title: Reference for a preliminary ruling by the High Court of Justice in Northern Ireland, Queen's Bench Division, by order of that court of 13 October 1995, in the case of Northern Ireland Fish Producers' Organisation Ltd and others against Department of Agriculture for Northern Ireland (Case C-4/96)

text:
No C 64/8              EN                  Official Journal of the European Communities                                       2 . 3 . 96
The applicant claims that the Court should :                          — declare that the respondent is liable to compensate the
                                                                            appellant for all consequential material damage which
                                                                            he may suffer in the future,
— annul Articles 1 ( 2 ) and 2 to 5 of Commission
    Regulation ( EC ) No 2358/95 of 6 October 1995 ( OJ No            — award the appellant compensation on an equitable basis
    L 241 of 10 October 1995 , p. 5 ),                                      for the non-material damage suffered by him, in a
                                                                            reasonable sum exceeding ECU 2 000,
— order the Commission to pay the costs.                              — in the alternative, remit the case to the Court of First
                                                                            Instance for a re-hearing, a fresh taking of evidence and
                                                                            the delivery of a new decision,
The pleas in law and main arguments are the same as those
in Case C-23/95 ( 1 ). The applicant additionally pleads              — order the respondent to pay all the costs of the
breach of the principle of non-discrimination, since,                       proceedings, including the costs incurred in the
contrary to the declared objective of achieving a single                    preliminary proceedings and the costs of the appeal
market, the contested rules will consolidate the traditional                proceedings,
division of the banana market if — as here — the traditional
relations between certain traders and certain producers are           — alternatively in that regard: reserve its decision on
furthered .                                                                 costs .
                                                                      Pleas in law and main arguments adduced in support:
H OJ No C 74, 25 . 3 . 1995 , p. 6 .
                                                                      Infringement of Community law: to the extent to which the
                                                                      appellant maintains the content of his original
                                                                      applications (2 ), he adopts the grounds of action therein as
                                                                      his pleas in law in the appeal .
                                                                      (M OJ No C 351 , 30 . 12 . 1995 , p . 11 .
                                                                      ( 2 ) OJ No C 338 , 15 . 12 . 1993 , p . 16 .
Appeal brought on 27 December 1995 by Dieter Obst
against the judgment delivered on 19 October 1995 by the
Second Chamber of the Court of First Instance of the
                                                                      Reference for a preliminary ruling by the High Court of
European Communities in Case T-5 62/93 between Dieter
                                                                      Justice in Northern Ireland, Queen's Bench Division, by
 Obst and the Commission of the European Communities
                                                                      order of that court of 13 October 1995 , in the case of
                       ( Case C-403/95 P                              Northern Ireland Fish Producers' Organisation Ltd and
                            96/C 64/ 16                               others against Department of Agriculture for Northern
                                                                                Ireland
                                                                                ( Case C-4/96 )
An appeal against the judgment delivered on 19 October                                             96/C 64/17)
1995 by the Second Chamber of the Court of First Instance
of the European Communities in Case T-5 62/93 between
                                                                      Reference has been made to the Court of Justice of the
Dieter Obst and the Commission of the European
                                                                      European Communities by an order of the High Court of
Communities was brought before the Court of Justice of the
                                                                      Justice in Northern Ireland, Queen's Bench Division, of
European Communities on 27 December 1995 by Dieter
                                                                       13 October 1995 , which was received at the Court Registry
Obst, represented by Lothar Mahlberg, Rechtsanwalt, with
                                                                      on 11 January 1996 , for a preliminary ruling in the case of
an address for service in Luxembourg care of Marianne
Moritz, 25a Rue de Schonfels, Bridel .
                                                                      Northern Ireland Fish Producers' Organisation Ltd and
                                                                      others against Department of Agriculture for Northern
                                                                      Ireland, on the following questions :
The appellant claims that the Court should:
                                                                       1 . Is the validity of the allocation to the United Kingdom of
                                                                             its cod and whiting quotas in Area Vila pursuant to
— set aside the judgment of the Second Chamber of the                        Article 3 of Council Regulation ( EC ) No 3362/94 of
    Court of First Instance of 19 October 1995 in Case                       20 December 1994 fixing, for certain fish stocks and
    T-562/93 ( x ) in so far as it dismisses the application and             groups of fish stocks, the total allowable catches for
    orders the appellant to bear his own costs,                              1995 and certain conditions under which they may be
                                                                             fished ( J ) dependent on whether Annex VII to the
                                                                             Council resolution of 3 November 1976 was properly
— annul the respondent's order rejecting the appellant's                     adopted ?
    application for the post in issue, of which he was notified
    by a communication of 22 March 1993 ,                              2 . If the answer to question 1 is in the affirmative, was
                                                                             Annex VII properly adopted ?
— declare that the rejection of the appellant's application
    for the abovementioned permanent position is                       3 . Are the answers to questions 1 or 2 affected by the fact
    unlawful,                                                                that Annex VII is a document which is classified as secret
 ---pagebreak--- 2 . 3 . 96                EN                 Official Journal of the European Communities                                     No C 64/9
      and which has not been published or otherwise made                — must Articles 4 and 7 of Council Directive 69/355/EEC
      available to the parties ?                                            of 17 July 1969 (*) be interpreted as meaning that the
                                                                            Directive applies to the merger/take-over transactions
4 . Having regard to all other circumstances was the fixing                 defined by Articles 371 to 372-2 of Law No 66.537 of
      of the said quotas by the Council compatible with:                    24 July 1966 on commercial companies ?
        ( i ) the common fisheries policy, and in particular
              Council Regulation ( EEC ) No 3760/92 of
                                                                        — Is the charging by the French State of a proportional tax
                                                                            for the drawing-up of registration certificates following
              20 December 1992 establishing a Community
                                                                            a merger/take-over transaction compatible with the
              system for fisheries and aquaculture (2)?                     prohibition laid down by Article 10 of the Directive and,
      ( ii ) The principle of proportionality ?                             if it is not, is it covered by the provisions of
                                                                            Article 12 ?
5 . If the fixing of the said quotas by Regulation ( EC )
      No 3362/94 is invalid are the applicants entitled to claim        (') OJ, English Special Edition 1969 ( II ), p. 412 .
      damages against the respondent and if so what are the
      conditions for liability ?
(') OJ No L 363 , 31 . 12 . 1994, p . 1 .
( 2 ) OJ No L 389 , 31 . 12 . 1992 , p . 1 .
                                                                        Reference for a preliminary ruling by order of the Conseil
                                                                        d'Etat of the Kingdom of Belgium, Administrative Division,
                                                                        in the proceedings pending before that court in the case of
                                                                        Ligue Royale Beige pour la Protection des Oiseaux and
Reference for a preliminary ruling by the Pretura                       Societe d'Etudes Ornithologiques AVES against the
Circondariale di Roma — Sezione Distaccata di Tivoli by                 Walloon Region, intervener: Federation Royale
orders of that court of 22 November 1995 in criminal                                         Ornithologique Beige
proceedings against Sandro Gallotti and Francesco
                                 Palermo                                                          ( Case C-10/96 )
                                                                                ( 96/C 64/20 )
                       ( Case C-6/96 and 7/96 )
                             ( 96/C 64/18 )
                                                                        Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                  European Communities by judgment of the Conseil d'Etat
European Communities by orders of the Pretura                           ( Council of State ) of the Kingdom of Belgium,
Circondariale di Roma — Sezione Distaccata di Tivoli                    Administrative Division, of 10 November 1995 , which was
( Rome District Magistrate's Court, Tivoli Division ) of                received at the Court Registry on 17 January 1996 , for a
22 November 1995 , which were received at the Court                     preliminary ruling in the proceedings pending before that
Registry on 11 January 1996 , for a preliminary ruling in               court in the case of Ligue Royale Beige pour la Protection
criminal proceedings against Sandro Gallotti and Francesco              des Oiseaux and Societe d'Etudes Ornithologiques AVES
Palermo . The questions referred by the Pretura                         against the Walloon Region, intervener: Federation Royale
Circondariale di Roma — Sezione Distaccata di Tivoli to the             Ornithologique Beige, on the following questions :
Court of Justice for a preliminary ruling are identical with
those in Case C-58/95 ( 1 ).                                            1 . Do Articles 5 , 9 and 18 of Directive 79/409/EEC ( 1 ) of
                                                                            2 April 1979 on the conservation of wild birds allow a
(!) OJ No C 119 , 13 . 5 . 1995 , p. 6 .                                    Member State to take account, on a decreasing basis and
                                                                            over a specified period, of the fact that the prohibition of
                                                                            capturing birds for recreational purposes would compel
                                                                            numerous fanciers to alter their installations and to
                                                                            abandon certain habitats where that State recognizes
Reference for a preliminary ruling from the Tribunal de                     that breeding is possible but is not yet feasible on a large
                                                                            scale for that reason ?
Grande Instance (First Chamber), Tours, by judgment of
that court of 4 January 1996 in the case of Locamion SA v.
            Directeur des Services Fiscaux d'Indre et Loire             2 . Do Articles 5 , 9 and 18 of Directive 79/409/EEC allow
                              Case C-8/96 )                                 Member States, and if so to what extent, to authorize the
                                                                            capture of birds living naturally in the wild state within
                              ( 96/C 64/19 )                                European territory with a view to obviating, in bird
                                                                             breeding for recreational purposes, the problems of
Reference has been made to the Court of Justice of the                      consanguinity which would result from too many
European Communities by order of the First Chamber of the                   endogenous crossings ?
Tribunal de Grande Instance ( Regional Court), Tours, of
4 January 1996, received at the Court Registry on
                                                                        (') OJ No L 103 , p . 1 .
 15 January 1996 , for a preliminary ruling in the case of
Locamion SA v. Directeur des Services Fiscaux d'Indre et
Loire on the following questions :


