title: Action brought on 9 June 1995 by the Kingdom of Spain against the Council of the European Union (Case C-179/95)

text:
No C 208/10            EN                  Official Journal of the European Communities                                       12 . 8 . 95
                judge, R. Schintgen, to whom objection had            interpreted as meaning that only actual entry into the
                already been repeatedly made,                         territorial waters of the Federal Republic of Yugoslavia by a
                                                                      ship or other means of transport carrying goods intended for
          ( C ) the objection to Judge R. Schintgen ( Protocol        commercial traffic in the said territorial waters constitutes a
                on the Statute of the Court of Justice of the         breach of the prohibition laid down therein, or do those
                EEC, Article 4, second paragraph, Article 16,         legislative provisions also cover conduct occurring in
                first paragraph, and Article 44 ); lack of            international waters which, because of the specific way in
                impartiality of that judge in any event,              which it is conceived and put into effect, gives good reason
                irrespective of whether the grounds for               to believe that the ship or other means of transport is on
                objection are well founded .                          course for the said territorial waters for the purposes of
                                                                      commercial traffic ?
III. Infringement of Community law and of Article 6 of the
      European Convention on Human Rights and on the                  Question 2 : Do Article 1 ( d ) of the Decision and Article 1 ( d )
      protection of computer data (sic), in that the contested        of the Regulation mentioned above, in so far as they prohibit
      judgment:                                                       any activity the object or effect of which is, directly or
                                                                      indirectly, to promote the transactions mentioned in
      — infringes the rights of the defence,                          Article 1 (c ), include within their scope navigation in
                                                                      international waters by a ship or other means of transport
      — takes no account of the fact that a national court            carrying goods presumably intended for commercial traffic
          has no power to make the Court of Justice party to          in the territorial waters of the Federal Republic of
          proceedings,                                                Yugoslavia ?
      — wrongly declares a number of conditional pre-trial            Question 3 : Is a domestic provision which expressly
          orders, existing only in foreign law, to be effective       prescribes, in the event of breach of any of the prohibitions
          in Community law,                                           contained in the abovementioned Article 1 being
                                                                      ascertained , confiscation — either compulsory or
                                                                      discretionary — of the cargo carried by any of the means of
      — wrongly upheld the flagrant breaches of Article 24            transport indicated in the second paragraph of Article 10 of
          of the Staff Regulations of Officials by the
          Personnel Division of the Court, which failed to            the abovementioned Community Decision and Regulation
          provide its own officials, in this case the appellant,
                                                                      compatible with Community legislation, in particular the
                                                                      first and second paragraphs of the said Article 10 ?
          with the assistance it was expressly obliged to
          provide by the Staff Regulations .
                                                                      I 1 ) OJ No L 102 , 28 . 4 . 1993 , p . 17 .
                                                                      ( 2 ) OJ No L 102 , 28 . 4 . 1993 , p . 14 .
Reference for a preliminary ruling by Consiglio di Stato by
order of that court of 11 April 1995 in the case of ( 1 ) Ebony
Maritime SA and (2 ) Loten Navigation Company Ltd v.                  Action brought on 9 June 1995 by the Kingdom of Spain
       Prefetto della Provincia de Brindisi and Others                          against the Council of the European Union
                                                                                ( Case C-l 79/95 )
                        ( Case C-177/95 )
                                                                                95/C 208/20 )
                          ( 95/C 208/19 )
                                                                      An action against the Council of the European Union was
Reference has been made to the Court of Justice of the
                                                                      brought before the Court of Justice of the European
European Communities by an order of the Consiglio di                  Communities on 9 June 1995 by the Kingdom of Spain,
Stato ( Council of State ) of 11 April 1995 , which was
                                                                      represented by Alberto Navarro Gonzalez, Director General
received at the Court Registry on 6 June 1995 , for a                 for Community Legal and Institutional Coordination, and
preliminary ruling in the case of ( 1 ) Ebony Maritime SA and         by Rosario Silva de Lapuerta, Abogado del Estado, acting as
( 2 ) Loten Navigation Company Ltd v. Prefetto della
Provincia de Brindisi and Others on the following
                                                                      Agents, with an address for service in Luxembourg at the
                                                                      Spanish Embassy, 4—6 Boulevard Emmanuel Servais .
questions :
Question 1 : Must Article 1 (c ) of Decision 92/235/ECSC ( l )        The applicant claims that the Court should :
of the representatives of the governments of the Member
States meeting within the Council of 26 April 1993                    — annul the last sentence in Article 1 ( 1 ) ( i ) of Annex IV to
concerning trade between the European Coal and Steel                        Council Regulation ( EC ) No 685/95 (*) of 27 March
Community and the Federal Republic of Yugoslavia ( Serbia                   1995 on the management of the fishing effort relating to
and Montenegro ) and Article 1 (c ) of Council Regulation                   certain Community fishing areas and resources,
( EEC ) No 990/93 ( 2 ) of the same date concerning trade
between the European Economic Community and the                       — annul the fifth element concerning anchovy in Annex I to
Federal Republic of Yugoslavia ( Serbia and Montenegro ) be                 Council Regulation ( EC ) No 746/95 ( 2 ) of 31 March
 ---pagebreak--- 12 . 8 . 95               EN                Official Journal of the European Communities                               No C 208/ 11
      1995 amending Regulation ( EC ) No 3362/94 fixing, for           Reference for a preliminary ruling from the Arbeitsgericht
      certain fish stocks and groups of fish stocks, the total         Hamburg by order of that court of 22 May 1995 in the case
      allowable catches for 1995 and certain conditions under            of Nils Draehmpaehl v. Urania Immobilienservice ohG
      which they may be fished ,                                                                ( Case C-l 80/95 )
                                                                                ( 95/C 208/21
— order the defendant institution to pay the costs .
                                                                       Reference has been made to the Court of Justice of the
Pleas in law and main arguments adduced in support:                    European Communities by an order of the Arbeitsgericht
                                                                       Hamburg ( Labour Court, Hamburg) (21st Chamber ) of
— Infringement of Article 39 of the EC Treaty : by allowing            22 May 1995 , which was received at the Court Registry on
      part of the quota of anchovy which had been allocated to         9 June 1995 , for a preliminary ruling in the case of Nils
      Portugal by Regulation ( EC ) No 3362/94 in Zone IX to           Draehmpaehl v. Urania Immobilienservice ohG on the
      be fished not in that zone but in Zone VIII, the TAC             following questions :
      fixed for Zone VIII is being increased from 33 000
      metric tonnes to 38 008 metric tonnes , without there            1 . Does a statutory provision which prescribes, for
      being any new scientific data to justify it. Therefore, by           compensation on grounds of discrimination based on
      not pursuing by means of the contested provisions either             sex in the making of an appointment, a presumption of
      the optimum utilization of the factors of production or              the fault of the employer conflict with Articles 2(1 ) and
      the stability of the market, the objectives of the common            3 ( 1 ) of Council Directive 76/207/EEC of 9 February
      fisheries policy set out in Article 39 of the EC Treaty are           1976 on the implementation of the principle of equal
      not being observed .                                                 treatment of men and women as regards access to
                                                                           employment, vocational training and promotion, and
— Infringement             of     Council   Regulation     ( EEC )         working conditions (*)?
      No 3760/92 .
                                                                       2 . Does a statutory provision which prescribes a maximum
      — Infringement of the requirement to ensure the                      limit of three months' salary as compensation for
          national and responsible exploitation of resources :             discrimination based on sex in the making of an
                                                                           appointment — in contrast to other domestic provisions
                                                                           in civil and labour law — for applicants of either sex
          all the existing scientific studies clearly show that            who have been discriminated against in the procedure,
          there exist two independent stocks of anchovy, that              but who would not have been received the position to be
          of Zone VIII of the Gulf of Biscay and that of Zone              filled even in the event of non-discriminatory selection
          IX of the Gulf of Cadiz, which are not related in any            by reason of the superior qualifications of the applicant
          way and which therefore have required and continue               appointed , conflict with Articles 2 ( 1 ) and 3 ( 1 ) of
          to require separate treatment. None the less, by                  Council Directive 76/207/EEC on the implementation
          means of the contested provisions and without any                of the principle of equal treatment for men and women
          scientific basis whatsoever, the TAC fixed for 1995              as regards access to employment, vocational training
          in Zone VIII is increased de facto. Regulation ( EEC )           and promotion, and working conditions ?
          No 3760/92 is thereby not being complied with since
          the objective of a rational and responsible
          exploitation of resources is not being achieved,             3 . Does a statutory provision which prescribes a maximum
          rather, very much on the contrary, a species is being            limit of three months' salary as compensation for
          overexploited .                                                   discrimination based on sex and the making of an
                                                                            appointment — in contrast to other domestic provisions
                                                                           in civil and labour law — for applicants of either sex
      — Infringement of the principle of relative stability:               who, in the event of selection free from discrimination
                                                                           would have received the position to be filled, conflict
          The amount by which the quota of anchovy referred                with Articles 2 ( 1 ) and 3 ( 1 ) of Council Directive
          to in Zone VII has been amended, that is, 5 008                   76/207/EEC ?
          metric tonnes, is awarded entirely to a country such
          as Portugal which has never had a quota in that zone         4 . Does a statutory provision which prescribes a
          (without prejudice to the possibility of subsequently            cumulative maximum limit of six months' salary for all
          exchanging it with another Member State ), without                persons who have suffered discrimination as
          taking into account the requirement to maintain the              compensation claimed by several parties for
          fixed percentage for each of the Member States                    discrimination based on sex in the making of an
          ( France and Spain ) which share the allocation of that           apointment — in contrast to other domestic provisions
          stock .                                                           in civil and labour law — conflict with Articles 2(1 ) and
                                                                            3 ( 1 ) of Directive 76/207/EEC ?
( 1 ) OJ No L 71 , 31 . 3 . 1995 , p . 5 .
( 2 ) OJ No L 74 , 1 . 4 . 1995 , p . 1 .                              (M OJ No L 39 , 14 . 2 . 1976 , p . 40.


