      Applicant: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany) (represented by: C. Fürsen, N. Lützenrath, U. Rademacher and N. Bertram, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Miquel Alimentació Grup, SA (Vilamalla, Spain)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark including the word element ‘Gourmet’ — Application No 9 310 269

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 24 February 2015 in Case R 314/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of OHIM;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-402/10: Judgment of the Court (Fifth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Conseil d’État (France)) — Société Groupe Limagrain Holding v Établissement national des produits de l’agriculture et de la mer (Agriculture — Regulations (EEC) No 3665/87 and No 565/80 — Export refunds — Refund paid in advance — Placing of goods under the customs warehousing procedure — Absence of stock records — Proof that the goods were exported — Acquisition of all or part of the refund relating to that exportation — Obligation to repay the amount unduly received — Application of a surcharge to the amount to be repaid)

text:
               17.12.2011

               EN

               Official Journal of the European Union

               C 370/14

         Judgment of the Court (Fifth Chamber) of 27 October 2011 (reference for a preliminary ruling from the Conseil d’État (France)) — Société Groupe Limagrain Holding v Établissement national des produits de l’agriculture et de la mer
   (Case C-402/10) (1)

   (Agriculture - Regulations (EEC) No 3665/87 and No 565/80 - Export refunds - Refund paid in advance - Placing of goods under the customs warehousing procedure - Absence of stock records - Proof that the goods were exported - Acquisition of all or part of the refund relating to that exportation - Obligation to repay the amount unduly received - Application of a surcharge to the amount to be repaid)
   2011/C 370/22
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Société Groupe Limagrain Holding

      Defendant: Établissement national des produits de l’agriculture et de la mer

      Re:

   Reference for a preliminary ruling — Conseil d’État (France) — Interpretation of provisions of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) in conjunction with the provisions of Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products (OJ 1980 L 62, p. 5) — Placing of goods under the customs warehousing procedure with view to export and advance payment of refunds — Repayment of sums received in advance in absence of stock records — Conditions of repayment

      Operative part of the judgment

               1.

               The provisions of European Union law on the advance financing of export refunds must be interpreted as meaning that the maintenance, in accordance with the European Union customs legislation, of stock records in respect of products placed under the customs warehousing procedure constitutes a condition of advance payment of an export refund with regard to those products. However, any remaining doubts as to the accuracy of certain entries or as to discrepancies in those stock records may be resolved by reference to other additional documents, on condition that those documents are deemed by the competent national authorities to be satisfactory.

               2.

               The provisions of European Union law on the advance financing of export refunds must be interpreted as meaning that:

                           —

                           to the extent to which, and on condition that, there has been a failure to comply with the obligation to maintain, in accordance with the European Union customs legislation, stock records in respect of products placed under the customs warehousing procedure, proof that products similar in quantity and type to those referred to in the advance payment declaration have been exported is not sufficient for the exporter to be regarded as having properly obtained the amount of the export refund relating to those products;

                           —

                           in the case where, by reason of a failure to comply with the obligation to maintain stock records in respect of products placed in a customs warehouse, the exporter must repay all or part of the sums received as advance payment of an export refund, the surcharge of 20 % provided for in the second subparagraph of Article 33(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by, inter alia, Commission Regulation (EEC) No 1708/93 of 30 June 1993, is to be applied to the amount unduly received and to be repaid.

      (1)  OJ C 288, 23.10.2010.


title: Case T-60/16 P: Order of the General Court of 3 May 2017 — De Nicola v EIB (Appeal — Civil Service — EIB staff — Appraisal — Career evaluation report — Appraisal year 2011 — Errors of law — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/27

         Order of the General Court of 3 May 2017 — De Nicola v EIB
   (Case T-60/16 P) (1)

   ((Appeal - Civil Service - EIB staff - Appraisal - Career evaluation report - Appraisal year 2011 - Errors of law - Appeal in part manifestly inadmissible and in part manifestly unfounded))
   (2017/C 221/38)
   Language of the case: Italian

      Parties

      Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by: G. Ferabecoli, lawyer)

      Other party to the proceedings: European Investment Bank (EIB) (represented by: initially by: G. Nuvoli and F. Martin, and subsequently by: G. Nuvoli and G. Faedo, acting as Agents, and A. Dal Ferro, lawyer)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (Single Judge) of 18 December 2015, De Nicola v EIB (F-55/13, EU:F:2015:165) seeking to have that judgment set aside in part.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Carlo De Nicola shall bear his own costs and pay those incurred by the European Investment Bank (EIB) in the present appeal.

      (1)  OJ C 111, 29.3.2016.


title: Judgment of the Court (Second Chamber) 7 March 2002 in Case C-107/00 (Reference for a preliminary ruling from the Tribunal du Travail de Mons): Caterina Insalaca v Office national des pensions (ONP) (Social security — Articles 46 to 46c of Regulation (EEC) No 1408/71 — National rules against overlapping — Benefits of the same kind)

