title: Case C-554/14: Judgment of the Court (Grand Chamber) of 8 November 2016 (request for a preliminary ruling from the Sofiyski gradski sad — Bulgaria) — Criminal proceedings against Atanas Ognyanov (Reference for a preliminary ruling — Judicial cooperation in criminal matters — Framework Decision 2008/909/JHA — Article 17 — Law governing the enforcement of a sentence — Interpretation of a national rule of the executing State providing for reduction of a custodial sentence on account of work carried out by the sentenced person while detained in the issuing State — Legal effects of framework decisions — Obligation to interpret national law in conformity with EU law)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/6

         Judgment of the Court (Grand Chamber) of 8 November 2016 (request for a preliminary ruling from the Sofiyski gradski sad — Bulgaria) — Criminal proceedings against Atanas Ognyanov
   (Case C-554/14) (1)

   ((Reference for a preliminary ruling - Judicial cooperation in criminal matters - Framework Decision 2008/909/JHA - Article 17 - Law governing the enforcement of a sentence - Interpretation of a national rule of the executing State providing for reduction of a custodial sentence on account of work carried out by the sentenced person while detained in the issuing State - Legal effects of framework decisions - Obligation to interpret national law in conformity with EU law))
   (2017/C 006/07)
   Language of the case: Bulgarian

      Referring court

   Sofiyski gradski sad

      Party in the main proceedings

   Atanas Ognyanov

      intervening party: Sofiyska gradska prokuratura

      Operative part of the judgment

               1.

               Article 17(1) and (2) of Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as precluding a national rule being interpreted in such a way that it permits the executing State to grant to the sentenced person a reduction in sentence by reason of work he carried out during the period of his detention in the issuing State, although no such reduction in sentence was granted by the competent authorities of the issuing State, in accordance with the law of the issuing State;

               2.

               EU law must be interpreted as meaning that a national court is bound to take into consideration the whole body of rules of national law and to interpret them, so far as possible, in accordance with Framework Decision 2008/909, as amended by Framework Decision 2009/299, in order to achieve the result sought by that framework decision, and if necessary to disapply, on its own authority, the interpretation adopted by the national court of last resort, if that interpretation is not compatible with EU law.

      (1)  OJ C 73, 2.3.2015.


title: Case C-514/06 P: Appeal brought on 18 December 2006 by Armacell Enterprise GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 October 2006 in Case T-172/05: Armacell Enterprise GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/17

         Appeal brought on 18 December 2006 by Armacell Enterprise GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 October 2006 in Case T-172/05: Armacell Enterprise GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-514/06 P)
   (2007/C 56/30)
   Language of the case: English
   Parties

      Appellant: Armacell Enterprise GmbH (represented by: O. Spuhler, Rechtsanwalt)

      Other party to the proceedings: Office for Harmonisation in the Internal Market
   Form of order sought
   The applicant claims that the Court should:

               —

               set aside the decision of the Court of First Instance dated 10 October 2006 in case T-172/05;

               —

               order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings before the Court of Justice;

               —

               annul the decision of the First Board of Appeal of the Office of the Harmonization in the Internal Market dated 23 February 2005 in case R 552/2004-1;

               —

               order the Office of Harmonization in the Internal Market to pay the costs of the proceedings before the Court of First Instance as well as the costs of the proceedings before the Office for Harmonization in the Internal Market.

         Pleas in law and main arguments
   The applicant submits that the contested decision of the Court of First Instance is based on a misinterpretation of the statutory requirement of trade mark similarity according to article 8(1)(b) of Council regulation (EC) no 40/94 (1) of 20 December 1993 on the Community trade mark (hereinafter ‘CMTR’). The applicant also submits that the failure of the Court of First Instance to consider the question of trade mark similarity from the point of view of the English-speaking public constitutes a violation of an essential procedural requirement within the meaning of article 63(2) CTMR.

      (1)  OJ L 11, p. 1.


title: Case T-157/16 P: Judgment of the General Court of 17 November 2016 — Fedtke v EESC (Appeal — Civil Service — Officials — Purely confirmatory act — New substantive facts — Burden of proof)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/36

         Judgment of the General Court of 17 November 2016 — Fedtke v EESC
   (Case T-157/16 P) (1)

   ((Appeal - Civil Service - Officials - Purely confirmatory act - New substantive facts - Burden of proof))
   (2017/C 006/45)
   Language of the case: French

      Parties

      Appellant: Ingrid Fedtke (Wezembeek-Oppem, Belgium) (represented by: M.-A. Lucas, lawyer)

      Other party to the proceedings: European Economic and Social Committee (EESC) (represented by: M. Pascua Mateo, K. Gambino, X. Chamodraka, A. Carvajal and L. Camarena Januzec, acting as Agents, and B. Wagenbäur, lawyer)

      Re:

   Appeal lodged against the order of the European Union Civil Service Tribunal (Second Chamber) of 5 February 2016, Fedtke v EESC (F-107/15, EU:2016:F:15), seeking to have that order set aside.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the order of the European Union Civil Service Tribunal (Second Chamber) of 5 February 2016, Fedtke v EESC (F-107/15);

               2.

               Refers the action to a Chamber of the General Court other than that which has ruled in the present appeal;

               3.

               Reserves the costs.

      (1)  OJ C 191, 30.5.2016.


title: Case F-88/06: Order of the Civil Service Tribunal of 21 December 2006 — Pantalis v Commission

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/50

         Order of the Civil Service Tribunal of 21 December 2006 — Pantalis v Commission
   (Case F-88/06) (1)

   (2006/C 331/112)

      Language of the case: Greek

   The President of the First Chamber has ordered that the case be removed from the register further to an amicable settlement.

      (1)  OJ C 281, 18.11.2006, p. 44.


title: Case F-38/06: Action brought on  14 April 2006  — Irène Bianchi v European Training Foundation

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/37

         Action brought on 14 April 2006 — Irène Bianchi v European Training Foundation
   (Case F-38/06)
   (2006/C 143/71)
   Language of the case: French
   Parties

      Applicant: Irène Bianchi (Turin, Italy) (represented by: M.-A. Lucas, lawyer)

      Defendant: European Training Foundation
   Forms of order sought

               —

               annul the decision of the Director of the Foundation not to renew the applicant's contract of employment as a temporary agent, which was notified to her by memorandum of 24 October 2005;

               —

               order the Foundation to compensate for the pecuniary and non-pecuniary damage suffered by the applicant, together with statutory interest;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, who was engaged by the Foundation in 2000 under a contract of employment as a temporary agent concluded initially for a period of three years and subsequently renewed until 15 April 2006, contests the decision not to renew her contract of employment beyond that date.
   The applicant puts forward four pleas in law in support of her action for annulment. The first plea alleges infringement of the general principle of the rights of the defence and of Article 26 of the Staff Regulations, in that the negative evaluations which the Head of the Finance Unit sent to the Director of the Foundation were not sent to the applicant or placed in her personal file.
   The second plea alleges infringement of the obligation to state reasons arising from the decision of the Director of the Foundation of 26 February 1997 pertaining to the renewal of contracts and of the second paragraph of Article 25 of the Staff Regulations, in that the applicant was not informed sufficiently of the reasons for the contested decision.
   The third plea alleges a number of procedural infringements established by the aforementioned decision of 26 February 1997.
   The fourth plea alleges manifest errors of assessment which the Director of the Foundation made as to the necessity for the applicant's expertise with respect, in particular, to administrative assistant posts resulting from the reform, the manner in which the applicant performed her duties and the interest of the service.
   In support of her action for compensation, the applicant claims that the illegalities of the contested decision constitute wrongful acts which have caused her and are still likely to cause her serious pecuniary and non-pecuniary damage.