title: Case C-194/01: Action brought on 4 May 2001 by the Commission of the European Communities against the Republic of Austria

text:
C 200/52               EN                    Official Journal of the European Communities                                    14.7.2001
Action brought on 4 May 2001 by the Commission of the                           it is concluded from the mere fact that a substance
 European Communities against the Republic of Austria                           or object, on ceasing to be used for the purpose for
                                                                                which it is intended, does not leave the establishment
                                                                                in which it is located that the holder does not discard,
                         (Case C-194/01)                                        intend to discard or stand under an obligation to
                                                                                discard that substance or object. The ultimate effect
                                                                                of that provision is that substances and objects
                         (2001/C 200/93)                                        which the holder intends to or must dispose of and
                                                                                in addition fall within the categories specified in
                                                                                Annex I to the framework waste directive are not
An action against the Republic of Austria was brought before                    covered by the provisions on waste disposal and
the Court of Justice of the European Communities on 4 May                       recovery if they are disposed of or recovered only in
2001 by the Commission of the European Communities,                             the holder’s establishment.
represented by Dr Götz zur Hausen, Legal Adviser in its Legal
Service, with an address for service in Luxembourg at the office
of Gerard Berscheid, of its Legal Service, Wagner Centre C 254,
Kirchberg, Luxembourg.
The applicant claims that the Court should:                                  —  The exemption in Paragraph 3(3)(5) of the
                                                                                Abfallwirtschaftsgesetz is drafted in such broad
1.    declare that the Republic of Austria has failed to fulfil its             terms that it does not even contain a reference to
      obligations under Council Directive 75/442/EEC (1) of                     the intended use of the substances or objects or a
      15 July 1975 on waste, as amended by Council Directive                    presumption or rule of evidence. It may be that,
      91/156/EEC (2) of 18 March 1991, in that it has not                       because of its specific properties and economic
      transposed the concept of waste as that concept is laid                   value, unalloyed scrap iron is generally sold to
      down by Article 1(a) of the directive, but:                               steel producers for use as a raw material in steel
                                                                                production. However, that does not automatically
                                                                                mean that it is not waste. Even a statutory presump-
      —     excludes in principle from the concept of waste
                                                                                tion which restricted the directive’s field of appli-
            objects used and recovered within an establishment;
                                                                                cation and resulted in substances and products that
                                                                                matched the directive’s definition of waste not being
      —     excludes unalloyed scrap iron generally and other                   covered would be impermissible, because it would
            waste (scrap) under certain circumstances from                      prejudice the effectiveness of Article 175 EC and of
            application of the provisions relating to waste:                    the directive. With regard to the exemption from
                                                                                the scope of the Abfallwirtschaftsgesetz for other
      —     has not transposed correctly the categories of waste                waste (scrap), laid down, for the duration of control
            under Annex I to the directive and the ‘European                    measures, by Paragraph 3(3)(6) of that Law, the
            waste catalogue’ under Commission Decision                          Republic of Austria has given notice that that
            94/3/EC of 20 December 1993 establishing a list of                  provision is to be repealed. Even if that exemption
            wastes pursuant to Article 1(a) of Council Directive                of an entire category of waste currently has no
            75/442/EEC on waste;                                                concrete effects because no control measures under
                                                                                the Versorgungssicherungsgesetz (Law on Security
2.    declare that, by not transposing correctly either the list of             of Supplies) are in force, it is inconsistent with the
      hazardous waste under Council Decision 94/904/EC of                       definition of the concept of waste in Article 1(a) of
      22 December 1994 establishing a list of hazardous waste                   the waste framework directive.
      pursuant to Article 1(4) of Council Directive 91/689/EEC
      of 12 December 1991 on hazardous waste or Annexes I
      and II to that directive, the Republic of Austria has failed
      to fulfil its obligations under Article 1(4) of Directive
      91/689/EEC;
                                                                             —  It follows from Article 1(a) of the directive that the
3.    order the Republic of Austria to pay the costs.                           question whether substances or objects fall within
                                                                                one of the categories specified in Annex I to the
                                                                                directive constitutes one of the two decisive criteria
                                                                                for defining waste under the directive. For that
Pleas in law and main arguments                                                 reason alone, the provisions of Annex I, which, as
                                                                                an integral part of the directive, are covered by
                                                                                the duty to transpose in Article 2 of Directive
—     Infringement of Article 1(a) of Directive 75/442/EEC                      91/156/EEC, must also be embodied in the national
                                                                                implementing provisions. However, the Austrian
      —     A general presumption, as contained in Paragraph 2                  provisions in force do not refer at all to Annex I to
            of the Abfallwirtschaftsgesetz (Austrian Law on                     the waste framework directive, and the definition of
            Waste Management), is inconsistent with the                         the concept of waste in those national provisions
            requirements of the directive. Under that provision,                does not correspond to the concept in the directive.
 ---pagebreak--- 14.7.2001             EN                     Official Journal of the European Communities                                      C 200/53
—    Infringement of Article 1(4) of Directive 91/689/EEC:              4.    Article 12 of the Trade Marks Directive provides that a
     Under the first indent of Article 1(4), a precise and                    trade mark shall be ‘liable’ to revocation in specified
     uniform definition of hazardous waste, required for                      circumstances. When those circumstances exist, must the
     application of the directive, is achieved by reference to                court revoke the trade mark, or does the court retain any
     Annexes I, II and III to the directive and the list of                   discretion as to whether to revoke?
     hazardous waste to be drawn up in accordance with the
     procedure laid down in Article 18. It follows that, in their
     legislation to transpose the directive, the Member States          (1) OJ L 40, 11.2.1989, p. 1.
     must take those annexes and that list as a basis for
     determining the field of application of their national
     provisions. The list, which is contained in Council
     Decision 94/904/EC, supplements the provisions of the
     directive on hazardous waste.
     The possibility for the Member States to adopt stricter
     protective measures in fields harmonised by Community              Action brought on 8 May 2001 by the Commission of the
     environmental provisions is not to be equated with an              European Communities against the Grand Duchy of
     option not to transpose such harmonisation measures.                                          Luxembourg
                                                                                (Case C-196/01)
(1) OJ L 194, 25.7.1975, p. 47.
(2) OJ L 78, 26.3.1991, p. 32.                                                                   (2001/C 200/95)
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice on 8 May 2001 by the
                                                                        Commission of the European Communities, represented by
                                                                        H. Støvlbaek and J. Adda, acting as Agents, with an address for
                                                                        service in Luxembourg.
Reference for a preliminary ruling by the House of Lords,               The applicant claims that the Court should:
by order of that court of 4 April 2001, in the case of                  —     declare that the Grand Duchy of Luxembourg has failed
Scandecor Development AB and others against Scandecor                         to comply with its obligations under Article 1(a) of
                   Marketing AB and another                                   Council Directive 75/442/EEC of 15 July 1975 on
                                                                              waste (1), as amended by Council Directive 91/156 EC of
                        (Case C-195/01)                                       18 March 1991 (2) and Commission Decision 94/3/EC of
                                                                              20 December 1993 establishing a list of wastes pursuant
                                                                              to Article 1(a) of Council Directive 75/442/EEC on
                        (2001/C 200/94)                                       waste (3);
Reference has been made to the Court of Justice of the                  —     order the Grand Duchy of Luxembourg to pay the costs.
European Communities by an order of the House of Lords of
4 April 2001, which was received at the Court Registry on
7 May 2001, for a preliminary ruling in the case of Scandecor           Pleas in law and main arguments
Development AB and others against Scandecor Marketing AB
and another, on the following questions:
                                                                        —     Although the Grand Duchy of Luxembourg was obliged,
                                                                              under the fourth paragraph of Article 249 EC, to
1.   Is a trade mark to be regarded as liable to mislead the
                                                                              incorporate the European Waste Catalogue (EWC), for-
     public within the meaning of article 12(2)(b) of Council
                                                                              ming the subject-matter of Decision 94/3/EC, into its
     Directive No 89/1104/EEC (1) of 21 December 1988 to
                                                                              national law, it has simply reproduced it in a ministerial
     approximate the laws of the Member States relating to
                                                                              circular which is binding on the administrative authorities
     trade marks (the ‘Trade Marks Directive’) if the origin of
                                                                              but not on third parties.
     the goods denoted by the mark is a bare exclusive
     licensee?                                                          —     At the same time, the Grand Duchy of Luxembourg
                                                                              introduced a nomenclature applying purely to Luxem-
2.   What are the criteria to be applied in determining whether               bourg, which is totally different from the EWC. Various
     a trading relationship comprises a single undertaking for                operations in respect of which use of the EWC is
     the purposes of the Trade Marks Directive?                               precluded are linked to the implementation of national
                                                                              measures designed to transpose the Community legis-
3.   Is a company a person for the purpose of article 6(1)(a)                 lation on waste. In addition, the coexistence of two lists
     of the Trade Marks Directive?                                            (the Luxembourg nomenclature and the EWC) between


