title: Case T-459/16: Action brought on 19 August 2016 — Spain v Commission

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/42

         Action brought on 19 August 2016 — Spain v Commission
   (Case T-459/16)
   (2016/C 392/56)
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: M. Sampol Pucurull, lawyer for the Spanish State)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Implementing Decision (EU) 2016/1059 of 21 June, excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF), the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), as regards the Kingdom of Spain, in respect of certain area payments and excluding EUR 262 887 429,57;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one plea in law, divided into two parts.

               1.

               The applicant claims that the flat rate correction imposed by the Commission infringes Article 31 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1), as well as the 1997 guidelines (Document VI/5330/97), regarding the conditions that must be satisfied in order to impose a correction of 25 % or of 10 %. That infringement results in the Commission exceeding the limits of its discretion and breach of the principles of proportionality and legal certainty.

                           —

                           First, the Spanish authorities are of the opinion that the various flat rate corrections infringe Article 31(2) of Council Regulation (EC) No 1290/2005, in relation to the implementation of the 1997 guidelines and the principle of proportionality, as the Commission lacks serious and reasonable grounds to conclude that it had to impose a financial correction of 25 %, in relation to the wooded pastures in the years 2009 to 2013, except for wooded pastures for five Autonomous Communities in 2009, with regard to which it is considered that Article 73a(2)(a) of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18) is applicable.

                     The Spanish authorities also dispute the application by the Commission of a flat rate correction of 10 % for the years 2009 to 2013 for the shrub pastures and for the wooded grazing pasture in 2009.

                           —

                           Secondly, the authorities are of the opinion that the contested Decision infringes Article 31 of Regulation (EC) No 1290/2005 in relation to the principles of proportionality and legal certainty, in so far as it does not take into account Article 73a(2)(a) of Regulation (EC) No 796/2004, in relation to Article 137 of Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003.


title: Case T-335/09: Action brought on 24 August 2009 — Groupement Adriano, Jaime Ribeiro, Conduril-Construção v Commission

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/72

         Action brought on 24 August 2009 — Groupement Adriano, Jaime Ribeiro, Conduril-Construção v Commission
   (Case T-335/09)
   2009/C 267/131
   Language of the case: Portuguese

      Parties

      Applicants: Groupement Adriano, Jaime Ribeiro, Conduril-Construção (Póvoa de Varzim, Portugal) (represented by A. Pinto Cardoso and L. Fuzeta da Ponte, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annulment of the Commission’s decision contained in debit note No 3230905272 of 12 June 2009 and of the decision contained in the notification of 3 August 2009 ordering the applicant to pay that note within a period of 15 days, together with default interest, in performance of Contract AH 04/2004, concluded for the construction of a section of highway between Tangiers and Saida (‘Mediterranean Bypass Project’), financed by the Community under Programme MEDA I;

               —

               an order that the Commission should pay the costs.

      Pleas in law and main arguments

   The measures are actionable, for they are decisive and definitive in nature and have binding effect, and the parties have capacity to bring proceedings.
   Both measures are marred by:

               Absolute lack of powers: the defendant is not the ‘pouvoir adjudicateur’ (the contracting authority), because there is no contractual provision whatsoever to support the defendant’s conduct. The defendant thus not only lacks powers, but also any competence in these proceedings.

               Breach of essential procedural requirements, in particular, the duty to state reasons: as provided for in Article 253 of the Treaty, reasons must be given for Community measures. In accordance with the case-law, the reasoning must be express, clear, coherent and relevant. The measure may not be implied or based on tacit grounds, nor may it be clothed in obscurity. There must be no contradiction between the grounds or between the grounds and the enacting terms. The contested decisions lack any grounds whatsoever. There is also a breach of the essential procedural requirement of an indication of the legal remedies.

               infringement of the rules of the Treaty, that is to say, of Articles 211 to 219, of the defendant’s own internal regulations and of the principle ‘pacta sunt servanda’.


18.3.2000             EN                Official Journal of the European Communities                                     C 79/21
       Removal from the register of Case C-337/99 (1)                    Removal from the register of Case C-436/99 P (1)
                        (2000/C 79/42)                                                      (2000/C 79/45)
By order of 9 December 1999 the President of the Court of          By order of 13 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal        Justice of the European Communities has ordered the removal
from the register of Case-337/99: Commission of the European       from the register of Case C-436/99 P: Karl Meyer v Commission
Communities v Kingdom of Belgium.                                  of the European Communities.
(1) OJ C 314 of 30.10.1999.                                        (1) OJ C 34 of 5.2.2000.
       Removal from the register of Case C-115/99 (1)
                                                                          Removal from the register of Case C-252/98 (1)
                        (2000/C 79/43)
                                                                                (2000/C 79/46)
By order of 12 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal        By order of 18 January 2000 the President of the Court of
from the register of Case C-115/99: Kingdom of Sweden v            Justice of the European Communities has ordered the removal
Council of the European Union.                                     from the register of Case C-252/98: Commission of the
                                                                   European Communities v French Republic.
(1) OJ C 188 of 3.7.1999.
                                                                   (1) OJ C 278 of 5.9.1998.
       Removal from the register of Case C-461/98 (1)
                        (2000/C 79/44)                                    Removal from the register of Case C-272/99 (1)
By order of 13 January 2000 the President of the Court of                                   (2000/C 79/47)
Justice of the European Communities has ordered the removal
from the register of Case C-461/98: Commission of the              By order of 19 January 2000 the President of the Court of
European Communities v Republic of Austria.                        Justice of the European Communities has ordered the removal
                                                                   from the register of Case C-272/99: Commission of the
(1) OJ C 48 of 20.2.1999.                                          European Communities v Grand Duchy of Luxembourg.
                                                                   (1) OJ C 281 of 2.10.1999.


title: Case T-70/10: Action brought on 19 February 2010 — Feralpi Holding SpA v European Commission

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/61

         Action brought on 19 February 2010 — Feralpi Holding SpA v European Commission
   (Case T-70/10)
   2010/C 100/91
   Language of the case: Italian

      Parties

      Applicant: Feralpi Holding SpA (Brescia, Italy) (represented by: G. Roberti, avvocato, I. Perego, avvocato)

      Defendant: European Commission

      Form of order sought

               —

               Annulment of the contested decision.

               —

               Annulment or reduction of the fine imposed by the contested decision.

               —

               An order that the defendant pay the costs.

      Pleas in law and main arguments

   Feralpi Holding raises the following pleas in law:

               —

               Breach of the principle of collegiality, in so far as the Commission did not submit to the College of Commissioners the full text of the contested decision including all the necessary matters of fact and law.

               —

               Erroneous selection of legal basis. It must be observed, in that regard, that the Commission could not base the contested decision alleging a breach of Article 65 CS on Regulation 1/2003, (1) once the ECSC Treaty ceased to be in force.

               —

               Breach of the rights of the defence. It is observed on this point that the Commission did not send Feralpi Holding a statement of objections and did not place in a position it to exercise its rights of defence. Moreover, the Commission imposed inappropriate terms on Feralpi Holding and obstructed its right of access.

               —

               Breach of the criteria for imputation of the infringement. According to the applicant, the Commission erroneously imputed the infringement to Feralpi Holding, without taking account of changes to the structure of the company made subsequently.

               —

               It is argued, further, that in not taking account of the interchangeability of reinforcing bars and other manufactured articles in the steel industry, such as beams and wire mesh, the Commission erroneously defined the relevant market and denied the Community dimension of the relevant geographical market without reason.

               —

               It is also pointed out that the Commission classified the conduct analysed in the decision as a single, complex and continuing infringement of Community competition rules, alleging that Feralpi Holding participated in that infringement, thus breaching Article 65 CS and making an error in the assessment of the facts.