title: Case T-319/02: Action brought on 11 October 2002 by H.O. Sports Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 7/20                 EN                      Official Journal of the European Communities                                        11.1.2003
      —     ‘sportswear, jackets; T-shirts, sweatshirts, polo shirts,     Grounds of claim:               The decision is contradictory in
            volley shorts, training shorts and short pants; swim-                                         that although the Board of Appeal
            ming suits; hats; wet suits; wet suit boots; dry suits;                                       recognises that all the different
            water ski boots; water ski vests, water ski gloves;                                           observations and documents filed
            spray legs, all meant to be used for the practice of                                          by the H.O. Sports, Inc. in their
            wakeboard’ in international class 25;                                                         entirety constantly refer to the
                                                                                particular market of wakeboard,
                                                                                it sustains that acquired distinc-
                                                                                tiveness under Article 7 (3) of
      —     ‘water sport tow ropes, water sport tow handles;                                              Regulation No. 40/94 (1) has been
            water sport tow floats; inflatable tubes for rec-                                             established for certain goods only.
            reational use in water; towable water toys designed
            to carry a rider; wake boards; wake board bindings;
            wake board fins; water skis; trick water skis; jump
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-
            skis; water ski bindings; adjustable ski fins; water ski           munity trade mark (OJ L 11, p. 1).
            boat tow harnesses; water ski gloves; knee boards;
            water sport boards; water sport gear bags; water ski,
            wakeboard and knee board bags; water sport goods;
            dampers for use with water skis; wake boards to
            limit vibration and adjust flex, all meant to be used
            for the practice of wakeboard’ in international
            class 28.
                                                                          Action brought on 11 October 2002 by H.O. Sports Inc.
—     order the defendant to pay the costs, fees and disburse-            against the Office for Harmonisation in the Internal
      ments of this case and of the previous proceedings and                             Market (Trade Marks and Designs)
      appeals before OHIM Examination Division and the Third
      Board of Appeal respectively.
                                                                                (Case T-319/02)
                                                                                (2003/C 7/41)
                                                                                (Language of the case: English)
Pleas in law and main arguments
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) was brought before the
The trade mark con-             The word mark ‘HYPERLITE’ —               Court of First Instance of the European Communities on
cerned:                         application No 997122                     11 October 2002 by H.O. Sports Inc., Redmond, Washington,
                                                                          U.S.A., represented by Mr Fabrizio Jacobacci, lawyer.
Goods or service con-           Goods in classes 18, 25 and 28
cerned:                                                                   The applicant claims that the Court should:
                                                                          —     amend the decision of 17 July 2002 (File No. R 140/
Decision          contested     Refusal of registration by the                  2002-3) of the Third Board of Appeal of the Office for
before the Board of             examiner                                        Harmonisation in the Internal Market (Trade Marks
Appeal:                                                                         and Designs) and allow the Community Trade Mark
                                                                                Application to proceed to registration in connection with
                                                                                the following goods:
Decision of the Board of        Annulment of the decision of the
Appeal:                         examiner in so far as it rejects                —     ‘backpacks; travel bags; duffel bags for practice of
                                registration of the application for                   wakeboard’ in international class 18;
                                ‘wakeboards, wakeboard bind-
                                ings; wakeboard fins; wakeboard                 —     ‘sportswear, jackets; T-shirts, sweatshirts, polo shirts,
                                bags; dampers for use with wake                       volley shorts, training shorts and short pants; swim-
                                boards to limit vibration and                         ming suits; hats; wet suits; wet suit boots; dry suits;
                                adjust flex’, all in class 28, and                    water ski boots; water ski vests, water ski gloves;
                                dismissal of the appeal for the                       spray legs, all meant to be used for the practice of
                                remainder.                                            wakeboard’ in international class 25;
 ---pagebreak--- 11.1.2003               EN                      Official Journal of the European Communities                                        C 7/21
      —     ‘water sport tow ropes, water sport tow handles;                     subscribers concerned or’ and ‘the choice between these
            water sport tow floats; inflatable tubes for rec-                    options to be determined by national legislation’ in
            reational use in water; towable water toys designed                  Article 13(3);
            to carry a rider; wake boards; wake board bindings;
            wake board fins; water skis; trick water skis; jump            —     make an appropriate order as to costs.
            skis; water ski bindings; adjustable ski fins; water ski
            boat tow harnesses; water ski gloves; knee boards;
            water sport boards; water sport gear bags; water ski,
            wakeboard and knee board bags; water sport goods;
            dampers for use with water skis; wake boards to                Pleas in law and main arguments
            limit vibration and adjust flex, all meant to be used
            for the practice of wakeboard’ in international
            class 28.                                                      The applicant, a frequent user of direct mailing over the
                                                                           internet and founder of the internet site Internet-libre.net,
—     order the defendant to pay the costs, fees and disburse-             seeks the annulment of the abovementioned provisions of
      ments of this case and of the previous proceedings and               Directive 2002/58/EC of the European Parliament and of the
      appeals before OHIM Examination Division and the Third               Council of 12 July 2002 concerning the processing of
      Board of Appeal respectively.                                        personal data and the protection of privacy in the electronic
                                                                           communications sector (Directive on privacy and electronic
                                                                           communications) (OJ 2002 L 201, p. 37).
Pleas in law and main arguments
                                                                           In support of its arguments, the applicant alleges lack of legal
                                                                           basis to the contested act insofar as its adoption was not
The pleas in law and main arguments advanced are identical                 necessary for the single market.
to those put forward in Case T-318/02 (H.O. Sports Company,
Inc. / OHIM).
                                                                           Furthermore, the directive in question fails to observe the right
                                                                           to freedom of expression mentioned in Articles 5 of the
                                                                           Declaration of Fundamental Rights and Freedoms, 11 of the
                                                                           Charter of Fundamental Rights of the European Union and 10
                                                                           of the European Convention for the Protection of Human
                                                                           Rights and Fundamental Freedom and the principle of free
                                                                           trade recognised by all the Member States and that of free
Action brought on 22 October 2002 by Paul Vannieuwen-                      competition, enshrined in particular in Articles 3 and 4 and
huyze-Morin against European Parliament and Council of                     Title VI of the Treaty.
                       the European Union
                         (Case T-321/02)
                           (2003/C 7/42)
                    (Language of the case: French)                         Action brought on 14 October 2002 by Monique Breton
                                                                             against Court of Justice of the European Communities
An action against the European Parliament and the Council of                                       (Case T-323/02)
the European Union was brought before the Court of First
Instance of the European Communities on 22 October 2002
by Paul Vannieuwenhuyze-Morin, residing in Grigny (France),                                         (2003/C 7/43)
represented by Guy Dupaigne, lawyer.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
—     annul Article 13(1) and (2) of Directive 2002/58/EC of
      the European Parliament and of the Council of 12 July                An action against the Court of Justice of the European
      2002 concerning the processing of personal data and the              Communities was brought before the Court of First Instance
      protection of privacy in the electronic communications               of the European Communities on 14 October 2002 by
      sector (Directive on privacy and electronic communi-                 Monique Breton, residing in Howald (Luxembourg), represent-
      cations), published in the Official Journal on 31 July               ed by Albert Coolen, Jean-Noël Louis and Étienne Marchal,
      2002, and the words ‘either without the consent of the               avocats.


title: Case T-351/09: Action brought on 4 September 2009 — Acetificio Marcello de Nigris v Commission

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/36

         Action brought on 4 September 2009 — Acetificio Marcello de Nigris v Commission
   (Case T-351/09)
   2009/C 256/64
   Language of the case: Italian

      Parties

      Applicant: Acetificio Marcello de Nigris Srl (Afragola, Italy) (represented by: P. Perani and P. Pozzi, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Declare that the granting of the registration of the name ‘Aceto Balsamico di Modena’ as a protected geographical indication in the register of protected designations of origin and protected geographical indications constitutes an infringement of Article 3 of Regulation 510/2006 and an infringement of the procedural guarantees expressly laid down in Community law;

               —

               annul Commission Regulation (EC) No 583/2009 of 3 July 2009, published on 4 July 2009, entering a name in the register of protected designations of origin and protected geographical indications (Aceto Balsamico di Modena) (PGI);

               —

               as a consequence of the annulment, take all the steps necessary to cancel the registration of ‘Aceto Balsamico di Modena’ as a protected geographical indication in the register of protected designations of origin and protected geographical indications;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The applicant, which is engaged in the production and sale of wine vinegar and other condiments, including Balsamic vinegar from Modena, objects to the registration of the name ‘Aceto Balsamico di Modena’ as a protected geographical indication, brought about by the contested regulation.
   In support of its application, the applicant claims:

               —

               infringement of Article 3 of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, (1) in so far as it is highly apparent from the historical background to how the production of Balsamic vinegar from Modena developed that there is no connection whatsoever between such products and a particular geographical area. In fact, there can be no doubt that, for several decades, a majority of the Balsamic vinegar from Modena sold in Italy and abroad has been produced outside the historical territory of origin. Against that background, the name in question describes a product made in accordance with particular production methods and having specific characteristics which do not, however, depend on the place of production;

               —

               that it is impossible for the applicant to object to the registration of the name ‘Aceto Balsamico di Modena’ as a protected geographical indication. As a result of the sequence and timing of the relevant events in this case, it was possible for the protected geographical indication at issue in this case to be registered without the applicant being given the opportunity to lodge an objection to the registration by submitting a substantiated statement, in breach of the procedural guarantees laid down in both Article 7(3) of Council Regulation (EEC) No 2081/1992 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2) and in Article 5(5) of Regulation 510/2006.