title: Case T-556/11: Judgment of the General Court of 27 April 2016 — European Dynamics Luxembourg and Others v EUIPO (Public service contracts — Tendering procedure — Software development and maintenance services — Rejection of a tenderer’s bid — Classification of a tenderer in the cascade procedure — Grounds for exclusion — Conflict of interest — Equal treatment — Duty of diligence — Award criteria — Manifest error of assessment — Duty to state reasons — Non-contractual liability — Loss of opportunity)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/42

      Judgment of the General Court of 27 April 2016 — European Dynamics Luxembourg and Others v EUIPO
      (Case T-556/11) (1)

      ((Public service contracts - Tendering procedure - Software development and maintenance services - Rejection of a tenderer’s bid - Classification of a tenderer in the cascade procedure - Grounds for exclusion - Conflict of interest - Equal treatment - Duty of diligence - Award criteria - Manifest error of assessment - Duty to state reasons - Non-contractual liability - Loss of opportunity))
      (2016/C 211/52)
      Language of the case: English

         Parties

         Applicants: European Dynamics Luxembourg and Others (Ettelbrück, Luxembourg), European Dynamics Belgium SA (Brussels, Belgium), Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented initially by N. Korogiannakis, M. Dermitzakis and N. Theologou, subsequently by I. Ampazis, and lastly by M. Sfyri, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO) (represented initially by N. Bambara and M. Paolacci, and subsequently by M. Bambara, acting as Agents, assisted by P. Wytinck and B. Hoorelbeke, lawyers)

         Re:

      Action, first, for annulment of the decision of EUIPO notified by letter of 11 August 2011 and adopted in tendering procedure AO/029/10 entitled ‘Software development and maintenance services’ rejecting the tender submitted by European Dynamics Luxembourg and the other related decisions of EUIPO adopted in the context of that procedure, including those awarding the contract to other tenderers, and, second, for damages.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the European Union Intellectual Property Office (EUIPO), notified by letter of 11 August 2011 and adopted in tendering procedure AO/029/10 entitled ‘Software development and maintenance services’, rejecting the tender submitted by European Dynamics Luxembourg SA and the other related decisions of EUIPO adopted in the context of that procedure, including those awarding the contract to three other tenderers as successful tenderers ranked first to third in the ‘cascade’ procedure;

                  2.

                  Orders EUIPO to compensate European Dynamics Luxembourg for the damage incurred as a result of the loss of opportunity to be awarded the framework contract as, at the very least, the third contractor in the cascade procedure;

                  3.

                  Orders the parties to inform the Court, within three months from the date of delivery of the present judgment, of the amount, in figures, of compensation arrived at by agreement;

                  4.

                  Orders that, in the absence of agreement, the parties shall forward to the Court, within the same period, a statement of their views with supporting figures;

                  5.

                  Reserves the costs.

         (1)  OJ C 6, 7.1.2012.


title: Joined Cases T-254/00, T-270/00 and T-277/00: Judgment of the Court of First Instance of 28 November 2008 — Hotel Cipriani and Others v Commission (State aid — Relief from social security contributions for firms in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and requiring recovery of the aid paid out — Admissibility — Individual concern — Conditions concerning effect on trade between Member States and competition — Derogations under Article 87(3)(b) to (e) EC and Article 87(2)(b) EC — Categorisation as new aid or as existing aid — Principles of legal certainty, protection of legitimate expectations, equal treatment and proportionality — Duty to state reasons)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/23

         Judgment of the Court of First Instance of 28 November 2008 — Hotel Cipriani and Others v Commission
   (Joined Cases T-254/00, T-270/00 and T-277/00) (1)

   (State aid - Relief from social security contributions for firms in Venice and Chioggia - Decision declaring the aid scheme incompatible with the common market and requiring recovery of the aid paid out - Admissibility - Individual concern - Conditions concerning effect on trade between Member States and competition - Derogations under Article 87(3)(b) to (e) EC and Article 87(2)(b) EC - Categorisation as new aid or as existing aid - Principles of legal certainty, protection of legitimate expectations, equal treatment and proportionality - Duty to state reasons)
   (2009/C 19/41)
   Language of the case: Italian
   Parties

      Applicant in Case T-254/00: Hotel Cipriani SpA (Venice, Italy) (represented by: initially M. Marinoni, G.M. Roberti and F. Sciaudone, and later G.M. Roberti, F. Sciaudone and A. Bianchini, lawyers)

      Applicant in Case T-270/00: Società italiana per il gas SpA (Italgas) (Turin, Italy) (represented by: M. Merola, C. Tesauro, M. Pappalardo and T. Ubaldi, lawyers)

      Applicants in Case T-277/00: Coopservice — Servizi di fiducia Soc. coop. rl (Cavriago, Italy); and Comitato ‘Venezia vuole vivere’ (Venice) (represented by: A. Bianchini and A. Vianello, lawyers)

      Defendant: Commission of the European Communities (represented by: V. Di Bucci, Agent, assisted by A. Dal Ferro, lawyer)

      Intervener in support of the applicant in Case T-270/00: Italian Republic (represented by: initially U. Leanza, and later I. Braguglia, Agents, and by P. Gentili and S. Fiorentino, lawyers)
   Re:
   Action for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the applications;

               2.

               Orders Hotel Cipriani SpA, Società italiana per il gas SpA (Italgas), Coopservice — Servizi di fiducia Soc. coop. rl and the Comitato ‘Venezia vuole vivere’ to bear their own costs and to pay those of the Commission, and orders Coopservice and the Comitato ‘Venezia vuole vivere’ also to bear the costs of the interlocutory proceedings.

