title: Case T-433/08: Judgment of the General Court of 12 April 2013 — SIAE v Commission (Competition — Agreements, decisions and concerted practices — Copyright relating to public performance of musical works via the internet, satellite and cable retransmission — Decision finding an infringement of Article 81 EC — Sharing of the geographic market — Bilateral agreements between national collecting societies — Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences — Proof — Presumption of innocence)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/36

         Judgment of the General Court of 12 April 2013 — SIAE v Commission
   (Case T-433/08) (1)

   (Competition - Agreements, decisions and concerted practices - Copyright relating to public performance of musical works via the internet, satellite and cable retransmission - Decision finding an infringement of Article 81 EC - Sharing of the geographic market - Bilateral agreements between national collecting societies - Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences - Proof - Presumption of innocence)
   2013/C 156/62
   Language of the case: Italian

      Parties

      Applicant: Società italiana degli autori ed editori (SIAE) (Rome, Italy) (represented by: M. Siragusa, L. Vullo and S. Valentino, lawyers)

      Defendant: European Commission (represented by: V. Di Bucci and F. Castillo de la Torre, acting as Agents)

      Re:

   Application for annulment in part of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC).

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 3 of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC), in so far as it concerns Società italiana degli autori ed editori (SIAE);

               2.

               Annuls Article 4(2) of Commission Decision C(2008) 3435 final as regards SIAE;

               3.

               Dismisses the remainder of the action;

               4.

               Orders the European Commission to pay the costs relating to the main proceedings;

               5.

               Orders SIAE and the Commission to each bear their own costs relating to the interim relief proceedings.

      (1)  OJ C 301, 22.11.2008.


title: Case C-670/16: Judgment of the Court (Grand Chamber) of 26 July 2017 (request for a preliminary ruling from the Verwaltungsgericht Minden — Germany) — Tsegezab Mengesteab v Bundesrepublik Deutschland (Reference for a preliminary ruling — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an application for international protection made in one of the Member States by a third-country national — Article 20 — Start of the determination process — Lodging an application for international protection — Report prepared by the authorities that reached the competent authorities — Article 21(1) — Time limits for making a take charge request — Transfer of responsibility to another Member State — Article 27 — Remedy — Scope of judicial review)

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/17

         Judgment of the Court (Grand Chamber) of 26 July 2017 (request for a preliminary ruling from the Verwaltungsgericht Minden — Germany) — Tsegezab Mengesteab v Bundesrepublik Deutschland
   (Case C-670/16) (1)

   ((Reference for a preliminary ruling - Regulation (EU) No 604/2013 - Determination of the Member State responsible for examining an application for international protection made in one of the Member States by a third-country national - Article 20 - Start of the determination process - Lodging an application for international protection - Report prepared by the authorities that reached the competent authorities - Article 21(1) - Time limits for making a take charge request - Transfer of responsibility to another Member State - Article 27 - Remedy - Scope of judicial review))
   (2017/C 309/22)
   Language of the case: German

      Referring court

   Verwaltungsgericht Minden

      Parties to the main proceedings

      Applicant: Tsegezab Mengesteab

      Defendant: Bundesrepublik Deutschland

      Operative part of the judgment

               1.

               Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in the light of recital 19 thereof, must be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant.

               2.

               Article 21(1) of Regulation No 604/2013 must be interpreted as meaning that a take charge request cannot validly be made more than three months after the application for international protection has been lodged, even if that request is made within two months of receipt of a Eurodac hit within the meaning of that article.

               3.

               Article 20(2) of Regulation No 604/2013 must be interpreted as meaning that an application for international protection is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third-country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation, and as the case may be, if only the main information contained in such a document, but not that document or a copy thereof, has reached that authority.

      (1)  OJ C 104, 3.4.2017.


title: Action brought on 21 January 1999 by DKV Deutsche Krankenversicherungs AG against the Office for Harmonisation in the Internal Market (trade marks and designs) (Case T-19/99)

text:
27.3.1999             EN                 Official Journal of the European Communities                                      C 86/29
Instance of the European Communities on 21 January                  in the same position as if the reference period giving rise
1999 by Cordis Obst- und Gemüsegrosshandel GmbH,                    to entitlement had covered the years 1995 to 1997. The
Ostrau (Germany), represented by Gert Meier,                        applicant maintains that Article 6(3) of that regulation
Rechtsanwalt, Jakordenstraûe 10, Köln.                              should also be annulled as an ancillary because reduction
                                                                    of the quantity allocated was contrary to the GATT. The
                                                                    enactment of Community legislation contrary to the
The applicant claims that the Court should:                         GATT after final judgment by a legal organ of the WTO
                                                                    that an infringement had taken place represented a misuse
                                                                    of powers by the Commission giving rise to a right to
1. order the Commission to compensate the applicant for             compensation.
    its loss suffered as a result of
                                                                    In the applicant's view, however, compensation in kind
    (a) the Commission's adopting the years 1994 to 1996            through the issuing of import rights capable of serving as
         as the reference period for traditional operators,         a basis of reference for the future is possible in this case.
    (b) the quantity provisionally approved by the                  (1) OJ C 94, 28.3.1998, p. 27.
         competent authorities being reduced by application         (2) Commission Regulation (EC) No 2362/98 of 28 October 1998
         of the adjustment coefficient;                                 laying down detailed rules for the implementation of Council
                                                                        Regulation (EEC) No 404/93 regarding imports of bananas
                                                                        into the Community (OJ L 293, 31.10.1998, p. 32).
2. order the Commission, in so far as the quantities to
    which the applicant is legitimately entitled have been
    wrongly reduced, to make good that loss by allocating
    to it additional licences in the future (compensation in
    kind);
                                                                    Action brought on 21 January 1999 by DKV Deutsche
                                                                    Krankenversicherungs AG against the Office for
3. order the Commission to pay the costs.
                                                                    Harmonisation in the Internal Market (trade marks and
                                                                                designs)
Pleas in law and main arguments adduced in support:                                         (Case T-19/99)
                                                                                (1999/C 86/51)
The applicant has already brought an action against the
Commission in Case T-612/97 (1), challenging the                                    (Language of the case: German)
Commission's decision refusing the applicant additional