         Finally, the applicant states that the defendant erroneously fixed the amount of the fine.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).


title: Case C-122/02: Action brought on 5 April 2002 by the Commission of the European Communities against the Kingdom of Belgium

text:
1.6.2002                 EN                   Official Journal of the European Communities                                    C 131/11
The applicant claims that the Court should:                              Action brought on 5 April 2002 by the Commission
                                                                         of the European Communities against the Kingdom of
                                                                                Belgium
(a)   declare that, by failing to take the necessary measures to
      comply with the judgment delivered by the Court of                                         (Case C-122/02)
      Justice on 16 December 1999 in the case of Commission
      v Luxembourg (1), the Grand Duchy of Luxembourg has
      failed to fulfil its obligations under Article 228(1) of the                               (2002/C 131/20)
      EC Treaty;
(b) order the Grand Duchy of Luxembourg to pay to the                    An action against the Kingdom of Belgium was brought before
      Commission a periodic penalty of 9 000 euros per day for           the Court of Justice of the European Communities on 5 April
      each day that it fails to comply with the aforementioned           2002 by the Commission of the European Communities,
      obligations, running from the date of notification of the          represented by Gregorio Valero Jordana and Joelle Adda, acting
      judgment, that being the date of commencement of its               as Agents, with an address for service in Luxembourg.
      non-compliance with its obligations in the present case;
                                                                         The applicant claims that the Court should:
(c)   order the Grand Duchy of Luxembourg to pay the costs.
                                                                         —     declare that, by failing hitherto to adopt all the laws,
                                                                               regulations and administrative measures necessary in
                                                                               order to comply fully with Council Directive 1998/83/
                                                                               EC of 3 November 1998 on the quality of water intended
                                                                               for human consumption (1), or at any rate by failing fully
                                                                               to inform the Commission thereof, the Kingdom of
Pleas in law and main arguments                                                Belgium has failed to fulfil its obligations under that
                                                                               directive;
                                                                         —     order the Kingdom of Belgium to pay the costs.
Although Article 228 EC does not indicate the period of time
allowed to a Member State to comply with its obligations, the
fact remains that compliance with a judgment delivered against
is must be commenced forthwith and completed as rapidly as               Pleas in law and main arguments
possible. In the present case, all the provisions and measures
necessary in order for the Grand Duchy of Luxembourg to
bring its legislation into conformity with the Court’s judgment          The time-limit for transposition expired on 25 December
should have been adopted and brought into force long ago; at             2000 but the Kingdom of Belgium has not adopted the
the time when the Commission issued its reasoned opinion,                measures required.
over a year had already elapsed since delivery of the judgment
of the Court.
                                                                         (1) OJ L 330 of 5.12.1998, p. 32.
In the Commission’s view, a periodic penalty of 9 000 euros
per day is appropriate, having regard to the seriousness and
duration of the non-compliance and the need to impose an
effective penalty. The Commission has calculated the amount
of the periodic penalty which it was required to indicate to             Action brought on 8 April 2002 by the Commission of
the Court by using the calculation method defined in its                  the European Communities against the French Republic
communication of 8 January 1997 (2). It has applied a weight-
ing of 10 to take account of the seriousness of the non-
compliance, and a weighting of 1.8 in respect of the duration                                    (Case C-129/02)
thereof.
                                                                                (2002/C 131/21)
(1) Case C-138/99, OJ C 63 of 4.3.2000, p. 8.
(2) OJ C 63 of 28.2.1997, p. 2.                                          An action against the French Republic was brought before the
                                                                         Court of Justice of the European Communities on 8 April
                                                                         2002 by the Commission of the European Communities,
                                                                         represented by Gregorio Valero Jordana and Joelle Adda, acting
                                                                         as Agents, with an address for service in Luxembourg.


title: Case T-361/13: Action brought on 9 July 2013 — Menelaus/OHIM — Garcia Mahiques (VIGOR)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/46

         Action brought on 9 July 2013 — Menelaus/OHIM — Garcia Mahiques (VIGOR)
   (Case T-361/13)
   2013/C 260/82
   Language in which the application was lodged: English

      Parties

      Applicant: Menelaus BV (Amsterdam, Netherlands) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

      Other party to the proceedings before the Board of Appeal: V. Garcia Mahiques (Jesus Pobre, Spain), F. Garcia Mahiques (Jesus Pobre, Spain)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of defendant’s Second Board of Appeal of 23 April 2013, in Case R 88/2012-2, to the extent that it annulled the decision of the Office’s Cancellation Division of 11 November 2011 in Case 5061;

               —

               Dissmiss the appeal of the other party against the decision of the Cancellation Division of 10 November 2011 in Case C 5061;

               —

               Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal

               —

               In case the other party intervenes in this case, order Mr Vicente Garcia Mathiques and Mr Felipe Garcia Mahiques to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘VIGOR’– Community trade mark registration No 4 386 371

      Proprietor of the Community trade mark: The applicant

      Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 8(1)(b), in conjunction with Article 53(1)(a) of Council Regulation No 207/2009

      Decision of the Cancellation Division: Rejected the request for invalidity

      Decision of the Board of Appeal: Upheld the appeal in part and annulled the contested decision to the extent that it rejected the application for invalidity as regards certain goods in class 21 and dismissed the appeal for the remainder

      Pleas in law: Infringement of Rules 22(4) and Rules 79 to 82 of Commission Regulation No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (CTMIR); Article 57(2) CTMR in conjunction with Article 15 (1)(a) CTMR; Article 57(2) CTMR in conjunction with Article 15(1)(a) CTMR and Article 75 CTMR; Article 56(1)(b) in conjunction with Article 41(1) CTMR; and Article 57(2) and (3) and Article 76(2) in conjunction with Rules 40 and 22 CTMR.


title: Case T-104/04: Action brought on 16 March 2004 by Peroxid-Chemie GmbH & Co. KG against the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/44

         Action brought on 16 March 2004 by Peroxid-Chemie GmbH & Co. KG against the Commission of the European Communities
   (Case T-104/04)
   (2004/C 118/97)
   Language of the Case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 March 2004 by Peroxid GmbH & Co. KG, Pullach (Germany), represented by M. Karl and C. Steinle, lawyers.
   The applicant claims that the Court should:

               —

               annul Article 2(a), (c) and (d) of the Decision of the Commission of the European Communities of 10 December 2003 (notified on 7 January 2004) in Case COMP/E-2/37.857 – Organic Peroxide;

               —

               in the alternative, reduce the fines imposed on the applicant in Article 2(c) and (d) of the decision;

               —

               set the fine imposed on Akzo Nobel Polymer Chemicals B.V., Akzo Nobel N.V., and Akzo Nobel Chemicals International B.V., as jointly liable companies at EUR 120.75 million;

               —

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

         Pleas in law and main arguments:
   By the contested decision the Commission held that the applicant and five other undertakings (including Akzo) or groups of undertakings infringed Article 81(1) EC by participating in a series of agreements and concerted practices on the market for organic peroxide. Two fines were imposed on the applicant. No fine was imposed on Akzo.
   The applicant is not objecting to the decision as a whole but only to the fines imposed on it therein. The applicant takes the view that the Commission should not have imposed two fines on the applicant as a result of its participation in anti-competitive practices on the market for organic peroxide. The Commission either infringed the prescription provisions or the prohibition on double penalties. Even if the two penalties were imposed on the applicant for two different infringements, the first one (from 1971 to the end of August 1992) on the part of the applicant was already time-barred. If, on the other hand, both fines were imposed for one and the same continuous infringement on the part of the applicant, then there was a double penalty.
   The applicant also argues that the Commission disregarded the maximum limit in Article 15(2) of Regulation No 17 as the fines imposed on the applicant by far exceeded 10 % of its total turnover in the last trading year before adoption of the decision. Furthermore, the Commission should not have classified the applicant as a second-time offender and should therefore not have been able to increase the basic amount of the fine imposed on the applicant by 50 %. In so doing the Commission infringed the principle of the presumption of innocence and the applicant's rights of defence.
   Finally, the applicant claims that the Commission failed to have regard to the principle of equal treatment and the leniency notice of 1996 by not imposing a fine on Axzo even though it was proven to have played a decisive role in implementing the unlawful conduct. In so doing the Commission afforded the applicant's main competitor an unjustified financial advantage worth millions which directly and individually concerned the applicant.