      (1)  OJ C 355, 9.12.2000.


title: Case T-407/09: Order of the General Court of 9 January 2012 — Neubrandenburger Wohnungsgesellschaft v Commission (Action for annulment — State aid — Contracts for the sale of apartments as part of the privatisation of publicly-owned apartments in Neubrandenburg — Complaint — Act not subject to review — Inadmissibility — Action for failure to act)

text:
               25.2.2012

               EN

               Official Journal of the European Union

               C 58/9

         Order of the General Court of 9 January 2012 — Neubrandenburger Wohnungsgesellschaft v Commission
   (Case T-407/09) (1)

   (Action for annulment - State aid - Contracts for the sale of apartments as part of the privatisation of publicly-owned apartments in Neubrandenburg - Complaint - Act not subject to review - Inadmissibility - Action for failure to act)
   2012/C 58/16
   Language of the case: German

      Parties

      Applicant: Neubrandenburger Wohnungsgesellschaft mbH (Neubrandenburg, Germany) (represented by M. Núñez-Müller and J. Dammann, lawyers)

      Defendant: European Commission (represented by B. Martenczuk and K. Gross, agents)

      Interveners in support of the defendant: Bavaria Immobilien Beteiligungsgesellschaft mbH & Co. Objekte Neubrandenburg KG (Berlin, Germany); and Bavaria Immobilien Trading GmbH & Co. Immobilien Leasing Objekt Neubrandenburg KG (Berlin) (represented by C. von Donat, lawyer)

      Re:

   Action, first, for annulment of the Commission decision claimed to be contained in the letter of 29 July 2009 declaring that some contracts concluded by the applicant regarding the sale of apartments as part of the privatisation of publicly-owned apartments in Neubrandenburg did not fall within the scope of Article 87(1) EC and, second, for a declaration of the Commission’s failure to act, under Article 232 EC, since the Commission did not define its position on those contracts on the basis of Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article (88 EC) (OJ 1999 L 83, p. 1).

      Operative part of the order

               1.

               The action is dismissed as being inadmissible.

               2.

               Neubrandenburger Wohnungsgesellschaft mbH shall bear its own costs and pay the costs incurred by the Commission and by Bavaria Immobilien Beteiligungsgesellschaft mbH & Co. Objekte Neubrandenburg KG and Bavaria Immobilien Trading GmbH & Co. Immobilien Leasing Objekt Neubrandenburg KG.

      (1)  OJ C 312, 19.12.2009.


title: Appeal brought on 17 April 1998 by the Economic and Social Committee against the judgment delivered on 17 February 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-183/96 between E and the Economic and Social Committee (Case C-150/98 P)

text:
4.7.98              EN                   Official Journal of the European Communities                                   C 209/21
Granollers A.I.E. (Rec. 08/3276/96 and 08/3277/96),                 E and the Economic and Social Committee was brought
(C-131/98) Alfonso Crespo Recasens (Rec. 08/1826/96),               before the Court of Justice of the European Communities
(C-132/98) JesuÂs Corral García (Rec. 08/11628/95),                 on 17 April 1998 by the Economic and Social Committee,
(C-133/98) Atlansport, S.L. (Rec. 2.181/96), (C-134/98)             represented by MoiseÂs Bermejo Garde, acting as Agent,
Golden Meetings, S.A. (Rec. 08/2328/97) (C-135/98)                  with an address for service in Luxembourg at the office of
Algavame, S.A. (Rec. 08/2249/97), (C-136/98) Tarragona              Carlos GomeÂz de la Cruz, Commission of the European
161. S.A. (Rec. 08/994/97), (C-137/98) Gesba, S.A. (Rec.            Communities, Wagner Centre.
08/940/97), (C-138/98) Estació de Servei El Trevol S.L.
(Rec. 08/805/97), (C-139/98) Viladases, S.L. (Rec. 08/              The appellant claims that the Court should:
12845/96), (C-140/98) Francisca Quesada Cobo (Rec. 08/
7575/94), (C-141/98) Niteo, S.L. (Rec. 25/1110/96),                 Ð    set aside the judgment delivered by the Court of First
(C-142/98) Inmobiliaria Vilassarenca, S.A. (Rec. 08/2365/                Instance on 17 February 1998 in Case T-183/96 (1),
97), (C-143/98) Covives CB (Rec. 43/530/96), (C-144/98)
Cable I Televisión de Catalunya, S.A. (Rec. 10.349/96),             Ð    itself definitively determine the dispute by:
(C-145/98) Inmobiliaria Moragas, S.A. (Rec. 10.348/96),
(C-146/98) Comunidad de propietarios del Complejo                        Ð upholding the submissions advanced by the
Urbanístico de las Calles Estudiantes, Brosa y Casas i                        Economic and Social Committee in the
Amigo de Barcelona (Rec. 15.158/94), of 30 January 1998                       proceedings at first instance contending that E's
in the cases of (C-121/98) Sanyo Energy Spain Corporate,                      application should be dismissed in its entirety,
S.A. (Rec. 08/762/97), (C-122/98) Golf de Viladecans,
S.A. (Rec. ac. 08/3301/97 and 08/3302/97), (C-123/98)                    Ð ordering the parties to bear their own costs.
Savigi    89,    S.A.    (Rec.     08/665/97),     (C-124/98)
Explotaciones la Sota, S.L. (Rec. 08/960/97) and (C-147/            Pleas in law and main arguments adduced in support:
98) Bungy Fun Germany, GBDR (Rec. 43/1047/95), and
of 25 February 1998 in the cases of (C-116/98) Gran Vía             Erroneous assessment of the legal nature of the facts and
Zaragoza, S.A. (Rec. ac. 08/10942/96 and 08/11959/96),              misinterpretation of Articles 12 and 21 of the Staff
(C-118/98) Gran Vía Zaragoza, S.A. (Rec. ac. 08/10944/              Regulations of officials of the European Communities: in
96 and 08/11961/96) and (C-119/98) Gran Vía Zaragoza,               the Economic and Social Committee's view, the words
S.A. (Rec. ac. 08/10943 y 08/11960) v. Administración               used by E, and the tone in which they were expressed, as
Estatal de la Agencia Tributaria, on the following                  sanctioned in the contested decision, cannot be
question:                                                           characterised in law as merely discourteous Ð as they
                                                                    were by the Court of First Instance Ð but must be
With respect to the VAT paid by a taxable person liable             regarded as an extremely serious act amounting to a
thereto before he starts regularly carrying out taxable             failure to respect the law applicable to the public service.
transactions, may the terms in which the right to deduct
VAT is defined in Article 17 of the Sixth Council Directive         Failure to state the grounds of the judgment and
77/388/EEC of 17 May 1977 be interpreted as meaning                 misinterpretation of Articles 86 and 87 of the Staff
that the exercise of that right may be made conditional,            Regulations of officials: the finding by the Court of First
with a view to avoiding fraud, upon the fulfilment of               Instance that the disciplinary measure was manifestly
certain requirements such as the submission of an express           disproportionate was based solely on the actual conduct
request before the tax concerned becomes due and                    specifically complained of, and failed to take account of
commencement of taxable transactions on a regular basis             the other circumstances of the case, that is to say, it failed
within a specified time-limit reckoned from the date of             to attach any weight in the proceedings to the other
that request, the penalty for infringement of those                 circumstances prevailing.
requirements being forfeiture of the right to deduct or, at
least, deferment of its availability until the time at which        Incorrect application of the principle of proportionality
taxable transactions begin to be carried out on a regular           and misinterpretation of Articles 12 and 21 of the Staff
basis?                                                              Regulations of officials.
                                                                    (1) OJ C 94, 28.3.1998, p. 22.
Appeal brought on 17 April 1998 by the Economic and
Social Committee against the judgment delivered on
17 February 1998 by the Third Chamber of the Court of               Appeal brought on 17 April 1998 by Pharos SA against
First Instance of the European Communities in Case                  the judgment delivered on 17 February 1998 by the Third
T-183/96 between E and the Economic and Social                      Chamber of the Court of First Instance of the European
                         Committee                                  Communities in Case T-105/96 between Pharos SA and
                     (Case C-150/98 P)                                       Commission of the European Communities
                                                                                (Case C-151/98 P)
                       (98/C 209/41)
                                                                                (98/C 209/42)
An appeal against the judgment delivered on 17 February
1998 by the Third Chamber of the Court of First Instance            An appeal against the judgment delivered on 17 February
of the European Communities in Case T-183/96 between                1998 by the Third Chamber of the Court of First Instance


title: Case C-574/10: Action brought on 9 December 2010 — European Commission v Federal Republic of Germany

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/5

         Action brought on 9 December 2010 — European Commission v Federal Republic of Germany
   (Case C-574/10)
   2011/C 72/08
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: G. Wilms and C. Zadra, acting as Agents)

      Defendant: Federal Republic of Germany

      Form of order sought

               —

               Declare that, by having contracts for architectural services relating to the construction of the recreation centre awarded by the municipality of Niedernhausen without conducting a Europe-wide invitation to tender, the defendant infringed its obligations under Articles 2, 9 and 20 in conjunction with Articles 23 to 55 of Directive 2004/18/EC (1);

               —

               order Federal Republic of Germany to pay the costs.