title: Case F-136/06: Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Reali v Commission (Staff case — Contract staff — Recruitment — Classification in grade — Experience — Qualifications — Equivalence)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/50

         Judgment of the Civil Service Tribunal (Second Chamber) of 11 December 2008 — Reali v Commission
   (Case F-136/06) (1)

   (Staff case - Contract staff - Recruitment - Classification in grade - Experience - Qualifications - Equivalence)
   (2009/C 32/98)
   Language of the case: English
   Parties

      Applicant: Enzo Reali (Florence, Italy) (represented by: S.A. Pappas, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Currall and M. Velardo, Agents)
   Re:
   Staff case — Annulment of the Appointing Authority's decision of 30 August 2006 rejecting the complaint lodged by the applicant, a member of the contract staff, requesting to be reclassified from Grade 14 to Grade 16 in Function Group IV, on account of the value to be attributed to his ‘Laurea in Scienze agrarie’ diploma in the calculation of his professional experience.
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 20, 27.1.2007, p. 38.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/68

         (2004/C 94/174)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 85, 3.4.2004

   Past publications

      OJ C 71, 20.3.2004

      OJ C 59, 6.3.2004

      OJ C 47, 21.2.2004

      OJ C 35, 7.2.2004

      OJ C 21, 24.1.2004

      OJ C 7, 10.1.2004

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex


title: JUDGMENT OF THE COURT (Sixth Chamber) of 12 March 1998 in Case C-163/97: Commission of the European Communities v. Kingdom of Belgium (Failure of a Member State to fulfil its obligations - Failure to transpose Directive 92/74/EEC)

text:
16.5.98               EN                   Official Journal of the European Communities                                      C 151/3
Ð Commission Directive 93/78/EEC of 21 September                           Ð Commission Directive 93/79/EEC of 21 September
    1993 setting out additional implementing provisions                        1993 setting out additional implementing
    for lists of varieties of ornamental plant propagating                     provisions for lists of varieties of fruit plant
    material and ornamental plants, as kept by suppliers                       propagating material and fruit plants, as kept by
    under Council Directive 91/682/EEC (OJ L 256,                              suppliers under Council Directive 92/34/EEC,
    14.10.1993, p. 19),
                                                                           the Federal Republic of Germany has failed to fulfil its
Ð Commission Directive 93/79/EEC of 21 September                           obligations under the EC Treaty;
    1993 setting out additional implementing provisions
    for lists of varieties of fruit plant propagating material
                                                                      2. declares that there is no need to adjudicate on the
    and fruit plants, as kept by suppliers under Council
                                                                           application in so far as it relates to Commission
    Directive 92/34/EEC (OJ L 256, 14.10.1993, p. 25),
                                                                           Directive 94/3/EC, of 21 January 1994, establishing a
    and
                                                                           procedure for the notification of interception of a
                                                                           consignment or a harmful organism from third
Ð Commission Directive 94/3/EC of 21 January 1994                          countries and presenting an imminent phytosanitary
    establishing a procedure for the notification of                       danger;
    interception of a consignment or a harmful organism
    from third countries and presenting an imminent                   3. orders the Federal Republic of Germany to pay the
    phytosanitary danger (OJ L 32, 5.2.1994, p. 37),                       costs, including those consequent upon the partial
                                                                           discontinuance of the proceedings by the Commission.
the Federal Republic of Germany has failed to fulfil its
obligations under the EC Treaty Ð the Court (Fifth                    (1) OJ C 388, 21.12.1996.
Chamber), composed of: C. Gulmann, President of the
Chamber, D. A. O. Edward, J.-P. Puissochet, P. Jann
(Rapporteur) and L. Sevón, Judges; P. LeÂger, Advocate-
General; R. Grass, Registrar, has given a judgment on
12 March 1998, in which it:
                                                                                JUDGMENT OF THE COURT
1. Declares that, by failing to adopt within the periods                                      (Sixth Chamber)
    prescribed the laws, regulations and administrative
    provisions needed to comply with,                                                        of 12 March 1998
                                                                      in    Case   C-163/97: Commission of the European
    Ð Commission Directive 93/62/EEC of 5 July 1993                              Communities v. Kingdom of Belgium (1)
        setting out the implementing measures concerning              (Failure of a Member State to fulfil its obligations Ð
        the supervision and monitoring of suppliers and                         Failure to transpose Directive 92/74/EEC)
        establishments pursuant to Council Directive 92/
        33/EEC on the marketing of vegetable propagating                                       (98/C 151/04)
        and planting material, other than seed,
                                                                                (Language of the case: French)
    Ð Commission Directive 93/63/EEC of 5 July 1993
        setting out the implementing measures concerning
        the supervision and monitoring of suppliers and                 (Provisional translation; the definitive translation will be
        establishments pursuant to Council Directive 91/                        published in the European Court Reports)
        682/EEC on the marketing of ornamental plant
        propagating material and ornamental plants,
                                                                      In Case C-163/97: Commission of the European
                                                                      Communities (Agent: Hendrik van Lier) v. Kingdom of
    Ð Commission Directive 93/64/EEC of 5 July 1993
                                                                      Belgium (Agent: Jan Devadder) Ð application for a
        setting out the implementing measures concerning
                                                                      declaration that, by not giving notification of or by not
        the supervision and monitoring of suppliers and
                                                                      adopting the measures necessary in order to transpose
        establishments pursuant to Council Directive 92/
                                                                      Council Directive 92/74/EEC of 22 September 1992
        34/EEC on the marketing of fruit plant
                                                                      widening the scope of Directive 81/851/EEC on the
        propagating material and fruit plants intended for
                                                                      approximation of provisions laid down by law, regulation
        fruit production,
                                                                      or administrative action relating to veterinary medicinal
                                                                      products and laying down additional provisions on
    Ð Commission Directive 93/78/EEC of 21 September                  homeopathic veterinary medicinal products (OJ L 297,
        1993 setting out additional implementing                      13.10.1992, p. 12), the Kingdom of Belgium has failed to
        provisions for lists of varieties of ornamental plant         fulfil its obligations under the EC Treaty and that
        propagating material and ornamental plants, as                Directive Ð the Court (Sixth Chamber), composed of: H.
        kept by suppliers under Council Directive 91/682/             Ragnemalm, President of the Chamber, G. F. Mancini,
        EEC, and                                                      P. J. G. Kapteyn, J. L. Murray (Rapporteur) and K. M.
 ---pagebreak--- C 151/4               EN                  Official Journal of the European Communities                                      16.5.98
Ioannou, Judges; G. Cosmas, Advocate-General; R. Grass,              Jacobs, Advocate-General; R. Grass, Registrar, has given a
Registrar, has given a judgment on 12 March 1998, in                 judgment on 12 March 1998, in which it:
which it:
                                                                     1. declares that, by failing to adopt, within the prescribed
1. declares that, by not adopting within the prescribed                  period, the laws, regulations and administrative
     period the laws, regulations and administrative                     provisions necessary in order to comply with Council
     provisions to comply with Council Directive 92/74/                  Directive 94/57/EC of 22 November 1994 on common
     EEC of 22 September 1992 widening the scope of                      rules and standards for ship inspection and survey
     Directive 81/851/EEC on the approximation of                        organisations and for the relevant activities of
     provisions laid down by law, regulation or                          maritime administrations, the Italian Republic has
     administrative action relating to veterinary medicinal              failed to fulfil its obligations under Article 16 thereof;
     products and laying down additional provisions on
     homeopathic veterinary medicinal products, the
     Kingdom of Belgium has failed to fulfil its obligations         2. orders the Italian Republic to pay the costs.
     under Article 10(1) thereof;
                                                                     (1) OJ C 331, 1.11.1997.
2. orders the Kingdom of Belgium to pay the costs.
(1) OJ C 212, 12.7.1997.
                                                                     Action brought on 27 February 1998 by the Commission
                                                                     of the European Communities against the Grand Duchy of
                                                                                Luxembourg
                                                                                (Case C-59/98)
               JUDGMENT OF THE COURT
                                                                                (98/C 151/06)
                       (Fifth Chamber)
                      of 12 March 1998
                                                                     An action against the Grand Duchy of Luxembourg was
      in Case C-313/97: Commission of the European                   brought before the Court of Justice of the European
             Communities v. Italian Republic (1)                     Communities on 27 February 1998 by the Commission of
                                                                     the European Communities, represented by Giuliano
(Failure by a Member State to fulfil its obligations Ð
                                                                     Marenco, Principal Legal Adviser, and JoseÂ F. Crespo
Directive 94/57/EC Ð Failure to transpose within the
                                                                     Carrillo, of its Legal Service, acting as Agents, with an
                      prescribed period)
                                                                     address for service in Luxembourg at the office of Carlos
                        (98/C 151/05)                                Gómez de la Cruz, Wagner Centre, Kirchberg.
                (Language of the case: Italian)                      The applicant claims that the Court should:
                                                                     Ð declare that, by failing to adopt all the laws,
  (Provisional translation; the definitive translation will be           regulations or administrative provisions necessary to
          published in the European Court Reports)                       comply with Commission Directive 94/46/EC of
                                                                         13 October 1994 amending Directive 88/301/EEC and
                                                                         Directive 90/388/EEC in particular with regard to
In Case C-313/97: Commission of the European                             satellite communications (1), the Grand Duchy of
Communities (Agent: L. Pignataro) v. Italian Republic                    Luxembourg has failed to fulfil its obligations under
(Agent: U. Leanza, assisted by G. Aiello) Ð application                  that directive,
for a declaration that, by failing to adopt and/or
communicate the laws, regulations and administrative
provisions necessary in order to comply with Council                 Ð order the Grand Duchy of Luxembourg to pay the
Directive 94/57/EC of 22 November 1994 on common                         costs.
rules and standards for ship inspection and survey
organisations and for the relevant activities of maritime
administrations (OJ L 319, 12.12.1994, p. 20), the Italian           Pleas in law and main arguments adduced in support:
Republic has failed to fulfil its obligations under the EC
Treaty and under that Directive Ð the Court (Fifth
Chamber), composed of: C. Gulmann, President of the                  The mandatory nature of the provisions of the third
Chamber, M. Wathelet (Rapporteur), J. C. Moitinho de                 paragraph of Article 189 and the first paragraph of
Almeida, J.-P. Puissochet and L. Sevón, Judges; F. G.                Article 5 of the EC Treaty requires Member States to