text:
4.5.2002                 EN                     Official Journal of the European Communities                                             C 109/9
Article 10 of Council Directive 75/442/EEC of 15 July 1975                 preliminary ruling in the proceedings pending before that
on waste (OJ 1975 L 194, p. 39), as amended by Council                     court between Caterina Insalaca and Office National des
Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78,                       Pensions (ONP), on the interpretation of Articles 46a and 46b
p. 32), without making such exemption conditional upon                     of Council Regulation (EEC) No 1408/71 of 14 June 1971 on
satisfaction of the requirements laid down by Article 3(2) of              the application of social security schemes to employed persons,
Directive 91/689, the Italian Republic has failed to fulfil its            to self-employed persons and to members of their families
obligations under Article 11 of Directive 75/442, as amended               moving within the Community, as amended and updated by
by Directive 91/156, and under Article 3 of Directive 91/689,              Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ
the Court (Second Chamber), composed of: N. Colneric,                      1983 L 230, p. 6), as amended by Council Regulation (EEC)
President of the Chamber, R. Schintgen and V. Skouris                      No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7), the
(Rapporteur), Judges; J. Mischo, Advocate General; R. Grass,               Court (Second Chamber), composed of: N. Colneric, President
Registrar, has given a judgment on 21 February 2002, in                    of the Chamber, R. Schintgen (Rapporteur) and V. Skouris,
which it:                                                                  Judges; P. Léger, Advocate General; H. von Holstein, Deputy
                                                                           Registrar, has given a judgment on 7 March 2002, in which it
1.    Declares that, by exempting undertakings and establishments          has ruled:
      which carry out hazardous waste recovery operations covered by
      Council Directive 91/689/EEC of 12 December 1991 on
      hazardous waste from the permit requirement laid down by
      Article 10 of Council Directive 75/442/EEC of 15 July 1975
      on waste, as amended by Council Directive 91/156/EEC of
      18 March 1991, without making such exemption conditional
      upon satisfaction of the requirements laid down by Article 3(2)      1.   The legislation of a Member State governing the calculation of
      of Directive 91/689, the Italian Republic has failed to fulfil its        a survival pension and establishing a restriction of the ceiling
      obligations under the combined provisions of Article 11 of                fixed for the overlapping of a retirement and a survivor’s pension
      Directive 75/442, as amended by Directive 91/156, and                     where the surviving spouse can claim a survivor’s pension
      Article 3 of Directive 91/689;                                            payable by another Member State is a provision on reduction
                                                                                within the meaning of Articles 46a and 46b of Council
2.    Orders the Italian Republic to pay the costs.                             Regulation (EEC) No 1408/71 of 14 June 1971 on the
                                                                                application of social security schemes to employed persons, to
                                                                                self-employed persons and to members of their families moving
(1) OJ C 135 of 13.5.2000.                                                      within the Community, as amended and updated by Council
                                                                                Regulation (EEC) No 2001/83 of 2 June 1983, as amended
                                                                                by Council Regulation (EEC) No 1248/92 of 30 April 1992.
                  JUDGMENT OF THE COURT                                    2.   Articles 46a and 46b of Regulation No 1408/71 of 14 June
                                                                                1971, as amended and updated by Regulation No 2001/83,
                         (Second Chamber)                                       as amended by Regulation No 1248/92, preclude the appli-
                                                                                cation of the legislation of a Member State containing a
                            7 March 2002                                        provision against overlapping under which a survivor’s pension
                                                                                received in that Member State must be reduced because of a
                                                                                survivor’s pension acquired in another Member State, where the
in Case C-107/00 (Reference for a preliminary ruling from                       benefits payable in application the legislation of the first
the Tribunal du Travail de Mons): Caterina Insalaca v                           Member State are less favourable than those determined in
             Office national des pensions (ONP) (1)                             application of Article 46 of that regulation.
(Social security — Articles 46 to 46c of Regulation (EEC)
No 1408/71 — National rules against overlapping —
                     Benefits of the same kind)
                           (2002/C 109/13)
                                                                           (1) OJ C 149 of 27.5.2000.
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
In Case C-107/00: Reference to the Court under Article 234
EC by the Tribunal du Travail de Mons (Belgium) for a


title: Case C-289/15: Request for a preliminary ruling from the Krajský súd v Prešove (Slovak Republic) lodged on 15 June 2015 — Jozef Grundza

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/32

         Request for a preliminary ruling from the Krajský súd v Prešove (Slovak Republic) lodged on 15 June 2015 — Jozef Grundza
   (Case C-289/15)
   (2015/C 294/40)
   Language of the case: Slovak

      Referring court

   Krajský súd v Prešove

      Party to the main proceedings

   Jozef Grundza

      Question referred

   On a proper interpretation of Articles 7(3) and 9(1)(d) of the Framework Decision (1), is the condition of double criminality to be considered satisfied only where the facts to which the decision to be recognised refers constitute an offence in concreto, i.e. on the basis of a concrete assessment of the facts (whatever its constituent elements or however it is described) also in the law of the executing State, or is that condition sufficiently satisfied where the facts generally constitute (in abstracto) an offence also in the legal order of the executing State?

      (1)  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27).


title: Case C-406/09: Judgment of the Court (Grand Chamber) of 18 October 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Realchemie Nederland BV v Bayer CropScience AG (Regulation (EC) No 44/2001 — Jurisdiction and recognition and enforcement of judgments — Definition of ‘civil and commercial matters’ — Recognition and enforcement of an order imposing a fine — Directive 2004/48/EC — Intellectual property rights — Infringement of those rights — Measures, procedures and remedies — Sentence — Exequatur procedure — Related legal costs)

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/4

         Judgment of the Court (Grand Chamber) of 18 October 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Realchemie Nederland BV v Bayer CropScience AG
   (Case C-406/09) (1)

   (Regulation (EC) No 44/2001 - Jurisdiction and recognition and enforcement of judgments - Definition of ‘civil and commercial matters’ - Recognition and enforcement of an order imposing a fine - Directive 2004/48/EC - Intellectual property rights - Infringement of those rights - Measures, procedures and remedies - Sentence - Exequatur procedure - Related legal costs)
   2011/C 362/05
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Realchemie Nederland BV

      Defendant: Bayer CropScience AG

      Re:

   Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 1 of 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) and of Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45) — Concept of civil and commercial matters — Breach of the injunction issued by a German court against importing certain pesticides into Germany or marketing them there — Fine — Enforcement of the order imposing that fine — Enforcement proceedings relating to costs orders made abroad in respect of penalties or fines for breach of an injunction against infringement of an intellectual property right

      Operative part of the judgment

               1.

               The concept of ‘civil and commercial matters’ in Article 1 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that that regulation applies to the recognition and enforcement of a decision of a court or tribunal that contains an order to pay a fine in order to ensure compliance with a judgment given in a civil and commercial matter;

               2.