title: ORDER OF THE COURT (First Chamber) of 11 January 1996 in Case C-89/95 P: Mr D v. Commission of the European Communities (Appeal manifestly inadmissible and manifestly unfounded)

text:
No C 77/4             EN                  Official Journal of the European Communities                                        16 . 3 . 96
G. Hirsch ( Presidents of Chambers ), G. F. Mancini, F. A.                Regulation, the skipper is presumed to be unaware of
Schockweiler, J. C. Moitinho de Almeida, P. J. G. Kapteyn,                that status, unless the authorities taking action
C. Gulmann, J. L. Murray ( Rapporteur ), P. Jann,                         concerning the infringement prove otherwise.
H. Ragnemalm, L. Sevón and M. Wathelet, Judges; P. Leger,
Advocate General; R. Grass, Registrar, has given a judgment          (>) OJ No C 331 , 26 . 11 . 1994 .
on 16 January 1996 in which it:
I. Dismisses the application for revision as inadmissible.
2 . Orders the applicants to pay the costs.                                             ORDER OF THE COURT
                                                                                ( First Chamber)
(!) OJ No C 165 , 25 . 6 . 1991 .
                                                                                of 11 January 1996
                                                                     in Case C-89/95 P: Mr D v. Commission of the European
                                                                                Communities ( 1 )
                                                                     (Appeal manifestly inadmissible and manifestly
                                                                                unfounded)
               JUDGMENT OF THE COURT                                                              ( 96/C 77/08 )
                      ( Fourth Chamber)
                                                                                (Language of the Case: French)
                     of 18 January 1996
in Case C-276/94 ( reference for a preliminary ruling from           (Provisional translation; the definitive translation will be
the Kriminal- og Skifteret i Frederikshavn ): criminal                         published in the European Court Reports)
               proceedings against Finn Ohrt ( 1 )
(Definition of vessel engaged in a fisheries inspection —            In Case C-89/95 P: Mr D ( represented by Eric Boigelot) —
  Obligations of the skipper of the vessel to be inspected)          appeal against the judgment of the Court of First Instance of
                           ( 96/C 77/07 )                            the European Communities ( Fourth Chamber ) of
                                                                     26 January 1995 in Case T-549/93 [ 1995 ] ECR-SC 11-43
                                                                     between D and the Commission, seeking to have that
                (Language of the case: Danish)                       judgment set aside, the other party to the proceedings being
                                                                     the Commission of the European Communities ( Agent: Ana
(Provisional translation; the definitive translation will be         Maria Alves Vieira ) — the Court ( First Chamber),
         published in the European Court Reports)                    composed of D. A. O. Edward, President of the Chamber,
                                                                     P. Jann ( Rapporteur ) and L. Sevón, Judges; M. B. Elmer,
In Case C-276/94 : reference to the Court under Article 177
                                                                     Advocate General; R. Grass, Registrar, made an order on
                                                                     11 January 1996 , the operative part of which is as
of the EEC Treaty from the Kriminal- og Skifteret ( Criminal,        follows :
Bankruptcy and Probate Court), Frederikshavn ( Denmark ),
for a preliminary ruling in the criminal proceedings pending
before that court against Finn Ohrt — on the interpretation          1 . The appeal is dismissed.
of Articles 2 and 3 of Commission Regulation ( EEC )
No 1382/87 of 20 May 1987 establishing detailed rules                2 . The appellant shall pay the costs.
concerning the inspection of fishing vessels ( OJ No L 132,
1987, p. 11 ) — the Court ( Fourth Chamber), composed of             (') OJ No C 159 , 24 . 6 . 1995 .
C. N. Kakouris, President of the Chamber, P. J. G. Kapteyn
and H. Ragnemalm ( Rapporteur ), Judges; A. M. La Pergola,
Advocate General; R. Grass, Registrar, has given a judgment
on 18 January 1996 , in which it rules :
1 . Article 2 of Commission Regulation (EEC) No 1382/87              Reference for a preliminary ruling by the Diikitiko
     of 20 May 1987 establishing detailed rules concerning           Protodikio ( Administrative Court of First Instance ),
     the inspection of fishing vessels must be interpreted as        Thessaloniki, by a decision of that court of 28 February
     meaning that every inspection vessel, regardless of type             1995 in the case of Sigfried Klattner v. Greek State
     or dimensions, must display the identification symbol or                                 ( Case C-389/95 )
     pennant described in Annex I to that Regulation.                                             ( 96/C 77/09 )
2 . The obligation to comply with the orders of a                    Reference has been made to the Court of Justice of the
     representative of the competent authority of a Member           European Communities by a decision of the Administrative
     State, under Article 3 of the Regulation, presupposes           Court of First Instance, Thessaloniki, of 28 February 1995 ,
     that the skipper of the vessel to be inspected is aware of      which was received at the Court Registry on 25 January
     the status of that representative. In the absence of the         1 996 , for a preliminary ruling in the case of Sigfried Klattner
     symbol or pennant required by Article 2 of the                  v. Greek State on the following questions:


title: Case C-363/14: Action brought on 28 July 2014  — European Parliament v Council of the European Union

text:
               22.9.2014

               EN

               Official Journal of the European Union

               C 329/10

         Action brought on 28 July 2014 — European Parliament v Council of the European Union
   (Case C-363/14)
   2014/C 329/12
   Language of the case: French

      Parties

      Applicant: European Parliament (represented by: F. Drexler, A. Caiola, M. Pencheva, acting as Agents)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Implementing Decision 2014/269/EU of 6 May 2014 amending Decision 2009/935/JHA as regards the list of third States and organisations with which Europol shall conclude agreements (1)

               —

               order the defendant to pay all the costs.

      Pleas in law and main arguments

   In support of its action, the European Parliament raises three pleas in law.
   Firstly, the European Parliament contests the use by the Council of an incorrect decision-making procedure for the adoption of Decision 2014/269/EU. The Parliament deduces therefrom that the Council has committed not only a breach of the Treaties but also a breach of essential procedural requirements.
   Secondly, the European Parliament complains of the Council’s use either of a legal basis repealed by the entry into force of the Treaty of Lisbon or of a secondary legal basis, which is unlawful pursuant to the case-law of the Court of Justice.
   Lastly, in the view of the Parliament, the list of third States and organisations with which Europol is to conclude agreements is a legislative matter. It should be considered by the EU legislature, since it is an essential element of a regulated area. In consequence, the legal basis and procedure used by the Council are legally incorrect.

      (1)  OJ 2014 L 138, p. 104.


title: Judgment of the Court of 20 September 2001 in Case C-453/99 [reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division)]: Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others (Article 85 of the EC Treaty (now Article 81 EC) — Beer tie — Leasing of public houses — Restrictive agreement — Right to damages of a party to the contract)