title: Case T-361/03: Action brought on 27 October 2003 by Philippe Vanlangendonck against the Commission of the European Communities

text:
10.1.2004              EN                         Official Journal of the European Union                                            C 7/41
Action brought on 27 October 2003 by Philippe Van-                        —     breach of the principle of the rule of law and of the EC
langendonck against the Commission of the European                              Treaty since, contrary to the opinion of the chairman of
                          Communities                                           the selection board, the Director of EPSO stated that the
                                                                                competition notice does not allow for the possibility of
                                                                                an oral test on an ex aequo basis, even though it is settled
                         (Case T-361/03)
                                                                                case-law that the selection board is bound by the terms
                                                                                of the competition notice;
                          (2004/C 7/75)
                                                                          —     breach of the principle of equal treatment of candidates.
                   (Language of the case: French)                               The applicant asks in that connection why the selection
                                                                                board, which performed its duties perfectly well in
                                                                                selecting and comparing the merits of candidates ranging
                                                                                from best to 149th in order of merit, suddenly proved
An action was brought before the Court of First Instance of                     incapable of comparing and making a selection among
the European Communities on 27 October 2003 against                             seven candidates on an ex aequo basis.
the Commission of the European Communities by Philippe
Vanlangendonck, residing in Overijse (Belgium), represented
by Bernard Laurent, Lawyer.
The applicant claims that Court of First Instance should:
—     verify the legality of the rejection of complaints Nos R/
      134/03 and R/139/03 registered by ADMIN. B2 —                       Action brought on 4 November 2003 by Rafael de
      Appeals Unit, on 27 March 2003, adopted by the acting               Bustamante Tello against the Council of the European
      Director of EPSO in his capacity of appointing authority                                          Union
      on 17 July 2002, notified by letter sent on 25 July 2003
      and received on 28 July 2003 in relation to a refusal to
      annul or amend a published list of successful candidates                                    (Case T-368/03)
      in competition COM/A/10/01 which was manifestly
      vitiated by errors or irregularities;                                                         (2004/C 7/76)
—     verify the legality of the refusal by the Chairman of the
      selection board in competition COM/A/10/01 and the                                     (Language of the case: Spanish)
      appointing authority to explain and disclose objective
      and relevant information;
—     order the defendant to pay the sum of EUR 400 000 to                An action against the Council of the European Union was
      the applicant by way of damages for the loss suffered               brought before the Court of First Instance of the European
      (subject to increase or decrease of that sum in the course          Communities on 4 November 2003 by Rafael de Bustamante
      of the proceedings).                                                Tello, residing in Brussels (Belgium), represented by D. Ramón
                                                                          García-Gallardo and M. Dolores Domínguez Pérez, lawyers.
Pleas in law and main arguments
                                                                          The applicant claims that the Court should:
The applicant takes exception to the administration’s refusal             —     annul the Council decision of 28 July 2003 which
to annul or amend a published list of successful candidates in                  dismisses the claim of 14 April 2003 in that it does not
competition COM/A/10/01 which was manifestly vitiated by                        recognise the right to receive an expatriation allowance
errors or irregularities and the refusal to provide information                 and, accordingly, other related allowances;
as asked for by the applicant to enable him to consider whether
or not he has been the subject of discrimination on grounds               —     order the defendant to pay the full costs.
of his nationality in the course of the procedure and the
compilation of results of the oral test in the abovementioned
competition.
                                                                          Pleas in law and main arguments
In support of his claims, the applicant alleges:
—     a manifest error of law or of fact in that the selection            The applicant in the present case challenges the failure of the
      board placed 156 people on the list of successful                   appointing authority to recognise the right to an expatriation
      candidates rather than the 150 prescribed by the compe-             allowance and other related allowances (Article 4 of Annex VII
      tition notice;                                                      to the Staff Regulations).


title: Case T-699/16 P: Appeal brought on 29 September 2016 by the European Parliament against the judgment of the Civil Service Tribunal of 19 July 2016 in Case F-147/15, Meyrl v Parliament

text:
               5.12.2016

               EN

               Official Journal of the European Union

               C 454/28

      Appeal brought on 29 September 2016 by the European Parliament against the judgment of the Civil Service Tribunal of 19 July 2016 in Case F-147/15, Meyrl v Parliament
      (Case T-699/16 P)
      (2016/C 454/49)
      Language of the case: French

         Parties

         Appellant: European Parliament (represented by: V. Montebello-Demogeot and M. Dean, acting as Agents)

         Other party to the proceedings: Sonja Meyrl (Brussels, Belgium)

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment under appeal;

                  —

                  consequently, dismiss the action at first instance;

                  —

                  declare that each of the parties should bear its own costs in relation to the present proceedings;

                  —

                  order Ms Meyrl to pay the costs of the proceedings at first instance.