               The costs relating to an exequatur procedure brought in a Member State, in the course of which the recognition and enforcement is sought of a judgment given in another Member State in proceedings seeking to enforce an intellectual property right, fall within Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.

      (1)  OJ C 312, 19.12.2009.


title: Case T-147/04: Action brought on 23 April 2004 by Brian M. Ross against the Commission of the European Communities

text:
               26.6.2004

               EN

               Official Journal of the European Union

               C 168/9

         Action brought on 23 April 2004 by Brian M. Ross against the Commission of the European Communities
   (Case T-147/04)
   (2004/C 168/17)
   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 23 April 2004 by Brian M. Ross, residing in Morpeth (United Kingdom), represented by Eric Boigelot, lawyer.
   The applicant claims that the Court should:

               —

               Annul the decision of 31 March 2003 definitively adopting the applicant's career development report for the period 2001/2002;

               —

               Annul the said report;

               —

               Annul the implicit decision to dismiss the applicant's claim, brought on 24 September 2002 (R/562/03) for annulment of the contested decision;

               —

               Order the defendant to pay the applicant damages for non-material loss, assessed on equitable grounds at EUR 10 000, subject to increase or decrease in the course of the proceedings;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his action, the applicant pleads infringement of Article 25(2) and Articles 26 to 43 of the Staff Regulations and the General provisions for implementing Article 43 of the Staff Regulations, as adopted by the Commission on 26 April 2002. He also pleads misuse of powers, infringement of general principles of law, such as the rights of the defence, the principle of sound administration and the principle of equal treatment, and a manifest error of assessment.


title: Case F-42/11: Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2012 — Honnefelder v Commission (Civil service — Open competition — Annulment of the decision of a selection board — Implementation of a judgment — Principle of legality — Plea of illegality against a decision to reopen the procedure for an open competition)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/28

         Judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2012 — Honnefelder v Commission
   (Case F-42/11) (1)

   (Civil service - Open competition - Annulment of the decision of a selection board - Implementation of a judgment - Principle of legality - Plea of illegality against a decision to reopen the procedure for an open competition)
   2013/C 46/54
   Language of the case: German

      Parties

      Applicant: Stephanie Honnefelder (Brussels, Belgium) (represented by: C. Bode, lawyer)

      Defendant: European Commission (represented initially by B. Eggers and P. Pecho, Agents, and subsequently by B. Eggers, lawyer)

      Re:

   Civil service — Application for annulment of the decision not to include the applicant on the reserve list for competition EPSO/AD/26/05

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Ms Honnefelder to bear two-thirds of her own costs.

               3.

               Orders the European Commission to bear its own costs and to pay one third of Ms Honnefelder’s costs.

      (1)  OJ C 183, 25.6.2011, p. 34.


title: Case C-655/13: Request for a preliminary ruling from the Centrale Raad van Beroep (Nederland) lodged on 12 December 2013 — H.J. Mertens v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

text:
               15.3.2014

               EN

               Official Journal of the European Union

               C 78/3

         Request for a preliminary ruling from the Centrale Raad van Beroep (Nederland) lodged on 12 December 2013 — H.J. Mertens v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen
   (Case C-655/13)
   2014/C 78/05
   Language of the case: Dutch

      Referring court

   Centrale Raad van Beroep

      Parties to the main proceedings

      Applicant: H.J. Mertens

      Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

      Question referred

   Should Article 71(1)(a)(i) of Regulation No 1408/71 (1) be interpreted as precluding a frontier worker who, immediately after a full-time employment relationship with an employer in a Member State, is employed for fewer hours by another employer in the same Member State, from being classified as a partially unemployed frontier worker?

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2 [DE, FR, IT, NL]; English special edition: Series I Volume 1971(II) P. 416-463).


title: Judgment of the Court of 26 November 2002 in Case C-275/00 (Reference for a preliminary ruling from the Hof van Beroep te Gent): European Community, represented by the Commission of the European Communities, v First NV, Franex NV (Articles 235 EC, 240 EC and second paragraph of 288 EC — Action for damages — Expert report ordered as an interlocutory measure by a national court as against the European Community — Exclusive jurisdiction of the Community Courts)