      (1)  OJ L 93, 31.3.2006, p. 12.

      (2)  OJ L 208, 24.7.1992. p. 1.


title: Case C-263/99: Action brought on 16 July 1999 by the Commission of the European Communities against the Italian Republic

text:
C 281/2               EN                      Official Journal of the European Communities                                     2.10.1999
Action brought on 13 July 1999 by the Commission of                      Action brought on 16 July 1999 by the Commission of
 the European Communities against the French Republic                     the European Communities against the Italian Republic
                        (Case C-261/99)                                                            (Case C-263/99)
                        (1999/C 281/02)
                                                                                (1999/C 281/03)
An action against the French Republic was brought before the
Court of Justice of the European Communities on 13 July                  An action against the Italian Republic was brought before the
1999 by the Commission of the European Communities,                      Court of Justice of the European Communities on 16 July
represented by Gérard Rozet, Legal Adviser, acting as Agent,             1999 by the Commission of the European Communities,
with an address for service in Luxembourg at the office of               represented by Antonio Aresu and Maria Patakia, both of its
Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                      Legal Service, acting as Agents, with an address for service in
                                                                         Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
                                                                         Centre, Kirchberg.
The Commission of the European Communities claims that
the Court should:
— declare that, by failing to adopt within the prescribed                The Commission of the European Communities claims that
    time-limit the measures necessary in order to recover from           the Court should:
    Nouvelles Filatures Lainière de Roubaix, the recipient
    thereof, the aid declared to be illegal and incompatible with
    the common market by the decision of the Commission of               a) Declare that, by placing restrictions on the pursuit of the
    4 November 1998, which was notified on 17 November                       activity of transport consultant, the Italian Republic has
    1998, the French Republic has failed to fulfil its obligations           failed to fulfil its obligations under Articles 52 and 59 of
    under the fourth paragraph of Article 249 CE and                         the EC Treaty (now, after amendment, Articles 43 EC and
    Articles 4 and 5 of that decision:                                       49 EC);
— order the French Republic to pay the costs.
                                                                         b) Order the Italian Republic to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
The Commission’s decision, which is binding in its entirety
upon the State to which it is addressed (as provided for by the
fourth paragraph of Article 249 EC), requires the French
Republic as from 17 November 1998, first, to recover, in                 (Infringement of Article 52 of the EC Treaty
accordance with Article 4 thereof, the aid granted in the form           (now, after amendment, Article 43 EC)
of an investment premium amounting to FRF 14.23 million
and to discontinue forthwith the aid granted in the form of a
participating loan by applying normal market terms. In
addition, the French Republic is required under Article 5 to             The applicant doubts whether Article 3(1)(a) of Law No 264,
inform the Commission, within two months from notification               which restricts work as a consultant to nationals of other
of the decision of the measures taken to comply with it. The             Member States who are resident in Italy, is compatible
action for annulment which has been brought (1) does not                 with the principle of non-discrimination on the ground of
have suspensory effect, and the French Republic has at no time           nationality.
made any application for suspension of operation of the
contested decision.
                                                                         (Infringement of Article 59 of the EC Treaty
The attitude adopted by the French Republic vis-à-vis the                (now, after amendment, Article 49 EC)
Commission as regards compliance with the decision in
question has been one of total silence. At no time since
its decision was notified on 17 November 1998 has the
                                                                         Moreover, Law No 264 appears to be contrary to Article 49
Commission been able to ascertain any factor enabling it to
                                                                         EC, which provides for the removal of obstacles to freedom to
conclude that the French Republic has taken any steps                    provide services across borders within the Community. The
whatever with a view to recovering from Nouvelles Filatures              aforementioned legislation as a whole categorically precludes
Lainière de Roubaix the illegal and incompatible aid granted
                                                                         the possibility that foreign operators established in other
to that undertaking.
                                                                         Member States may occasionally provide services in the field
                                                                         in question.
(1) Case C-17/99, OJ C 71 of 13.3.1999, p. 22.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 17 July 1997 in Joined Cases C-248/95 and C-249/95 (references for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen): SAM Schiffahrt GmbH, Heinz Stapf v. Federal Republic of Germany (Inland waterway transport - Structural improvements - Contributions to Scrapping Fund - Validity of Community legislation)

text:
C 295/6                1 EN 1               Official Journal of the European Communities                                   27 . 9 . 97
     substantial part of the common market, it is contrary             Oberverwaltungsgericht fur das Land Nordrhein-Westfalen
     to Article 90 (1 ) in conjunction with Article 86 of the          ( Higher Administrative Court for the Land of North
     Treaty for that undertaking to levy port duties of an             Rhine Westphalia ) ( Germany ) for a preliminary ruling in
     unreasonable amount pursuant to regulations adopted               the proceedings pending before that court between SAM
     by the Member State to which it is answerable or for              Schiffahrt GmbH, Heinz Stapf and Federal Republic of
     it to exempt its own ferry services from payment of               Germany — on the validity of Council Regulation ( EEC )
     those duties and, reciprocally, some of its trading               No 1101 /89 of 27 April 1989 on structural improvements
     partners ' ferry services, in so far as such exemptions           in inland waterway transport ( OJ L 116 , 28 . 4. 1989 ,
     involve application of dissimilar .conditions to                  p. 25 ), and of Commission Regulation ( EEC) No 1102/89
     equivalent transactions. It is for the national court to          of 27 April 1989 laying down certain measures for
     determine whether, having regard to the level of the              implementing Regulation ( EEC ) No 1101/89 ( OJ L 116 ,
     duties and the economic value of the services supplied,           28 . 4 . 1989, p. 30 ), as amended by Commission
     the amount of duty is actually unfair. It is also for the         Regulation ( EEC ) No 3685/89 of 8 December 1989 ( OJ
     national court to determine whether exempting its                 L 360, 9 . 12 . 1989 , p. 20 ) — the Court ( Fifth Chamber ),
     own ferry services, and reciprocally those of some of             composed of: J. C. Moitinho de Almeida, President of the
     its trading partners, from payment of duties in fact              Chamber, C. Gulmann ( Rapporteur), D. A. O. Edward, J.
     amounts to the application of dissimilar conditions to            R Puissochet and M. Wathelet, Judges; F. G. Jacobs,
     equivalent transactions.                                          Advocate-General; H. A. Riihl, Principal Administrator,
                                                                       for the Registrar, has given a judgment on 17 July 1997,
                                                                       in which it has ruled :
4 . Article 90 (2) of the Treaty does not permit a public
     undertaking which owns and operates a commercial
     port to levy port duties charged for the use of port
     facilities which are contrary to Community law and                Examination of the questions referred has revealed no
     which are not necessary for the performance of the                factor of such a kind as to affect the validity of Council
     particular task assigned to it.                                   Regulation (EEC) No 1101 /89 of 27 April 1989, on
                                                                       structural improvements in inland waterway transport,
                                                                       and of Commission Regulation (EEC) No 1102/89 of
5 . The persons or undertakings on whom the duty was                   27 April 1989 laying down certain measures for
     imposed in breach of Article 90 (1 ) in conjunction               implementing Regulation (EEC) No 1101 /89, as amended
     with Article 86 of the Treaty by a public undertaking             by Commission Regulation (EEC) No 3685/89 of
     which is responsible to a national ministry and whose             8 December 1989 .
     budget comes under the Finance Act have in principle
     the right to repayment of the duty unduly paid.
                                                                        H OJ C 248 , 23 . 9 . 1995 .
(•) OJ C 248 , 23 . 9 . 1995 .
                                                                                JUDGMENT OF THE COURT
                JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                      ( Sixth Chamber)
                           of 17 July 1997                                                       of 17 July 1997
in Joined Cases C-248/95 and C-249/95 ( references for a               in Case C-3 54/95 ( reference for a preliminary ruling from
preliminary ruling from the Oberverwaltungsgericht fur                  the High Court of Justice, Queen's Bench Division): The
das Land Nordrhein-Westfalen ): SAM Schiffahrt GmbH,                    Queen v. Minister for Agriculture, Fisheries and Food, ex
        Heinz Stapf v. Federal Republic of Germany ( ] )                       parte: National Farmers' Union and Others ( ')
 (Inland waterway transport — Structural improvements —                 (Common agricultural policy — Regulation (EEC)
Contributions to Scrapping Fund — Validity of                           No 3887/92 — Integrated administration and control
                       Community legislation)                           system for certain Community aid schemes —
                            ( 97/C 295/09 )                             Implementing rules — Interpretation and validity of
                                                                                penalties)
                 (Language of the case: German)                                                   ( 97/C 295/ 10 )
   (Provisional translation; the definitive translation will be                        (Language of the case: English)
           published in the European Court Reports)
In Joined Cases C-248/95 and C-249/95 : references to the               In Case C-354/95 : reference to the Court under Article 177
Court under Article 177 of the EC Treaty from the                       of the EC Treaty from the High Court of Justice, Queen's


title: Case C-90/09 P: Appeal brought on 3 March 2009 by General Química, SA, Repsol Química, SA and Repsol YPF, SA against the judgment delivered on 18 December 2008 in Case T-85/06 General Química and Others v Commission of the European Communities

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/20

         Appeal brought on 3 March 2009 by General Química, SA, Repsol Química, SA and Repsol YPF, SA against the judgment delivered on 18 December 2008 in Case T-85/06 General Química and Others v Commission of the European Communities
   (Case C-90/09 P)
   2009/C 90/32
   Language of the case: Spanish

      Parties

      Appellants: General Química SA, Repsol Química SA and Repsol YPF, SA (represented by: J.M. Jiménez-Laiglesia Oñate and J. Jiménez-Laiglesia Oñate, abogados)

      Other party to the proceedings: Commission of the European Communities

      Forms of order sought

   The appellants claim that the Court should:

               —

               set aside the judgment of 18 December 2008 in Case T-85/06 in so far as it rejects the plea in law alleging manifest error of assessment and failure to state sufficient reasons for the finding that the applicants are jointly and severally liable;

               —

               annul Article 1(g) and (h) and Article 2(d) of the Decision in so far as they declare that Repsol YPF and Repsol Química, together with General Chímica, are jointly and severally liable for an infringement of Article 81(1) of the EC Treaty and, in the lesser alternative, in so far as the Decision finds against Repsol YPF, in both cases ordering an appropriate reduction of the penalty.

      Pleas in law and main arguments

   The appeal criticises the rejection, in the judgment under appeal, of the plea in law whereby annulment of the Decision was sought on grounds relating to the attribution of liability to Repsol Química and Repsol YPF in respect of conduct on the part of General Química, SA. In the judgment under appeal, the Court of First Instance errs in using a criterion for the attribution of liability which is unrelated to the facts and circumstances of the case or to the infringement committed by General Química. The Court of First Instance wrongly attributes to the parent company liability which lies with a subsidiary, by concluding that only one economic entity exists, merely because the parent company may, or is able to, wield a decisive influence over the subsidiary. Nor does the Court of First Instance make it clear how the evidence which it selects reveals the existence of decisive influence; at the same time, evidence in the case-file is either ignored or distorted. Moreover, the Court of First Instance misapplies the presumption established by case-law in respect of cases where the parent company holds all of the share capital, and reverses the burden of proof without explaining, moreover, the kind of evidence that must be produced in order to rebut the presumption. The judgment places no limits on the discretion enjoyed by the Commission in relation to the assessment and appraisal of the evidence produced in an attempt to rebut the presumption. This means that, in reality, the presumption is not open to rebuttal. Similarly, and apart from the fact that the liability of Repsol YPF is neither precisely identified nor free of ambiguity, the Court of First Instance wrongly extends automatically to the parent company at the head of the group the presumption based on the mere capacity to exercise a decisive influence. Liability is attributed to the group of companies and not to the undertaking as an economic unit, such liability being moreover irrefutable.


title: Case T-208/09: Order of the General Court of 14 December 2009 — Mars v OHIM — Marc (MARC Marlon Abela Restaurant Corporation)

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/49

         Order of the General Court of 14 December 2009 — Mars v OHIM — Marc (MARC Marlon Abela Restaurant Corporation)
   (Case T-208/09) (1)

   2010/C 37/77

      Language of the case: English

   The President of the Eighth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 167, 18.7.2009.


title: Case C-403/14: Order of the President of the Court of 4 November 2014 (request for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — ‘Vekos Trade’ AD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

text:
               19.1.2015

               EN

               Official Journal of the European Union

               C 16/24

      Order of the President of the Court of 4 November 2014 (request for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — ‘Vekos Trade’ AD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
      (Case C-403/14) (1)

      (2015/C 016/40)
      Language of the case: Bulgarian
      The President of the Court has ordered that the case be removed from the register.

         (1)  OJ C 395, 10.11.2014.


title: Case T-287/10: Order of the General Court of 8 November 2011 — Unilever Espãna and Unilever v OHIM — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.)

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/24

         Order of the General Court of 8 November 2011 — Unilever Espãna and Unilever v OHIM — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.)
   (Case T-287/10) (1)

   2012/C 6/44
   Language of the case: English
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 234, 28.8.2010.


title: Case T-397/11: Action brought on 26 July 2011 — Symfiliosi/FRA

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/36

         Action brought on 26 July 2011 — Symfiliosi/FRA
   (Case T-397/11)
   2011/C 282/70
   Language of the case: English

      Parties

      Applicant: Symfiliosi (Nicosia, Republic of Cyprus) (represented by: L. Christodoulou, lawyer)

      Defendant: European Union Agency for Fundamental Rights (FRA)

      Form of order sought

               —

               Annul the decision of the European Union Agency for Fundamental Rights of 23 May 2011 to award the first framework contract under the tender procedure F/SE/10/03 — Lot 12 Cyprus to First Elements and the second framework contract to Symfiliosi;

               —

               Order the European Union Agency for Fundamental Rights to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one main plea in law, alleging that the Agency failed to provide reasons for its decision. It further contests the substance of the evaluation of tendering bids, alleging that the latter had been arbitrary, unreasonable and unlawful.


title: Judgment of the Court (Fourth Chamber) of 28 October 2004 in Case C-4/04 Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Directive 98/44/EC — Legal protection of biotechnological inventions — Failure to transpose within the prescribed period)

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/18

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 28 October 2004
   in Case C-4/04 Commission of the European Communities v Republic of Austria (1)

   (Failure of a Member State to fulfil its obligations - Directive 98/44/EC - Legal protection of biotechnological inventions - Failure to transpose within the prescribed period)
   (2005/C 6/33)
   Language of the case: German
   In Case C-4/04 Commission of the European Communities (Agents: K. Banks and C. Schmidt) v Republic of Austria (Agent: H. Dossi) — action under Article 226 EC for failure to fulfil obligations, brought on 8 January 2004 — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, K. Schiemann and M. Ilešič (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

               1.

               Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Republic of Austria has failed to fulfil its obligations under that directive;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 47 of 21.2.2004.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 26 November 1998 in Case C-1/97 (reference for a preliminary ruling from the Verwaltungsgericht der Freien Hansestadt Bremen): Mehmet Birden v. Stadtgemeinde Bremen (EEC-Turkey Association Agreement - Freedom of movement for workers - Article 6(1) of Decision No 1/80 of the Association Council - Scope - Turkish national with a fixed-term employment contract under a programme financed by the public authorities and designed to assist the integration of persons dependent on social assistance into the labour market)

text:
23.1.1999             EN                  Official Journal of the European Communities                                      C 20/7
               JUDGMENT OF THE COURT                                               JUDGMENT OF THE COURT
                       (Sixth Chamber)                                                      (Sixth Chamber)
                                                                                of 26 November 1998
                    of 25 November 1998
                                                                     in Case C-1/97 (reference for a preliminary ruling from
in Case C-308/97: (reference for a preliminary ruling from           the Verwaltungsgericht der Freien Hansestadt Bremen):
the Pretura Circondariale di Bari): Giuseppe Manfredi v.                     Mehmet Birden v. Stadtgemeinde Bremen (1)
                       Regione Puglia (1)
                                                                     (EEC-Turkey Association Agreement Ð Freedom of
                                                                     movement for workers Ð Article 6(1) of Decision No 1/80
      (Wine Ð New planting of vines Ð Table grapes)
                                                                     of the Association Council Ð Scope Ð Turkish national
                                                                     with a fixed-term employment contract under a
                        (1999/C 20/10)                               programme financed by the public authorities and
                                                                     designed to assist the integration of persons dependent on
                                                                               social assistance into the labour market)
                                                                                (1999/C 20/11)
                (Language of the case: Italian)
                                                                                (Language of the case: German)
  (Provisional translation; the definitive translation will be        (Provisional translation; the definitive translation will be
          published in the European Court Reports)                            published in the European Court Reports)
                                                                     In Case C-1/97: reference to the Court under Article 177
                                                                     of the EC Treaty from the Verwaltungsgericht der Freien
In Case C-308/97: reference to the Court under Article 177           Hansestadt Bremen (Administrative Court of the Free
of the EC Treaty by the Pretura Circondariale di Bari                Hanseatic City of Bremen), Germany, for a preliminary
(Italy), for a preliminary ruling in the proceedings pending         ruling in the proceedings pending before that court
before that court between Giuseppe Manfredi and Regione              between Mehmet Birden and Stadtgemeinde Bremen Ð on
Puglia on the interpretation of Article 6(1) of Council              the interpretation of Article 6(1) of Decision No 1/80 of
Regulation (EEC) No 822/87 of 16 March 1987 on the                   19 September 1980 on the development of the
common organisation of the market in wine (OJ L 84,                  Association, adopted by the Association Council
27.3.1987, p. 1) Ð the Court (Sixth Chamber), composed               established by the Association Agreement between the
of P. J. G. Kapteyn (Rapporteur), (President of the                  European Economic Community and Turkey Ð the Court
Chamber); G. Hirsch, G. F. Mancini, H. Ragnemalm and                 (Sixth Chamber), composed of: P. J. G. Kapteyn, President
K. M. Ioannou, Judges; D. Ruiz-Jarabo Colomer,                       of the Chamber, G. F. Mancini, J. L. Murray, H.
Advocate-General; L. Hewlett, Administrator, for the                 Ragnemalm and R. Schintgen (Rapporteur), Judges; N.
Registrar, has given a judgment on 25 November 1998, in              Fennelly, Advocate-General; L. Hewlett, Administrator, for
which it has ruled:                                                  the Registrar, has given a judgment on 26 November 1998
                                                                     in which it has ruled:
                                                                     Article 6(1) of Decision No 1/80 of 19 September 1980 on
For the years 1991 and 1992, Article 6(1) of Council                 the development of the Association, adopted by the
Regulation (EEC) No 822/87 of 16 March 1987 on the                   Association Council established by the Association
common organisation of the market in wine, as amended                Agreement between the European Economic Community
by Council Regulation (EEC) No 1325/90 of 14 May                     and Turkey is to be interpreted as follows:
1990, prohibited new plantations of vines intended for the
production of table grapes.
                                                                     A Turkish national who has lawfully pursued a genuine
                                                                     and effective economic activity in a Member State under
( ) OJ C 318, 18.10.1997.
 1
                                                                     an unconditional work permit for an uninterrupted period
                                                                     of more than one year for the same employer, in return for
                                                                     which he received the usual remuneration, is a worker
                                                                     duly registered as belonging to the labour force of that
                                                                     Member State and in legal employment there within the
                                                                     meaning of that provision.
 ---pagebreak--- C 20/8                EN                  Official Journal of the European Communities                                    23.1.1999
In so far as he has available a job with the same employer,          State and operates the only nationwide newspaper
a Turkish national in that situation is thus entitled to             home-delivery scheme in that Member State to allow the
demand the renewal of his residence permit in the host               publisher of a rival newspaper, which by reason of its
Member State, even if, pursuant to the legislation of that           small circulation is unable either alone or in cooperation
Member State, the activity pursued by him was restricted             with other publishers to set up and operate its own
to a limited group of persons, was intended to facilitate            home-delivery scheme in economically reasonable
their integration into working life and was financed by              conditions, to have access to that scheme for appropriate
public funds.                                                        remuneration does not constitute the abuse of a dominant
                                                                     position within the meaning of Article 86 of the EC
                                                                     Treaty.
(1) OJ C 74, 8.3.1997.
                                                                     (1) OJ C 74, 8.3.1997.
               JUDGMENT OF THE COURT
                       (Sixth Chamber)
                    of 26 November 1998
                                                                                JUDGMENT OF THE COURT
in Case C-7/97 (reference for a preliminary ruling from
the Oberlandesgericht Wien): Oscar Bronner GmbH &                                           (Second Chamber)
Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag
GmbH & Co. KG, Mediaprint Zeitungsvertriebs-                                             of 26 November 1998
gesellschaft mbH & Co. KG and Mediaprint
          Anzeigengesellschaft mbH & Co. KG (1)
                                                                     in Case C-370/96 (reference for a preliminary ruling from
(Article 86 of the EC Treaty Ð Abuse of a dominant                   the Diikitiko Efetio Thessalonikis): Covita AVE v. Elliniko
position Ð Refusal of a media undertaking holding a                                     Dimosio (Greek State) (1)
dominant position in the territory of a Member State to
include a rival daily newspaper of another undertaking in            (Regulation (EEC) No 1591/92 Ð Countervailing charge
the same Member State in its newspaper home-delivery                 on cherries originating in Bulgaria Ð Entry in the
                            scheme)                                              accounts Ð Post-clearance recovery)
                        (1999/C 20/12)                                                        (1999/C 20/13)
               (Language of the case: German)
                                                                                (Language of the case: Greek)
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)
                                                                       (Provisional translation; the definitive translation will be
In Case C-7/97: Reference to the Court under Article 177
                                                                              published in the European Court Reports)
of the EC Treaty by the Oberlandesgericht Wien (Austria)
in the proceedings pending before that court between
Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs-
und Zeitschriftenverlag GmbH & Co. KG, Mediaprint
Zeitungsvertriebsgesellschaft mbH & Co. KG and                       In Case C-370/96, reference to the Court under Article 177
Mediaprint Anzeigengesellschaft mbH & Co. KG Ð for a                 of the EC Treaty by the Diikitiko Efetio Thessalonikis
preliminary ruling on the interpretation of Article 86 of            (Greece) for a preliminary ruling in the proceedings
the EC Treaty Ð the Court (Sixth Chamber), composed                  pending before that court between Covita AVE and
of: P. J. G. Kapteyn, President of the Chamber, J. L.                Elliniko Dimosio (Greek State) Ð on the interpretation of
Murray, H. Ragnemalm, R. Schintgen (Rapporteur) and                  Article 13 of Council Regulation (EEC) No 1430/79 of
K. M. Ioannou, Judges; Advocate-General: F. G. Jacobs;               2 July 1979 on the repayment or remission of import or
Registrar: H. A. Rühl, Principal Administrator, has given a          export duties (OJ L 175, 12.7.1979, p. 1), Article 5(2) of
judgment on 26 November 1998, in which it has ruled:                 Council Regulation (EEC) No 1697/79 of 24 July 1979 on
                                                                     the post-clearance recovery of import duties or export
                                                                     duties which have not been required of the person liable
The refusal by a press undertaking which holds a very                for payment on goods entered for a customs procedure
large share of the daily newspaper market in a Member                involving the obligation to pay such duties (OJ L 197,


title: Case T-86/09: Judgment of the General Court of 22 September 2011 — Evropaïki Dynamiki v Commission (Public service contracts — Tendering procedure — Provision of computer and related services, including the maintenance and development of the information systems of the Commission Directorate-General for Maritime Affairs and Fisheries — Rejection of a tender — Obligation to state reasons — Equal treatment — Transparency — Award criteria — Conflict of interests — Manifest error of assessment — Non-contractual liability)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/15

         Judgment of the General Court of 22 September 2011 — Evropaïki Dynamiki v Commission
   (Case T-86/09) (1)

   (Public service contracts - Tendering procedure - Provision of computer and related services, including the maintenance and development of the information systems of the Commission Directorate-General for Maritime Affairs and Fisheries - Rejection of a tender - Obligation to state reasons - Equal treatment - Transparency - Award criteria - Conflict of interests - Manifest error of assessment - Non-contractual liability)
   2011/C 319/28
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, P. Katsimani and M. Dermitzakis, lawyers)

      Defendant: European Commission (represented by: N. Bambara and E. Manhaeve, Agents, assisted by J. Stuyck, lawyer)

      Re:

   APPLICATION for annulment of the Commission’s decision of 12 December 2008 rejecting the tender submitted by the applicant in response to Call for Tenders MARE/2008/01 for the provision of computer and related services, including the maintenance and development of the information systems of the Commission’s Maritime Affairs and Fisheries Directorate-General (OJ 2008, S 115) and of the decision to award the contract to another tenderer, and an application for damages

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 113, 16.5.2009.


title: Case F-100/15: Action brought on 6 July 2015 — 6 July 2015 v EIB

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/41

         Action brought on 6 July 2015 — 6 July 2015 v EIB
   (Case F-100/15)
   (2015/C 414/51)
   Language of the case: Italian

      Parties

      Applicant: ZZ (represented by: L. Isola and G. Isola, lawyers)

      Defendant: European Investment Bank

      Subject-matter and description of the proceedings

   Annulment, firstly, of the applicant’s staff report for 2013 and, secondly, the consecutive and connected decisions of the EIB such as the decision not to promote him to grade D and compensation for the non-pecuniary and pecuniary damage allegedly suffered.

      Form of order sought

               —

               Annul the decision dated 8 December 2014 of the Appeals Committee and return the file to that committee after laying down the criteria with which it must comply in adopting the new decision;

               —

               Annul the guidelines defined by the Human Resources Directorate in the note ‘Guidelines to the 2013 annual staff appraisal exercise’, in so far as they provide that the final evaluation must be expressed by means of a written summary, without ever having defined the corresponding statements;

         In the alternative:

               —

               Annul the entire 2013 staff report (in the appraisal section, in so far it does not give the applicant the mark ‘exceptional performance’ or ‘very good performance’ and does not propose his promotion to grade D, and finally in so far as it does not provide for the development of his career and fails to set his objectives for 2014);

               —

               Annul all the connected, consecutive and prior acts, including the promotions made public by the note ‘Performance Evaluation exercise 2013 — List of promotions and awards’ distributed on 31 March 2014;

               —

               Find that the applicant has been the subject of harassment;

               —

               Find that the European Union is liable for inciting harassment and infringement of the rules concerning a ‘fair trial’;

               —

               Order the defendants jointly and severally to pay fair compensation for the physical, non-pecuniary and pecuniary harm set out in paragraphs 112 to 120 below;

               —

               Order the defendants jointly and severally to pay compensatory and late-payment interest and compensation for the effect of inflation on the sums awarded;

               —

               Order both defendants to pay the costs, without prejudice.


title: Case T-342/11: Action brought on 30 June 2011 — CEEES y Asociación de Gestores de Estaciones de Servicio v Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/40

         Action brought on 30 June 2011 — CEEES y Asociación de Gestores de Estaciones de Servicio v Commission
   (Case T-342/11)
   2011/C 252/90
   Language of the case: Spanish

      Parties

      Applicants: Confederación Española de Empresarios de Estaciones de Servicio (CEEES) (Spain) y Asociación de Gestores de Estaciones de Servicio (Madrid, Spain) (represented by: A Hernández Pardo and B Marín Corral, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the General Court should:

               —

               annul the contested decision;

               —

               as a consequence of the annulment, order the Commission to impose a fine or periodic penalty payments on REPSOL for having failed to comply with Article 9 of Regulation No 1/2003.

      Pleas in law and main arguments

   The present action has been brought against the decision of the European Commission of 28 April 2011, adopted in Case COMP/39461/CEEES AOP-REPSOL, the purpose of which was to determine whether the complaint lodged by the applicants on 30 May 2007 was admissible. That complaint was based on three main claims:

               (a)

               The existence of horizontal agreements of the Asociación de Operadores Petrolíferos (AOP) and its members which limited competition between them.

               (b)

               Infringement of Article 101 and Article 102 TFEU for fixing retail prices.

               (c)

               Failure on the part of REPSOL to comply with the Commission's decision of 12 April 2006 (2006/446/EC) relating to a proceeding pursuant to Article 81 of the EC Treaty and adopted pursuant to Article 9 of Regulation (EC) No 1/2003 (Case COMP/B-1/38.348 — Repsol CPP), and the [absence] of consequences following from that failure.

         In the contested decision the Commission considers that there were not sufficient grounds to adopt against Repsol any of the measures provided for in Regulation (EC) No 1/2003 for the failure of parties to comply with their commitments.
   The applicants rely on two pleas in law in support of their action.

               1.

               First plea in law, based on an infringement of Article 9 of Regulation (EC) No 1/2003, together with an infringement of the principle of direct effect of European Union law.

                           —

                           The applicants claim, in particular, that, in the light of the findings of the National Competition Authority, the Commission cannot simply ignore REPSOL's failure to comply with its commitment to put an end to its practice of price-fixing. Indeed, the facts set out by the National Competition Authority in relation to the infringement of Article 101 TFEU should have been sufficient for the Commission to consider it well established that REPSOL had failed to comply with its commitments.

                           —

                           The Commission's failure to intervene faced with a failure to comply with a commitment decision, on the basis that it has discretion in that regard, threatens the very essence of the mechanisms underlying the acceptance of commitments as an alternative solution to imposing sanctions and converts the Commission's power of discretion into an arbitrary power which could lead to a blatant denial of legal protection.

               2.

               Second plea in law, based on an infringement of Article 23(2)(c) and Article 24(1)(c) of Regulation (EC) No 1/2003.

                           —

                           In the view of the applicants, faced with an infringement of Article 9 of Regulation (EC) No 1/2003, as is in this instance, the Commission should have imposed fines and periodic penalty payments as provided for in those provisions.


title: Case C-67/12: Judgment of the Court (Tenth Chamber) of 16 January 2014 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2002/91/EC — Energy performance of buildings — Articles 3, 7 and 8 — Incomplete transposition)

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/2

         Judgment of the Court (Tenth Chamber) of 16 January 2014 — European Commission v Kingdom of Spain
   (Case C-67/12) (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/91/EC - Energy performance of buildings - Articles 3, 7 and 8 - Incomplete transposition)
   2014/C 85/03
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: K. Herrmann and I. Galindo Martin, acting as Agents)

      Defendant: Kingdom of Spain (represented by: A. Rubio González and S. Centeno Huerta, acting as Agents)

      Re:

   Failure of a Member State to fulfil its obligations — Failure to adopt or communicate, within the prescribed period, all of the measures necessary to ensure compliance with Articles 3, 7 and 8 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (OJ 2003 L 1, p. 65), read in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (OJ 2010 L 153, p. 13).

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to ensure compliance with Articles 3, 7 and 8 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, the Kingdom of Spain has failed to fulfil its obligations under those provisions;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 118, 21.04.2012.


title: Judgment of the Court of 8 July 1999 in Case C-254/97 (reference for a preliminary ruling from the Conseil d'État): Société Baxter and Others v Premier Ministre and Others (Internal taxation - Tax deduction - Expenditure on research - Proprietary medicinal products)

text:
20.11.1999              EN                      Official Journal of the European Communities                                            C 333/7
                 JUDGMENT OF THE COURT                                     of the European Union (Agents: Jean-Paul Jacqué, John Carbery
                                                                           and Félix van Craeyenest), supported by the Kingdom of Spain
                         (Sixth Chamber)                                   (Agent: Rosario Silva de Lapuerta) — application for the
                                                                           annulment of Council Regulation (EC) No 408/97 of 24 Febru-
                           of 8 July 1999                                  ary 1997 on the conclusion of an Agreement on cooperation
                                                                           in the sea fisheries sector between the European Community
in Case C-5/93 P: DSM NV v Commission of the European                      and the Islamic Republic of Mauritania and laying down
                          Communities (1)                                  provisions for its implementation (OJ 1997 L 62, p. 1) —
                                                                           the Court, composed of: G.C. Rodriguez Iglesias, President,
    (Appeal — Application for revision — Admissibility)                    P.J.G. Kapteyn, J.-P. Puissochet (Rapporteur), G. Hirsch and
                                                                           P. Jann, Presidents of Chambers, J.C. Moitinho de Almeida,
                          (1999/C 333/12)                                  C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm,
                                                                           L. Sevón, M. Wathelet and R. Schintgen, Judges; J. Mischo,
                                                                           Advocate General; L. Hewlett, Administrator, for the Registrar,
                    (Language of the case: Dutch)                          has given a judgment on 8 July 1999, in which it:
                                                                           1. Dismisses the application;
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                          2. Orders the European Parliament to pay the costs;
In Case C-5/93 P: DSM NV, whose registered office is in                    3. Orders the Kingdom of Spain to bear its own costs.
Heerlen, Netherlands, represented by I.G.F. Cath, of The Hague
Bar, with an address for service in Luxembourg at the
                                                                           (1) OJ No C 212 of 12.7.1997.
Chambers of L. Dupong, 14a Rue des Bains — appeal against
the judgment of the Court of First Instance of the European
Communities (First Chamber) of 4 November 1992 in Case T-
8/89 REV DSM v Commission [1992] ECR II-2399, seeking to
have that judgment set aside, the other party to the proceedings
being the Commission of the European Communities (Agent:
B.J. Drijber) — the Court (Sixth Chamber), composed of:
P.J.G. Kapteyn, President of the Chamber, G. Hirsch, G.F. Man-                              JUDGMENT OF THE COURT
cini (Rapporteur), J.L. Murray and H. Ragnemalm, Judges;
G. Cosmas, Advocate General; H. von Holstein, Deputy Regis-                                           of 8 July 1999
trar, and D. Louterman-Hubeau, Principal Administrator, for
the Registrar, has given a judgment on 8 July 1999, in which               in Case C-254/97 (reference for a preliminary ruling from
it:                                                                        the Conseil d’État): Société Baxter and Others v Premier
                                                                                Ministre and Others (1)
1. Dismisses the appeal;
                                                                           (Internal taxation — Tax deduction — Expenditure on
2. Orders DSM NV to pay the costs.
                                                                                research — Proprietary medicinal products)
(1) OJ No C 76 of 18.3.1993.                                                                         (1999/C 333/14)
                                                                                (Language of the case: French)
                                                                           (Provisional translation; the definitive translation will be published
                 JUDGMENT OF THE COURT                                                        in the European Court Reports)
                           of 8 July 1999                                  In Case C-254/97: reference to the Court under Article 177 of
                                                                           the EC Treaty (now Article 234 EC) from the Conseil d’État
in Case C-189/97: European Parliament v Council of the                     (France) for a preliminary ruling in the proceedings pending
                        European Union (1)                                 before that court between Société Baxter, B. Braun Médical SA,
                                                                           Société Fresenius France, Laboratoires Bristol-Myers-Squibb
(EC/Mauritania fisheries agreement — Agreements with                       SA and Premier Ministre, Ministère du Travail et des Affaires
    important budgetary implications for the Community)                    Sociales, Ministère de l’Économie et des Finances, Ministère de
                                                                           l’Agriculture, de la Pêche et de l’Alimentation — on the
                          (1999/C 333/13)                                  interpretation of Articles 52 of the EC Treaty (now, after
                                                                           amendment, Article 43 EC), 58 of the EC Treaty (now
                    (Language of the case: French)                         Article 48 EC), 92 and 95 of the EC Treaty (now, after
                                                                           amendment, Articles 87 EC and 90 EC) — the Court, compo-
                                                                           sed of: G.C. Rodriguez Iglesias, President, P.J.G. Kapteyn,
(Provisional translation; the definitive translation will be published     G. Hirsch and P. Jann, Presidents of Chambers, C. Gulmann
                   in the European Court Reports)                          (Rapporteur), J.L. Murray, D.A.O. Edward, H. Ragnemalm and
                                                                           L. Sevón, Judges; A. Saggio, Advocate General; D. Louterman-
In Case C-189/97: European Parliament (Agents: Gregorio                    Hubeau, Principal Administrator, for the Registrar, has given a
Garzón Clariana, Christian Pennera and Hans Krück) v Council              judgment on 8 July 1999, in which it has ruled:
 ---pagebreak--- C 333/8                  EN                        Official Journal of the European Communities                                         20.11.1999
Articles 52 of the EC Treaty (now, after amendment, Article 43 EC)            2. Orders the French Republic to pay the costs.
and 58 of the EC Treaty (now Article 48 EC) preclude a Member
State’s legislation under which undertakings established in that State
and exploiting proprietary medicinal products there are charged a             (1) OJ No C 209 of 4.7.1998.
special levy on their pre-tax turnover in certain of those proprietary
medicinal products during the lest tax year before the enactment of
that legislation and are allowed to deduct from the amount payable
only expenditure incurred during the same tax year on research carried
out in the levying State, when it applies to Community undertakings
operating in that State through a secondary place of business.
                                                                                JUDGMENT OF THE COURT
(1) OJ No C 252 of 16.8.1997.
                                                                                (First Chamber)
                                                                                of 8 July 1999
                                                                              in Case C-186/98 (reference for a preliminary ruling from
                                                                              the Tribunal de Cı́rculo do Porto): criminal proceedings
                  JUDGMENT OF THE COURT                                           against Maria Amélia Nunes, Evangelina de Matos (1)
                                                                              (Financial assistance granted from the European Social Fund
                           (Fifth Chamber)
                                                                              — Improper use of funds — Penalties under Community law
                                                                                and national law)
                            of 8 July 1999
                                                                                (1999/C 333/16)
in Case C-178/98: Commission of the European Communi-
                      ties v French Republic (1)
                                                                                (Language of the case: Portuguese)
(Failure to fulfil obligations — Directive 91/157/EEC on
batteries and accumulators containing certain dangerous
substances — Failure of a Member State to adopt the                           (Provisional translation; the definitive translation will be published
    programmes provided for by Article 6 of the Directive)                                        in the European Court Reports)
                                                                              In Case C-186/98: reference to the Court under Article 177 of
                           (1999/C 333/15)                                    the EC Treaty (now Article 234 EC) from the Tribunal de
                                                                              Cı́rculo (District Court), Oporto (Portugal), for a preliminary
                                                                              ruling in the criminal proceedings pending before that court
                     (Language of the case: French)                           against Maria Amélia Nunes, Evangelina de Matos — on the
                                                                              interpretation of the provisions of Community law governing
                                                                              the improper use of financial assistance granted from the
(Provisional translation; the definitive translation will be published        European Social Fund — the Court (First Chamber), composed
                    in the European Court Reports)                            of: P. Jann (Rapporteur), President of the Chamber, D.A.O. Ed-
                                                                              ward and L. Sevón, Judges; F.G. Jacobs, Advocate General;
                                                                              R. Grass, Registrar, has given a judgment on 8 July 1999, in
In Case C-178/98: Commission of the European Communities                      which it has ruled:
(Agents: Götz zur Hausen and Olivier Couvert-Castéra) v
French Republic (Agents: Kareen Rispal-Bellanger and Romain                   1. Community legislation does not classify the improper use of
Nadal) — application for a declaration that, by failing to adopt                   European Social Fund assistance as a criminal offence.
and/or communicate all the measures necessary to comply
with Council Directive 91/157/EEC of 18 March 1991 on                         2. Article 5 of the EC Treaty (now Article 10 EC) requires the
batteries and accumulators containing certain dangerous sub-                       Member States to take all effective measures to sanction conduct
stances (OJ 1991 L 78, p. 38), the French Republic has failed                      which affects the financial interests of the Community. Such
to fulfil its obligations under that directive — the Court                         measures may include criminal penalties even where the Com-
(Fifth Chamber), composed of: J.-P. Puissochet, President of                       munity legislation only provides for civil sanctions. The sanction
Chamber, P. Jann, C. Gulmann (Rapporteur), D.A.O. Edward                           provided for must be analogous to those applicable to infringe-
and L. Sevón, Judges; G. Cosmas, Advocate General; R. Grass,                      ments of national law of similar nature and importance, and
Registrar, has given a judgment on 8 July 1999, in which it:                       must be effective, proportionate and dissuasive.
1. Declares that, by failing to adopt, within the prescribed period,
     all the measures necessary to comply with Article 6 of Council           (1) OJ No C 209 of 4.7.1998.
     Directive 91/157/EEC of 18 March 1991 on batteries and
     accumulators containing certain dangerous substances, the French
     Republic has failed to fulfil its obligations under that article;


title: Case C-597/12 P: Appeal brought on 19 December 2012 by Isdin, SA against the judgment of the General Court (Fourth Chamber) delivered on 9 October 2012 in Case T-366/11: Bial-Portela & C a , SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/8

         Appeal brought on 19 December 2012 by Isdin, SA against the judgment of the General Court (Fourth Chamber) delivered on 9 October 2012 in Case T-366/11: Bial-Portela & Ca, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-597/12 P)
   2013/C 86/12
   Language of the case: English

      Parties

      Appellant: Isdin, SA (represented by: H. L. Mosback, Advocate, G. Marín Raigal, P. López Ronda, G. Macias Bonilla, abogados)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bial-Portela & Ca, SA

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the contested decision;

               —

               confirm the decision of 6 April 2001 of the First Board of Appeal of OHIM dismissing the opposition in its entirety;

               —

               order Bial-Portela & Ca, SA to pay the costs.

      Pleas in law and main arguments

   The appellant submits that there has been a distortion of the evidence by the General Court, since that Court stated, in paragraph 34 of the contested Judgement, that ‘the Board of Appeal erred in finding that there is no phonetic similarity between the signs’. However, the Board of Appeal did not, as the General Court stated, err in finding that there was no phonetic similarity between the signs, but instead correctly analysed the phonetic similarity between the signs, and concluded that despite the phonetic similarities between the signs, the global sonority of the signs is different. This representation believes that the above conclusion of the Board of Appeal, which was distorted by the General Court, should be confirmed.
   In addition, the appellant submits that there has been a distortion of the facts by the General Court since it stated, in paragraph 40 of the contested Judgement, that ‘the goods in Class 3 and a large proportion of the goods in Class 5 (…) are normally marketed on display in supermarkets and therefore chosen by customers after a visual examination of their packaging’. This factual finding was not backed up by any evidence and thereby distorted the facts on which a decision should have been based. In addition, this fact was not put forward by any of the parties, and therefore could only be taken into consideration if it was well known (and given the arguments in support of the lack of plausibility of this fact, to consider it as such would amount in itself to a distortion of the facts). Therefore, this fact cannot be used as a basis for a finding of likelihood of confusion.
   The appellant also submits that the principle of audi alteram partem enshrined in Article 76(1) CTMR (1) (former Article 74(1) of Regulation 40/94 (2)) has been infringed and that the General Court erred in its application of Article 8(l)(b) CTMR and relevant case law, thereby infringing Union law. The General Court did not carry out an overall assessment of the marks at issue, taking into account all factors relevant to the circumstances of the present case.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark
   OJ L 78, p. 1

      (2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark
   OJ L 11, p. 1


title: Case C-204/13: Judgment of the Court (Sixth Chamber) of 13 March 2014 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Saarlouis v Heinz Malburg (Taxation  — Value added tax  — Origin and scope of the right of deduction  — Dissolution of a partnership by a partner  — Acquisition of a portion of the client base of that partnership  — Contribution in kind to another partnership  — Payment of input tax  — Whether deduction possible)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/18

         Judgment of the Court (Sixth Chamber) of 13 March 2014 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Saarlouis v Heinz Malburg
   (Case C-204/13) (1)

   ((Taxation - Value added tax - Origin and scope of the right of deduction - Dissolution of a partnership by a partner - Acquisition of a portion of the client base of that partnership - Contribution in kind to another partnership - Payment of input tax - Whether deduction possible))
   2014/C 135/19
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicants: Finanzamt Saarlouis

      Defendants: Heinz Malburg

      Re:

   Request for a preliminary ruling — Bundesfinanzhof — Interpretation of Articles 4(1) and (2) and 17(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Creation and extent of the right to deduct — Acquisition of a portion of the client base of a dissolved partnership by a partner in that partnership for the purpose of bringing it into a new partnership as a contribution in kind — Whether it is possible to deduct the input tax.

      Operative part of the judgment

   Article 4(1) and (2) and Article 17(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995 must, having regard to the principle of value added tax neutrality, be interpreted as meaning that a partner in a partnership of tax advisors who acquires from that partnership a portion of its client base for the sole purpose of making that client base available directly and free of charge to a newly founded partnership of tax advisors, in which he is the principal partner, so that that partnership can use that client base in its business, without that client base however becoming part of the capital assets of the newly founded partnership, is not entitled to deduct input value added tax paid on the acquisition of the client base concerned.

      (1)  OJ C 178, 22.6.2013.


title: Case C-615/10: Judgment of the Court (Fourth Chamber) of 7 June 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Proceedings brought by Insinööritoimisto InsTiimi Oy (Directive 2004/18/EC — Public contracts in the field of defence — Article 10 — Article 296(1)(b) EC — Protection of a Member State’s essential security interests — Trade in arms, munitions and war material — Product procured by a contracting authority specifically for military purposes — Existence, as regards that product, of a potential and largely identical civilian application — Tiltable turntable for carrying out electromagnetic measurements — Contract not put out to tender in accordance with the procedures provided for by Directive 2004/18)

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/3

         Judgment of the Court (Fourth Chamber) of 7 June 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Proceedings brought by Insinööritoimisto InsTiimi Oy
   (Case C-615/10) (1)

   (Directive 2004/18/EC - Public contracts in the field of defence - Article 10 - Article 296(1)(b) EC - Protection of a Member State’s essential security interests - Trade in arms, munitions and war material - Product procured by a contracting authority specifically for military purposes - Existence, as regards that product, of a potential and largely identical civilian application - Tiltable turntable for carrying out electromagnetic measurements - Contract not put out to tender in accordance with the procedures provided for by Directive 2004/18)
   2012/C 217/04
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

   Insinööritoimisto InsTiimi Oy,
   party heard in the matter: Puolustusvoimat

      Re:

   Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 10 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) and Article 346 TFEU — List of arms, munitions and war material adopted by Decision No 255/58 of the Council of 15 April 1958 — Scope of the directive — Material intended primarily for military use — Turntable equipment for electromagnetic measurements

      Operative part of the judgment

   Article 10 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in conjunction with Article 296(1)(b) EC, must be interpreted as authorising a Member State to set aside the procedures laid down by that directive in the case of a public contract awarded by a contracting authority in the field of defence for the acquisition of material which, although intended for specifically military purposes, also presents possibilities for essentially identical civilian applications only if that material, by virtue of its intrinsic characteristics, may be regarded as having been specially designed and developed, also as a result of substantial modifications, for such purposes, this being a matter for the referring court to determine.

      (1)  OJ C 72, 5.3.2011.


C 118/30              EN                   Official Journal of the European Communities                                21.4.2001
       Removal from the register of Case C-368/99 (1)                        Removal from the register of Case C-343/00 (1)
                        (2001/C 118/82)                                                       (2001/C 118/85)
By order of 17 January 2001 the President of the Court of             By order of 17 January 2001 the President of the Court of
Justice of the European Communities has ordered the removal           Justice of the European Communities has ordered the removal
from the register of Case C-368/99: [reference for a preliminary      from the register of Case C-343/00: Commission of the
ruling from the Landesgericht Korneuburg (Austria)]: La Che-          European Communities v France.
mise Lacoste S.A. v Coalle FA-93.
                                                                      (1) OJ C 335 of 25.11.2000.
(1) OJ C 366 of 18.12.1999.
       Removal from the register of Case C-126/00 (1)                        Removal from the register of Case C-378/99 (1)
                        (2001/C 118/83)                                                       (2001/C 118/86)
By order of 17 January 2001 the President of the Court of             By order of 23 January 2001 the President of the Court of
Justice of the European Communities has ordered the removal           Justice of the European Communities has ordered the removal
from the register of Case C-126/00: Commission of the                 from the register of Case C-378/99: Commission of the
European Communities v Portugal.                                      European Communities v Federal Republic of Germany.
(1) OJ C 163 of 10.6.2000.                                            (1) OJ C 6 of 8.1.2000.
       Removal from the register of Case C-402/00 (1)                        Removal from the register of Case C-335/00 (1)
                        (2001/C 118/84)                                                       (2001/C 118/87)
By order of 17 January 2001 the President of the Court of             By order of 25 January 2001 the President of the Court of
Justice of the European Communities has ordered the removal           Justice of the European Communities has ordered the removal
from the register of Case C-402/00: (reference for a preliminary      from the register of Case C-335/00: Commission of the
ruling from the Employment Tribunal, Stratford): F. Harding v         European Communities v Grand Duchy of Luxembourg.
Skandia Asset Management Ltd.
(1) OJ C 372 of 23.12.2000.                                           (1) OJ C 316 of 4.11.2000.