         Grounds of appeal and main arguments

      In support of its appeal, the appellant raises three grounds.

                  1.

                  First ground of appeal, alleging an error in law, a distortion of the facts and a failure to provide adequate reasons, in so far as the Civil Service Tribunal (CST) held, in paragraph 25 of the judgment under appeal, that the possibility of reassigning the other party to the proceedings to a different post would have made it possible for the latter not to be dismissed.

                  2.

                  Second ground of appeal, alleging an error in law, a distortion of the facts and a failure to provide adequate reasons in the conclusion that the CST reached, in paragraphs 23 and 30 of the judgment under appeal, that the relationship problems were an additional reason for the dismissal of the other party to the proceedings.

                  3.

                  Third ground of appeal, alleging a manifest error of assessment resulting from the finding of the CST according to which, if the other party to the proceedings had also been given the opportunity to set out her views on the relationship problems, that might indeed have changed the outcome of the decision-making process resulting in the contested decision, namely, her dismissal.


title: Case T-366/08: Action brought on 2 September 2008 — Federcoopesca and Others v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/43

         Action brought on 2 September 2008 — Federcoopesca and Others v Commission
   (Case T-366/08)
   (2008/C 301/73)
   Language of the case: Italian
   Parties

      Applicants: Federazione Nazionale delle Cooperative della Pesca (Federcoopesca) (Rome, Italy); Pappalardo (Cetara, Italy); Pescatori La Tonnara (Cetara, Italy); Fedemar (Cetara, Italy); I Ciclopi di Tudisco Matteo (Catania, Italy); Testa (Catania, Italy); Pescatori San Pietro Apostolo, Camplone (Pescara, Italy), and Pesca (Pescara, Italy) (represented by: P. Cavatola, V. Cannizzaro and G. Micucci, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The pleas in law and principal arguments are similar to those relied on in Case T-305/08 Italian Republic v Commission and Case T-313/08 Veromar di Tudisco Alfio & Salvatore snc v Commission.


C 19/46         EN                     Official Journal of the European Communities                                25.1.2003
                                                        CORRIGENDA
                      Corrigendum to the Official Journal notice in respect of Case T-258/02
                         (Official Journal of the European Communities C 274 of 9 November 2002)
                                                        (2003/C 19/87)
        In the Official Journal notice in respect of Case T-258/02 Hendrikus Boukes v Parliament, the first
        paragraph under ‘Pleas in law and main arguments’ should be replaced by the following:
          ‘The applicant in the present case challenges the refusal by the appointing authority to recognise, for
          the purpose of applying the relevant provisions of the Staff Regulations, his marriage to another person
          of the same sex, contracted under the Netherlands Law of 21 December 2000, which entered into force
          on 1 April 2001.’


title: Case C-38/16: Judgment of the Court (Fourth Chamber) of 14 June 2017 (request for a preliminary ruling from the First-tier Tribunal (Tax Chamber) — United Kingdom) — Compass Contract Services Limited v Commissioners for Her Majesty’s Revenue and Customs (Reference for a preliminary ruling — Value added tax (VAT) — Repayment of overpaid VAT — Right to deduct VAT — Procedures — Principles of equal treatment and fiscal neutrality — Principle of effectiveness — National legislation introducing a limitation period)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/13

         Judgment of the Court (Fourth Chamber) of 14 June 2017 (request for a preliminary ruling from the First-tier Tribunal (Tax Chamber) — United Kingdom) — Compass Contract Services Limited v Commissioners for Her Majesty’s Revenue and Customs
   (Case C-38/16) (1)

   ((Reference for a preliminary ruling - Value added tax (VAT) - Repayment of overpaid VAT - Right to deduct VAT - Procedures - Principles of equal treatment and fiscal neutrality - Principle of effectiveness - National legislation introducing a limitation period))
   (2017/C 277/17)
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: Compass Contract Services Limited

      Defendant: Commissioners for Her Majesty’s Revenue and Customs

      Operative part of the judgment

   The principles of fiscal neutrality, equal treatment and effectiveness do not preclude national legislation, such as that at issue in the main proceedings, which, in the context of the reduction of the limitation period, on the one hand, for claims for overpaid value added tax and, on the other hand, for claims for deduction of input value added tax, provides different transitional periods, with the result that claims relating to two accounting periods of three months are subject to different limitation periods depending on whether they concern the repayment of overpaid value added tax or the deduction of input value added tax.

      (1)  OJ C 106, 21.3.2016.


title: Case T-323/01: Action brought on 19 December 2001 by Mercedes Alvarez Moreno against Commission of the European Communities

text:
6.4.2002              EN                     Official Journal of the European Communities                                        C 84/61
In view of the inactivity of the Community institution, the             It was stated in the application that the Community Ship-
applicant, by letter of 26 July 2001, received by the Com-              owners should hold 60 % of the shares of the joint enterprise,
mission on 30 July 2001, more than 53 months after                      while the partner in the relevant third Country, Namibia,
the complaint was lodged, called on the Commission, in                  should hold 40 % of the shares. After the withdrawal of the
accordance with Article 232 of the EC Treaty, to adopt a                project of the Spanish company E. Vieira S.A. and the
position on the complaint and initiate the procedure under              replacement of two of the four vessels involved with two other
Article 88(2) of the EC Treaty.                                         vessels, the applicant and the Namibian partner concluded an
                                                                        agreement, according to which the applicant owned 28,51 %
                                                                        of the share capital, but only 13,68 % of the voting rights.
The Commission replied, after the two-month time-limit                  Finally, with effect from 1 May 1995, the applicant transferred
prescribed by Article 232, in a letter of 24 October 2001, in           part of its shareholding in the joint entreprise to the Namibian
which it does not define its position, but merely states that it        partner under an agreement providing that the applicant’s
is completing the internal preparatory work with regard to the          shareholding was reduced to 1 % of the share capital.
complaints.                                                             According to the contested Decision, the basis for providing
                                                                        financial aid has ceased to exist because of this reduction to
                                                                        1 % of the applicant’s shareholding in the joint undertaking,
                                                                        which is not be considered sufficient for a joint enterprise, as
                                                                        defined by Community Regulations.
Action brought on 17 December 2001 by Norway Sea-
foods Denmark A/S against the Commission of the                         The contested Decision infringes Article 44(1) of the above
                   European Communities                                 mentioned Council Regulation (EEC) No. 4028/86.
                        (Case T-319/01)                                 —     The reduction of the applicant’s shareholding in the joint
                                                                              enterprise to 1 % did not mean that a joint enterprise
                                                                              within the meaning of the Regulation no longer existed.
                        (2002/C 84/112)
                                                                        —     The applicant had a legitimate expectation that the
                  (Language of the case: English)                             reduction of the Applicant’s shareholding in the joint
                                                                              enterprise to 1 % would not result in any demand for
                                                                              repayment of aid from the Commission.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 December 2001 by Norway                      (1) OJ L 380 of 31.12.1990, p. 1.
Seafoods Denmark A/S, represented by Mr Jacob Ørndrup of
Gorrissen Federspiel Kierkegaard, Copenhagen (Denmark).
The applicant claims that the Court should:
—     annul Commission Decision K(2001)3079 of 16 October
      2001
—     order the Commission to pay the costs.                            Action brought on 19 December 2001 by Mercedes
                                                                        Alvarez Moreno against Commission of the European
                                                                                Communities
Pleas in law and main arguments
                                                                                (Case T-323/01)
The present application has been lodged against Commission
Decision K(2001)3079 of 16 October 2001, regarding the                                          (2002/C 84/113)
reduction and repayment of financial aid to Foodmark A/S
under Commission Decision K(93)1823 of 5 July 1993, as
amended by Decision K(94)119 of 27 January 1994, for                                       (Language of the case: French)
Project SM/DNK/02/93, the object of which was an application
for financial aid pursuant to Council Regulation (EEC)
No. 4028/88 of 18 December 1986, on Community measures
to improve and adapt structures in the fisheries and aquacul-
ture sector as amended by Council Regulation (EEC)                      An action against the Commission of the European Communi-
No. 3944/90 of 20 December 1990 (1). The applicant’s name               ties was brought before the Court of First Instance of the
at the time of this application was Foodmark A/S; this name             European Communities on 19 December 2001 by Mercedes
was later changed to Foodmark Holding A/S and later still to            Alvarez Moreno, residing in Berlin, represented by Georges
Norway Seafoods Denmark A/S.                                            Vandersanden and Laura Levi, avocats.
 ---pagebreak--- C 84/62                EN                     Official Journal of the European Communities                                       6.4.2002
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul the decision taken by the defendant, as communi-             —     annul the applicant’s staff report for 1995-1997 inas-
      cated to her by letters of 13 February 2001 and 23 Febru-                much as it does not take account of the opinion of the ad
      ary 2001, to apply an age limit set at 65 years to freelance             hoc working party, the ad hoc appeals joint working party
      interpreters and therefore to apply that age limit to her;               and the staff reports Joint Committee, in that it does not
                                                                               assess his duties as a trade union representative and his
                                                                               status as an elected member as being part of the duties
—     annul, in so far as necessary, the rejection of the                      which he is required to undertake in his institution;
      applicant’s complaint by the Commission on 7 September
      2001, received on 10 September 2001;                               —     make an order as to costs requiring the defendant to pay
                                                                               the costs and fees incurred.
—     find that the applicant may continue to work as freelance
      interpreter, for the Community institutions, beyond the
      age of 65;
                                                                         Pleas in law and main arguments
—     make good the damage caused to the applicant provision-
      ally assessed at 1 euro;
                                                                         The applicant, an official of the Commission, contests the
                                                                         rejection of his complaint seeking the annulment of his staff
—     order the defendant to pay all the costs.                          report for 1995-1997.
                                                                         In support of his arguments, he claims that certain assessments
                                                                         are not justified and that his professional situation and his
Pleas in law and main arguments                                          career development were adversely affected following his
                                                                         election to a local staff committee and as a result of his union
                                                                         activities. He alleges psychological harassment or mobbing
                                                                         intended to restrict his freedom of association, infringement of
In support of her arguments, the applicant relies on the same            the general provisions implementing Article 43 of the Staff
pleas in law as those put forward in T-153/01 Mercedes                   Regulations and breach of the principle of sound adminis-
Alvarez Moreno v Commission (OJ 2001 C 275, p. 11).                      tration.
                                                                         Action brought on 21 December 2001 by Archer Daniels
Action brought on 21 December 2001 by Giorgio Lebedef                    Midland Company against the Commission of the Euro-
    against Commission of the European Communities                                              pean Communities
                                                                                (Case T-329/01)
                         (Case T-326/01)
                                                                                (2002/C 84/115)
                         (2002/C 84/114)
                                                                                (Language of the case: English)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
An action against the Commission of the European Communi-                European Communities on 21 December 2001 by Archer
ties was brought before the Court of First Instance of the               Daniels Midland Company, represented by Professor Carl Otto
European Communities on 21 December 2001 by Giorgio                      Lenz, Ms Lynda Martin Alegi, Mr Edward William Batchelor
Lebedef, residing in Senningerberg (Grand Duchy of Luxem-                and Ms Marta Garcia of Baker & McKenzie, London (United
bourg), represented by Gilles Bounéou, lawyer.                           Kingdom).