text:
C 7/2                   EN                       Official Journal of the European Communities                                            11.1.2003
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                      of 26 November 2002                                                             (Sixth Chamber)
in Case C-275/00 (Reference for a preliminary ruling from                                          of 19 November 2002
the Hof van Beroep te Gent): European Community,
represented by the Commission of the European Com-
              munities, v First NV, Franex NV (1)
                                                                            in Case C-304/00 (Reference for a preliminary ruling from
                                                                            the High Court of Justice (England & Wales), Queen’s
                                                                            Bench Division (Crown Office): The Queen v Ministry of
(Articles 235 EC, 240 EC and second paragraph of 288 EC                     Agriculture, Fisheries and Food, ex parte: W.H. Strawson
— Action for damages — Expert report ordered as an                                   (Farms) Ltd, and J.A. Gagg & Sons (a firm) ( 1)
interlocutory measure by a national court as against the
European Community — Exclusive jurisdiction of the Com-
                          munity Courts)
                                                                            (Common agricultural policy — Integrated administration
                                                                            and control system for certain Community aid schemes —
                                                                            Article 9(2) of Regulation (EEC) No 3887/92 — Application
                           (2003/C 7/02)                                            for ‘area’ aid — Penalties — Limitation period)
                    (Language of the case: Dutch)                                                       (2003/C 7/03)
(Provisional translation; the definitive translation will be published                          (Language of the case: English)
                   in the European Court Reports)
                                                                            In Case C-304/00: Reference to the Court under Article 234
In Case C-275/00: Reference to the Court under Article 234
                                                                            EC by the High Court of Justice of England and Wales, Queen’s
EC by the Hof van Beroep te Gent (Belgium) for a preliminary
                                                                            Bench Division (Crown Office), for a preliminary ruling in the
ruling in the proceedings pending before that court between
                                                                            proceedings pending before that court between The Queen
European Community, represented by the Commission of the
                                                                            and Ministry of Agriculture, Fisheries and Food, ex parte:
European Communities, and First NV, Franex NV, on the
                                                                            W.H. Strawson (Farms) Ltd, and J.A. Gagg & Sons (a firm), on
interpretation of the second paragraph of Article 228 EC, the
                                                                            the interpretation of Article 9(2) of Commission Regulation
Court, composed of: G.C. Rodríguez Iglesias, President,
                                                                            (EEC) No 3887/92 of 23 December 1992 laying down detailed
J.-P. Puissochet, M. Wathelet and R. Schintgen (Presidents of
                                                                            rules for applying the integrated administration and control
Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola,
                                                                            system for certain Community aid schemes (OJ 1992 L 391,
P. Jann, N. Colneric, S. von Bahr (Rapporteur) and J.N. Cunha
                                                                            p. 36), the Court (Sixth Chamber), composed of: J.-P. Puisso-
Rodrigues, Judges; P. Léger, Advocate General; L. Hewlett,
                                                                            chet, President of the Chamber, C. Gulmann, V. Skouris,
Principal Administrator, for the Registrar, has given a judgment
                                                                            F. Macken (Rapporteur) and N. Colneric, Judges; P. Léger,
on 26 November 2002, in which it has ruled:
                                                                            Advocate General; M.-F. Contet, Administrator, for the Regis-
                                                                            trar, has given a judgment on 19 November 2002, in which it
                                                                            has ruled:
Article 235 EC, in conjunction with Article 240 EC and the second
paragraph of Article 288 EC, preclude a national court from
ordering, with respect to one of the institutions of the Community,
proceedings for an expert report whose purpose is to determine the          On a proper construction of the first and second paragraphs of
role of that institution in events alleged to have caused damage,           Article 9(2) of Commission Regulation (EEC) No 3887/92 of
for the purposes of subsequent proceedings against the European             23 December 1992 laying down detailed rules for applying the
Community to establish its non-contractual liability.                       integrated administration and control system for certain Community
                                                                            aid schemes, as amended by Commission Regulation (EC) No 1648/
                                                                            95 of 6 July 1995, where the competent authority discovers that an
                                                                            applicant for ‘area’ aid has made an incorrect declaration, neither
( 1) OJ C 257 of 9.9.2000.                                                  intentionally nor as the result of serious negligence, which has
                                                                            entailed overdeclaration of the area eligible for aid and that the same
                                                                            mistake was made in the years prior to that in which the mistake was
                                                                            discovered, thus leading to overdeclaration of the area eligible for aid
                                                                            in each of those years, that authority is required, subject to observance


title: Case F-84/10: Judgment of the Civil Service Tribunal (First Chamber) of 5 June 2012 — Chatzidoukakis v Commission (Civil service — Officials — Remuneration — Family allowances — Education allowance — Conditions of grant — Deduction of an allowance of like nature paid from other sources)

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/31

         Judgment of the Civil Service Tribunal (First Chamber) of 5 June 2012 — Chatzidoukakis v Commission
   (Case F-84/10) (1)

   (Civil service - Officials - Remuneration - Family allowances - Education allowance - Conditions of grant - Deduction of an allowance of like nature paid from other sources)
   2012/C 217/65
   Language of the case: Greek

      Parties

      Applicant: Efstratios Chatzidoukakis (Schrassig, Luxembourg) (represented by: V. Christianos, lawyer)

      Defendant: European Commission (represented by: D. Martin, Agent, and E. Bourtzalas and E. Antypas, lawyers)

      Re:

   Annulment of the decision of the Commission whereby the education allowance granted to the applicant was reduced on the basis that his son receives financial assistance from a Member State by way of a grant and a loan.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Chatzidoukakis to pay the European Commission’s costs.

      (1)  OJ C 13, 15.1.2011, p. 39.


title: Case F-126/13: Action brought on 23 December 2013 — ZZ v Commission

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/47

         Action brought on 23 December 2013 — ZZ v Commission
   (Case F-126/13)
   2014/C 45/89
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: É. Boigelot, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision of the PMO to pay the family allowances directly to the mother of the applicant’s daughter, with retroactive effect to 1 October 2012

      Form of order sought

               —

               Annul the decision of 21 May 2013 by which the PMO informs the applicant of its decision to pay the family allowances, including the household allowance, the dependent child allowance and the education allowance, directly to the mother of his daughter, retroactively from 1 October 2012;

               —

               Annul the decision adopted on 23 September 2013 rejecting the applicant’s claim;

               —

               Order the Commission to pay the applicant the entirely of the sums due in respect of family allowances unduly withheld since 1 October 2012 until the date of execution of the judgment to be give in this case, together with late-payment interest calculated at the rate of 4 % per annum from 1 October 2012 until payment in full;

               —

               Order the Commission to pay the costs.


title: Joined Cases T-492/09 and T-147/10: Judgment of the General Court of 7 June 2012 — Mada Pharma v OHIM — Nycomed (ALLERNIL) (Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark ALLERNIL — Application for Community word mark ALLERNIL — Earlier national word mark ALLERGODIL — Relative ground of refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Grounds — Article 75 of Regulation No 207/2009)

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/18

         Judgment of the General Court of 7 June 2012 — Mada Pharma v OHIM — Nycomed (ALLERNIL)
   (Joined Cases T-492/09 and T-147/10) (1)

   (Community trade mark - Opposition proceedings - International registration designating the European Community - Word mark ALLERNIL - Application for Community word mark ALLERNIL - Earlier national word mark ALLERGODIL - Relative ground of refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Grounds - Article 75 of Regulation No 207/2009)
   2012/C 217/36
   Language of the case: German

      Parties

      Applicant: Mada Pharma GmbH & Co. KG (Bad Homburg von der Höhe, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: B. Schmidt, then by D. Walicka and, finally by G. Schneider, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Nycomed GmbH (Constance, Germany) (represented initially by: A. Ferchland, then by A. Ferchland and K. Trautmann, lawyers)

      Re:

   Two actions brought against two decisions of the Fourth Board of Appeal of OHIM of 29 September 2009 (Cases R 1386/2007-4 and R 697/2007-4), relating to opposition proceedings between Meda Pharma GmbH & Co. KG and Nycomed GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions.