text:
C 317/4                 EN                      Official Journal of the European Communities                                       10.11.2001
                JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                of 20 September 2001
                         (Fifth Chamber)
                                                                           in Case C-453/99 (reference for a preliminary ruling from
                                                                           the Court of Appeal (England & Wales) (Civil Division)):
                        of 4 October 2001                                  Courage Ltd v Bernard Crehan and Bernard Crehan v
                                                                                Courage Ltd and Others (1)
in Case C-403/99: Italian Republic v Commission of the                     (Article 85 of the EC Treaty (now Article 81 EC) — Beer tie
                   European Communities (1)                                — Leasing of public houses — Restrictive agreement —
                                                                                Right to damages of a party to the contract)
(Common agricultural policy — Agrimonetary system for                                                 (2001/C 317/07)
the euro — Transitional measures for the introduction of the
                                euro)
                                                                                (Language of the case: English)
                          (2001/C 317/06)                                  In Case C-453/99: reference to the Court under Article 177 of
                                                                           the EC Treaty (now Article 234 EC) from the Court of Appeal
                                                                           (England and Wales) (Civil Division), (United Kingdom) for a
                                                                           preliminary ruling in the proceedings pending before that
                    (Language of the case: Italian)                        court between Courage Ltd and Bernard Crehan and between
                                                                           Bernard Crehan and Courage Ltd and Others — on the
                                                                           interpretation of Article 85 of the EC Treaty (now Article 81
                                                                           EC) and other provisions of Community law — the Court,
(Provisional translation; the definitive translation will be published     composed of: G.C. Rodrı́guez Iglesias, President, C. Gulmann,
                   in the European Court Reports)                          M. Wathelet (Rapporteur) and V. Skouris (Presidents of Cham-
                                                                           bers), D.A.O. Edward; P. Jann, L. Sevón, F. Macken and
                                                                           N. Colneric, J.N. Cunha Rodrigues and C.W.A. Timmermans,
                                                                           Judges; J. Mischo, Advocate General; L. Hewlett, Administrator,
In Case C-403/99: Italian Republic (Agent: U. Leanza assisted              for the Registrar, has given a judgment on 20 September
by D. Del Gaizo) v Commission of the European Communities                  2001, in which it has ruled:
(Agent: F. Ruggeri Laderchi) — application for the annulment
of Commission Regulation (EC) No 1639/1999 of 26 July
1999 fixing the maximum compensatory aid resulting from                    1.    A party to a contract liable to restrict or distort competition
the rates for the conversion of the euro into national currency                  within the meaning of Article 85 of the EC Treaty (now
units and the exchange rates applicable on 1 July 1999 (OJ                       Article 81 EC) can rely on the breach of that provision to
1999 L 194, p. 33) — the Court (Fifth Chamber), composed                         obtain relief from the other contracting party.
of: A. La Pergola, President of the Chamber, D.A.O. Edward,
P. Jann (Rapporteur), S. von Bahr and C.W.A. Timmermans,
Judges; D. Ruı́z-Jarabo Colomer, Advocate General; H.A. Rühl,              2.    Article 85 of the Treaty precludes a rule of national law under
Principal Administrator, for the Registrar, has given a judgment                 which a party to a contract liable to restrict or distort
on 4 October 2001, in which it:                                                  competition within the meaning of that provision is barred from
                                                                                claiming damages for loss caused by performance of that
                                                                                contract on the sole ground that the claimant is a party to that
                                                                                contract.
1.    Dismisses the application;
                                                                           3.    Community law does not preclude a rule of national law barring
                                                                                a party to a contract liable to restrict or distort competition
2.    Orders the Italian Republic to pay the costs.                              from relying on his own unlawful actions to obtain damages
                                                                                where it is established that that party bears significant
                                                                                responsibility for the distortion of competition.
(1) OJ C 366 of 18.12.1999.
                                                                           (1) OJ C 47 of 19.2.2000.


title: Case T-495/08: Action brought on 14 November 2008 — Ryanair/Commission

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/41

         Action brought on 14 November 2008 — Ryanair/Commission
   (Case T-495/08)
   (2009/C 32/79)
   Language of the case: English
   Parties

      Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 8 October 2008 refusing access to the same documents is non-existent;

               —

               alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 8 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

               —

               order the Commission to pay the costs incurred by the applicant in the proceedings; and

               —

               take such further action as the Court may deem appropriate.

         Pleas in law and main arguments
   By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Alghero airport. The said decision was followed by the express decision of 8 October 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.
   The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.


title: Case C-328/01: Action brought on 31 August 2001 by the Commission of the European Communities against Ireland

text:
10.11.2001             EN                    Official Journal of the European Communities                                        C 317/13
European Communities in Joined Cases T-357/99 and                       Action brought on 31 August 2001 by the Commission
T-358/99 between Telefon & Buch VerlagsgmbH and the                             of the European Communities against Ireland
Office for Harmonisation in the Internat Market (Trade Marks
and Designs) (OHIM) was brought before the Court of Justice
of the European Communities on 29 August 2001 (by fax on                                         (Case C-327/01)
27 August 2001) by Telefon & Buch VerlagsgmbH, represented
by Dr Hans Georg Zeiner, Zeiner & Zeiner Chambers, Schil-                                        (2001/C 317/22)
linggasse 6, A-1010 Vienna.
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 31 August 2001 by
The appellant claims that the Court should:                             the Commission of the European Communities, represented
                                                                        by Mikko Huttunen, acting as agent, with an address for
                                                                        service in Luxembourg.
1.    set aside the judgment of the Court of First Instance of
      14 June 2001 in Joined Cases T-357/99 and T-358/99
      Telefon & Buch VerlagsgmbH v Office for Harmonisation             The Applicant claims that the Court should:
      in the Internat Market;
                                                                        (1) declare that by. failing to adopt the laws, regulations
2.    declare that the words UNIVERSALTELEFONBUCH and                         or administrative provisions necessary to comply with
      UNIVERSALKOMMUNIKATIONSVERZEICHNIS                       are            Council Directive 98/20/EC (1) of 30 March 1998
      capable of comprising European Community trade marks,                   amending Directive 92/14/EEC (2) on the limitation of the
      satisfy the requirements of Article 4 of Regulation                     operation of aeroplanes covered by Part II, Chapter 2,
      No 40/94 and are not merely descriptive within the                      Volume 1 of Annex 16 to the Convention on Inter-
      meaning of Article 7(1)(c) of that regulation;                          national Civil Aviation, second edition (1988) or, in any
                                                                              event, by failing to inform the Commission of those
                                                                              measures, Ireland has failed to fulfil its obligations under
3.    refer the case back to the Office for Harmonisation in the              that Directive;
      Internat Market for further consideration and decision,
      requiring it to follow the view as to the law of the Court
      of Justice of the European Communities;                           (2) order Ireland to pay the costs.
4.    order the Office for Harmonisation in the Internat Market
      to pay the costs of these proceedings.                            Pleas in law and main arguments
                                                                        The pleas in law and main arguments are analogous to those
                                                                        in Case C-323/01 (3); the time-limit for transposition expired
Pleas in law and main arguments                                         on 1 March 1999.
                                                                        (1) OJ L 107, 7.4.1998, p. 4.
Article 7(1)(c) of Council Regulation (EC) No 40/94 of                  (2) OJ L 76, 23.3.1992, p. 21.
20 December 1993 on the Community trade mark (1) has been               (3) See page 12 of this Official Journal.
infringed because it was interpreted too broadly and therefore
incorrectly: the neologisms at issue here, acknowledged by the
Court of First Instance as such, cannot be signs which are
subject to a requirement of availability. It would be an
interference with the creativity of economic operators to
reserve for commercial dealings words which have not yet
been used, or have not yet been used for certain goods or
services, and therefore clearly are also not needed for such            Action brought on 31 August 2001 by the Commission
dealings; that appears untenable on the basis of Regulation                     of the European Communities against Ireland
No 40/94. If the ground for excluding protection, contained
in Article 7(1)(c) of Regulation No 40/94, were interpreted as
broadly as the Court of First Instance has interpreted it in the                                 (Case C-328/01)
contested judgment, Article 12(b) of that regulation would be
superfluous.                                                                                (2001/C 317/23)
                                                                        An action against Ireland was brought before the Court of
(1) OJ L 11, 14.1.1994, p. 1.                                           Justice of the European Communities on 31 August 2001 by
                                                                        the Commission of the European Communities, represented
                                                                        by Mikko Huttunen, acting as agent, with an address for
                                                                        service in Luxembourg.
 ---pagebreak--- C 317/14                EN                    Official Journal of the European Communities                                    10.11.2001
The Applicant claims that the Court should:                              Pleas in law and main arguments
(1) declare that by failing to adopt the laws, regulations               The Hellenic Republic contends that a financial correction has
      or administrative provisions necessary to comply with              been imposed upon it unlawfully in the cotton, olive oil, grape
      Commission Directive 1999/28/EC (1) of 21 April 1999               and sheepmeat and goatmeat sectors.
      amending the Annex to Council Directive 92/14/EEC (2)
      on the limitation of the operation of aeroplanes covered
      by Part II, Chapter 2, Volume 1 of Annex 16 to the                 The Hellenic Republic contends that the proposed financial
      Convention on International Civil Aviation or, in any              correction should be annulled on the following grounds: the
      event, by failing to inform the Commission of those                applicable regulations were misinterpreted and misapplied;
      measures, Ireland has failed to fulfil its obligations under       there was error as to the facts and the facts were incorrectly
      that Directive;                                                    assessed; the statement of reasons is defective, insufficient and
                                                                         vague; and the principle of proportionality was infringed and
(2) order Ireland to pay the costs.                                      the Commission exceeded the limits of its discretion.
Pleas in law and main arguments
                                                                         Action brought on 6 September 2001 by Commission of
The pleas in law and main arguments are analogous to those                  the European Communities against Kingdom of Spain
in Case C-323/01 (3); the time-limit for transposition expired
on 1 September 1999.                                                                              (Case C-333/01)
                                                                                (2001/C 317/25)
(1) OJ L 118, 6.5.1999, p. 53.
(2) OJ L 76, 23.3.1992, p. 21.
(3) See page 12 of this Official Journal.                                An action against the Kingdom of Spain was brought before the
                                                                         Court of Justice of the European Communities on 6 September
                                                                         2001 by the Commission of the European Communities,
                                                                         represented by Gregorio Valero Jordana, of the Legal Service,
                                                                         acting as Agent, with an address for service care of Luis
                                                                         Escobar Guerrero, also of the Commission Legal Service,
                                                                         Wagner Centre, Luxembourg.
                                                                         The applicant claims that the Court should:
Action brought on 6 September 2001 by the Hellenic
Republic against the Commission of the European Com-
                                                                         —     Declare that, by failing to adopt and bring into force
                              munities
                                                                               within the prescribed period the laws, regulations and
                                                                               administrative provisions necessary to comply with
                         (Case C-332/01)                                       Council Directive 98/81/EC of 26 October 1998
                                                                               amending Directive 90/219/EEC on the contained use of
                                                                               genetically modified micro-organisms (1), or, in any event,
                         (2001/C 317/24)                                       by having failed to communicate such provisions to the
                                                                               Commission, the Kingdom of Spain has failed to fulfil its
                                                                               obligations under that directive; and
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European             —     Order the Kingdom of Spain to pay the costs.
Communities on 6 September 2001 by the Hellenic Republic,
represented by Vasilios Kontolaimos, Legal Adviser in the State
Legal Service, and Ioannis Khalkias, Member of that Service,
with an address for service in Luxembourg at the Greek                   Pleas in law and main arguments
Embassy, 117 Val Sainte-Croix.
                                                                         The pleas in law and main arguments are analogous to those
The applicant claims that the Court should:                              in Case C-323/01 (2); the time limit for implementation expired
                                                                         on 5 June 2000.
—     annul or, in the alternative, amend Commission Decision
      C(2001) 1795 final of 11 July 2001 excluding from                  (1) OJ L 330 of 5.12.1998, p. 13.
      Community financing certain expenditure incurred by                (2) See page 12 of this Official Journal.
      the Member States under the Guarantee Section of the
      EAGGF.