licences by way of compensation for hardship.
                                                                    An action against the Harmonisation in the Internal
                                                                    Market (trade marks and designs) was brought before the
The applicant now claims compensation on the ground                 Court of First Instance of the European Communities on
that, after the entry into force of Regulation (EC)                 21 January 1999 by DKV Deutsche Krankenversicherungs
No 2362/98 (2), it applied for the allocation of a reference        AG,       of Cologne,       represented     by Stephan        v.
quantity of 2 591 427 kg of bananas for the years 1994 to           Petersdorff-Campen, of Rechtsanwälte von Rospatt, von
1996, but the quantity allocated was reduced by                     der Osten, Prost, Düsseldorf, with an address for service
application of the adjustment coefficient.                          in Luxembourg at the Chambers of Marc Loesch, Loesch
                                                                    and Wolter, 11 Rue Goethe, Luxembourg.
The applicant argues that by adopting the years 1994 to
1996 as the reference period for the year 1999, the                 The applicant claims that the Court should:
Commission unlawfully put the reference period back by a
year, given that in accordance with Article 19(2) of
                                                                    Ð alter the contested decision and order the defendant to
Regulation (EEC) No 404/93 the reference period was the
                                                                         register the sign COMPANYLINE, application number
period from 1995 to 1997. Imports in 1994 had already
                                                                         319038, for the services claimed in class 36 (insurance
been used three times for reference purposes, namely in
                                                                         bodies; financial bodies) as a Community trade mark
the years 1996 to 1998. The applicant maintains that the
                                                                         in the register of Community trade marks subject to a
putting back of the reference period is arbitrary, a misuse
                                                                         disclaimer by the applicant that it will not claim any
of powers and insufficiently reasoned under Article 190 of
                                                                         exclusive rights in the constituent elements (namely
the EC Treaty. It also alleges infringement of Article I:1 of
                                                                         COMPANY and LINE) of the sign;
the GATT, Articles II and XVII of the GATS and
Articles I:2 and I:3 of the WTO Agreement on Licences.
                                                                         In the alternative
Moreover, as an ancillary, Article 4(2) of Regulation (EC)
No 2362/98 should be annulled for arbitrariness, lack of                 to annul the contested decision.
reasoning and misuse of powers, and the applicant placed
 ---pagebreak--- C 86/30              EN                 Official Journal of the European Communities                                  27.3.1999
Pleas in law and main arguments adduced in support:                Pleas in law and main arguments adduced in support:
Mark in question:                                                  The Commission refused Denkavit Nederland BV's request
                                                                   for access to the Belloli report concerning measures to
                                                                   combat swine fever in the Netherlands.
COMPANYLINE' Ð Application No 000 319038
                                                                   Denkavit's request was based on Commission Decision
Goods or services:                                                 94/90/ECSC, EC, Euratom of 8 February 1994 concerning
                                                                   access to Commission documents.
Insurance bodies; financial bodies (class 36)'
                                                                   The Commission's refusal was based on two grounds.
Decision contested before the Board of Appeal
                                                                   1. T h e       comunication         of    the    report    is
                                                                       contrary to the protection of the general
Refusal of registration by the examiner                                interest (namely inspections and inve-
                                                                       stigations)
Pleas in law:
                                                                   According to the Commission, the investigation has not
                                                                   yet been concluded, and is still to be the subject of
Ð infringement of Article 7(1)(b) of Regulation (EC)               consultation between the Commission and the
    No 40/94                                                       Netherlands authorities.
    Ð misapplication of Article 7(1)(c) of Regulation              Referring to press articles, the applicant submits that the
        (EC) No 40/94                                              investigation has been concluded and that there is no
                                                                   question of future consultation, meaning that the refusal is
    Ð failure to take into account Article 12(b) of                based on an error of fact.
        Regulation (EC) No 40/94
                                                                   According to the Commission, the report concerns
                                                                   breaches of Community law, and publication would
                                                                   undermine any legal proceedings which may be brought.
                                                                   According to Denkavit, the Netherlands State, against
Action brought on 20 January 1999 by Denkavit                      which those proceedings would be brought, has already
Nederland BV against Commission of the European                    been in possession of the report for some time and the
                        Communities                                differences of opinion between the Netherlands State and
                       (Case T-20/99)                              the Commission as regards the content have been made
                                                                   common knowledge by the press, meaning that the reason
                       (1999/C 86/52)                              for the refusal is also incorrect in that respect.
               (Language of the case: Dutch)                       2. T h e        requirement        of    protection       for
                                                                       b u s i n e s s s e c r e c y.
An action against the Commission of the European
Communities was brought before the Court of First                  According to Denkavit, the Commission should have given
Instance of the European Communities on 20 January                 an abstract description of the type of information
1999 by Denkavit Nederland BV, whose registered office             concerning pig farms contained in the report, without
is at Voorthuizen (The Netherlands), represented by E. A.          referring to the undertakings concerned by name.
Buys, Advocaat.
                                                                   Furthermore, according to Denkavit, business secrets are
The applicant claims that the Court should:                        information which can affect the competitive position of
                                                                   the undertakings concerned. The information in the Belloli
                                                                   report is nothing of the kind, since it concerns the manner
Ð annul the Commission decision of 17 November 1998                in which the pig farms concerned reacted to the measures
    refusing to publish documents,                                 adopted by the Netherlands authorities to combat swine
                                                                   fever. The report therefore contains no business secrets.
Ð order the Commission to pay the costs of the
    proceedings.