title: Case C-264/03: Action brought on 17 June 2003 by the Commission of the European Communities against the French Republic

text:
23.8.2003             EN                           Official Journal of the European Union                                        C 200/15
On a proper construction of Regulation EEC No 3950/92 (1) of               imports, since it allows the authorities an excessive degree of
28 December 1992 (in particular Articles 1, 2 and 9(g) thereof)            latitude and does not require them to take a decision within a
and Regulation EEC No 536/93 (2) of 9 March 1993 (in parti-                brief and precisely determined period. In the case of parallel
cular Articles 1, 2 and 3 thereof), is the transfer of a quantity of       imports of medicines, that barrier goes well beyond what is
milk by the producer to a third party, while retaining the right           necessary for the protection of public health.
of property in it, in performance of a contract for the proces-
sing of the milk and in order to manufacture cheese, butter and
whey, for consideration, to be classified as ‘delivery’ or ‘direct
sale’ for the purposes of determining milk quotas and whether
the additional levy is to be applied?
(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.03.1993, p. 12.
                                                                           Action brought on 17 June 2003 by the Commission of
                                                                             the European Communities against the French Republic
                                                                                (Case C-264/03)
                                                                                (2003/C 200/27)
Action brought on 17 June 2003 by the Commission of
  the European Communities against the French Republic
                                                                           An action against the French Republic was brought before the
                                                                           Court of Justice of the European Communities on 17 June
                         (Case C-263/03)                                   2003 by the Commission of the European Communities,
                                                                           represented by B. Stromsky, K. Wiedner and F. Simonetti,
                                                                           acting as Agents, with an address for service in Luxembourg.
                         (2003/C 200/26)
                                                                           The Commission of the European Communities claims that the
                                                                           Court should:
An action against the French Republic was brought before the
Court of Justice of the European Communities on 17 June
2003 by the Commission of the European Communities,                        1.    declare that, by reserving, in Article 4 of the Law of
represented by B. Stromsky, acting as Agent, with an address                     12 July 1985, delegated management contracts to an
for service in Luxembourg.                                                       exhaustive list of legal entities governed by French law,
                                                                                the French Republic has failed to fulfil its obligations
                                                                                under Directive 92/50/EEC (1), and in particular
The Commission of the European Communities claims that the                       Articles 8 and 9 thereof, and under Article 49 of the
Court should:                                                                    Treaty establishing the European Community;
1.    declare that, in so far as the French legislation in force           2.    order the French Republic to pay the costs.
      subjects imports of medicines from other Member States
      of the European Community, when they are identical to
      medicines already authorised in France (parallel imports),
      to unreasonable conditions, in particular as regards the
      discretionary power granted to the authorities and the               Pleas in law and main arguments
      absence of a prescribed period within which they must
      take a decision, the French Republic has failed to fulfil its
      obligations under Article 28 of the Treaty establishing the          Reserving delegated management contracts to certain legal
      European Community;                                                  entities governed by French law constitutes a breach of Direc-
                                                                           tive 92/50/EEC and a restriction on the principle of the
2.    order the French Republic to pay the costs.                          freedom to provide services laid down in Article 49 of the
                                                                           Treaty which is not justified under the exception provided for
                                                                           in Article 45 of the Treaty.
                                                                           The management contract is a public service contract within
Pleas in law and main arguments                                            the meaning of Article 1(a) of Directive 92/50. Moreover,
                                                                           management contracts fall within Category No 12 of
                                                                           Annex IA, apart from contracts exclusively or principally
The situation called in question essentially results from the              concerning representative tasks, so that the French legislation
absence of a specific procedure for authorising parallel imports           fails to comply with Article 8 of the Directive. Management
of medicines in French territory. The general procedure for the            contracts which relate exclusively or principally to representa-
prior authorisation of the import of medicines which is there-             tive tasks come under Annex IB of the Directive, so that the
fore applicable constitutes a barrier to imports and a measure             French legislation fails to comply with Article 9 of the Direc-
having equivalent effect to a quantitative restriction on                  tive as well.
 ---pagebreak--- C 200/16                EN                         Official Journal of the European Union                                        23.8.2003
Secondly, reserving delegated management contracts solely to                     with the Czech and Slovak Federative Republic, Rumania
the legal entities listed in Article 4 of the Law of 12 July 1985                and Poland concerning inland navigation, which affect the
on the supervision of public work and its relation with the                      Community rules adopted by the Community in Council
supervision of private work, as amended, constitutes a restric-                  Regulation (EEC) No 3921/91 of 16 December 1991
tion on the principle of the freedom to provide services. Such a                 laying down the conditions under which non-resident
restriction cannot be justified either by Article 45, inasmuch as                carriers may transport goods or passengers by inland
the tasks entrusted are not connected, even occasionally, with                   waterway within a Member State. Article 7 of those
the exercise of official authority, or by Article 46, since grounds              agreements provides, subject to special authorisation, for
of public policy, public security or public health are not applic-               access to cabotage in Luxembourg by carriers from the
able in the present case.                                                        non-member countries concerned.
(1) Council Directive 92/50/EEC of 18 June 1992 relating to the
                                                                           —     The Grand Duchy of Luxembourg has not observed its
    coordination of procedures for the award of public service                   obligations under Article 10 EC by negotiating,
    contracts (OJ L 209, 24.07.1992, p. 1).                                      concluding, ratifying and arranging for the entry into
                                                                                force of the bilateral agreements in question after the
                                                                                grant of a negotiating mandate by the Council to the
                                                                                Commission to negotiate an agreement between the EEC,
                                                                                on the one hand, and Poland and the States parties to the
                                                                                Danube Convention (Hungary, Czechoslovakia, Rumania,
                                                                                Bulgaria, the former USSR, the former Yugoslavia and
Action brought on 18 June 2003 by the Commission of                              Austria), on the other.
the European Communities against the Grand Duchy of
                             Luxembourg                                    —     The bilateral agreements concluded by the Grand Duchy
                                                                                of Luxembourg are incompatible with Council Regulation
                           (Case C-266/03)                                       (EC) No 1356/96 of 8 July 1996 on common rules
                                                                                applicable to the transport of goods or passengers by
                                                                                inland waterway between Member States with a view to
                           (2003/C 200/28)
                                                                                establishing freedom to provide such transport services.
                                                                                The Polish, Rumanian, Czech and Slovak shippers and
                                                                                navigation companies capable of being authorised under
An action against the Grand Duchy of Luxembourg was                              the bilateral agreements in question to effect transports
brought before the Court of Justice of the European Commu-                       between Luxembourg and the other Member States do
nities on 18 June 2003 by the Commission of the European                         not satisfy the conditions laid down in that regulation.
Communities, represented by C. Schmidt and W. Wils, acting
as Agents, with an address for service in Luxembourg.
                                                                           (1) OJ 1991 L 373, p. 1.
                                                                           (2) OJ 1996 L 175, p. 7.
The Commission of the European Communities claims that the
Court should:
1.    Declare that, under the first paragraph of Article 226 of
      the Treaty establishing the European Community, the
      Grand Duchy of Luxembourg, by individually negotiating,
      concluding, ratifying, arranging for the entry into force
      and refusing to renounce the bilateral agreements with the
      Czech and Slovak Federative Republic, Rumania and                    Reference for a preliminary ruling by the Cour d'appel of
      Poland concerning inland navigation, has failed to fulfil            the Grand Duchy of Luxembourg by judgment of that
      its obligations under Article 10 EC and Council Regula-              Court in the civil proceedings between 1. Administration
      tion (EEC) No 3921/91 of 16 December 1991 laying                     de l'Enregistrement et des Domaines, and 2. État du
      down the conditions under which non-resident carriers                Grand-Duché de Luxembourg and Vermietungsgesellschaft
      may transport goods or passengers by inland waterway                                          Objekt Kirchberg
      within a Member State (1) and Council Regulation (EC)
      No 1356/96 of 8 July 1996 on common rules applicable
      to the transport of goods or passengers by inland                                             (Case C-269/03)
      waterway between Member States with a view to estab-
      lishing freedom to provide such transport services (2).
                                                                                (2003/C 200/29)
2.    Order the Grand Duchy of Luxembourg to pay the costs.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by judgment of the Cour d'appel
Pleas in law and main arguments                                            (Court of Appeal) of the Grand Duchy of Luxembourg,
                                                                           received at the Court Registry on 20 June 2003, for a
—     The Grand Duchy of Luxembourg has infringed the                      preliminary ruling in the civil proceedings between 1. Adminis-
      exclusive Community competence as defined in the                     tration de l'Enregistrement et des Domaines (Registration and
      ERTA case (Case 22/70 Commission v Council [1971]                    Land Authority), and 2. État du Grand-Duché de Luxembourg
      ECR 263) by negotiating, concluding, ratifying and arran-            and Vermietungsgesellschaft Objekt Kirchberg on the following
      ging for the entry into force of the bilateral agreements            question:


C 278/34             EN               Official Journal of the European Communities                                  5.9.98
      Removal from the register of Case C-403/97 (1)                   Removal from the register of Case C-406/97 (1)
                        (98/C 278/71)                                                     (98/C 278/74)
By order of 25 May 1998 the President of the Court of            By order of 15 June 1998 the President of the Court of
Justice of the European Communities has ordered the              Justice of the European Communities has ordered the
removal from the register of Case C-403/97: Commission           removal from the register of Case C-406/97: Commission
of the European Communities v. Federal Republic of               of the European Communities v. Grand Duchy of
Germany.                                                         Luxembourg.
(1) OJ C 26, 24.1.1998.
                                                                 (1) OJ C 41, 7.2.1998.
      Removal from the register of Case C-291/95 (1)                   Removal from the register of Case C-411/97 (1)
                        (98/C 278/72)                                                     (98/C 278/75)
By order of 15 June 1998 the President of the Court of           By order of 16 June 1998 the President of the Court of
Justice of the European Communities has ordered the              Justice of the European Communities has ordered the
removal from the register of Case C-291/95: Kingdom of           removal from the register of Case C-411/97: Commission
Belgium v. Commission of the European Communities.               of the European Communities v. Kingdom of Belgium.
(1) OJ C 268, 14.10.1995.
                                                                 (1) OJ C 55, 20.2.1998.
      Removal from the register of Case C-155/97 (1)                   Removal from the register of Case C-105/97 (1)
                        (98/C 278/73)                                                     (98/C 278/76)
By order of 15 June 1998 the President of the Court of           By order of 25 June 1998 the President of the Court of
Justice of the European Communities has ordered the              Justice of the European Communities has ordered the
removal from the register of Case C-155/97: Commission           removal from the register of Case C-105/97 (reference for
of the European Communities v. Kingdom of Belgium.               a preliminary ruling from the Pretura Circondariale di
                                                                 Trento): Leonardo Gulli v. Ente Poste Italiane.
(1) OJ C 181, 14.6.1997.
                                                                 (1) OJ C 142, 10.5.1997.


title: Judgment of the Court of First Instance of 9 July 2003 in Case T-156/01: Laboratorios RTB, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Invalidity proceedings — Article 52(1)(a) of Regulation (EC) No 40/94 — Earlier figurative and word marks containing the word GIORGI — Application for Community word mark GIORGIO AIRE — Relative ground for refusal — Article 8(1)(b) of Regulation No 40/94 — Proof of use — Article 56(2) and (3) of Regulation No 40/94)

text:
6.9.2003                EN                         Official Journal of the European Union                                         C 213/31
2.     Orders the applicant to pay the costs.                              2.     Orders the applicant to pay the costs.
                                                                           (1 ) OJ C 245 of 1.9.2001.
( 1) OJ C 227 of 11.8.2001.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                                          of 9 July 2003
                                                                           in Case T-156/01: Laboratorios RTB, SL v Office for
                           of 3 July 2003                                  Harmonisation in the Internal Market (Trade Marks and
                                                                                Designs) (OHIM) ( 1)
in Case T-129/01: José Alejandro, SL v Office for Harmon-
isation in the Internal Market (Trade Marks and Designs)                   (Community trade mark — Invalidity proceedings —
                              (OHIM) (1)                                   Article 52(1)(a) of Regulation (EC) No 40/94 — Earlier
                                                                           figurative and word marks containing the word GIORGI —
                                                                           Application for Community word mark GIORGIO AIRE —
                                                                           Relative ground for refusal — Article 8(1)(b) of Regulation
(Community trade mark — Opposition procedure — Earlier                     No 40/94 — Proof of use — Article 56(2) and (3) of
national word marks BUD — Application for Community                                               Regulation No 40/94)
word mark BUDMEN — Relative ground for refusal —
            Article 8(1)(b) of Regulation No 40/94)
                                                                                (2003/C 213/60)
                          (2003/C 213/59)                                                     (Language of the case: Spanish)
                   (Language of the case: Spanish)
                                                                           In Case T-156/01, Laboratorios RTB, SL, established in Bigues
                                                                           i Riells (Spain), represented by A. Canela Giménez, lawyer, v
                                                                           Office for Harmonisation in the Internal Market (Trade Marks
                                                                           and Designs) (OHIM) (Agents: O. Montalto and J.F. Crespo
In Case T-129/01, José Alejandro SL, established in Alicante               Carrillo): Action brought against the decision of the First Board
(Spain), represented by I. Temiño Ceniceros, lawyer, v Office              of Appeal of the Office for Harmonisation in the Internal
for Harmonisation in the Internal Market (Trade Marks and                  Market (Trade Marks and Designs) of 11 April 2001 (Case
Designs) (OHIM) (Agents: F. López de Rego and J.F. Crespo                  R 258/2000-1), the Court of First Instance (Fourth Chamber),
Carrillo); Intervener, Anheuser-Busch Inc., established in Saint           composed of: V. Tiili, President, P. Mengozzi, and M. Vilaras,
Louis, Missouri (United States), represented by V. von                     Judges; B. Pastor, Deputy Registrar, has given a judgment on
Bomhard, lawyer: Action brought against the decision of the                9 July 2003, in which it:
First Board of Appeal of the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) of 20 March 2001
(Case R 230/2000-1), concerning an opposition procedure                    1.     Dismisses the application;
between Anheuser-Busch Inc. and José Alejandro SL, the
Court of First Instance (Second Chamber), composed of:                     2.     Orders the applicant to pay the costs.
N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges;
J. Palacio González, Principal Administrator, for the Registrar,
has given a judgment on 3 July 2003, in which it:
                                                                           (1 ) OJ C 259 of 15.9.2001.
1.     Dismisses the action;