      Pleas in law and main arguments

   The subject-matter of the present action is the service contracts for consideration relating to architectural services, which the municipality of Niedernhausen as contracting authority concluded with an engineering agency. Although the architectural tasks in question all relate to a uniform construction project, namely the construction of a recreation centre, they were awarded separately to the same engineering agency as the drawing up of plans for the individual building components, without a Europe-wide invitation to tender being conducted. The contract values were accordingly separately calculated for the individual contracts.
   The present architectural contracts are contracts for consideration concerning the provision of services within the meaning of Article 1(2)(d) of Directive 2004/18/EC. Architectural services are priority services in accordance with Annex II A, Category 12 to the directive.
   The Commission is of the view that the drawing up of plans concerns a uniform procurement procedure for which it can find no objective grounds for it to be divided into separate individual contracts. It concerns the part performance of the construction of a single building, planned, decided and implemented as a general project. They serve that uniform aim and are in close physical, economic and functional relation. Therefore, the contract value should have been calculated according to the total value of the architectural services provided in the context of the construction. In that case, the contract value would have exceeded the threshold laid down in Article 7B of Directive 2004/18/EC and the architectural contract should have been the subject of a Europe-wide invitation to tender.
   The construction of the recreation centre itself concerns a single construction contract for the purposes of European procurement law. That is at least a strong indication that the corresponding planning is also to be regarded as a uniform procurement procedure. If architectural services, such as in the present case, are connected with a uniform construction contract and its contents are defined by the planned construction, there is no logical reason to choose another method of calculation. Architectural services are therefore to a certain extent accessory to the construction service. Why a uniform construction service would require a non-uniform architectural service is, in the opinion of the Commission, unclear.
   The Court considers the uniform economic and technical function of the individual parts of the contract as an indication that it concerns a single procurement procedure. Although the stated criterion of the functional approach was applicable to construction contracts, the Commission is of the opinion that it is also applicable to service contracts. The criterion of the technical and economic uniformity of the drawing up of plans is fulfilled in the present case since it concerns the construction of a single building.
   An almost arbitrary division of the contracts is contrary to the effectiveness of the directive. It would indeed often lead to values artificially falling below the threshold and thereby to a reduction of its scope of application. The Court notes in its settled case-law the significance of the directive on the award of public contracts for the free movement of services and for fair competition at European Union level. An arbitrary and subjective ‘dismemberment’ of uniform service contracts would undermine that objective.
   Budgetary reasons for the division into construction sections could also not justify an artificial division of a unified contract value. It is contrary to the objective of the European public procurement directives for a unified proposed purchase which is carried out in several stages purely for budgetary reasons to be considered solely for that reason to consist of several independent contracts and thereby to be prevented from coming within the scope of application of the directive. Article 9(3) of the directive indeed forbids such an artificial division of a unified proposed purchase.
   It must be concluded that the contracts in question constitute a unified proposed purchase, the value of which at the time of the contract award exceeded the threshold laid down in the directive. The contract should therefore have been the subject of a Europe-wide invitation to tender and awarded according to the procedure provided for in the directive. That is not the case and therefore the defendant infringed Directive 2004/18/EC.

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).


title: Case C-323/03: Judgment of the Court (Second Chamber) of  9 March 2006  — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Regulation (EEC) No 3577/92 — Maritime cabotage — Whether applicable to passenger transport services in the Vigo estuary — Twenty-year concession to a single operator — Compatibility — Possibility of concluding public service contracts or imposing public service obligations — Standstill clause)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/5

         Judgment of the Court (Second Chamber) of 9 March 2006 — Commission of the European Communities v Kingdom of Spain
   (Case C-323/03) (1)

   (Failure of a Member State to fulfil obligations - Regulation (EEC) No 3577/92 - Maritime cabotage - Whether applicable to passenger transport services in the Vigo estuary - Twenty-year concession to a single operator - Compatibility - Possibility of concluding public service contracts or imposing public service obligations - Standstill clause)
   (2006/C 131/08)
   Language of the Case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: I. Martínez del Peral and K. Simonsson, Agents)

      Defendant: Kingdom of Spain (represented by: L. Fraguas Gadea and J.M. Rodríguez Cárcamo, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Arts 1, 4, 7 and 9 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) and the EC Treaty — National rules which allow maritime transport services in the Vigo estuary to be entrusted to a single operator for 20 years and which permit a more restrictive regime which is subject to public-service obligations.
   Operative part of the judgment
   The Court:

               1.

               Declares that: by maintaining in force legislation which:

                           —

                           allows a concession for maritime transport services in the Vigo estuary to be granted to a single operator for a period of 20 years and which includes as a criterion for the award of that concession experience in transport acquired in that estuary,

                           —

                           allows the imposition of public service obligations on seasonal transport services with the islands and regular transport services between mainland ports,

                           —

                           was not the subject of any consultation with the Commission of the European Communities prior to being approved,

                     the Kingdom of Spain has infringed Articles 1, 4 and 9 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) and has failed to fulfil its obligations under that regulation;

               2.

               Dismisses the remainder of the application;

               3.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 239, 04.10.2003.


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 21, 24.1.2004

text:
7.2.2004         EN                     Official Journal of the European Union                         C 35/21
                                                           III
                                                        (Notices)
                                                    (2004/C 35/42)
                Last publication of the Court of Justice in the Official Journal of the European Union
         OJ C 21, 24.1.2004
         Past publications
         OJ C 7, 10.1.2004
         OJ C 304, 13.12.2003
         OJ C 289, 29.11.2003
         OJ C 275, 15.11.2003
         OJ C 264, 1.11.2003
         OJ C 251, 18.10.2003
                                              These texts are available on:
                                         EUR-Lex: http://europa.eu.int/eur-lex
                                          CELEX: http://europa.eu.int/celex


title: Case C-209/10: Judgment of the Court (Grand Chamber) of 27 March 2012 (reference for a preliminary ruling from the Højesteret — Denmark) — Post Danmark A/S v Konkurrencerådet (Article 82 EC — Postal undertaking with a dominant position subject to a universal service obligation with regard to certain addressed mail — Low prices charged to certain former customers of a competitor — No evidence relating to intention — Price discrimination — Selectively low prices — Actual or likely exclusion of a competitor — Effect on competition and, thereby, on consumers — Objective justification)

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/4

         Judgment of the Court (Grand Chamber) of 27 March 2012 (reference for a preliminary ruling from the Højesteret — Denmark) — Post Danmark A/S v Konkurrencerådet
   (Case C-209/10) (1)

   (Article 82 EC - Postal undertaking with a dominant position subject to a universal service obligation with regard to certain addressed mail - Low prices charged to certain former customers of a competitor - No evidence relating to intention - Price discrimination - Selectively low prices - Actual or likely exclusion of a competitor - Effect on competition and, thereby, on consumers - Objective justification)
   2012/C 151/06
   Language of the case: Danish

      Referring court

   Højesteret

      Parties to the main proceedings

      Applicant: Post Danmark A/S

      Defendant: Konkurrencerådet

      Intervener: Forbruger-Kontakt a-s

      Re:

   Reference for a preliminary ruling — Højesteret — Interpretation of Article 82 EC (now Article 102 TFEU) — Abuse of a dominant position — Postal undertaking holding a dominant position and subject to the obligation to distribute addressed letters and parcels, applying selective price reductions for distribution of unaddressed mail at levels lower than its overall average costs, but higher than its incremental average costs — Abuse aimed at eliminating a competitor

      Operative part of the judgment

   Article 82 EC must be interpreted as meaning that a policy by which a dominant undertaking charges low prices to certain major customers of a competitor may not be considered to amount to an exclusionary abuse merely because the price that undertaking charges one of those customers is lower than the average total costs attributed to the activity concerned, but higher than the average incremental costs pertaining to that activity, as estimated in the procedure giving rise to the case in the main proceedings. In order to assess the existence of anti-competitive effects in circumstances such as those of that case, it is necessary to consider whether that pricing policy, without objective justification, produces an actual or likely exclusionary effect, to the detriment of competition and, thereby, of consumers’ interests.