title: Case C-244/02: Reference for a preliminary ruling by the korkein hallinto-oikeus by order of that Court of 1st July 2002 in the appeal brought by Kauppatalo Hansel Oy

text:
14.9.2002              EN                    Official Journal of the European Communities                                         C 219/3
In the event that the answer to Question 1 is no:                       Question 2:
Question 2:
                                                                        In the event that the answer to Question 1 is no:
Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular         Is the abovementioned provision of the Directive to be
public contract if — in addition to its participating in the            construed in such a way that — where a bid was eliminated
public procurement procedure — it takes all steps available to          otherwise than in accordance with the law but the review body
it under national law to prevent the contract from being                in the course of its review procedure assumes and establishes
awarded to another bidder?                                              as a preliminary matter that the bid had properly to be
                                                                        eliminated — the tenderer of that bid is entitled to bring an
Question 3:                                                             application in respect of an alleged infringement of the law —
                                                                        in the present case the contracting authority’s decision to make
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-            the award to another bidder — because owing to the
ber 1989 on the coordination of the laws, regulations and               contracting authority’s defective award procedure the applicant
administrative provisions relating to the application of review         may in any event be presumed to have suffered loss and
procedures to the award of public supply and public works               errors in the award procedure can no longer be remedied
contracts, in conjunction with Article 2(1) thereof, to be              subsequently in the review procedure by substitution of
interpreted as meaning that an undertaking must be afforded             decisions of the contracting authority, and the review pro-
the opportunity in law to seek review of an award procedure             cedure must therefore be available to the applicant?
regarded by it as unlawful or discriminatory even where it is
not capable of performing the totality of the services for which
bids were invited and, for that reason, did not submit a bid in
that award procedure.                                                   (1 ) OJ L 395 [1989], p. 33.
( 1) OJ L 395 [1989], p. 33.
Reference for a preliminary ruling by the Bundesverga-                  Reference for a preliminary ruling by the korkein hallinto-
beamt (Republic of Austria) by order of that Court of                   oikeus by order of that Court of 1st July 2002 in the
14 May 2002 in the case of Neumayer Bau Ges.m.b.H                                  appeal brought by Kauppatalo Hansel Oy
against Abwasserverband Grossraum Bruck an der Leitha
                          — Neusiedl/See
                                                                                (Case C-244/02)
                          (Case C-231/02)
                          (2002/C 219/05)                                                         (2002/C 219/06)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt                   Reference has been made to the Court of Justice of the
(Republic of Austria) of 14 May 2002, received at the Court             European Communities by order of the korkein hallinto-
Registry on 20 June 2002, for a preliminary ruling in the               oikeus (Supreme Administrative Court) of 1st July 2002,
case of Neumayer Bau Ges.m.b.H against Abwasserverband                  received at the Court Registry on 4 July 2002, for a preliminary
Grossraum Bruck an der Leitha — Neusiedl/See on the                     ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:                                                    following questions:
Question 1:
                                                                        1.    Is Council Directive 93/36/EEC (1) of 14 June 1993
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-                  coordinating procedures for the award of public supply
ber 1989 on the coordination of the laws, regulations and                     contracts to be interpreted as meaning that a contracting
administrative provisions relating to the application of review               authority which has commenced a tender procedure on
procedures to the award of public supply and public works                     the basis of the lowest price may discontinue the
contracts ( 1) to be broadly interpreted as meaning that under it             procedure without awarding a contract when it discovers
entitlement to apply for a review procedure must be available                 after examining and comparing the tenders that because
to any person seeking to receive a specific public contract                   of the content of the invitation to tender it is not possible
whose award is pending, irrespective of whether such person                   for it to award a contract on the basis of the invitation to
has suffered or may suffer loss as a result of the alleged                    tender in question in the most advantageous way from
infringement of the law?                                                      the point of view of total costs?
 ---pagebreak--- C 219/4                 EN                    Official Journal of the European Communities                                     14.9.2002
2.    Is it of importance as regards the acceptability of discon-              (b) If the answer to Question 3(a) is affirmative:
      tinuing the procedure that the content of the invitation
      to tender is defective because of the incorrectness of the                   How is the said reference in the third sentence of
      assessment previously made by the contracting authority?                     Article 16(1) of the TRIPS Agreement to existing
                                                                                prior rights to be interpreted in the case of a trade
                                                                                name which is not registered or established in the
( 1) OJ L 199, p. 1.                                                               State in which the trade mark is registered and in
                                                                                which protection is sought for the trade mark
                                                                                against the trade name in question, having regard to
                                                                                the obligation under Article 8 of the Paris Conven-
                                                                                tion to afford protection to a trade name regardless
                                                                                of whether it is registered and to the fact that the
                                                                                permanent appellate body of the WTO has regarded
                                                                                the reference in Article 2(1) of the TRIPS Agreement
Reference for a preliminary ruling by the korkein oikeus                           to Article 8 of the Paris Convention as meaning
by order of that Court of 3 July 2002 in the case                                  that WTO members are obliged under the TRIPS
of Anheuser-Busch, Incorporated against Budéjovický                               Agreement to protect trade names in accordance
                     Budvar, národní podnik                                        with the latter article? When assessing, in such a
                                                                                case, whether a trade name has a legal basis prior to
                                                                                a trade mark for the purposes of the third sentence
                          (Case C-245/02)                                          of Article 16(1) of the TRIPS Agreement, may it thus
                                                                                be considered as decisive:
                          (2002/C 219/07)                                          (i)   whether the trade name was well-known at
                                                                                least to some extent among the relevant trade
                                                                                circles, in the State in which the trade mark is
                                                                                registered and in which protection is sought
Reference has been made to the Court of Justice of the                                   for it, before the point in time at which
European Communities by order of the korkein oikeus                                      registration of the trade mark was applied for
(Supreme Court) of 3 July 2002, received at the Court Registry                           in the State in question; or
on 5 July 2002, for a preliminary ruling in the case of
Anheuser-Busch, Incorporated against Budéjovický Budvar,                          (ii)  whether the trade name was used in commerce
národní podnik on the following questions:                                               directed to the State in which the trade mark is
                                                                                registered and in which protection is sought
1.    If the collision of a trade mark and a sign alleged to                             for it before the point in time at which
      infringe it is situated at a point in time before the entry                        registration of the trade mark was applied for
      into force of the TRIPS Agreement, do the provisions of                            in the State in question; or
      the TRIPS Agreement apply to the question of which
      right has the earlier legal basis, when the alleged infringe-                (iii) what other factor may decide whether the trade
      ment of the trade mark is said to continue after the date                          name is to be regarded as an existing prior
      on which the TRIPS Agreement entered into force in the                             right within the meaning of the third sentence
      Community and the Member States?                                                   of Article 16(1) of the TRIPS Agreement?
2.    If the answer to Question 1 is affirmative:
      (a)   Can the trade name of an undertaking also act as a
            sign for goods or services within the meaning of
            the first sentence of Article 16(1) of the TRIPS
            Agreement?
                                                                         Action brought on 9 July 2002 by Portuguese Republic
                                                                             against Commission of the European Communities
      (b) If the answer to Question 2(a) is affirmative, on
            what conditions may a trade name be regarded as a
            sign for goods or services within the meaning of                                     (Case C-249/02)
            the first sentence of Article 16(1) of the TRIPS
            Agreement?                                                                           (2002/C 219/08)
3.    If the answer to Question 2(a) is affirmative:
      (a)   How is the reference in the third sentence of Article        An action against the Commission of the European Communi-
            16(1) of the TRIPS Agreement to existing prior               ties was brought before the Court of Justice of the European
            rights to be interpreted? May the right to a trade           Communities on 9 July 2002 by the Portuguese Republic,
            name also be regarded as an existing prior right             represented by Luis Fernandes, acting as Agent, and Carlos
            within the meaning of the third sentence of Article          Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
            16(1) of the TRIPS Agreement?                                address for service in Luxembourg.