title: Reference for a preliminary ruling by the Kammergericht, Berlin, by order of that court of 30 October 1996 in the case of Ruhrgas AG and Thyssengas GmbH against the Bundeskartellamt (Case C-365/96)

text:
No C 9/ 12            1 EN |                    Official Journal of the European Communities                                   11 . 1 . 97
17 July 1969 concerning indirect taxes on the raising of                        gas sector by legislation and has to that end
capital (*), with reference to the period during which the                      submitted, pursuant to Article 189b (2 ) of the EC
Italian State had not correctly transposed the provisions of                    Treaty, a proposal to the Council of the European
the Directive into its domestic legal system (a period                          Union, which is working on the adoption of a
which did not end until the entry into force of Decree Law                      common position, for a European Council and
No 331 of 30 August 1993 , converted into Law No 427                            Parliament Directive concerning common rules for
of 29 October 1993 )?                                                           the internal market in natural gas ( ! ) mean that the
                                                                                competent authorities of a Member State pursuant to
H OJ No L 249 , 3 . 10 . 1969 , p . 25 .                                        Article 9 ( 3 ) of Council Regulation No 17 of
                                                                                6 February 1962 (2 ) are precluded on the basis of the
                                                                                second paragraph of Article 5 of the Treaty, under
                                                                                which the Member States are to abstain from any
                                                                                measure which could prejudice the attainment of the
                                                                                objectives of the Treaty, from applying Article 85 ( 1 )
Reference for a preliminary ruling from the Bezirksgericht                      of the Treaty by administrative order to an agreement
fur Handelssachen Wien, by judgment of that court                               under which two domestic long-distance gas
of      21   October         1996,     in   the  case     of    Verein          undertakings mutually undertake to refrain from
fur      Konsumenteninformation against              Osterreichische            publicly supplying mains gas, whether directly or
                      Kreditversicherung AG                                     indirectly, in the supply area of the other contracting
                            ( Case C-364/96 )                                   party (a market-sharing agreement)?
                               ( 97/C 9/22
                                                                            2 . If Question 1 is answered in the negative :
Reference has been made to the Court of Justice of the                          do the competent authorities of a Member State
European Communities by order of the Bezirksgericht fur                         within the meaning of Article 9 ( 3 ) of Regulation
Handelssachen Wien ( District Commercial Court, Vienna )                        No 17, by applying Article 85 ( 1 ) of the EC Treaty to
of 21 October 1996 , received at the Court Registry on                          a market-sharing agreement between two domestic
14 November 1996, for a preliminary ruling in the                               long-distance gas undertakings, when, in other
case of Verein fur Konsumenteninformation v. Oster                             Member States, such undertakings have sales areas
reichische Kreditversicherung AG on the                     following           protected by contract or de facto from competition or
question:                                                                       there are statutory monopolies over long-distance gas
                                                                                supply, infringe the obligation on the Member States
Is Article 7 of Council Directive 90/314/EEC of 13 June                         which follows from the second paragraph of Article 5
1990 on package travel, package holidays and package                            in conjunction with Article 3 (g) of the EC Treaty to
tours 0 ) to be interpreted as meaning that the payment of                      abstain from any measure which may jeopardize the
sums by a consumer to the provider of services ( e.g. a                         Community objective of establishing a system
hotel-keeper ) at the resort because the latter person                          ensuring that competition in the internal market is
prevented him from returning home unless payment was                            not distorted ?
made is included within the protective scope of that
provision as ' security for the repatriation of the                         3 . If Question 2 is answered in the negative :
consumer '?
                                                                                is there a measure (a selling arrangement) compatible
f 1 ) OJ No L 158 , 23 . 6 . 1990, p . 59 .                                     with the free movement of goods between Member
                                                                                States for the purposes of Article 30 of the EC Treaty,
                                                                                as interpreted by the Court of Justice in Joined Cases
                                                                                C-267/91 and 268/91 Keck and Mithouard [ 1993]
                                                                                ECR 1-6097, where the national legal order ( in
                                                                                Germany paragraph 103 of the Gesetz gegen Wettbe
Reference for a preliminary ruling by the Kammergericht,
                                                                                werbsbeschrankungen ( Law Against Restrictions on
Berlin, by order of that court of 30 October 1996 in the
                                                                                Competition )) exempts, on notification, market
case of Ruhrgas AG and Thyssengas GmbH against the
                          Bundeskartellamt                                      sharing agreements between long-distance gas
                                                                                undertakings — which avail themselves of this
                            ( Case C-365/96 )                                   possibility — from the prohibition on restrictive
                                ( 97/C 9/23 )                                   practices under national law and, if so, does it follow
                                                                                therefrom that the competent authorities of a
Reference has been made to the Court of Justice of the                          Member State pursuant to Article 9 ( 3 ) of Regulation
European Communities by order of the Kammergericht,                             No 17 may not apply the prohibition within the
 Berlin — Kartellsenat ( Cartel Chamber of the Berlin Court                     meaning of Article 85 ( 1 ) of the EC Treaty to such
 of Appeal ) of 30 October 1996, received at the Court                          exempted market-sharing agreements ?
 Registry on 19 November 1996, for a preliminary ruling
in the case of 1 . Ruhrgas AG and 2 . Thyssengas GmbH                       4 . If Question 3 is answered in the negative:
 against the Bundeskartellamt ( Federal Cartel Office ) on
                                                                                is Article 9 ( 3 ) of Regulation No 17, under which the
the following questions :
                                                                                authorities of the Member States remain competent
    1 . Does the fact that the European Commission is                           to apply Article 85 ( 1 ) of the EC Treaty as long as
        seeking to complete the internal market in the natural                  the Commission has not initiated any procedure,
 ---pagebreak--- 11 . 1 . 97             I tN |               Official Journal of the European Communities                                    No C 9 / 13
       unlawful on the ground that Article 85 ( 1 )                          If ( b ) is answered in the affirmative and (c ) in the
       ( prohibition) and Article 85 ( 3 ) (exemption ) form an              negative:
       indivisible whole for applying the law but the
       national authorities are not granted, in addition to                  ( d ) does the cooperation required under ( b ) justify
       the competence to prohibit, the power to exempt,                            the transmission by the national authorities to the
       which is instead reserved exclusively to the                                Directorate-General for Competition without the
       Commission ( Article 9 ( 1 ) of Regulation No 17)?                          consent of those concerned of information in the
                                                                                authorities' possession relating to the decision ?
 5 . If Question 4 is answered in the negative :                             (e ) Is the Directorate-General for Competition
                                                                                required to hear the undertakings concerned
       are the competent authorities of a Member State                             before giving its opinion or to involve them in the
       pursuant to Article 9 ( 3 ) of Regulation No 17                             procedure in some other way in accordance with
       precluded from applying Article 85 ( 1 ) of the EC                          the procedural rules under Regulation No 17 ?
       Treaty to an agreement between undertakings which,
       within the meaning of Article 4 ( 2 ) of Regulatioin              8 . If ( d ) in Question 7 is answered in the affirmative
       No 17, does not require notification, on the ground                   and ( e ) in the negative:
       that within the meaning of Article 6 ( 2 ) of Regulation
       No 17 any exemption that the Commission may                           is a market-sharing agreement, by which two long
       grant pursuant to Article 85 ( 3 ) of the EC Treaty can               distance gas undertakings in one Member State
       have unlimited retroactive effect ?
                                                                             demarcate their sales areas, an agreement which
                                                                             automatically has as its object, without its actual
 6 . If Question 5 is answered in the affirmative :                          effects having to be taken into account, the
                                                                             prevention, restriction or distortion of competition
       is a market-sharing agreement between two long                       within the meaning of Article 85 ( 1 ) (c ) of the EC
       distance gas undertakings from one Member State,                      Treaty ( sharing of markets )?
       both of which obtain natural gas from other Member
       States and one of which covers the major part of its              9 . If Question 8 is answered in the affirmative :