               2.

               Orders Meda Pharma GmbH & Co. KG to pay the costs incurred in Joined Cases T-492/09 and T-147/10.

      (1)  OJ C 37, 13.2.2010.


title: Case T-291/13: Action brought on 24 May 2013 — Eleftheriou and Papachristofi v Commission and ECB

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/15

         Action brought on 24 May 2013 — Eleftheriou and Papachristofi v Commission and ECB
   (Case T-291/13)
   (2013/C 226/23)
   Language of the case: English

      Parties

      Applicants: Andreas Eleftheriou (Dherynia, Cyprus); Eleni Eleftheriou (Dherynia); and Lilia Papachristofi (Dherynia) (represented by: C. Paschalides, Solicitor, and A. Paschalides, lawyer)

      Defendants: European Central Bank and European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Order compensation in the sum of £ 347 520,68 on the basis that the conditions required under the Memorandum of Understanding of 26 April 2013 between Cyprus and the Defendants at paragraphs 1.23 to 1.27 were pregnant with requirements in flagrant violation of a superior law for the protection of the individual, namely: article 17 of the Charter of Fundamental Rights of the European Union and article 1 of Protocol 1 of the European Convention of Human Rights;

               —

               Declare the relevant conditions void and order an urgent review of the financial assistance instruments under article 14 to 18 of the Treaty establishing the European Stability Mechanism (‘ESM Treaty’) pursuant to Article 19 in light of the court’s judgment with a view to changes in order to comply with the judgment of the court; and

               —

               To the extent that compensation under the first head of claim does not cater for the fact that the relevant conditions would stand annulled, an order for compensation for breach of article 263 TFEU.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the relevant conditions in the Memorandum of Understanding were pregnant with requirements that were ‘in flagrant violation of a superior rule of law for the protection of the individual’ (1) because:

                           —

                           The said rule of law is superior because it is a law contained the Charter and the ECHR;

                           —

                           By Article 51(1) of the Charter and 6.2 TEU the defendants are obliged to respect and uphold fundamental rights guaranteed by the Charter and the ECHR; and

                           —

                           Bank deposits are property within the meaning of the said article 17 of the Charter and article 1 of Protocol 1 of the ECHR.

               2.

               Second plea in law, alleging that the violations below taken together were so extensive as to amount to a flagrant violation of a superior law, as follows:

                           —

                           At the time the applicants were deprived of their bank deposits there were no ‘conditions provided for by law’ in place in the acquis dealing with deprivation of bank deposits contrary to the Charter and Protocol;

                           —

                           The applicants were deprived of their deposits without ‘fair compensation being paid in good time’ contrary to article 17 of the Charter and article 1 of the Protocol;

                           —

                           Deprivation of deposits is prima facie unlawful unless ‘subject to the principle of proportionality… it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.’ (2);

                           —

                           The competing public interest in preventing panic and a run on the banking system, short and medium term, was not considered in evaluating the public interest under Article 17 of the Charter and Article 1 of the Protocol;

                           —

                           The aim was not to damage or penalise Cyprus but to benefit it and the euro area by providing stability support and thereby alleviating not destabilising its financial institutions and economic viability; and

                           —

                           There was no relationship of proportionality of the interference to a legitimate aim since by Article 3 of the ESM Treaty 2012 the genuine objective was ‘to mobilise funding and provide stability support under strict conditionality… to the benefit of ESM Members which are experiencing or are threatened by severe financial problems, if indispensable to safeguard the euro area as a whole and of its member state’ without paralysing its economy.

               3.

               Third plea in law, alleging that deprivation of the applicants’ deposits was not necessary or proportionate.

               4.

               Fourth plea in law, alleging that in the result the defendants caused the applicants to be deprived of their bank deposits because, but for the flagrant infringement, the applicants’ bank deposits would have been protected by their rights under the Charter and Protocol with the result that the applicants’ loss was sufficiently direct and foreseeable.

               5.

               Fifth plea in law, alleging that if the above submissions are well founded the relevant conditions fall to be declared void notwithstanding the relevant conditions were addressed to Cyprus, since they are of direct and individual concern to each of the applicants on the grounds that the relevant conditions and the manner of their implementation infringe the Treaty and/or a rule of law relating to its application and/or, to the extent that it is held that depriving the applicants bank deposit undermined the rule of law contrary to Article 6.1 of the TEU, were a misuse of powers.

      (1)  See the judgment of 2 December 1971 in Case 5/71 Zuckerfabrik Schoeppenstedt v Council (1971) ECR 975

      (2)  Article 52(1) of the Charter


title: Case C-414/17: Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 10 July 2017 — Arex CZ a.s. v Odvolací finanční ředitelství

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/24

         Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 10 July 2017 — Arex CZ a.s. v Odvolací finanční ředitelství
   (Case C-414/17)
   (2017/C 300/28)
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Appellant (applicant at first instance): Arex CZ a.s.

      Other party (defendant at first instance): Odvolací finanční ředitelství

      Questions referred

               1.

               Must any taxable person be regarded as a taxable person within the meaning of Article 138(2)(b) of Council Directive 2006/112/EC (1) on the common system of value added tax (‘the VAT Directive’)? If not, to which taxable persons does that provision apply?

               2.