title: Judgment of the Court (Fifth Chamber) of 19 September 2002 in Case C-114/00: Kingdom of Spain v Commission of the European Communities (State aid — Agriculture — Aid awarded in the form of an interest-rate rebate for loans lasting less than one year — Article 87(1) and (3)(a) and (c) EC — Commission Notice 96/C 44/02 on State aids: subsidised short-term loans in agriculture (crédits de gestion) — Small amount of aid — No comments from interested parties — Operating aid — Aid relating to products subject to a common organisation of the market — Restrictions on the free movement of goods — Statement of reasons)

text:
C 274/8                 EN                       Official Journal of the European Communities                                          9.11.2002
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                          (Fifth Chamber)
                                                                                of 10 September 2002
                      of 19 September 2002
                                                                            in Case C-141/00 (Reference for a preliminary ruling from
                                                                            the Bundesfinanzhof): Ambulanter Pflegedienst Kügler
in Case C-114/00: Kingdom of Spain v Commission of the
                                                                               GmbH v Finanzamt für Körperschaften I in Berlin ( 1)
                   European Communities ( 1)
                                                                            (Article 13(A)(1)(c) and (g) of the Sixth Directive (77/388/
(State aid — Agriculture — Aid awarded in the form of an                    EEC) — Exemption of care provided by capital companies —
interest-rate rebate for loans lasting less than one year —                 Services closely linked to welfare and social security work
Article 87(1) and (3)(a) and (c) EC — Commission Notice                     supplied by organisations, not being bodies governed by
96/C 44/02 on State aids: subsidised short-term loans in                    public law, recognised as charitable by the Member State
agriculture (crédits de gestion) — Small amount of aid —                                         concerned — Direct effect)
No comments from interested parties — Operating aid —
Aid relating to products subject to a common organisation
of the market — Restrictions on the free movement of goods                                             (2002/C 274/12)
                     — Statement of reasons)
                                                                                (Language of the case: German)
                          (2002/C 274/11)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                   (Language of the case: Spanish)
(Provisional translation; the definitive translation will be published      In Case C-141/00: Reference to the Court under Article 234
                   in the European Court Reports)                           EC by the Bundesfinanzhof (Germany) for a preliminary
                                                                            ruling in the proceedings pending before that court between
                                                                            Ambulanter Pflegedienst Kügler GmbH and Finanzamt für
                                                                            Körperschaften I in Berlin, on the interpretation of
                                                                            Article 13(A)(1)(c) and (g) of the Sixth Council Directive (77/
                                                                            388/EEC) of 17 May 1977 on the harmonisation of the laws
In Case C-114/00, Kingdom of Spain (Agent: S. Ortiz Vaamon-                 of the Member States relating to turnover taxes — Common
de) v Commission of the European Communities (Agent:                        system of value added tax: uniform basis of assessment
D. Triantafyllou): Application for annulment of Commission                  (OJ 1977 L 145, p. 1), the Court (Sixth Chamber), composed
Decision 2000/240/EC of 22 December 1999 concerning an                      of: F. Macken (Rapporteur), President of the Chamber, C. Gul-
aid scheme implemented by Spain to finance operating capital                mann, J.-P. Puissochet, R. Schintgen and J.N. Cunha Rodrigues,
in the agricultural sector in Extremadura (OJ 2000 L 76, p. 16),            Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy
the Court (Fifth Chamber), composed of: P. Jann, President of               Registrar, has given a judgment on 10 September 2002, in
the Chamber, D.A.O. Edward, A. La Pergola, M. Wathelet                      which it has ruled:
and C.W.A. Timmermans (Rapporteur), Judges; F.G. Jacobs,
Advocate General; R. Grass, Registrar, has given a judgment
on 19 September 2002, in which it:                                          1.    The exemption envisaged in Article 13(A)(1)(c) of the Sixth
                                                                                Council Directive (77/388/EEC) of 17 May 1977 on the
                                                                                harmonisation of the laws of the Member States relating to
1.    Dismisses the application;                                                  turnover taxes — Common system of value added tax: uniform
                                                                                basis of assessment is not dependent on the legal form of the
                                                                                taxable person supplying the medical or paramedical services
2.    Orders the Kingdom of Spain to pay the costs.                               referred to in that provision.
                                                                            2.    The exemption envisaged in Article 13(A)(1)(c) of the Sixth
( 1) OJ C 192 of 8.7.2000.                                                        Directive (77/388/EEC) applies to the provision of care of a
                                                                                therapeutic nature by a capital company running an out-patient
                                                                                service under which care, including home care, is provided by
                                                                                qualified nursing staff, to the exclusion of the provision of
                                                                                general care and domestic help.