title: Appeal brought on 1 December 1998 by the Council of the European Union against the judgment delivered on 30 September 1998 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-13/97 between A. Losch and the Court of Justice of the European Communities, supported by the Council of the European Union and the Kingdom of the Netherlands (Case C-433/98 P)

text:
23.1.1999            EN                   Official Journal of the European Communities                                    C 20/25
The appellant claims that the Court should:                          Ð Misapplication of the doctrine requiring the European
                                                                         Parliament to be reconsulted: in view of the fact that
                                                                         all the institutions concerned, namely the European
Ð set aside the judgment of the Court of First Instance of               Parliament, the Council and the Commission, were
    30 September 1998 in Case T-154/96 between                           aware that the regulations concerning termination of
    Christiane Chvatal and Others and the Court of                       service, applicable solely to the European Parliament,
    Justice of the European Communities, supported by                    were designed to meet a pressing wish expressed by
    the Council of the European Union and the Kingdom                    the latter institution, the flexibility of the Community
    of the Netherlands;                                                  legislative process, which is necessary in order to
                                                                         arrive at a convergence between the views expressed
Ð in its discretion, make the appropriate order as to the                by the institutions concerned, should apply in the
    costs of the proceedings before the Court of Justice.                present case as regards the form in which the
                                                                         European Parliament may communicate its opinion to
                                                                         the Council or its assent to an amendment to the
Pleas in law and main arguments adduced in support:                      proposal initially submitted by the Commission. In
                                                                         this case, excessive adherence to formalities impeded
(As to the admissibility of the action)                                  the proper functioning of the legislative process, whilst
                                                                         not meeting any need.
The analysis of the Court of First Instance concerning the
admissibility of the action is incorrect in law. The Council         Ð Erroneous insistence on the requirement that the Staff
considers that, although persons to whom the Staff                       Committee be reconsulted (misinterpretation of the
Regulations apply have an unrestricted right to submit                   scope of Article 10 of the Staff Regulations): the
requests falling within the scope of the Staff Regulations,              parallel drawn by the judgment of the Court of First
the right to submit requests may under no circumstances                  Instance between a joint body operating within the
be exercised in the absence of a proper legal basis. In the              institutions, legitimately representing the interests of a
present case, there cannot have been an act adversely                    particular category of persons, and the European
affecting an official, because, in its response, the                     Parliament, which is an institution democratically
appointing authority merely stated that, under the                       elected by direct universal suffrage, constitutes a
legislation as it then stood, there was no legal basis                   serious modification of the institutional system of the
enabling termination of service to take place. Only if                   European Union, as organised by the Treaty and
different legislation were adopted could the respondents'                interpreted by the case-law of the Court of Justice,
legal situation have altered. The construction placed on                 and hence an infringement of Community law.
the matter by the Court of First Instance, whereby it
concluded that the response given by the Court's                     (1) OJ L 280, 23.11.1995, p. 1.
appointing authority had had an adverse effect, is based
on an erroneous legal characterisation which is not in line
with previous case-law and which clearly encroaches on
the powers reserved by the Treaty to the legislature alone.
The Court of First Instance erred in declaring the                   Appeal brought on 1 December 1998 by the Council of
objection of illegality raised in relation to Council                the European Union against the judgment delivered on
Regulation (EC, ECSC, Euratom) No 2688/95 (1)                        30 September 1998 by the Fifth Chamber of the Court of
admissible. In order for an objection of illegality to be            First Instance of the European Communities in Case
admissible, the application for annulment must itself be             T-13/97 between A. Losch and the Court of Justice of the
founded on a substantial cause of action, since the                  European Communities, supported by the Council of the
objection of illegality constitutes one of the pleas in law             European Union and the Kingdom of the Netherlands
put forward in support of that application. In the present
case, the application was in reality aimed solely at                                       (Case C-433/98 P)
contesting the regulation.                                                                   (1999/C 20/42)
(As to the substance)
                                                                     An appeal against the judgment delivered on 30 September
                                                                     1998 by the Fifth Chamber of the Court of First Instance
Ð Misapplication of the principle of non-discrimination:             of the European Communities in Case T-13/97 between A.
    the Court of First Instance erred in law in concluding           Losch and the Court of Justice of the European
    that the Council drew an arbitrary, or at least a                Communities, supported by the Council of the European
    manifestly inadequate, distinction in relation to the            Union and the Kingdom of the Netherlands, was brought
    objective pursued. The Parliament had undertaken not             before the Court of Justice of the European Communities
    to increase its complement of staff for five years, and          on 1 December 1998 by the Council of the European
    had called for the submission, as a matter of urgency,           Union, represented by Jean-Paul JacqueÂ, Director in its
    of a proposal for a regulation with respect to its               Legal Service, and Diego Canga Fano and TheÂreÁse
    personnel, whereas the Court had simply announced                Blanchet, of its Legal Service, with an address for service
    that it intended to take measures to terminate the               in Luxembourg at the Office of Alessandro Morbilli,
    service of a number of its officials.                            Director-General of the Legal Affairs Directorate of the
 ---pagebreak--- C 20/26              EN                 Official Journal of the European Communities                                23.1.1999
European Investment       Bank,  100    Boulevard     Konrad       Appeal brought on 3 December 1998 (received at the
Adenauer.                                                          Registry of the Court of First Instance on 30 November
                                                                   1998) by Sari Jouhki against the judgment delivered on
                                                                   16 September 1998 by the Fourth Chamber of the Court
The appellant claims that the Court should:
                                                                   of First Instance of the European Communities in Case
                                                                   T-215/97 between Sari Jouhki and the Commission of the
Ð set aside the judgment of the Court    of First Instance of                        European Communities
    30 September 1998 in Case            T-13/97 between
                                                                                (Case C-435/98 P)
    Antoinette Losch and the Court       of Justice of the
    European Communities, supported      by the Council of                                (1999/C 20/44)
    the European Union and the           Kingdom of the
    Netherlands;
                                                                   An appeal against the judgment delivered on 16 September
Ð in its discretion, make the appropriate order as to the          1998 by the Fourth Chamber of the Court of First
    costs of the proceedings before the Court of Justice.          Instance of the European Communities in Case T-215/97
                                                                   between Sari Jouhki and the Commission of the European
The pleas in law and main arguments are the same as in             Communities was brought before the Court of Justice of
Case C-432/98 P.                                                   the European Communities on 3 December 1998 (received
                                                                   at the Registry of the Court of First Instance on
                                                                   30 November 1998) by Sari Jouhki, represented by Harri
                                                                   Ojala, lawyer, of Ojala & Urpelainen, Isokatu 16 B 16,
                                                                   90100 Oulu, Finland.
Appeal brought on 1 December 1998 by the Council of
                                                                   The appellant claims that the Court should:
the European Union against the judgment delivered on
30 September 1998 by the Fifth Chamber of the Court of
First Instance of the European Communities in Case
T-164/97 between S. Busacca and Others and the Court               Ð set aside the judgment of the Court of First Instance in
         of Auditors of the European Communities                       so far as it dismissed Ms Jouhki's action against the
                                                                       Commission;
                     (Case C-434/98 P)
                       (1999/C 20/43)
                                                                   Ð annul the decision of the selection board for
                                                                       Commission competition COM/B/973 of 5 September
An appeal against the judgment delivered on 30 September
                                                                       1996 not to admit Ms Jouhki to the competition; and
1998 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-164/97 between
S. Busacca and Others and the Court of Auditors of the
European Communities was brought before the Court of               Ð declare that Ms Jouhki was entitled to take part in
Justice of the European Communities on 1 December                      competition COM/B/973.
1998 by the Council of the European Union, represented
by Jean-Paul JacqueÂ, Director in its Legal Service, and
Diego Canga Fano and TheÂreÁse Blanchet, of its Legal              The appellant also asks the Court of Justice to rule on
Service, with an address for service in Luxembourg at the          costs in accordance with its Rules of Procedure.
Office of Alessandro Morbilli, Director-General of the
Legal Affairs Directorate of the European Investment
Bank, 100 Boulevard Konrad Adenauer.                               Pleas in law and main arguments adduced in support:
The appellant claims that the Court should:
                                                                   The selection board for the competition was bound by the
Ð set aside the judgment of the Court of First Instance of         wording of the competition notice as published.
    30 September 1998 in Case T-164/97 between Silvio
    Busacca and Others and the Court of Auditors of the
    European Communities;                                          The decision of the Court of First Instance breaches
                                                                   Community law, in that the selection board for the
                                                                   competition was bound by the wording of the competition
Ð in its discretion, make the appropriate order as to the
                                                                   notice as published.
    costs of the proceedings before the Court of Justice.
The pleas in law and main arguments are the same as in             The selection board was obliged to take account of all the
Case C-432/98 P.                                                   certificates which Ms Jouhki produced before the
                                                                   time-limit fixed in the notice of competition for making
                                                                   applications.


title: Case T-109/08: Judgment of the General Court of 27 April 2010 — Freixenet v OHIM (Shape of a frosted white bottle) (Community trade mark — Application for a Community trade mark representing a frosted white bottle — Absolute ground for refusal — Lack of distinctive character — No distinctive character acquired through use — Article 7(1)(b) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and 7(3) of Regulation (EC) No 207/2009) — Obligation to state reasons — Rights of the defence — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/39

      Judgment of the General Court of 27 April 2010 — Freixenet v OHIM (Shape of a frosted white bottle)
      (Case T-109/08) (1)

      (Community trade mark - Application for a Community trade mark representing a frosted white bottle - Absolute ground for refusal - Lack of distinctive character - No distinctive character acquired through use - Article 7(1)(b) and 7(3) of Regulation (EC) No 40/94 (now Article 7(1)(b) and 7(3) of Regulation (EC) No 207/2009) - Obligation to state reasons - Rights of the defence - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))
      (2010/C 161/60)
      Language of the case: French

         Parties

         Applicant: Freixenet, SA (Sant Sadurní d’Anoia, Spain) (represented by: F. de Visscher, E. Cornu and D. Moreau, lawyers)

         Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Folliard-Monguiral, Agent)

         Re:

      Action brought against the decision of the First Board of Appeal of OHIM of 30 November 2007 (Case R 97/2001-1) concerning an application for registration of a sign representing a frosted white bottle as a Community trade mark.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Freixenet, SA to pay the costs.

         (1)  OJ C 116, 9.5.2008.


title: Judgment of the Court of 8 April 2003 in Case C-244/00 (Reference for a preliminary ruling from the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle sports + sportswear Handelsgesellschaft mbH, Michael Orth (Trade marks — Directive 89/104/EEC — Article 7(1) — Exhaustion of the right conferred by the trade mark — Evidence — Place where the goods are first placed on the market by the trade mark proprietor or with his consent — Consent of the trade mark proprietor to placing on the market in the EEA)