               If the Court of Justice’s answer is that Article 138(2)(b) of the VAT Directive applies to a situation such as that in the main proceedings (that is, the acquirer of the products is a taxable person registered for tax), must that provision be interpreted as meaning that, where the dispatch or transport of those products takes place in accordance with the relevant provisions of Council Directive 2008/118/EC (2) concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (3) (‘the Excise Duty Directive’), a supply connected with a procedure under the Excise Duty Directive must be regarded as a supply entitled to exemption under that provision, even though the conditions for exemption under Article 138(1) of the VAT Directive are not otherwise satisfied, having regard to the assignment of the transport of goods to another transaction?

               3.

               If the Court of Justice’s answer is that Article 138(2)(b) of the VAT Directive does not apply to a situation such as that in the main proceedings, is the fact that the goods are transported under an excise duty suspension arrangement decisive for deciding the question of which of several successive supplies the transport is to be ascribed to for the purposes of the right to exemption from VAT under Article 138(1) of the VAT Directive?

      (1)  OJ 2006 L 347, p. 1.

      (2)  OJ 2009 L 9, p. 12.

      (3)  OJ 1992 L 76, p. 1.


title: Case C-426/15 P: Order of the Court (Seventh Chamber) of 5 October 2016 — Diputación Foral de Bizkaia v European Commission Appeal — Article 181 of the Rules of Procedure of the Court — State aid — Article 108(3) TFEU — Commission decision declaring aid to be unlawful — No prior notification — Determination of the date of award of the aid — Agreements granting aid — Unconditional commitment to award aid — Taking into account of national legislation — Formal investigation procedure — Principle of sound administration — Rights of the defence

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/8

         Order of the Court (Seventh Chamber) of 5 October 2016 — Diputación Foral de Bizkaia v European Commission
   (Case C-426/15 P) (1)

   (Appeal - Article 181 of the Rules of Procedure of the Court - State aid - Article 108(3) TFEU - Commission decision declaring aid to be unlawful - No prior notification - Determination of the date of award of the aid - Agreements granting aid - Unconditional commitment to award aid - Taking into account of national legislation - Formal investigation procedure - Principle of sound administration - Rights of the defence)
   (2016/C 475/10)
   Language of the case: Spanish

      Parties

      Appellant: Diputación Foral de Bizkaia (represented by: I. Sáenz-Cortabarría Fernández, abogado)

      Other party to the proceedings: European Commission (represented by: P. Němečková and É. Gippini Fournier, acting as agents)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Diputación Foral de Bizkaia shall pay the costs.

      (1)  OJ C 337, 12.10.2015.


title: Case T-171/03: Action brought on 19 May 2003 by New Look Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
C 171/40                EN                          Official Journal of the European Union                                      19.7.2003
—      Has not given due weight to the applicant’s interest in              Pleas in law and main arguments
       receiving the requested documentation
                                                                            Applicant for Com-           The applicant.
                                                                            munity trade mark:
Moreover, the applicant doesn’t accept the Commission’s
contention that the Member States would have to be consulted
in relation to the submissions made by them in the minutes. It              Community trade mark         Figurative mark NLCollection —
is the applicant’s position that, in accordance with Article 4(4)           sought:                      Application No 1082809 for
of Regulation (EC) 1049/2001, a consultation with a Member                                               goods in Class 25 (articles of
State shall take place only when it is not clear whether a                                               clothing, footwear and headgear).
document shall or shall not be disclosed. Furthermore, the
final decision as to whether or not a document shall be released
                                                                            Proprietor of mark or        NAULOVER SA
remains with the Commission, and this must be reasoned and                  sign cited in the oppo-
clearly justified as falling within one of the exemptions                   sition proceedings:
provided for in the access regulation.
                                                                            Mark or sign cited in        Figurative mark NL (Community
                                                                            opposition:                  trade mark No 13417 and Span-
( 1) OJ L 291 of 6.12.1995, p. 40.
                                                                                ish trade mark No 1329084).
( 2) Regulation (EC) No 1049/2001 of the European Parliament and
     the Council of 30 May 2001 regarding public access to European
     Parliament, Council and Commission documents (OJ L 145 of              Decision of the Oppo-        Rejection of the opposition.
     31.5.2001, p. 43).                                                     sition Division:
                                                                            Decision of the Board of     Annulment of the decision of the
                                                                            Appeal:                      Opposition Division and accept-
                                                                                ance of the opposition with
                                                                                respect to Community trade mark
                                                                                No 13417.
                                                                            Pleas in law:                Misapplication of Article 8(1)(b)
Action brought on 19 May 2003 by New Look Limited                                                        of Regulation (EC) No 40/94 (like-
                                                                                lihood of confusion).
against the Office for Harmonisation in the Internal
           Market (Trade Marks and Designs) (OHIM)
                          (Case T-171/03)
                         (2003/C 171/67)
                    (Language of the case: Spanish)                         Action brought on 19 May 2003 by Anne Geddes against
                                                                                the Office for Harmonisation in the Internal Market
                                                                                (Case T-173/03)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on                                          (2003/C 171/68)
19 May 2003 by New Look Limited, established in Weymouth,
Dorset (United Kingdom), represented by R. Ballester and
G. Marín, lawyers.                                                                            (Language of the case: English)
The applicant claims that the Court should:
—      annul the decision of OHIM (First Board of Appeal) of                An action against the Office for Harmonisation in the Internal
       15 April 2003 in Case No R 019/2003-1;                               Market was brought before the Court of First Instance of the
                                                                            European Communities on 19 May 2003 by Anne Geddes,
                                                                            Auckland, New Zealand, represented by Mr G. Farrington,
—      order OHIM and any intervener to pay the costs.                      Solicitor.