title: Case C-40/12 P: Judgment of the Court (Grand Chamber) of 26 November 2013 — Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH v European Commission (Appeal — Competition — Cartels — Industrial plastic bags sector — Whether the infringement by a subsidiary may be attributed to the parent company — Excessive length of the proceedings before the General Court — Principle of effective legal protection)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/2

         Judgment of the Court (Grand Chamber) of 26 November 2013 — Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH v European Commission
   (Case C-40/12 P) (1)

   (Appeal - Competition - Cartels - Industrial plastic bags sector - Whether the infringement by a subsidiary may be attributed to the parent company - Excessive length of the proceedings before the General Court - Principle of effective legal protection)
   2014/C 39/02
   Language of the case: French

      Parties

      Appellant: Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH (represented by: F. Puel and L. François-Martin, avocats)

      Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre and N. von Lingen, Agents)

      Re:

   Appeal brought against the judgment of the General Court (Fourth Chamber) of 16 November 2011 in Case T-79/06 Sachsa Verpackung v Commission, by which that court dismissed the application for annulment in part of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 (EC) (Case COMP/38.354 — Industrial bags) concerning a cartel in the industrial plastic bags sector and an application to vary that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Gascogne Sack Deutschland GmbH to pay the costs of this appeal.

      (1)  OJ C 89, 24.3.2012.


title: Case C-458/12: Reference for a preliminary ruling from the Tribunale di Trento (Italy) lodged on 11 October 2012 — Lorenzo Amatori and Others v Telecom Italia SpA, Shared Service Center Srl

text:
               15.12.2012

               EN

               Official Journal of the European Union

               C 389/6

         Reference for a preliminary ruling from the Tribunale di Trento (Italy) lodged on 11 October 2012 — Lorenzo Amatori and Others v Telecom Italia SpA, Shared Service Center Srl
   (Case C-458/12)
   2012/C 389/09
   Language of the case: Italian

      Referring court

   Tribunale di Trento

      Parties to the main proceedings

      Applicants: Lorenzo Amatori and Others

      Defendants: Telecom Italia SpA, Shared Service Center Srl

      Questions referred

               1.

               As regards the ‘transfer of a part of a business’, does European Union legislation (in particular, Article 1(1)(a) and (b) of Council Directive 2001/23/EC (1) of 12 March 2001, read in conjunction with Article 3(1) thereof) preclude a rule of national law, such as that laid down in the fifth paragraph of Article 2112 of the [Italian] Civil Code, which permits the transferee to take over the employment relationships of the transferor, without the consent of the employees transferred being necessary, even where the part of the business transferred is not a functionally independent economic entity already existing before the transfer and identifiable as such by the transferor and the transferee at the time when it is transferred?

               2.

               As regards the ‘transfer of a part of a business’, does European Union legislation (in particular, Article 1(1)(a) and (b) of Council Directive 2001/23/EC of 12 March 2001, read in conjunction with Article 3(1) thereof) preclude a rule of national law, such as that laid down in the fifth paragraph of Article 2112 of the [Italian] Civil Code, which permits the transferee to take over the employment relationships of the transferor, without the consent of the employees transferred being necessary, even where, after the transfer, the transferor undertaking wields in-depth and supreme control over the transferee, a relationship which manifests itself through a tight commercial bond and the commingling of business risk?

      (1)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2003 L 82, p. 16).


title: Case T-139/07: Order of the Court of First Instance of 4 September 2009 — Pioneer Hi-Bred International v Commission (Approximation of laws — Deliberate release into the environment of genetically modified organisms — Authorisation procedure for placing on the market — Failure by the Commission to submit draft measures to the regulatory committee — Action for failure to act — Action which becomes devoid of purpose in the course of proceedings — No need to adjudicate)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/64

         Order of the Court of First Instance of 4 September 2009 — Pioneer Hi-Bred International v Commission
   (Case T-139/07) (1)

   (Approximation of laws - Deliberate release into the environment of genetically modified organisms - Authorisation procedure for placing on the market - Failure by the Commission to submit draft measures to the regulatory committee - Action for failure to act - Action which becomes devoid of purpose in the course of proceedings - No need to adjudicate)
   2009/C 267/115
   Language of the case: English

      Parties

      Applicant: Pioneer Hi-Bred International, Inc. (Iowa, United States) (represented by: J. Temple Lang, Solicitor)

      Defendant: Commission of the European Communities (represented initially by: D. Lawunmi and C. Zadra, and subsequently by P. Oliver and C. Zadra, acting as Agents)

      Re:

   Application for a declaration under Article 232 EC that, by failing to submit to the regulatory committee, in accordance with Article 5(2) of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), a draft of the measures to be taken with regard to the notification by the applicant relating to the placing on the market of genetically modified maize 1507, the Commission has failed to fulfil its obligations under Article 18(1) of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1).

      Operative part of the order

               1.

               There is no need to adjudicate in the present action.

               2.

               The Commission of the European Communities shall bear its own costs and pay those incurred by Pioneer Hi-Bred International Inc.

      (1)  OJ C 155, 7.7.2007.


title: Case C-166/14: Judgment of the Court (Fifth Chamber) of 26 November 2015 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — MedEval — Qualitäts-, Leistungs- und Struktur-Evaluierung im Gesundheitswesen GmbH (Reference for a preliminary ruling — Public procurement — Directive 89/665/EEC — Principles of effectiveness and equivalence — Review procedures concerning the award of public contracts — Period allowed for commencing proceedings — National legislation making an action for damages subject to a precondition that the procedure be declared unlawful — Limitation period which starts to run irrespective of the applicant’s knowledge of the unlawfulness)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/4

         Judgment of the Court (Fifth Chamber) of 26 November 2015 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — MedEval — Qualitäts-, Leistungs- und Struktur-Evaluierung im Gesundheitswesen GmbH
   (Case C-166/14) (1)

   ((Reference for a preliminary ruling - Public procurement - Directive 89/665/EEC - Principles of effectiveness and equivalence - Review procedures concerning the award of public contracts - Period allowed for commencing proceedings - National legislation making an action for damages subject to a precondition that the procedure be declared unlawful - Limitation period which starts to run irrespective of the applicant’s knowledge of the unlawfulness))
   (2016/C 038/04)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: MedEval — Qualitäts-, Leistungs- und Struktur-Evaluierung im Gesundheitswesen GmbH

      Intervening parties: Bundesminister für Wissenschaft, Forschung und Wirtschaft, Hauptverband der österreichischen Sozialversicherungsträger, Pharmazeutische Gehaltskasse für Österreich

      Operative part of the judgment

   EU law, in particular the principle of effectiveness, precludes national legislation which makes bringing an action for damages in respect of the infringement of a rule of public procurement law subject to a prior finding that the public procurement procedure for the contract in question was unlawful because of the lack of prior publication of a contract notice, where the action for a declaration of unlawfulness is subject to a six-month limitation period which starts to run on the day after the date of the award of the public contract in question, irrespective of whether or not the applicant in that action was in a position to know of the unlawfulness affecting the decision of the awarding authority.