      (1)  OJ C 179, 3.7.2010.


title: Case T-489/04: Action brought on 20 December 2004 by U.S. Steel Košice s.r.o. against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/29

         Action brought on 20 December 2004 by U.S. Steel Košice s.r.o. against the Commission of the European Communities
   (Case T-489/04)
   (2005/C 82/56)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 December 2004 by U.S. Steel Košice, Košice, Slovak Republic, represented by D. Hueting, Barrister, C. Thomas Solicitor and E. Vermulst, lawyer.
   The applicant claims that the Court should:

               —

               annul the Commission Decision of 20 October 2004 concerning the national allowances for the allocation of greenhouse gas allowances notified by the Slovak Republic in accordance with Directive 2003/87/EC of the European Parliament and Council;

               —

               order the Commission to pay the applicant's costs.

         Pleas in law and main arguments
   The applicant is a Slovak company, the only steel producer in that country. By its application it seeks the annulment of the Commission's Decision of 20 October 2004 concerning the national allowances for the allocation of greenhouse gas allowances notified by the Slovak Republic in accordance with Directive 2003/87 (1).
   In support of its application the applicant first of all submits that the contested decision infringes Article 9 paragraph 3 of Directive 2003/87 in that it purports to approve a national allocation plan where the total amount of allowances approved is lower than the aggregate of the individual allocations and reserves listed in the plan. The applicant further alleges that the contested decision infringes criteria 1 and 2 of Annex III to Directive 2003/87 in that it limits the allocation of allowances by the Slovak Republic to a level substantially lower than the amount originally notified, which was consistent with the Slovak Republic's commitments under the Kyoto Protocol. The applicant also invokes a misuse of the Commission's powers in that the contested decision allegedly intends to achieve a scarcity of allowances, an objective different to those stated in Directive 2003/87 and that, further, it was based on non-transparent bilateral negotiations which Directive 2003/87 does not allow. The applicant contends further that the contested decision violates the principle of non-discrimination in that the Commission improperly treated the Slovak Republic differently from Germany and the first eight Member States whose allocation plans were received and that, in other respects, improperly failed to treat the Slovak Republic differently from Latvia and Estonia. According to the applicant, the contested decision also infringes the principle of proportionality in that, firstly, it purports to approve a plan where the total amount of allowances proposed by Slovakia is reduced beyond what is appropriate and necessary, and secondly, the Commission failed to evaluate the effects that the decrease in total allocation would have on individual installations. Finally, the applicant contends that the contested decision fails to provide a meaningful or adequate statement of reasons.

      (1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, Official Journal L 275, 25/10/2003, p. 32.


title: Order of the Court of First Instance of 25 May 2005 in Case T-330/04 Jörg-Michael Fetzer v European Parliament (Preliminary issues — Objection of inadmissibility — Expiry of the period for bringing an action — Manifest inadmissibility)

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/22

      ORDER OF THE COURT OF FIRST INSTANCE

   of 25 May 2005
   in Case T-330/04 Jörg-Michael Fetzer v European Parliament (1)

   (Preliminary issues - Objection of inadmissibility - Expiry of the period for bringing an action - Manifest inadmissibility)
   (2005/C 205/40)
   Language of the case: German
   In Case T-330/04: Jörg-Michael Fetzer, residing in Tübingen (Germany), represented by M. Bauer, lawyer, against European Parliament (Agents: N. Lorenz and L.G. Knudsen, with an address for service in Luxembourg) — action for annulment of the decision of the Selection Board for Competition PE/96/A not to include the applicant on the reserve list of that competition and, in the alternative, for an order requiring the defendant to pay appropriate damages — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges; H. Jung, Registrar, made an order on 25 May 2005, the operative part of which is as follows:

               1.

               The action is dismissed as manifestly inadmissible;

               2.

               Each party shall bear its own costs.

      (1)  OJ C 284, 20.11.2004.


title: Action brought on 13 July 1995 by Giorgio Bernardi against the European Parliament (Case T-146/95)

text:
No C 268/24             EN                   Official Journal of the European Communities                                   14 . 10 . 95
Second,      the  Commission         determined    the  reduction       The applicant claims that the Court should:
coefficients without first preparing a supply balance for
1995 , as required by Article 16 of Council Regulation ( EEC )          — annul the decision of the Commission notified to
No 404/93 of 13 February 1993 establishing the common                       the applicant by letter No 5445 from DAFSE
organization of the market in bananas ( 2 ). Failure to prepare             ( Departamento para Asuntos do Fundo Social Europeu
such a supply balance amounts to a procedural irregularity                  — the Portuguese European Social Fund Agency ) of
entailing the illegality of any determination of the reduction              11 May 1995 , amending, changing and reducing the
coefficients by reference to the quota .                                    amount which had been initially approved and granted
                                                                            by another Commission decision approving file Nos
Third, in determining the reduction coefficient, the                        881311 PI and 880249 P3 ,
Commission infringed the principles of fairness,
reasonableness and good administration . The applicants                 — order the Commission to pay the costs .
maintain that the coefficients of 57, 15 and 28 % , applied by
the Commission to quantities of bananas handled by                      Pleas in law and main arguments adduced in support:
primary importers, secondary importers and ripeners
respectively, are quite arbitrary . Moreover, those three               The application alleges the following defects vitiate the
categories of operators have not been clearly defined in such           legality of the Commission's decision which considers the
a way as to prevent the same bananas from being counted                 expenditure ineligible and orders the repayment of the
more than once in each of the three categories of operators .           amounts received by the applicant by way of initial
The Commission should have drawn up rules of                            advance :
administration to eliminate or reduce the risks of double
counting, but failed to do so, with the result that the                 — the decision which has now been notified to the
category of secondary importer has been wrongfully                          applicant is, even now, non-existent in its view because it
extended by some Member States . Furthermore, by reason                     has no knowledge of its actual content,
of a contradiction between the provisions of Articles 4 ( 3 )
and 7 of Commission Regulation ( EEC ) No 1442/93 of                    — the decision is unlawful inasmuch as it infringes Council
10 June 1993 laying down detailed rules for the application                 Decision 83/516/EEC of 17 October 1983 on the tasks
of the arrangements for importing bananas into the                          of the European Social Fund, Council Regulation ( EEC )
Community ( 3 ), the criteria for entitlement to a quota                    No 2950/83 of 17 October 1983 on the implementation
allocation have been more strictly applied in some Member                   of Decision 83/516/EEC and Commission Decision
States than in others . In addition, the Commission has not                  83/673/EEC of 22 December 1983 on the management
required operators to keep adequate records of the source of                 of the European Social Fund,
their fruits, with the serious consequence that bananas
imported otherwise than under category A licences appear                — the decision infringes the initial decision approving the
to have been taken into account as part of the category A                    files, which imposes only one condition : implementation
reference quantities .                                                       of the operations . The condition imposed on the
                                                                             applicant was fulfilled and the operations were
(') OJ No L 310 , 3 . 12 . 1994 .
                                                                             implemented,
 ( 2 ) OJ No L 47, 25 . 2 . 1993 .
 (•') OJ No L 142 , 12 . 6 . 1993 .                                     — the decision is fundamentally contradictory in view of
                                                                             the contents of the letter from DAFSE notifying it, thus
                                                                             infringing the applicant's rights of defence,
                                                                        — the decision also infringes essential procedural
                                                                             requirements inasmuch as it lacks a statement of reasons
                                                                             or at least is based on assumptions which are erroneous,
                                                                             obscure and inconsistent, which, in the view of the
Action brought on 10 July 1995 by Proderec — Formaçâo e                      applicant, constitute insufficient grounds.
 Desenvolvimento de Recursos Humanos, ACE — against
         the Commission of the European Communities
                           ( Case T-145/95 )
                             ( 95/C 268/52 )
                                                                         Action brought on 13 July 1995 by Giorgio Bernardi against
               (Language of tbe case: Portuguese)                                            the European Parliament
                                                                                ( Case T-146/95 )
 An action against the Commission of the European                                                  ( 95/C 268/53 )
  Communities was brought before the Court of First
  Instance of the European Communities on 10 July 1995 by                                 (Language of tbe case: Frencb)
  Proderec — Formaçâo e Desenvolvimento de Recursos
  Humanos, ACE, whose registered office is at 7B Avenida 25
  de Abril, S/loja, Almada , represented by Manuel Rodrigues,            An action against the European Parliament was brought
  of the Lisbon Bar, with an address for service in                      before the Court of First Instance of the European
  Luxembourg at 2 place Virchow, 2671 Luxembourg.                        Communities on 13 July 1995 by Giorgio Bernardi, residing
 ---pagebreak---  14 . 10 . 95          EN                    Official Journal of the European Communities                                  No C 268/25
in Luxembourg, represented by Giancarlo Lattanzi, of the                nomination,      infringement     of     essential   procedural
Massa-Carrara Bar, with an address for service in                       requirements and misuse of powers .
Luxembourg at 33 rue Godchaux.
The applicant claims that the Court should :
— annul the notice entitled ' Call for nominations for the              Action brought on 17 July 1995 by Hilaire Delia Pietra
     office of Ombudsman', published on 23 May 1995 ( OJ                  against the Commission of the European Communities
     No C 127, p . 4 ), and all acts connected with it or                                      ( Case T-148/95 )
     adopted as a consequence , particularly:                                                    ( 95/C 268/54 )
     — the Secretary General's Decision No 019473 of
                                                                                (Language of tbe case: Frencb)
          15 June 1995 ,
     — the acts relating to the admissibility of the                    An action against the Commission of the European
          nominations of the persons concerned ;                        Communities was brought before the Court of First
                                                                        Instance on 17 July 1995 by Hilaire Delia Pietra , resident in
                                                                        Brussels , represented by Georges Vandersanden, of the
     — the administrative acts following the public hearing             Brussels Bar, with an address for service in Luxembourg at
          on 28 and 29 June 1995 ,                                      the offices of Fiduciaire Myson Sàrl, 1 Rue Glesener .
— order the European Parliament to pay the costs of the                 The applicant claims that the Court should :
     proceedings .
                                                                       — annul the decision by Mr A. J. Gaston contained in a
                                                                            note of 25 October 1994 by which, in so far as the
Pleas in law and main arguments adduced in support:                         applicant refused to undergo surgery, he reduced to 0 %
                                                                            the 4 % rate of invalidity that the applicant had been
                                                                            recognized as suffering by the Medical Committee , in its
The applicant states that he forwarded his nomination for                   report of 15 November 1991 ,
the office of Ombudsman following the issue of the notice
entitled ' Call for nominations for the office of Ombudsman '          — order the Commission to pay nominal damages of one
( OJ No C 127, 23 . 5 . 1995 , p . 4 ). He was not notified of any          ECU in compensation for the non-material damage
decision concerning his nomination , but deduced that he                    suffered,
had not been successful from the fact that, according to the
information published in the bulletin 'Info Memo 109 ' of              — order the Commission to pay the fees of the doctors to
21 June 1995 , he was not one of the six nominees due to be                 whom the applicant had to have recourse,
heard by the Parliament's Committee on Petitions .
                                                                       — order the Commission to pay all the costs .
The applicant contests the provisions adopted for the
implementation of Article 138e of the Treaty on European               Pleas in law and main arguments adduced in support:
Union ( which provides for the appointment of the
Ombudsman ), particularly Rule 159 of the Rules of                     The applicant considers that the defendant committed a
Procedure of the European Parliament, the notice calling for            manifest error in refusing to recognize his state of partial
nominations and , above all, the procedure used by the                 permanent invalidity as found by the Medical Committee,
Parliament for consideration of the nominations entered .               on the pretext that he refused to undergo surgery . He points
According to the applicant, the notice calling for                      out that the Medical Committee recognized that his state
nominations lays down requirements which are obscure,                  corresponded to a rate of partial permanent invalidity of
ambiguous , impossible to fulfil within the prescribed period          4 % ; although the report adds that that rate of invalidity
and scarcely mutually compatible and that it is contrary to            could be reduced to 0 % if he had an operation, nevertheless
the fundamental principles of the Treaty on the basis of                an official cannot be compelled to undergo surgery nor be
which the post of Ombudsman was created . As regards the               penalized by the administration for not doing so, even if the
procedure for considering the nominations, the applicant                operation presents only a slight risk, since the risk can never
submits that his nomination was neither registered nor                  be totally excluded . The applicant maintains that the
notified to the Members who were to elect the Ombudsman;                Commission's attitude, with its particular insistence that he
furthermore , he was not informed of any decision                       should undergo surgery, goes beyond the sphere within
concerning the outcome of his nomination .                              which it is entitled to intervene and manifestly exceeds its
                                                                       powers .
In support of his application, the applicant alleges                   The applicant maintains, furthermore , that the many faults
infringement of the Treaty on European Union, lack of                   committed by the institution in flagrant fashion, as shown in
competence of the authorities in deciding not to consider his           the file concerning the consequences of his accident on