text:
C 135/2                  EN                           Official Journal of the European Union                                              7.6.2003
8.    Dismisses the remainder of the application;                             States relating to trade marks, as amended by the Agreement on the
                                                                              European Economic Area of 2 May 1992. However, the requirements
9.    Orders the parties to bear their own costs.                             deriving from the protection of the free movement of goods enshrined,
                                                                              inter alia, in Articles 28 EC and 30 EC may mean that this rule of
                                                                              evidence needs to be qualified. Accordingly, where a third party
( 1) OJ C 246 of 28.08.1999.                                                  succeeds in establishing that there is a real risk of partitioning of
                                                                              national markets if he himself bears that burden of proof, particularly
                                                                              where the trade mark proprietor markets his products in the European
                                                                              Economic Area using an exclusive distribution system, it is for the
                                                                              proprietor of the trade mark to establish that the products were
                                                                              initially placed on the market outside the European Economic Area
                                                                              by him or with his consent. If such evidence is adduced, it is for the
                  JUDGMENT OF THE COURT                                       third party to prove the consent of the trade mark proprietor to
                                                                              subsequent marketing of the products in the European Economic
                                                                              Area.
                           of 8 April 2003
in Case C-244/00 (Reference for a preliminary ruling from                     (1 ) OJ C 247 of 26.8.2000.
the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael
                                Orth (1)
(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the right conferred by the trade mark —
                                                                                JUDGMENT OF THE COURT
Evidence — Place where the goods are first placed on the
market by the trade mark proprietor or with his consent —
Consent of the trade mark proprietor to placing on the                                                   (Fifth Chamber)
                         market in the EEA)
                                                                                of 10 April 2003
                           (2003/C 135/02)
                                                                              in Case C-305/00 (Reference for a preliminary ruling
                    (Language of the case: German)                            from the Oberlandesgericht Frankfurt am Main): Christian
                                                                              Schulin v Saatgut-Treuhandverwaltungsgesellschaft
                                                                                mbH (1)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                              (Plant varieties — System of protection — Article 14(3) of
                                                                              Regulation (EC) No 2100/94 and Article 8 of Regulation
                                                                              (EC) No 1768/95 — Use by farmers of the product of the
In Case C-244/00: Reference to the Court under Article 177                    harvest — Obligation to provide information to the holder
of the EC Treaty (now Article 234 EC) by the Bundesgerichtshof                                      of the Community right)
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle                                               (2003/C 135/03)
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and                                             (Language of the case: German)
of Article 7(2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks (OJ 1989 L 40, p. 1), as amended               (Provisional translation; the definitive translation will be published
by the Agreement on the European Economic Area of                                                 in the European Court Reports)
2 May 1992 (OJ 1994 L 1, p. 3), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann                         In Case C-305/00: Reference to the Court under Article 234
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,                  EC by the Oberlandesgericht Frankfurt am Main (Germany) for
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate                  a preliminary ruling in the proceedings pending before that
General; H.A. Rühl, Principal Administrator, for the Registrar,               court between Christian Schulin and Saatgut-Treuhandverwal-
has given a judgment on 8 April 2003, in which it has ruled:                  tungsgesellschaft mbH, on the interpretation of the sixth
                                                                              indent of Article 14(3) of Council Regulation (EC) No 2100/
A rule of evidence according to which exhaustion of the trade mark            94 of 27 July 1994 on Community plant variety rights (OJ
right constitutes a plea in defence for a third party against whom the        1994 L 227, p. 1), and Article 8 of Commission Regulation
trade mark proprietor brings an action, so that the existence of the          (EC) No 1768/95 of 24 July 1995 implementing rules on
conditions for such exhaustion must, as a rule, be proved by the third        the agricultural exemption provided for in Article 14(3) of
party who relies on it, is consistent with Community law and, in              Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
particular, with Articles 5 and 7 of First Council Directive 89/104/          (Fifth Chamber), composed of: M. Wathelet, President of the
EEC of 21 December 1988 to approximate the laws of the Member                 Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr


title: Cases C-10/02 and C-11/02: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per la Puglia by order of 10 October 2001 in the case of Anna Fascicolo and Others against Regione Puglia and of Grazia Berardi and Others against Azienda Unità Sanitaria Locale BA/4 and Others

text:
16.3.2002             EN                     Official Journal of the European Communities                                           C 68/5
The Commission concludes that the spirit and purpose of                 Reference for a preliminary ruling by the Tribunale
Directive 92/83 do not allow the Member States to adopt                 Amministrativo Regionale per la Puglia by order of
measures which result in discrimination against similar prod-           10 October 2001 in the case of Anna Fascicolo and Others
ucts imported from other Member States and that, in any                 against Regione Puglia and of Grazia Berardi and Others
event, Article 23(2) of Directive 92/83 cannot under any                 against Azienda Unità Sanitaria Locale BA/4 and Others
circumstances justify an infringement of Article 90 EC.
That provision of the directive, which does not require, but                              (Cases C-10/02 and C-11/02)
allows, a reduced rate to be applied to the product in question,
charges the Member State with the responsibility for examining
whether, on the basis of the particular circumstances of the
market, the difference in taxation gives rise to protection of a                                 (2002/C 68/11)
domestic product and discrimination against imported prod-
ucts, in which case it must refrain from applying the reduced
rate.
A system of taxation can be considered compatible with the              Reference has been made to the Court of Justice of the
first paragraph of Article 90 EC only if it is arranged in such a       European Communities by order of the Tribunale Amministra-
way that it in any event precludes a higher charge being                tivo Regionale per la Puglia (Regional Administrative Court,
imposed on imported products than on domestic products.                 Puglia) of 10 October 2001, received at the Court Registry on
                                                                        15 January 2002, for a preliminary ruling in the case of Anna
                                                                        Fascicolo and Others against Regione Puglia and of Grazia
(1) OJ L 316, 31.10.1992, p. 21.
                                                                        Berardi and Others against Azienda Unità Sanitaria Locale
                                                                        BA/4 and Otheres on the questions
                                                                        1.   whether, under Article 7(2) of Directive 86/457/EEC (1)
                                                                             and Article 36(2) of Directive 93/16/EEC (2), for the
                                                                             purpose of the exercise of general medical practice a right
Reference for a preliminary ruling by the Verwaltungs-                       to practise acquired on or before 31 December 1994 is
gericht Mainz by order of 10 December 2001 in the case                       to be regarded as equivalent to the certificate of specific
of Emil Färber GmbH & Co. KG against Landkreis                               training in general medical practice;
                         Alzey-Worms
                                                                        2.   whether, pursuant to the abovementioned Community
                         (Case C-2/02)                                       provisions, with effect from 1 January 1995 the award of
                                                                             a certificate of specific training in general medical practice
                        (2002/C 68/10)                                       allows Member States to grant to doctors who also have
                                                                             a right to practise acquired on or before 31 December
                                                                             1994 more favourable terms in the form of access to a
                                                                             wider range of reserved posts than that granted to the
Reference has been made to the Court of Justice of the                       holders of either one qualification or the other;
European Communities by order of the Verwaltungsgericht
Mainz (Administrative Court, Mainz) of 10 December 2001,
received at the Court Registry on 7 January 2002, for a                 3.   if the previous question is answered in the affirmative,
preliminary ruling in the case of Emil Färber GmbH & Co. KG
against Landkreis Alzey-Worms on the following question:
                                                                             whether, finally, in view of the rules applicable to acquired
Is paragraph 2(a) of Chapter I of Annex A to Directive                       rights, the abovementioned condition allows the Member
85/73/EEC (1), in the version set out in Directive 96/43/EC (2),             States to grant the abovementioned doctors further
to be interpreted as meaning that the standard fee governed by               special treatment by in all cases granting them additional
that paragraph covering controls and inspections connected                   points for obtaining the certificate of specific training in
with cutting operations is payable only in respect of meat that              general medical practice.
is actually cut at a cutting plant, or is it to be interpreted as
meaning that such fee is payable in respect of all meat entering
the cutting plant, whether it is cut or not?
                                                                        (1) OJ L 267, 19.9.1986, p. 26.
                                                                        (2) OJ L 165, 7.7.1993, p. 1.
(1) OJ L 32, p. 14.
(2) OJ L 162, p. 1.


title: Case C-213/02 P: Appeal brought on 7 June 2002 by ABB Asea Brown Boveri Ltd against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-31/99 between ABB Asea Brown Boveri Ltd and the Commission of the European Communities