      (1)  OJ C 282, 25.8.2014.


title: Case C-451/13: Order of the President of the Court of 4 July 2014 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Gigaset AG v SKW Stahl-Metallurgie GmbH, SKW Stahl-Metallurgie Holding AG

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/46

         Order of the President of the Court of 4 July 2014 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Gigaset AG v SKW Stahl-Metallurgie GmbH, SKW Stahl-Metallurgie Holding AG
   (Case C-451/13) (1)

   2014/C 315/78
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 344, 23.11.2013.


title: Case C-517/11: Action brought on 7 October 2011 — European Commission v Hellenic Republic

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/14

         Action brought on 7 October 2011 — European Commission v Hellenic Republic
   (Case C-517/11)
   2011/C 362/21
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: M. Patakia, I. Chatzigiannis and S. Petrova, acting as Agents)

      Defendant: Hellenic Republic

      Form of order sought

   Declare that the Hellenic Republic:

               —

               by not having taken all the required steps to avoid the deterioration of the natural habitats and the habitats of species for which the special area of conservation (SAC) 1220009 was designated, and more particularly, by not taking all the steps required to carry out the measures related to the cessation of illegal drilling, irrigation, the disposal of industrial waste and the plan for management and integrated monitoring programme relating to the National Park of Koronia-Volvi and Macedonika Tempi Lakes, failed to fulfil its obligations under Article 6(2) of Directive 92/43/ΕEC on the conservation of natural habitats and of wild fauna and flora, in conjunction with Article 7 of that directive;

               —

               by not having completed the system for the collection and treatment of urban waste water for the agglomeration of Langada, failed to fulfil its obligations under Articles 3 and 4(1) and (3) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment.

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

               The infringement at issue concerns the deterioration and contamination of Lake Koronia (Prefecture of Thessalonika), as a result of a series of environmentally harmful actions, and the failure to comply with the regulatory framework established by the Hellenic Republic for the protection of that lake.

               2.

               In order to comply with the Community legislation on the environment, the Greek authorities established a regime for the protection of the area (Ministerial Decision 6919/2004), a specific programme for the reduction of water pollution in the lake (Ministerial Decision 35308/1838/2005) and an action plan in relation to pollution caused by nitrates (Ministerial Decision 16175/824/2006) and approved 21 measures which were required for the restoration of the lake, within the framework of a master plan developed by the Prefecture (‘the Master Plan’). At the same time, the Greek authorities ensured the funding of those measures from Community resources (see in particular Decision of the Cohesion Fund C(2005) 5779/19.12.2005 which funds infrastructure works) but also from national resources.

               3.

               However, the Commission considers that the Greek authorities continue to fail to bring into force, to any substantial degree, the legal framework concerned. The problem of the deterioration of the lake fully remains and the implementation of certain of the 21 measures (an indispensable precondition for access to European Union funding) has therefore been delayed. In view of the lack of progress in connection with the implementation of the planned measures, the Commission decided to bring an action before the Court of Justice.

               4.

               Specifically, the Commission considers that there is an infringement of Article 6(2), in conjunction with Article 7, of Directive 92/43/ΕEC, which provides that, in special areas of conservation, [Member States should prevent] the deterioration of natural habitats and the habitats of species as well as disturbances which affect the species for which the areas have been designated and the conservation of wild birds.

               5.

               As assessed by the Commission, the Hellenic Republic has not taken all the steps necessary in order to implement all the measures which it itself designed and which were considered essential for the achievement of the objectives of the above provisions.

               6.

               In particular:

                           —

                           The final cessation of illegal drilling, which the Greek authorities themselves considered essential for the restoration of the lake, has not been achieved.

                           —

                           The restriction of irrigation to a satisfactory level has not yet been carried out, as is shown by the fact that the Greek authorities have not provided information to demonstrate that the intended measures have been taken.

                           —

                           The study for the work of construction of common irrigation systems and enrichment of the Lake Koronia water table, has not yet been prepared, while the disposal of industrial waste has not been implemented, since the relevant contract for work of construction of fermentation basins in the lake has apparently not yet been entered into. Four polluting industries also continue to operate illegally.

                           —

                           The plan for the management and completion of the programmed monitoring of the National Park of Koroni-Volvi Lakes and Macedonika Tempi has not yet been adopted.

               7.

               Further, the Commission considers that there is an infringement of Articles 3 and 4 of Directive 91/271/ΕEC in connection with the discharge of and collecting systems for urban waste water. In fact, in relation to the construction of the Langada collecting system and units for the reception of urban and industrial waste water, and the operation of biological treatment, the Commission has not been informed by the Greek authorities whether the intended first phase of the work has been completed, at the end of which 50 % of the population of the city of Langada will be served. In any event, the second phase of the Langada collecting system, at the end of which 100 % of the population will be covered, is still at the stage of preliminary study.

               8.

               Finally, as regards the secondary treatment of urban waste water, the contract in question had not yet been entered into on the date when the Greek authorities replied to the reasoned opinion.


title: Judgment of the Court of First Instance 13 December 2001 in Joined Cases T-45/98 and T-47/98: Krupp Thyssens Stainless GmbH et Acciai speciali Terni SpA v Commission of the European Communities (ECSC Treaty — Competition — Agreements, decisions and concerted practices — Alloy surcharge — Price fixing — Rights of the defence — Duration of the infringement — Fine — Guidelines on the method of setting fines — Cooperation during the administrative procedure — Principle of equal treatment)

text:
6.4.2002               EN                      Official Journal of the European Communities                                           C 84/55
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               4.    For the rest, dismisses the applications in Cases T-45/98 and
                                                                                T-47/98 in all other respects;
                       13 December 2001                                   5.    In case T-45/98, orders Krupp Thyssen Stainless GmbH and
                                                                                the Commission to bear their own costs;
in Joined Cases T-45/98 and T-47/98: Krupp Thyssens                       6.    In case T-47/98, orders Acciai Speciali Terni SpA to bear its
Stainless GmbH et Acciai speciali Terni SpA v Com-                              own costs and to pay two-thirds of those of the Commission
           mission of the European Communities (1)                              and orders the Commission to bear one-third of its own costs.
                                                                          (1) OJ C 166 of 30.5.1998 and C 151 of 16.5.1998.
(ECSC Treaty — Competition — Agreements, decisions and
concerted practices — Alloy surcharge — Price fixing —
Rights of the defence — Duration of the infringement —
Fine — Guidelines on the method of setting fines —
Cooperation during the administrative procedure — Prin-
                     ciple of equal treatment)
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
                         (2002/C 84/101)
                                                                                13 December 2001
              (Language of the case: German and Italian)
                                                                          in Case T-48/98: Compañia española para la fabricación
                                                                          de aceros inoxidables, SA (Acerinox) v Commission of
                                                                                the European Communities (1)
In Joined Cases T-45/98 and T-47/98, Krupp Thyssen Stainless              (ECSC Treaty — Competition — Agreements, decisions and
GmbH, established in Duisberg, Germany, represented by                    concerted practices — Alloy surcharge — Price fixing —
M. Klusmann, O. Lieberknecht and K. Moosecker, lawyers,                   Burden of proof — Duration of the infringement — Fine —
with an address for service in Luxembourg, Acciai Speciali                Guidelines on the method of setting fines — Cooperation
Terni SpA, established in Terni, Italy, represented by L. G. Radi-        during the administrative procedure — Principle of equal
cato di Brozolo, lawyer, with an address for service in                                                 treatment)
Luxembourg applicants, v Commission of the European Com-
munities, represented by W. Wils and K. Leivo, acting as
Agents, assisted by H.-J. Freund and A. dal Ferro, lawyers, with                                    (2002/C 84/102)
an address for service in Luxembourg: application for the
annulment of Commission Decision 98/247/ECSC of 21 Janu-                                      (Language of the case: English)
ary 1998 relating to a proceeding under Article 65 of the
ECSC Treaty (Case IV/35.814 — Alloy Surcharge) (OJ 1998
L 100, p. 55), the Court of First Instance (First Chamber),
composed of: B. Vesterdorf, President, M. Vilaras and N.J. For-           In Case T-48/98, Compañı́a Española para la Fabricación de
wood, Judges, Registrar: G. Herzig, has given a judgment on               Aceros Inoxidables SA (Acerinox), established in Madrid,
13 December 2001, in which it has ruled:                                  Spain, represented by A. Vandencasteele and D. Waelbroeck,
                                                                          lawyers, with an address for service in Luxembourg, v Com-
                                                                          mission of the European Communities, represented by W. Wils
1.    Joins Cases T-45/98 and T-47/98 for the purposes of the             and K. Leivo, acting as Agents, with an address for service in
      judgment;                                                           Luxembourg: Application for the annulment of Commission
                                                                          Decision 98/247/ECSC of 21 January 1998 relating to a
                                                                          proceeding under Article 65 of the ECSC Treaty (Case
2.    Annuls Article 1 of Decision 98/247/ECSC of 21 January              IV/35.814 — Alloy Surcharge) (OJ 1998 L 100, p. 55),
      1998 relating to a proceeding under Article 65 of the ECSC          the Court of First Instance (First Chamber), composed of:
      Treaty (Case IV/35.814 — Alloy Surcharge) in so far as it           B. Vesterdorf, President, M. Vilaras and N.J. Forwood, Judges,
      attributes to Krupp Thyssen Nirosta GmbH responsibility for         Registrar: G. Herzig, Administrator, has given a judgment on
      the infringement committed by Thyssen Stahl AG;                     13 December 2001, in which it has ruled:
3.    Sets the amount of the fines imposed on Krupp Thyssen Nirosta       1.    Sets the amount of the fine imposed on Compañı́a Española
      GmbH and Acciai Speciali Terni SpA by Article 2 of Decision               para la Fabricación de Aceros Inoxidables SA at
      98/247 at EUR 4 032 000;                                                  EUR 3 136 000;