title: Removal from the register of C-396/95

text:
C 295/26                 EN                  Official Journal of the European Communities                                  27 . 9 . 97
removal from the register of Case C-58/96 : Kingdom of                           Removal from the register of C-330/96 (')
Belgium v. Commission of the European Communities,                                                  ( 97/C 295/50 )
supported by French Republic and United Kingdom of
Great Britain and Northern Ireland .
                                                                        By order of 25 June 1997 the President of the Court of
(') OJ C 108 , 13 . 4 . 1996 .                                          Justice of the European Communities has ordered the
                                                                        removal from the register of Case C-330/96 : Commission
                                                                        of the European Communities v. Hellenic Republic .
                                                                        (') OJ C 370, 7. 12 . 1996 .
         Removal from the register of C-2 17/96 (')
                            ( 97/C 295/47)
By order of 13 May 1997 the President of the Court of                            Removal from the register of C-331/96 (')
Justice of the European Communities has ordered the
removal from the register of Case C-2 17/96 : Kingdom of                                            ( 97/C 295/51 )
Belgium v. Commission of the European Communities ,
supported by French Republic and United Kingdom of
Great Britain and Northern Ireland .                                    By order of 25 June 1997 the President of the Court of
                                                                        Justice of the European Communities has ordered the
H OJ C 269, 14 . 9 . 1996 .                                             removal from the register of Case C-331/96 : Commission
                                                                        of the European Communities v. Hellenic Republic.
                                                                        (') OJ C 370, 7. 12 . 1996 .
          Removal from the register of C-3 96/95 (')
                            ( 97/C 295/48 )
                                                                                Removal from the register of C-281/94 ( 1 )
By order of 19 June 1997 the President of the Court of                                               ( 97/C 295/52 )
Justice of the European Communities has ordered the
removal from the register of Case C-396/95 : Federal
Republic of Germany v. Commission of the European                       By order of 26 June 1997 the President of the Court of
Communities, supported by French Republic and United                    Justice of the European Communities has ordered the
Kingdom of Great Britain and Northern Ireland .                         removal from the register of Case C-281/94: Commission
                                                                        of the European Communities v. Hellenic Republic.
 w OJ C 64, 2 . 3 . 1996 .
                                                                         H OJ C 351 , 10 . 12 . 1994 .
          Removal from the register of C-l 84/95 (')
                             ( 97/C 295/49 )                                       Removal from the register of C-97/97 (')
                                                                                ( 97/C 295/53 )
 By order of 24 June 1997 the President of the Court of
Justice of the European Communities has ordered the
 removal from the register of Case C-l 84/95 ( reference for             By order of 1 July 1997 the President of the Court of
 a preliminary ruling from the Juzgado do lo Social No 2,               Justice of the European Communities has ordered the
 Santiago do Compostela ): Mercedes Lores Guillfn v. Insti              removal from the register of Case C-97/97 ( reference for a
 tute Nacional de Empleo and Instituto Nacional de la                    preliminary ruling from the Retten i Arhus ): Elly Bach v.
 Seguridad Social .                                                      Arhus Amtskommune.
 (') OJ C 189, 22 . 7. 1995 .                                            (') OJ C 131 , 26 . 4 . 1997.


title: Case T-38/16: Action brought on 28 January 2016 — EEB v Commission

text:
               4.4.2016

               EN

               Official Journal of the European Union

               C 118/34

         Action brought on 28 January 2016 — EEB v Commission
   (Case T-38/16)
   (2016/C 118/38)
   Language of the case: English

      Parties

      Applicant: European Environmental Bureau (EEB) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Commission of 19 November 2015 with reference Ares(2015)5212500 confirming its decision of 14 September 2015 with reference Ares(2015)3790389 in which the Commission took an additional decision on the request for information of 3 February 2015, submitted by the EEB; and

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error as to the determination of the subject-matter of the initial application and, consecutively, infringement of the Commission’s obligation to give the said application a full examination and infringement of the Articles 6(2), 7 and 8 of Regulation 1049/2001.

               2.

               Second plea in law, alleging an infringement of the duty to state reasons.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 5 March 1998 in Case C-194/96 (reference for a preliminary ruling from the Bundessozialgericht): Hilmar Kulzer v. Freistaat Bayern (Regulation (EEC) No 1408/71 - Worker who has not exercised the right to freedom of movement - Retired civil servant - Article 73 - Family benefits - German institution competent - Article 77 - National legislation)