title: Case C-649/11 P: Order of the Court of 3 October 2012 — Cooperativa Vitivinícola Arousana S. Coop. Galega v Office for Harmonisation in the Internal Market (Trade Marks and Designs), María Constantina Sotelo Ares (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Likelihood of confusion — Word mark ROSALIA DE CASTRO — Opposition by the proprietor of the national word mark ROSALIA)

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/5

         Order of the Court of 3 October 2012 — Cooperativa Vitivinícola Arousana S. Coop. Galega v Office for Harmonisation in the Internal Market (Trade Marks and Designs), María Constantina Sotelo Ares
   (Case C-649/11 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Likelihood of confusion - Word mark ROSALIA DE CASTRO - Opposition by the proprietor of the national word mark ROSALIA)
   2013/C 101/09
   Language of the case: Spanish

      Parties

      Appellant: Cooperativa Vitivinícola Arousana S. Coop. Galega (represented by: I. Temiño Ceniceros, Abogado)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carillo, Agent) and María Constantina Sotelo Ares (represented by: C. Lema Devesa, Abogado)

      Re:

   Appeal brought against the judgment of the General Court (Third Chamber) of 5 October 2010 in Case T 421/10 Cooperativa Vitivinícola Arousana v OHIM — Sotelo Ares, by which the General Court rejected the action brought against the decision of the Fourth Board of Appeal of OHIM of 19 July 2010 (Case R 1804/2008-4) relating to opposition proceedings between María Constantina Sotelo Ares and Cooperativa Vitivinícola Arousana, S. Coop. Galega

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Cooperativa Vitivinícola Arousana S. Coop. Galega is ordered to pay the costs.

      (1)  OJ C 58, 25.2.2012.


title: Case T-231/03: Action brought on 13 June 2003 by Hugh McBride against the Commission of the European Communities

text:
C 239/14                  EN                          Official Journal of the European Union                                        4.10.2003
Action brought on 13 June 2003 by Edward Kelly against                        The applicant claims that the Court should:
        the Commission of the European Communities
                                                                              —      annul the decision contained in Article 2 of Commission
                             (Case T-229/03)                                         Decision of 4 April 2003 on the requests received by the
                                                                                Commission to increase in MAGP IV objectives to take
                                                                                into account improvements on safety, navigation at sea,
                            (2003/C 239/24)                                          hygiene, product quality and working conditions for
                                                                                vessels of more than 12 m in length overall notified
                      (Language of the case: English)                                under document number C(2003) 1113 to reject a safety
                                                                                capacity application in respect of the MFV Peadar Elaine II;
                                                                              —      order the Commission to pay the costs of these proceed-
An action against the Commission of the European Communi-
                                                                                ings.
ties was brought before the Court of First Instance of the
European Communities on 13 June 2003 by Edward Kelly,
Greencastle, (Ireland), represented by P. Gallagher and A. Col-
lins, Barristers, and D. Barry, Solicitor.
                                                                              Pleas in law and main arguments
The applicant claims that the Court should:
                                                                              The applicant invokes the same pleas in law as in Case T-218/
—      annul the decision contained in Article 2 of Commission                03 (1).
       Decision of 4 April 2003 on the requests received by the
       Commission to increase in MAGP IV objectives to take
                                                                              (1 ) See p. 9 of this Official Journal.
       into account improvements on safety, navigation at sea,
       hygiene, product quality and working conditions for
       vessels of more than 12 m in length overall notified
       under document number C(2003) 1113 to reject a safety
       capacity application in respect of the MFV Regina Ponti;
—      order the Commission to pay the costs of these proceed-
       ings.                                                                  Action brought on 13 June 2003 by Hugh McBride against
                                                                                the Commission of the European Communities
Pleas in law and main arguments                                                                           (Case T-231/03)
The applicant invokes the same pleas in law as in Case T-218/                                             (2003/C 239/26)
03 (1).
                                                                                (Language of the case: English)
( 1) See p. 9 of this Official Journal.
                                                                              An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                                                                              European Communities on 13 June 2003 by Hugh McBride,
                                                                              Downings, (Ireland), represented by P. Gallagher and A.
Action brought on 13 June 2003 by Peter McBride against                       Collins, Barristers, and D. Barry, Solicitor.
        the Commission of the European Communities
                                                                              The applicant claims that the Court should:
                             (Case T-230/03)
                                                                              —      annul the decision contained in Article 2 of Commission
                            (2003/C 239/25)                                          Decision of 4 April 2003 on the requests received by the
                                                                                Commission to increase in MAGP IV objectives to take
                      (Language of the case: English)                                into account improvements on safety, navigation at sea,
                                                                                hygiene, product quality and working conditions for
                                                                                vessels of more than 12 m in length overall notified
                                                                                under document number C(2003) 1113 to reject a safety
An action against the Commission of the European Communi-                            capacity application in respect of the MFV Heather Jane
ties was brought before the Court of First Instance of the                           II;
European Communities on 13 June 2003 by Peter McBride,
Downings, (Ireland), represented by P. Gallagher and A. Collins,              —      order the Commission to pay the costs of these proceed-
Barristers, and D. Barry, Solicitor.                                                 ings.
 ---pagebreak--- 4.10.2003                 EN                          Official Journal of the European Union                                        C 239/15
Pleas in law and main arguments                                               Action brought on 13 June 2003 by Noel McGing against
                                                                                the Commission of the European Communities
The applicant invokes the same pleas in law as in Case T-218/                                             (Case T-233/03)
03 (1).
                                                                                (2003/C 239/28)
( 1) See p. 9 of this Official Journal.
                                                                                (Language of the case: English)
                                                                              An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                                                                              European Communities on 13 June 2003 by Noel McGing,
                                                                              Killybegs, (Ireland), represented by P. Gallagher and A. Collins,
                                                                              Barristers, and D. Barry, Solicitor.
Action brought on 13 June 2003 by Adrian McClennaghan
   against the Commission of the European Communities
                                                                              The applicant claims that the Court should:
                             (Case T-232/03)
                                                                              —      annul the decision contained in Article 2 of Commission
                                                                                Decision of 4 April 2003 on the requests received by the
                            (2003/C 239/27)                                          Commission to increase in MAGP IV objectives to take
                                                                                into account improvements on safety, navigation at sea,
                                                                                hygiene, product quality and working conditions for
                      (Language of the case: English)                                vessels of more than 12 m in length overall notified
                                                                                under document number C(2003) 1113 to reject a safety
                                                                                capacity application for a proposed new RSW vessel,
                                                                                MFV Olgarry;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                    —      order the Commission to pay the costs of these proceed-
                                                                                ings.
European Communities on 13 June 2003 by Adrian McClen-
naghan, Greencastle, (Ireland), represented by P. Gallagher and
A. Collins, Barristers, and D. Barry, Solicitor.
                                                                              Pleas in law and main arguments
The applicant claims that the Court should:
                                                                              The applicant invokes the same pleas in law as in Case T-218/
                                                                              03 (1).
—      annul the decision contained in Article 2 of Commission
       Decision of 4 April 2003 on the requests received by the
       Commission to increase in MAGP IV objectives to take                   (1 ) See p. 9 of this Official Journal.
       into account improvements on safety, navigation at sea,
       hygiene, product quality and working conditions for
       vessels of more than 12 m in length overall notified
       under document number C(2003) 1113 to reject a safety
       capacity application in respect of the MFV Northern Celt;
—      order the Commission to pay the costs of these proceed-                Action brought on 13 June 2003 by Eamon McHugh
       ings.                                                                     against the Commission of the European Communities
                                                                                (Case T-234/03)
Pleas in law and main arguments                                                                           (2003/C 239/29)
                                                                                (Language of the case: English)
The applicant invokes the same pleas in law as in Case T-218/
03 (1).
                                                                              An action against the Commission of the European Communi-
( 1) See p. 9 of this Official Journal.                                       ties was brought before the Court of First Instance of the
                                                                              European Communities on 13 June 2003 by Eamon McHugh,
                                                                              Killybegs, (Ireland), represented by P. Gallagher and A. Collins,
                                                                              Barristers, and D. Barry, Solicitor.


title: Judgment of the Court (Sixth Chamber) of 9 January 2003 in Case C-292/00 (Reference for a preliminary ruling from the Bundesgerichtshof): Davidoff & Cie SA, Zino Davidoff SA v Gofkid Ltd (Directive 89/104/EEC — Articles 4(4)(a) and 5(2) — Well-known trade marks — Protection against use of a sign in respect of identical or similar products or services)

text:
C 44/6                   EN                          Official Journal of the European Union                                             22.2.2003
                  JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                          (Sixth Chamber)
                                                                                of 16 January 2003
                          of 9 January 2003
                                                                             in Case C-315/00 (Reference for a preliminary ruling from
                                                                             the Bundesfinanzhof): Rudolf Maierhofer v Finanzamt
in Case C-292/00 (Reference for a preliminary ruling from                                             Augsburg-Land ( 1)
the Bundesgerichtshof): Davidoff & Cie SA, Zino Davidoff
                         SA v Gofkid Ltd ( 1)                                (Sixth VAT Directive — Exemptions — Letting of immov-
                                                                             able property — Prefabricated building which can be dis-
                                                                                mantled and reassembled)
(Directive 89/104/EEC — Articles 4(4)(a) and 5(2) — Well-
known trade marks — Protection against use of a sign in
       respect of identical or similar products or services)                                             (2003/C 44/11)
                                                                                (Language of the case: German)
                           (2003/C 44/10)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                   (Language of the case: German)
(Provisional translation; the definitive translation will be published       In Case C-315/00: 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 Rudolf
                                                                             Maierhofer and Finanzamt Augsburg-Land, on the interpret-
                                                                             ation of Article 13B(b) of the Sixth Council Directive 77/388/
                                                                             EEC of 17 May 1977 on the harmonisation of the laws of the
                                                                             Member States relating to turnover taxes — Common system
In Case C-292/00: Reference to the Court under Article 234                   of value added tax: uniform basis of assessment (OJ 1977
EC by the Bundesgerichtshof (Germany) for a preliminary                      L 145, p. 1), the Court (Fifth Chamber), composed of:
ruling in the proceedings pending before that court between                  M. Wathelet, President of the Chamber, C.W.A. Timmermans,
Davidoff & Cie SA, Zino Davidoff SA and Gofkid Ltd, on the                   D.A.O. Edward, P. Jann and S. von Bahr (Rapporteur), Judges;
interpretation of Articles 4(4)(a) and 5(2) of First Council                 F.G. Jacobs, Advocate General; H.A. Rühl, Principal Adminis-
Directive 89/104/EEC of 21 December 1988 to approximate                      trator, Registrar, has given a judgment on 16 January 2003, in
the laws of the Member States relating to trade marks (OJ                    which it has ruled:
1989 L 40, p. 1), the Court (Sixth Chamber), composed of:
J.-P. Puissochet, President of the Chamber, C. Gulmann (Rap-
porteur), V. Skouris, F. Macken and N. Colneric, Judges;                     1.    The letting of a building constructed from prefabricated
F.G. Jacobs, Advocate General; H.A. Rühl, Principal Adminis-                       components fixed to or in the ground in such a way that they
trator, for the Registrar, has given a judgment on 9 January                       cannot be easily dismantled or easily moved constitutes a letting
2003, in which it has ruled:                                                       of immovable property for the purposes of Article 13B(b) of
                                                                                Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                                harmonisation of the laws of the Member States relating to
Articles 4(4)(a) and 5(2) of First Council Directive 89/104/EEC of                 turnover taxes — Common system of value added tax: uniform
21 December 1988 to approximate the laws of the Member States                      basis of assessment, even if the building is to be removed at the
relating to trade marks are to be interpreted as entitling the Member              end of the lease and re-used on another site;
States to provide specific protection for well-known registered trade
marks in cases where a later mark or sign, which is identical with or        2.    Whether the lessor makes available to the lessee both the
similar to the registered mark, is intended to be used or is used for              building and the land on which it is erected or merely the
goods or services identical with or similar to those covered by the                building which he has erected on the lessee’s land is irrelevant
registered mark.                                                                   in determining whether a letting constitutes a letting of
                                                                                immovable property for the purposes of Article 13B(b) of the
                                                                                Sixth Directive 77/388.
( 1) OJ C 302 of 21.10.2000.
                                                                             (1 ) OJ C 302 of 21.10.2000.