title: Case T-370/06: Action brought on 4 December 2006 — Kuwait Petroleum Corp. and others v Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/29

         Action brought on 4 December 2006 — Kuwait Petroleum Corp. and others v Commission
   (Case T-370/06)
   (2007/C 20/45)
   Language of the case: English
   Parties

      Applicants: Kuwait Petroleum Corp. (Shuwaikh, Kuwait), Kuwait Petroleum International Ltd (Woking, United Kingdom), and Kuwait Petroleum (Nederland) BV (Rotterdam, The Netherlands) (represented by: D.W. Hull, Dr. G. M. Berrisch, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission's Decision C(2006)4090 of 13 September 2006 insofar as it applies to the applicants; in the alternative

               —

               reduce the amount of the fine imposed;

               —

               in any event, order the Commission to bear the costs of these proceedings.

         Pleas in law and main arguments
   By a decision adopted on 13 September 2006 (the ‘contested decision’), the Commission imposed on Kuwait Petroleum Corp. (‘KPC’), Kuwait Petroleum International Ltd (‘KPI’) and Kuwait Petroleum (Nederland) BV (‘KPN’), the applicants, jointly and severally, a fine of EUR 16.632 million for infringing Article 81 EC by fixing prices in the Dutch bitumen market. Each of the applicants hereby seeks the annulment of the contested decision or, in the alternative, a reduction of the fine on the following grounds:
   In their first plea, the applicants claim that the Commission committed a manifest error of law and fact because it applied a wrong legal standard in holding KPC and KPI liable for acts of KPN and because it failed to provide adequate evidence under the correct legal standard. Precisely, it is claimed that the Commission, in the contested decision, found that both KPC and KPI are liable for the involvement of KPN's managers in the Dutch bitumen cartel on the grounds that KPN is a wholly-owned subsidiary of KPC and that each of KPC and KPI exercise broad supervisory powers over KPN. The applicants submit that a parent company may not be held liable on the basis of shareholdings and broad supervisory powers alone, and that the Commission must establish that the parent company exercised sufficient control over the subsidiary's conduct on the market affected by the infringement that it would be reasonable to assume that the subsidiary did not act autonomously with respect to the infringement.
   The applicants further submit, in their second plea, that the contested decision should be annulled or, in the alternative, the fine reduced, because the Commission allegedly erred as a matter of law in fining the applicants in contravention to the 2002 Leniency Notice (1), which provides that, when a leniency applicant provides evidence relating to facts that were previously unproven and those facts have a direct bearing on the gravity or duration of the cartel, the Commission may not use such facts against the leniency applicant.
   Finally, in their third plea, the applicants submit that the Commission committed a manifest error of assessment in determining the percentage of the reduction in the fine pursuant to the 2002 Leniency Notice, and accordingly argue that the fine should be reduced by the maximum amount of 50 %.

      (1)  Notice on Immunity from Fines and Reduction of Fines in cartel cases, OJ (2002) C 45, p. 3.


title: Case T-189/08: Judgment of the General Court of 18 March 2010 — Forum 187 v Commission (Actions for annulment — State aid — Aid scheme for coordination centres established in Belgium — New decision of the Commission adopted following partial annulment by the Court — Association — No interest in bringing proceedings — Inadmissibility)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/42

         Judgment of the General Court of 18 March 2010 — Forum 187 v Commission
   (Case T-189/08) (1)

   (Actions for annulment - State aid - Aid scheme for coordination centres established in Belgium - New decision of the Commission adopted following partial annulment by the Court - Association - No interest in bringing proceedings - Inadmissibility)
   2010/C 113/66
   Language of the case: English

      Parties

      Applicant: Forum 187 (Brussels, Belgium) (represented by: A. Sutton and G. Forwood, Barristers)

      Defendant: European Commission (represented by: N. Khan and C. Urraca Caviedes, Agents)

      Re:

   Action for the annulment of Commission Decision 2008/283/EC of 13 November 2007 amending Decision 2003/757/EC on the aid scheme implemented by Belgium for coordination centres established in Belgium (OJ 2008 L 90, p. 7), in so far as it does not provide reasonable prospective transitional periods for the coordination centres concerned by the judgment of the Court of Justice in Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I-5479

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders Forum 187 ASBL to pay the costs.

      (1)  OJ C 183, 19.7.2008.


title: Case C-60/09: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Campania (Italy) lodged on 11 February 2009 — Lucio Rubano v Regione Campania, Comune di Cusano Mutri

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/15

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Campania (Italy) lodged on 11 February 2009 — Lucio Rubano v Regione Campania, Comune di Cusano Mutri
   (Case C-60/09)
   2009/C 90/23
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale della Campania

      Parties to the main proceedings

      Applicant: Lucio Rubano

      Defendants: Regione Campania, Comune di Cusano Mutri

      Questions referred

               1.

               Is it compatible with Articles 152 and 153 of the Treaty on European Union that there is a single pharmacy in municipalities with a population of fewer than 4 000 inhabitants?

               2.

               Is it compatible with Articles 152 and 153 of the Treaty on European Union to make the establishment of a second pharmacy in municipalities with a population of over 4 000 inhabitants subject to conditions such as (i) in order to be taken into account, the population in excess of that number must represent at least 50 per cent of the number triggering the pharmacy requirement, (ii) the new pharmacy must be at least 3 000 metres away from the existing pharmacy and (iii) there must be special needs on the part of the pharmacy service, related to the local terrain and road conditions, to be assessed both by the health units (local health offices) and by the local association of pharmacists or, in any event, by the authorities competent for matters concerning the organisation and supervision of the pharmacy service?


title: Judgment of the Court of First Instance of 13 July 2004 in Case T-115/02: AVEX Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Application for a Community figurative mark comprising the letter ‘a’ — Earlier Community figurative mark comprising the letter ‘a’ — Likelihood of confusion)

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/17

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 13 July 2004
   in Case T-115/02: AVEX Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Opposition procedure - Application for a Community figurative mark comprising the letter ‘a’ - Earlier Community figurative mark comprising the letter ‘a’ - Likelihood of confusion)
   (2004/C 239/35)
   Language of the case: German
   In Case T-115/02: AVEX Inc., established in Tokyo (Japan), represented by J. Hofmann, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: D. Schennen and G. Schneider), the other party to the proceedings before the Board of Appeal of OHIM and the intervener before the Court of First Instance being Ahlers AG, formerly Adolf Ahlers AG, established in Herford (Germany), represented by E.P. Krings, lawyer — action brought against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2002 (Case R 634/2002-1) relating to the opposition filed by the proprietor of the Community figurative mark comprising the letter ‘a’ against registration of a Community figurative mark comprising the letter ‘a’ — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 13 July 2004, in which it:

               1.

               Dismisses the application;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 144 of 15.6.2002.