       requirements from there, an agreement not requiring
       notification which may be exempted with unlimited                     ( a ) may a market-sharing agreement between two
       retroactive legal effect, on the ground that it does not                    long-distance gas undertakings operating in one
       relate either to imports or to exports between                              Member State, both of which obtain natural gas
                                                                                from other Member States and one of which
       Member States within the meaning of Article 4 ( 2 ) ( 1 )
       of Regulation No 17 ?                                                       covers the major part of its requirements from
                                                                                there, perceptibly affect trade between Member
                                                                                States within the meaning of Article 85 ( 1 ) of the
 7. If Question 6 does not arise or is answered in the                             EC Treaty because the gas is so obtained ?
       negative :
                                                                             ( b ) May trade be so affected for the — possibly
                                                                                additional   —    reason   that  the   exclusion   of
       may the competent national authorities pursuant to
       Article 9 ( 3 ) of Regulation No 17 apply Article 85 ( 1 )                  competition between the long-distance gas
       of the EC Treaty — in the absence of a request for                          undertakings may cause an increase in the price
       exemption — only where they have considered the                             of natural gas in the demarcated area, and
       possibility of exemption pursuant to Article 85 ( 3 )                       thereby place the producer industry within it,
       and excluded the prospects of its being granted ?                           using that source of energy, at a disadvantage in
                                                                                terms of location which makes it more difficult
                                                                                for those producers to sell goods in other
       If this question is answered in the affirmative :                           Member States compared with producers located
                                                                                in another Member State without such sharing of
       how sure must the national authorities be that                              markets between long-distance gas undertakings ?
       exemption is unlikely to be granted ?
                                                                        10 . If Question 9 is answered in the affirmative in whole
       ( a ) Is it sufficient if they themselves examine, in the             or in part:
             light of the Commission's practice when adopting
             decisions and of the case-law of the Court of                   ( a ) are long-distance gas undertakings which supply
             Justice, whether the conditions for exemption are                     natural gas in Germany to regional and local
             met, and are persuaded that that is not the case ?                    distribution undertakings and to bulk industrial
                                                                                consumers, undertakings entrusted with the
       ( b ) Is it necessary and sufficient to obtain from the                     operation of services of general economic interest
             European Commission an opinion of its                                 within the meaning of Article 90 ( 2 ) of the EC
             Directorate-General for Competition stating that                      Treaty, on the grounds that, under the German
             in its view the conditions for exemption are not                      Energiewirtschaftsgesetz ( Law on the Energy
             met ?                                                                 Industry, 'EnWG') of 13 December 1935 as
                                                                                amended on 19 December 1977 ( BGBl . I,
       ( c ) Is it necessary to procure an analogous statement                     p. 2750 ), the supply of gas is supervised by the
             from the Commission acting as a collegiate body ?                     State ( paragraph 1 of the EnWG ), authorization
 ---pagebreak--- No C 9/ 14            [ EN                  Official Journal of the European Communities                                   11 . 1 . 97
           is required from the competent energy                                 entire duration of the market-sharing agreement
           supervisory authority in order to commence                            or only for a shorter transitional period ? If so,
           supply operations ( paragraph 5 of the EnWG ),                        what are the criteria for assessment ?
           and from a certain threshold the construction,
           renewal, extension or closure of energy                     (!) OJ No C 123 , 4 . 5 . 1994 , p . 26 .
           installations belonging to the supply undertakings          (2) OJ No 13 , 21 . 2 . 1962, p. 204.
           must be notified to the supervisory authority and
           may be prohibited by the latter in the public
           interest (paragraph 4 of the EnWG ). Do special
           arrangements apply to long-distance gas
           undertakings which commenced their supply
           operations before the enactment of the German               Reference for a preliminary ruling made by the Tribunal
           Energiewirtschaftsgesetz and were allowed to                de Premiere Instance de Huy on the judgment of the
           continue them without being subject to the                  Tribunal Correctionnel de Huy of 29 October 1996 in the
           authorization requirement ?                                 criminal proceedings pending before that court in the case
                                                                       of Ministere public against J. C. Arblade and Arblade et
           If the provisions of German law on the energy                                              Fils SARL
           industry cannot provide support for such
                                                                                ( Case C-369/96 )
           arrangements, are there other considerations
           which justify regarding the long-distance gas                                            ( 97/C 9/24 )
           undertakings as entrusted undertakings within the
           meaning of Article 90 ( 2 ) of the EC Treaty and, if        Reference has been made to the Court of Justice of the
           so, what are they ?
                                                                       European Communities by judgment of the Tribunal
     ( b) If the long-distance gas undertakings referred to            Correctionnel ( Criminal Court ), Huy, of 29 October 1996,
           are entrusted undertakings within the meaning of            which was received at the Court Registry on 25 November
           Article 90 ( 2 ) of the EC Treaty:                          1996, for a preliminary ruling in the criminal proceedings
                                                                       before that court in the case of Ministere public against
           what are the criteria for interpretation of the             J. C. Arblade and Arblade et Fils SARL on the following
           further requirements pursuant to Article 90 ( 2 ),          questions :
           that is to say does the application of Article 85 ( 1 )
           of the EC Treaty to a market-sharing agreement              A. Must Articles 59 and 60 of the Treaty be interpreted
           under which the undertakings divide their sales                 as meaning that they preclude a Member State from
           areas, obstruct the performance, in law or in fact,             requiring an undertaking established in another
           of the particular tasks assigned to them and, if so,            Member State and temporarily carrying out work in
           does the exemption from the rules on competition                the first State :
           contained in the EC Treaty affect the
           development of trade to such an extent as is                    1 . to keep social documents ( staff register and
           contrary to the interests of the Community ?                        individual account ), in the absence of a company
                                                                               seat in Belgium, at the Belgian residence of a legal
11 . ( a ) May undertakings, of the kind referred to, claim                    person who is to keep those documents in his
           protection of their legitimate expectations to                      capacity as agent or servant of the employer;
           ensure    continuance     of  their   market-sharing
           agreement if both the EC Commission and the                     2 . to pay to its workers the minimum remuneration
           national authorities have for decades acquiesced                    laid down in a collective labour agreement;
           in the use of such agreements ?
                                                                           3 . to keep a special staff register;
     ( b ) If no legitimate expectations have been aroused
           under ( a ) is it relevant that the national                    4 . to issue an individual record for each worker;
           authorities stated in an official report ( in this
                                                                           5 . to appoint an agent or servant responsible for
           case Bundeskartellamt Tatigkeitsbericht 1987/88 ,
           Drucksachen des Deutschen Bundestags 11 /4611
                                                                               keeping the individual accounts of employees;
           p. 108 ) that it was not 'currently' expedient for              6 . to pay contributions in respect of loyalty and bad
           them to take up of their own accord possible                        weather stamps for each worker,
           infringements of Article 85 ( 1 ) of the EC Treaty
           in the supply industry ?                                        where that undertaking is already subject to
     (c ) If legitimate expectations have been aroused :                   requirements which, while not identical, are at least
                                                                           comparable as regards their objective, in respect of the
           in weighing the interests of the individual and of              same workers and for the same period of activity in
           the Community, a matter on which the protection                 the State where it is established ?
           of legitimate expectations ultimately depends,
           what is to be put on the Community side of the              B. Can Articles 59 and 60 render inoperative the first
           scales ?                                                        paragraph of Article 3 of the Civil Code on Belgian
                                                                           public order legislation ?
           If legitimate expectations are acknowledged, do
           they afford protection from a prohibition for the