text:
24.8.2002              EN                   Official Journal of the European Communities                                           C 202/7
Appeal brought on 7 June 2002 by ABB Asea Brown                        Misinterpretation of Article 44(1)(c): ABB recognizes that
Boveri Ltd against the judgment delivered on 20 March                  general references to other documents cannot compensate for
2002 by the Fourth Chamber of the Court of First Instance              deficiencies in a party’s application. However, the Tribunal has
of the European Communities in case T-31/99 between                    found a defect neither in the Application nor in ABB’s Reply.
ABB Asea Brown Boveri Ltd and the Commission of the                    ABB thus cannot conceivably have compensated a defective
                    European Communities                               submission by a general reference to the Opinion. Moreover,
                                                                       there is, and the Judgment has established, no basis for relying
                                                                       on Article 44(1)(c) of the Tribunal’s Rules of Procedure by way
                        (Case C-213/02 P)                              of analogy.
                         (2002/C 202/08)                               Misinterpretation of the principle of legitimate expectations:
                                                                       The Judgment fails to recognize that legitimate expectations
                                                                       may arise from the Commission’s fining practice, that the
                                                                       Leniency Notice invites undertakings to rely on these fining
                                                                       practices and that the level of protection of legitimate expec-
An appeal against the judgment delivered on 20 March 2002
                                                                       tations is thereby strengthened, limiting the Commission’s
by the Fourth Chamber of the Court of First Instance of the
                                                                       discretion to at will depart from an established practice.
European Communities in case T-31/99 (1) between ABB Asea
Brown Boveri Ltd and the Commission of the European
Communities, was brought before the Court of Justice of the
European Communities on 7 June 2002 by ABB Brown                       The Judgment misapplies Article 15(2) of Regulation No. 17 (2):
Boveri Ltd, established in Zurich (Switzerland), represented by        The Commission has used the defendant undertakings’ turn-
A. Weitbrecht, M. Bay and S. Seelmann-Eggebert, lawyers, with          over in the products affected by the infringement only in order
an address for service in Luxembourg.                                  to divide these undertakings into four categories; in order to
                                                                       ‘reflect the importance of each firm in the pipe sector’, it has not
                                                                       used the turnover affected by the infringement to determine the
                                                                       gravity of the infringement (before taking into account the
The Appellant claims that the Court should:                            duration, aggravating and attenuating circumstances and the
                                                                       reduction under the Leniency Notice).
(1) set aside Sections 2 and 3 of the operative part of the
      Judgment; and
                                                                       (1) OJ C 121, 1.5.1999, p. 16.
                                                                       (2) of the Council of 6 February 1962, First Regulation implementing
(2) annul Article 3 of the Decision as it relates to the                   Articles 85 and 86 of the Treaty (OJ L 13, 21.2.1962, p. 204 [SE
      Appellant; and                                                       SER1 (59-62) p. 87]).
(3) further reduce the fine imposed on the Appellant by the
      Decision;
      alternatively to points (2) and (3);
(4) refer the case back to the Tribunal for decision in
      accordance with the judgment of the Court of Justice; and
                                                                       Reference for a preliminary ruling by the Sozialgericht
(5) require the Commission to pay the costs of the entire              Stuttgart by order of that Court of 4 June 2002 in the
      proceedings, including those of the Appellant.                   case of Karin Müller against Postbeamtenkrankenkasse;
                                                                       Additional party: Bundesversicherungsanstalt für Ange-
                                                                                stellte
Pleas in law and main arguments                                                                  (Case C-215/02)
                                                                                (2002/C 202/09)
Misapplication of the Tribunal’s Rules of Procedure leading to
the rejection as inadmissible of the Opinion submitted by ABB
as an annex to its Reply.
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Sozialgericht Stuttgart
Misinterpretation of Article 48(2): The Judgment fails to              (Social Court, Stuttgart) of 4 June 2002, received at the Court
distinguish between new pleas in law and arguments support-            Registry on 10 June 2002, for a preliminary ruling in the case
ing pleas already raised. The Opinion’s introduction was               of Karin Müller against Postbeamtenkrankenkasse; Additional
admissible because it amplifies a plea raised in the Application       party: Bundesversicherungsanstalt für Angestellte on the fol-
rather than introducing new pleas in law.                              lowing questions:


title: Case C-543/07: Judgment of the Court (Eighth Chamber) of 17 July 2008 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directive 2002/73/EC — Equal treatment for men and women — Access to employment — Vocational training and promotion — Working conditions — Failure to transpose within the period prescribed)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/18

         Judgment of the Court (Eighth Chamber) of 17 July 2008 — Commission of the European Communities v Kingdom of Belgium
   (Case C-543/07) (1)

   (Failure of a Member State to fulfil its obligations - Directive 2002/73/EC - Equal treatment for men and women - Access to employment - Vocational training and promotion - Working conditions - Failure to transpose within the period prescribed)
   (2008/C 223/28)
   Language of the case: Dutch
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek, acting as Agent)

      Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 2002 L 296, p. 15).
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing, within the period prescribed, to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, the Kingdom of Belgium failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Judgment of the Court of First Instance of 1 March 2005 in Case T-169/03 Sergio Rossi SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — National and international word marks MISS ROSSI — Application for a Community word mark SISSI ROSSI — Similarity of the goods — Similarity of the marks — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/23

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 1 March 2005
   in Case T-169/03 Sergio Rossi SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Opposition proceedings - National and international word marks MISS ROSSI - Application for a Community word mark SISSI ROSSI - Similarity of the goods - Similarity of the marks - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2005/C 106/53)
   Language of the case: Italian
   In Case T-169/03: Sergio Rossi SpA, established in San Mauro Pascoli, Forlì-Cesena (Italy), represented by A. Ruo, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: P. Bullock and O. Montalto), the other party to the proceedings before the Board of Appeal, intervening before the Court, being Sissi Rossi Srl, established in Castenaso di Villanova, Bologna (Italy), represented by S. Verea, M. Bosshard and K. Muraro, lawyers — action brought against the decision of the First Board of Appeal of OHIM of 28 February 2003 (Case R 569/2002-1) relating to the opposition proceedings between Calzaturificio Rossi SpA and Sissi Rossi Srl, — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and S. Papasavvas, Judges; D. Christensen, Administrator, for the Registrar, gave a judgment on 1 March 2005, in which it:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 171 of 19.7.2003.


title: Action brought on 12 November 1997 by Robert Mehlen and Others against the Council of the European Union and the Commission of the European Communities (Case T-291/97)