text:
C 137/2               EN                  Official Journal of the European Communities                                       2.5.98
territory but residing in another Member State to                    1. Article 73 of Council Regulation (EEC) No 1408/71
contribute to a social security scheme covering the risk of               of 14 June 1971 on the application of social security
reliance on care, although Articles 19(1), 25(1) and 28(1)                schemes to employed persons, to self-employed
of Council Regulation (EEC) No 1408/71 of 14 June                         persons and to members of their families moving
1971 on the application of social security schemes to                     within the Community, as amended and updated by
employed persons, to self-employed persons and to                         Regulation (EEC) No 2001/83 (4), as amended by
members of their families moving within the Community,                    Regulation (EEC) No 3427/89, then by Regulation
as amended and updated by Regulation (EEC) No 2001/                       (EEC) No 1247/92, read in conjunction with Point
83, do prevent entitlement to an allowance such as the                    I.C of Annex I to the same Regulation, is to be
care allowance, which constitutes a sickness benefit in                   interpreted, for the purpose of payment of child
cash, from being subject to the condition that the insured                allowance under German legislation, as not applying
person resides in the territory of the Member State where                 to a national of that Member State who receives,
he is insured.                                                            under its legislation, an old-age benefit as a retired
                                                                          civil servant, where that person has worked only in
                                                                          the Member State of which he is a national and his
(1) OJ C 197, 6.7.1996.
                                                                          dependent child has moved within the Community
                                                                          with his former spouse.
                                                                     2. Article 77(2)(a) of Regulation (EEC) No 1408/71, as
                                                                          amended, is to be interpreted as not covering the
                                                                          situation of a person who draws a pension only under
               JUDGMENT OF THE COURT                                      a special scheme for civil servants and persons treated
                                                                          as such.
                        (Fifth Chamber)
                       of 5 March 1998                               (1 ) OJ C 233, 10.8.1996.
                                                                     (2 ) OJ L 230, 22.8.1983, p. 6.
in Case C-194/96 (reference for a preliminary ruling from
                                                                     (3 ) OJ L 331, 16.11.1989, p. 1.
    the Bundessozialgericht): Hilmar Kulzer v. Freistaat             (4 ) OJ L 136, 19.5.1992, p. 1.
                            Bayern (1)
(Regulation (EEC) No 1408/71 Ð Worker who has not
exercised the right to freedom of movement Ð Retired
civil servant Ð Article 73 Ð Family benefits Ð German
institution competent Ð Article 77 Ð National
                           legislation)
                                                                                JUDGMENT OF THE COURT
                         (98/C 137/03)
                                                                                (Sixth Chamber)
                                                                                of 5 March 1998
               (Language of the case: German)
                                                                     in Case C-347/96 (reference for a preliminary ruling from
                                                                     the Tribunal Superior de Justicia de Madrid): Solred SA v.
                                                                                Administración General del Estado (1)
  (Provisional translation; the definitive translation will be
                                                                     (Directive 69/355/EEC Ð Duty charged on documents
          published in the European Court Reports)
                                                                       recording the contribution of a part of the share capital)
                                                                                (98/C 137/04)
In Case C-194/96: reference to the Court pursuant to
Article 177 of the EC Treaty from the Bundessozialgericht
(Federal Social Court), Germany, for a preliminary ruling                            (Language of the case: Spanish)
in the proceedings pending before that court between
Hilmar Kulzer und Freistaat Bayern (Free State of Bavaria)
Ð on the interpretation of Articles 2(3), 73 and 77 of                 (Provisional translation; the definitive translation will be
Council Regulation (EEC) No 1408/71 of 14 June 1971                            published in the European Court Reports)
on the application of social security schemes to employed
persons, to self-employed persons and to members of their
families moving within the Community, as amended and                 In Case C-347/96: reference to the Court pursuant to
updated by Regulation (EEC) No 2001/83 (2), as amended               Article 177 of the EC Treaty from the Tribunal Superior
by Regulation (EEC) No 3427/89 of 30 October 1989,                   de Justicia de Madrid (High Court of Justice, Madrid), for
then by Regulation (EEC) No 1247/92 (3) Ð the Court                  a preliminary ruling in the proceedings pending before
(Fifth Chamber), composed of: C. Gulmann, President of               that court between Solred SA and Administración General
the Chamber, J. C. Moitinho de Almeida, D. A. O.                     del Estado Ð on the interpretation of Articles 4(1)(a),
Edward (Rapporteur), J.-P. Puissochet and P. Jann, Judges;           5(1)(a), 7 and 10(a) of Council Directive 69/335/EEC of
N. Fennelly, Advocate-General; H. A. Rühl, Principal                 17 July 1969 concerning indirect taxes on the raising of
Administrator, for the Registrar, has given a judgment on            capital (2), as amended by Directive 85/303/EEC (3) Ð the
5 March 1998, in which it has ruled:                                 Court (Sixth Chamber), composed of: H. Ragnemalm


title: Case F-68/12: Action brought on 2 July 2012 — ZZ v Commission

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/28

         Action brought on 2 July 2012 — ZZ v Commission
   (Case F-68/12)
   2012/C 258/52
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: F. Frabetti, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the promotion points awarded to the applicant and of his staff report for the period from 1 January 2010 to 31 December 2010.

      Form of order sought

               —

               annul the applicant’s staff report drawn up by Eurostat for the period from 1 January 2010 to 31 December 2010 and the level of performance attributed to him by the same DG;

               —

               annul the promotion points awarded by Eurostat and the AIPN;

               —

               annul the decision rejecting the pre-litigation complaint regarding its vexatious and hurtful nature, to the point of causing non-material damage equivalent to 10 days pay without prejudice at EUR 2 500, calculated on the bases of 1/30th of the monthly remuneration per day compensated;

               —

               order the Commission to pay the costs.


title: Case T-43/02: Judgment of the Court of First Instance of 27 September 2006 — Jungbunzlauer v Commission (Competition — Agreements, decisions and concerted practices — Article 81 EC — Fine — Article 15(2) of Regulation No 17 — Imputability of conduct to a subsidiary — Principle that penalties must be defined by law — Guidelines on the method of setting fines — Principle of proportionality — Principle ne bis in idem — Right of access to the file)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/41

         Judgment of the Court of First Instance of 27 September 2006 — Jungbunzlauer v Commission
   (Case T-43/02) (1)

   (Competition - Agreements, decisions and concerted practices - Article 81 EC - Fine - Article 15(2) of Regulation No 17 - Imputability of conduct to a subsidiary - Principle that penalties must be defined by law - Guidelines on the method of setting fines - Principle of proportionality - Principle ne bis in idem - Right of access to the file)
   (2006/C 294/87)
   Language of the case: German
   Parties

      Applicant: Jungbunzlauer AG (Basel, Switzerland) (represented by: R. Bechtold, U. Soltész and M. Karl, lawyers)

      Defendant: Commission of the European Communities (represented by: P. Oliver, Agent, assisted by H. Freund, lawyer)

      Intervener in support of the defendant: Council of the European Union (represented by: E. Karlsson and S. Marquardt, Agents)
   Re:
   Application for, primarily, annulment of Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (COMP/E-1/35.604 — Citric acid) (OJ 2002 L 239, p. 18) and, in the alternative, reduction in the fine imposed on the applicant by that decision.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the application;

               2.

               Orders Jungbunzlauer AG to bear its own costs and to pay those incurred by the Commission;

               3.

               Orders the Council to bear its own costs.

      (1)  OJ C 97, 20.4.02.