text:
10. 1. 98            EN                 Official Journal of the European Communities                                          C 7/27
Action brought on 10 November 1997 by Mehibas                      Ð breach of the obligation to provide a statement of
Dordtselaan BV (formerly Expeditie- en Controlebedrijf                  reasons and the principle of proportionality.
Codirex BV) against the Commission of the European
                        Communities                                (1) The Decision concerns the application of Article 13 of Council
                       (Case T-290/97)                                 Regulation (EEC) No 1430/79 of 2 July 1979 on the
                                                                       repayment or remission of import or export duties (OJ L 175,
                         (98/C 7/70)                                   12. 7. 1979, p. 1).
                                                                   (2) OJ C 137, 3. 6. 1995, p. 34.
                                                                   (3) Commission Regulation (EEC) No 2454/93 of 2 July 1993
                (Language of the case: Dutch)                          laying down provisions for the implementation of Council
                                                                       Regulation (EEC) No 2913/92 establishing the Community
                                                                       Customs Code (OJ L 253, 11. 10. 1993, p. 1).
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 10 November
1997 by Mehibas Dordtselaan BV (formerly Expeditie- en
Controlebedrijf Codirex BV), Rotterdam, represented by
P. V. F. Bos and N. J. Helder, of the Rotterdam Bar, with          Action brought on 12 November 1997 by Robert Mehlen
an address for service in Luxembourg at the Chambers of            and Others against the Council of the European Union
M. Loesch, 11, rue Goethe.                                              and the Commission of the European Communities
                                                                                (Case T-291/97)
The applicant claims that the Court should:
                                                                                (98/C 7/71)
Ð annul the Commission's Decision (C(97)2331 final) of                             (Language of the case: French)
    22 July 1997 (1), addressed to the Netherlands,
                                                                   An action against the Council of the European Union and
Ð order the Commission to pay the costs.                           the Commission of the European Communities was
                                                                   brought before the Court of First Instance of the European
                                                                   Communities on 12 November 1997 by Robert Mehlen
Pleas in law and main arguments adduced in support:                and the other applicants whose names are listed in the
                                                                   annex, represented by Fernand Entringer, of the
                                                                   Luxembourg Bar, with an address for service in
The present case is a continuation of Case T-89/95 (2), in         Luxembourg at his Chambers, 34A, rue Philippe II.
which the applicant contested the earlier refusal by the
Commission to decide that the same agricultural levies as
                                                                   The applicants claim that the Court should:
those in issue in the present case should be repaid.
                                                                   Ð declare that there has been wrongful conduct on the
After the Commission had withdrawn the decision at                      part of the Commission and the Council; that their
issue, the case was removed from the register of the Court              wrongful conduct gives rise to the Union's non-
of First Instance.                                                      contractual liability; that damage has been suffered by
                                                                        the applicants as a result of the wrongful conduct; that
                                                                        the Union is required to compensate them for that
The applicant advances the following pleas against the                  damage,
decision contested in the present case:
                                                                   Ð take formal note of the fact that the applicants
Ð lack of competence on the part of the Commission, in                  estimate the damage at Lfrs 3 000 000, without
    that it allowed the mandatory time limit prescribed by              prejudice to any calculation made specifically in
    the second sentence of Article 907 of Regulation                    regard to each undertaking,
    (EEC) No 2454/93 (3) to elapse by failing in good time
    to adopt a decision on the first application for               Ð order the Union to pay the costs of the proceedings.
    remission,
                                                                   Pleas in law and main arguments adduced in support:
Ð breach of the principles of legal certainty and of the
    protection of legitimate expectations, in that the             The applicants are seeking compensation for the damage
    applicant could not have known that its application            which they allege to have suffered as a result of acts and
    for remission had not caused time to start running,            omissions by the Council and the Commission when
                                                                   Bovine Spongiform Encephalopathy (BSE), Mad Cow
Ð infringement of Article 13 of Regulation (EEC)                   Disease', appeared.
    No 1430/79, in that the Commission failed to take
    into account the different time limits applying under          On the basis of a report published on 7 February 1997 by
    Netherlands law to supplementary applications for              the Temporary Committee of Inquiry into BSE, constituted
    reimbursement of import duties and agricultural levies,        by the European Parliament, the applicants consider that
 ---pagebreak--- C 7/28               EN                  Official Journal of the European Communities                                10. 1. 98
it has been shown that the Council and the Commission               Majerus-Weis, residing at Christnach (Luxembourg); 42.
have rendered the European Union liable by the                      Henri Mangen, residing at Bertrange (Luxembourg); 43.
commission of highly reprehensible acts and the failure to          Guy Mangen, residing at Berg (Luxembourg); 44. Jean-
adopt measures which would have allowed rectification in            Paul Martzen, residing at Merscheid (Luxembourg);
good time of a catastrophic situation endangering not only          45. Aloyse Marx, residing at Garnich (Luxembourg);
human health but also the public's faith in the institutions        46. Camille Mathey, residing at Stegen (Luxembourg);
governing them. They state that the acts of commission              47. Jean-Marcel Mettendorff, residing at Mecher
and omission by the Council and the Commission have                 (Luxembourg); 48. Jean-Marie Meyrer, residing at
undermined the confidence of the inhabitants of the Union           Welfrange (Luxembourg); 49. Marc Meyer-Ernzen,
in the basic foodstuffs produced in it and so created an            residing at Echternach (Luxembourg); 50. ReneÂ Molitor,
unreasonable fear of those products.                                residing at Berndorf (Luxembourg); 51. Ets. Nicolay
                                                                    FreÁres CEA, established at Reuland (Luxembourg); 52.
The applicants state that, as a result of that misconduct,          Armand Noe, residing at Hachiville (Luxembourg); 53.
all producers of bovine meat and all producers of cows'             Jos Olinger, residing at Ettelbrück (Luxembourg); 54. Ets.
milk have suffered a direct loss of revenue from their              Olinger and Neu GA, established at Grosbous
farming activities of between 25 % and 30 % over a                  (Luxembourg); 55. Georges Peping, residing at Ersange
period of at least three years. They estimate the loss per          (Luxembourg); 56. Ed Praus, residing at Koetschette
undertaking per year as between Lfrs 750 000 and                    (Luxembourg); 57. Emile Raus, residing at Ehlange/Mess
1 500 000, but without prejudice to a subsequent expert's           (Luxembourg); 58. Ets. Sopibo (Louis Boonen),
report. Each producer is therefore claiming three years'            established at Haller (Luxembourg); 59. Nico Schank-
losses of Lfrs 1 000 000, that is to say Lfrs 3 000 000.            Neser, residing at Hautbellain (Luxembourg); 60. Camille
                                                                    Schiltz, residing at Bourglinster (Luxembourg); 61. Robert
                           ANNEX                                    Schmitz-Georges, residing at Marnach (Luxembourg);
                                                                    62. Ets. Sopraco SC, established at Manternach
1. Robert Mehlen, residing at Manternach (Luxembourg);              (Luxembourg); 63. Anne Steichen-Leclere, residing at
2.    Wim      Albers,   residing     at   Boevang/Clervaux         Mondercange (Luxembourg); 64. Etc. Savaco SC,
(Luxembourg); 3. AndreÂ Asseray, residing at Pratz                  established at Colpach-Bas (Luxembourg); 65. Raymond
(Luxembourg); 4. Jos Bich-Mathes, residing at Betzdorf              Thull, residing at Alzingen (Luxembourg); 66. Nico
(Luxembourg); 5. Gusty Biren, residing at Luxembourg; 6.            Turmes, residing at Knaphoscheid (Luxembourg); 67. Jean
Nico Brack, residing at Eschdorf (Luxembourg); 7. Severin           Weiler, residing at Hobscheid (Luxembourg); 68. Norbert
Boonen, residing at Elvange (Luxembourg); 8. Ets.                   Welter, residing at Bourglinster (Luxembourg); 69. Marc
Capriso SC, established at Canach (Luxembourg); 9. Leon             Zenner, residing at Lipperscheid (Luxembourg); 70. LeÂon
Clees and Son, residing at Allerborn (Luxembourg); 10.              Zigrand, residing at Niederpallen (Luxembourg); 71. Jean-
Peter Dahmen, residing at Mützenich (Federal Republic of            Claude Zinnen, residing at Savelborn (Luxembourg).
Germany); 11. Robert Duhr-Arendt, residing at
Manternach (Luxembourg); 12. Jean Dupont, residing at
Diekirch (Luxembourg); 13. Camille and Paul Eicher,
residing at Marnach (Luxembourg); 14. Alphonse Elsen,
residing at Goeblange (Luxembourg); 15. Nic Erpelding,                       Removal from the register of T-111/95 (1)
residing at Oberwampach (Luxembourg); 16. Peter Feinen,                                       (98/C 7/72)
residing at Rommersheim (Federal Republic of Germany);
17. Alphonse Ferber, residing at Buschrodt (Luxembourg);                            (Language of the case: French)
18. Marcel Ferring, residing at Betzdorf (Luxembourg);              By order of 13 November 1997, the President of the First
19. Henri Frank, residing at Garnich (Luxembourg);                  Chamber of the Court of First Instance of the European
20. Georges Friederich, residing at Aspelt (Luxembourg);            Communities ordered the removal from the register of
21. Josy Gengler, residing at Koerich (Luxembourg);                 Case T-111/95: Pierre Jaminon v. Council of the European
22. Gerekens FreÁres, residing at Reichlange (Luxembourg);          Union and Commission of the European Communities.
23. Ed. Gillen, residing at Manternach (Luxembourg);
24. Jean-Marie Godelet, residing at Ell (Luxembourg);               (1) OJ C 189, 22. 7. 1995.
25. Charles Goedert, residing at Ospern (Luxembourg);
26. Fernand Goedert, residing at Ell (Luxembourg);
27. Jacques Greisch-Schmidt, residing at Sanem
(Luxembourg); 28. Louis Guth, residing at Hivange
(Luxembourg); 29. Marc Hansen, residing at Lellig                            Removal from the register of T-156/97 (1)
(Luxembourg); 30. Hilgert-Schmidt, residing at Olm                                            (98/C 7/73)
(Luxembourg); 31. Ets. Hogemav SC, established at
Imbringen (Luxembourg); 32. Jules Jungels, residing at                             (Language of the case: German)
Oetrange (Luxembourg); 33. Mathias and Heinrich Kaut,
                                                                    By order of 12 November 1997, the President of the
residing at Burg-Reuland (Belgium); 34. Emile Kieffer,
                                                                    Fourth Chamber of the Court of First Instance of the
residing at Reichlange (Luxembourg); 35. Guy Kneip,
                                                                    European Communities ordered the removal from the
residing at Beiler (Luxembourg); 36. Marcel Laplume,
                                                                    register of Case T-156/97: Achim Berge v. Commission of
residing at Asselborn (Luxembourg); 37. Edy LoeÈsch-
                                                                    the European Communities.
Eischen, residing at Buschrodt (Luxembourg); 38. Joseph
Lux, residing at Holzem (Luxembourg); 39. AndreÂ
                                                                    (1) OJ C 228, 26. 7. 1997.
Majerus, residing at Mecher (Luxembourg); 40.Servais
Majerus, residing at Kuborn (Luxembourg); 41. Alphonse


title: Judgment of the Court of 21 October 1999 in Case C-67/98 (request for a preliminary ruling from the Consiglio di Stato): Questore di Verona v Diego Zenatti (Freedom to provide services — Taking of bets)

text:
5.2.2000                EN                      Official Journal of the European Communities                                                 C 34/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       of the Chamber, J.C. Moitinho de Almeida, C. Gulmann,
                                                                             J.-P. Puissochet and M. Wathelet (Rapporteur), Judges; G. Cos-
                                                                             mas, Advocate General; R. Grass, Registrar, has given a judg-
                          (Fifth Chamber)                                    ment on 14 October 1999, in which it has ruled:
                       of 14 October 1999                                    On a proper construction, Council Regulation (EC) No 3295/94 of
                                                                             22 December 1994 laying down measures to prohibit the release for
                                                                             free circulation, export, re-export or entry for a suspensive procedure
in Case C-223/98 (reference for a preliminary ruling from                    of counterfeit and pirated goods precludes a rule of national law
the Kammarrätten, Stockholm): Proceedings brought by                         under which the identity of declarants or consignees of imported
                            Adidas AG (1)                                    goods which the trade-mark owner has found to be counterfeit may
                                                                             not be disclosed to him.
(Free movement of goods — Regulation (EC) No 3295/94 —
                                                                             (1) OJ C 258 of 15.8.1998.
Prohibition of release for free circulation, export, re-export
or entry for a suspensive procedure of counterfeit and pirated
goods — Provision of national law requiring the names
of consignees of consignments detained by the customs
authorities pursuant to the regulation to be kept confidential
— Compatibility of the provision with Regulation (EC)
                            No 3295/94)
                                                                                JUDGMENT OF THE COURT
                           (2000/C 34/01)
                                                                                of 21 October 1999
                                                                             in Case C-67/98 (request for a preliminary ruling from the
                   (Language of the case: Swedish)
                                                                             Consiglio di Stato): Questore di Verona v Diego Zenatti (1)
                                                                                (Freedom to provide services — Taking of bets)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                                        (2000/C 34/02)
In Case C-223/98: reference to the Court under Article 177 of
                                                                                (Language of the case: Italian)
the EC Treaty (now Article 234 EC) from the Kammarrätten i
Stockholm, Sweden, for a preliminary ruling in the proceedings
brought by Adidas AG — on the interpretation of Council
Regulation (EC) No 3295/94 of 22 December 1994 laying                        (Provisional translation; the definitive translation will be published
down measures to prohibit the release for free circulation,                                      in the European Court Reports)
export, re-export or entry for a suspensive procedure of
counterfeit and pirated goods (OJ 1994 L 341, p. 8) — the                    In Case C-67/98: Reference to the Court under Article 177 of
Court (Fifth Chamber), composed of: D.A.O. Edward, President                 the EC Treaty (now Article 234 EC) by the Consiglio di Stato
 ---pagebreak--- C 34/2                    EN                       Official Journal of the European Communities                                              5.2.2000
(Italy) for a preliminary ruling in the proceedings pending                   1. Fishing rights or fishing permits do not constitute ‘goods’ within
before that court between Questore di Verona and Diego                             the meaning of the provisions of the EC Treaty relating to the
Zenatti — on the interpretation of the provisions of the EC                        free movement of goods but form a ‘provision of a service’ within
Treaty concerning the freedom to provide services — the                            the meaning of the Treaty provisions relating to the freedom to
Court, composed of: G.C. Rodrı́guez Iglesias, President,                           provide services.
J.C. Moitinho de Almeida, D.A.O. Edward, R. Schintgen (Presi-
dents of Chambers), P.J.G. Kapteyn, J.-P. Puissochet (Rappor-                 2. The provisions of the Treaty relating to the freedom to provide
teur), G. Hirsch, P. Jann and H. Ragnemalm, Judges; N. Fennel-                     services are not applicable to a situation, such as that in the main
ly, Advocate General; L. Hewlett, Administrator, for the Regis-                    proceedings, which is confined in all respects within a single
trar, has given a judgment on 21 October 1999, in which it                         Member State.
held that:
                                                                              (1) OJ C 166 of 30.5.1998.
The EC Treaty provisions on the freedom to provide services do not
preclude national legislation, such as the Italian legislation, which
reserves to certain bodies the right to take bets on sporting events if
that legislation is in fact justified by social-policy objectives intended
to limit the harmful effects of such activities and if the restrictions
which it imposes are not disproportionate in relation to those
objectives.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 151 of 16.5.1998.
                                                                                (First Chamber)
                                                                                of 21 October 1999
                                                                              in Case C-233/98 (reference for a preliminary ruling from
                                                                              the Bundesfinanzhof): Hauptzollamt Neubrandenburg v
                  JUDGMENT OF THE COURT                                                       Lensing & Brockhausen GmbH (1)
                           (Sixth Chamber)                                    (Community transit — Offence —Recovery of duties —
                                                                                Competent State)
                         of 21 October 1999
                                                                                (2000/C 34/04)
in Case C-97/98 (reference for a preliminary ruling from
the Pargas Tingsrätt): Peter Jägerskiöld v Torolf Gustafs-
                                   son (1)                                                        (Language of the case: German)
(Free movement of goods — Definition of ‘goods’ — Angling
              rights — Freedom to provide services)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                            (2000/C 34/03)
                                                                              In Case C-233/98: reference to the Court under Article 177 of
                                                                              the EC Treaty (now Article 234 EC) from the Bundesfinanzhof
                    (Language of the case: Swedish)                           (Federal Finance Court), Germany, for a preliminary ruling in
                                                                              the proceedings pending before that court between Hauptzol-
                                                                              lamt Neubrandenburg and Lensing & Brockhausen GmbH —
(Provisional translation; the definitive translation will be published        on the interpretation of Article 36 of Council Regulation (EEC)
                     in the European Court Reports)                           No 222/77 of 13 December 1976 on Community transit (OJ
                                                                              1977 L 38, p. 1) as amended by Council Regulation (EEC)
In Case C-97/98: reference to the Court under Article 177 of                  No 474/90 of 22 February 1990 with a view to abolishing
the EC Treaty (now Article 234 EC) from the Pargas Tingsrätt                  lodgement of the transit advice note on crossing an internal
(District Court, Pargas), Finland, for a preliminary ruling in                frontier of the Community (OJ 1990 L 51, p. 1), and of
the proceedings pending before that court between Peter                       Article 11a of Commission Regulation (EEC) No 1062/87 of
Jägerskiöld and Torolf Gustafsson — on the interpretation of                  27 March 1987 on provisions for the implementation of the
the rules of the EC Treaty on the free movement of goods and                  Community transit procedure and for certain simplifications
the freedom to provide services — the Court (Sixth Chamber),                  of that procedure (OJ 1987 L 107, P. 1) as amended by
composed of: G. Hirsch, President of the Second Chamber,                      Commission Regulation (EEC) No 1429/90 of 29 May 1990
acting as President of the Sixth Chamber, H. Ragnemalm                        (OJ 1990 L 137, p. 21) — the Court (First Chamber), composed
and R. Schintgen (Rapporteur), Judges; N. Fennelly, Advocate                  of: L. Sevón, President of the Chamber, P. Jann and M. Wathelet
General; H.A. Rühl, Principal Administrator, for the Registrar,               (Rapporteur), Judges; J. Mischo, Advocate General; H.A. Rühl,
has given a judgment on 21 October 1999, in which it has                      Principal Administrator, for the Registrar, has given a judgment
ruled:                                                                        on 21 October 1999, in which it has ruled: