title: JUDGMENT OF THE COURT of 19 November 1996 in Case C-42/95 (reference for a preliminary ruling from the Bundesgerichtshof): Siemens AG v. Henry Nold (Company law - Increase in capital - Consideration in kind - Shareholders' right of pre-emption - Withdrawal)

text:
8 . 2 . 97           I EN                  Official Journal of the European Communities                                    No C 40/ 1
                                                                   I
                                                            (Information)
                                              COURT OF JUSTICE
                                                         COURT OF JUSTICE
                JUDGMENT OF THE COURT                                 2 . For the rest, the appeal is dismissed.
                         (First Chamber)                              3 . The action, in so far as it is based on an infringement
                     of 12 November 1996                                   of Article 26 of the Staff Regulations, is dismissed.
in Case C-294/95 P Girish Ojha v. Commission of the                   4 . The costs are to be borne as to two thirds by Mr Ojha
                   European Communities H                                  and as to one third by the Commission.
(Appeal — Official — Posting outside the Community —                  (') OJ No C 286 , 28 . 10 . 1995 .
Transfer in the interests of the service — Action for
   annulment — Compensation for non-material damage)
                           ( 97/C 40/01 )
                                                                                JUDGMENT OF THE COURT
                 (Language of the case: French)
                                                                                of 19 November 1996
                                                                      in Case C-42/95 ( reference for a preliminary ruling from
  (Provisional translation; the definitive translation will be           the Bundesgerichtshof): Siemens AG v. Henry Nold (')
           published in the European Court Reports)                   (Company law — Increase in capital — Consideration in
                                                                      kind — Shareholders ' right of pre-emption — Withdrawal)
In Case C-294/95 P: Girish Ojha, an official of the                                               ( 97/C 40/02 )
European Communities, represented by E. H. Pijnacker                                  (Language of the case: German)
Hordijk, of the Amsterdam Bar, with an address for
service in Luxembourg at the Chambers of L. Frieden,                    (Provisional translation; the definitive translation will be
62 Avenue Guillaume, the other party to the proceedings                         published in the European Court Reports)
being: Commission of the European Communities (Agent:
A. M. Alves Vieira , assisted by D. Waelbroeck, of the                In case C-42/95 : reference to the Court under Article 177
Brussels Bar ) — appeal against the judgment of the Court             of the EC Treaty from the Bundesgerichtshof ( Federal
of First Instance ( First Chamber) of 6 July 1995 in Case T          Court of Justice ) for a preliminary ruling in the
36/93 Ojha v. Commission ( 1995 ) ECR 11-497, seeking to              proceedings pending before that court between Siemens
have that judgment set aside — the Court ( First                      AG and Henry Nold — on the interpretation of the
Chamber ), composed of: D. A. O. Edward, acting as                    Second Council Directive ( 77/91 /EEC ) of 13 December
President of the Chamber, P. Jann and M. Wathelet                     1976 on coordination of safeguards which, for the
( Rapporteur), Judges; P. Leger, Advocate-General; L.                 protection of the interests of members and others, are
Hewlett, Administrator, for the Registrar, has given a                required by Member States of companies within the
judgment on 12 November 1996, in which it has ruled:                  meaning of the second paragraph of Article 58 of the
                                                                      Treaty, in respect of the formation of public limited
                                                                      liability companies and the maintenance and alteration of
1 . The judgment of the Court of First Instance of 6 July             their capital, with a view to making such safeguards
      1995 in Case T-36/93 Ojha v. Commission is set aside            equivalent ( OJ No L 26 , 30 . 1 . 1977, p. 1 ), in particular
     in so far as it holds that Article 26 of the Staff               Article 29 ( 1 ) and ( 4 ) thereof — the Court, composed of:
     Regulations of Officials of the European Communities             G. C. Rodriguez Iglesias, President, G. F. Mancini , J. C.
     was not applicable and that no infringement of the               Moitinho de Almeida and J. L. Murray ( Presidents of
     second paragraph of Article 26 of the Staff                      Chambers ), P. J. G. Kapteyn ( Rapporteur), C. Gulmann,
     Regulations could be found.                                      D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P. Jann and
 ---pagebreak--- No C 40/2            [ EN |                Official Journal of the European Communities                                       8 . 2 . 97
H. Ragnemalm, Judges; G. Tesauro, Advocate-General; H.                         undertaking from using its right to import into a
von Holstein, Deputy Registrar, for the Registrar, has                         Member State products coming from another
given a judgment on 19 November 1996 , in which it has                         Member State where they are lawfully marketed
ruled :                                                                        and to market them under a particular trade mark
                                                                               in the Member State of importation, when other
The Second Council Directive (77/91 /EEC) of                                   traders have the same right, even if they do not use
13 December 1976 on coordination of safeguards which,                          it,
for the protection of the interests of members and others,
are required by Member States of companies within the
                                                                           — but not precluding a prohibition, on grounds of
meaning of the second paragraph of Article 58 of the
                                                                               consumer protection, on the marketing by all
Treaty, in respect of the formation of public limited                          traders of products coming from a Member State
liability companies and the maintenance and alteration of
                                                                               where they are lawfully marketed, provided that
their capital, with a view to making such safeguards                           the prohibition is necessary in order to ensure
equivalent, in particular Article 29 ( 1 ) and (4) thereof,                    consumer protection and proportionate to that
does not preclude a Member State 's domestic law from                          objective, which must be incapable of being
granting a right of pre-emption to shareholders in the                         achieved by measures which are less restrictive of
event of an increase in capital by consideration in kind                       intra- Community trade . The national court must,
and from subjecting the legality of a decision withdrawing                     in particular, examine whether the risk of
that right of pre-emption to a substantive review of the                       misleading consumers is sufficiently serious to be
kind laid down by the Bundesgerichtshof.                                       able to override the requirements of the free
                                                                               movement of goods .
H OJ No C 101 , 22 . 4 . 1995 .
                                                                      2 . Article 12 (2) (b) of Council Directive 89/104/EEC of
                                                                           21 December 1988 to approximate the laws of the
                                                                           Member States relating to trade marks is to be
                                                                           interpreted as not precluding a prohibition on the
                JUDGMENT OF THE COURT                                      marketing of products coming from a Member State
                      of 26 November 1996                                  where they are lawfully marketed, on the ground that
in Case C-3 13/94 (reference for a preliminary ruling from                 they bear a trade mark which the proprietor has been
the Tribunale di Chiavari ): Fratelli Graffione SNC v. Ditta               specifically prohibited from using in the Member State
                              Fransa (')                                   of importation because it has been held there to be
                                                                           liable to mislead consumers .
 (Prohibition of the use of a trade mark in a Member State
— Prohibition of importation from another Member State
 of a product bearing the same trade mark — Article 30 of             n OJ No C 380 , 31 . 12 . 1994 .
          the EC Treaty and the Trade Mark Directive)
                           ( 97/C 40/03 )
                  (Language of the case: Italian)
   (Provisional translation; the definitive translation will be
                                                                                JUDGMENT OF THE COURT
            published in the European Court Reports)
                                                                                ( Sixth Chamber)
 In Case C-313 /94 : reference to the Court under Article 177
                                                                                of 5 December 1996
 of the EC Treaty from the Tribunale di Chiavari (District
 Court, Chiavari ), Italy, for a preliminary ruling in the            in Case C-69/95 Italian Republic v. Commission of the
 proceedings pending before that court between Fratelli                                  European Communities (')
 Graffione SNC and Ditta Fransa — on the interpretation
 of Articles 30 and 36 of the EC Treaty and Article 12                 (EAGGF — Clearance of accounts — 1991 — Milk and
 (2 ) ( b ) of the First Council Directive 89/104/EEC of                                        milk products)
 21 December 1988 to approximate the laws of the                                                  97/C 40/04 )
 Member States relating to trade marks ( OJ No L 40, 11.2 .
  1989 , p. 1 ) — the Court, composed of: G. C. Rodriguez
 Iglesias, President, G. F. Mancini , J. C. Moitinho de                                (Language of the case: Italian)
 Almeida, J. L. Murray and L. Sevon (Presidents of
  Chambers ), P. J. G. Kapteyn, C. Gulmann ( Rapporteur ),
 D. A. O. Edward, J. -P. Puissochet, G. Hirsch and H.                    (Provisional translation; the definitive translation will be
  Ragnemalm, Judges; F. G. Jacobs, Advocate-General; H. A.                       published in the European Court Reports)
  Riihl, Principal Administrator, for the Registrar, has given
  a judgment on 26 November 1996 , in which it has ruled :             In Case C-69/95 : Italian Republic ( Agent: Umberto
  1 . Articles 30 and 36 of the EC Treaty are to be                    Leanza , assisted by Oscar Fiumara ) v. Commission of the
      interpreted as:                                                  FLuropean Communities ( Agent: Eugenio de March ) —
                                                                       application for partial annulment of Commission Decision
      — precluding reliance on protection against unfair                94/871 /EC of 21 December 1994 on the clearance of the
            competition as a ground for prohibiting an                  accounts presented by the Member States in respect of the


title: Case C-315/02: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that Court of 27 August 2002 in the appeal brought by Annliese Lenz against Finanzlandesdirektion für Tirol (the regional finance authority for Tyrol)

text:
C 261/8                EN                     Official Journal of the European Communities                                      26.10.2002
Reference for a preliminary ruling by the Verwaltungs-                   Action brought on 11 September 2002 by the Com-
gerichtshof by order of that Court of 27 August 2002 in                     mission of the European Communities against Ireland
the appeal brought by Annliese Lenz against Finanzlan-
desdirektion für Tirol (the regional finance authority for
                             Tyrol)
                                                                                (Case C-317/02)
                        (Case C-315/02)
                                                                                (2002/C 261/13)
                        (2002/C 261/12)
                                                                         An action against Ireland was brought before the Court of
                                                                         Justice of the European Communities on 11 September 2002
                                                                         by the Commission of the European Communities, represented
Reference has been made to the Court of Justice of the                   by Thomas van Rijn and Keir Fitch, acting as agents, with an
European Communities by order of the Verwaltungsgerichts-                address for service at the office of Luis Escobar Guerrero,
hof (Administrative Court) of 27 August 2002, received at the            Centre Wagner C-254, Luxembourg.
Court Registry on 6 September 2002, for a preliminary ruling
in the appeal brought by Annliese Lenz against Finanzlandesdi-
rektion für Tirol (the regional finance authority for Tyrol) on
the following questions:
                                                                         The Applicant claims that the Court should:
1.    Does Article 73b(1) in conjunction with Article 73d(1)(a)          1.    declare that
      and (b) and (3) of the EC Treaty (now Article 56(1) in
      conjunction with Article 58(1)(a) and (b) and (3) EC)
      preclude a provision such as that in Paragraph 97(1) and
      (4) of the Einkommensteuergesetz 1988 (1988 Law on                       —    in not putting in place the criteria and detailed rules
      Income Tax) in conjunction with Paragraph 37(1) and (4)                       for the use of the fishing quota allocated to it,
      of the Einkommensteuergesetz 1988, under which a
      taxpayer in receipt of dividends from domestic shares
      may choose whether they should be subject to a tax rate                  —    by failing to ensure compliance with Community
      of 25 % on flat-rate and final taxation or whether they                       rules on the conservation of aquatic marine living
      should be taxed at a rate equivalent to half of the average                   resources by the monitoring of fishing activities,
      tax rate applicable to the aggregate income, whereas                          appropriate inspection of landings and the recording
      dividends from foreign shares are always taxed at the                         of catches, inspections and other controls as required
      normal rate of income tax?                                                    by the relevant Community Regulations,
2.    Is the level of taxation of the revenue of a limited                     —    by failing to prohibit provisionally fishing by vessels
      company which has its seat and head office in another                         flying its flag or registered in its territory when the
      EU Member State or a non-Member State in which shares                         quotas allocated to it were deemed to be exhausted,
      are held of relevance to the answer to the first question?                    and
3.    If the answer to the first question is in the affirmative,               —    by failing to initiate administrative or criminal
      can the situation described in Article 73b(1) of the EC                       proceedings against the masters of vessels infringing
      Treaty (now Article 56(1) EC) arise as a result of the                        the Regulations, or against such other person as was
      corporation tax paid in the countries in which they are                       responsible for such infringement, Ireland has failed
      established by companies limited by shares with seats and                     to carry out the obligations imposed on it by i)
      head offices in other EU Member States or non-Member                          article 9 (2) of Regulation (EEC) No 3760/92
      States being credited pro rata against the Austrian income                    of 20 December 1992 establishing a Community
      tax payable by the recipient of the dividends?                                system for fisheries and aquaculture (1), ii) article 2
                                                                                of Regulation (EEC) 2847/93 of 12 October 1993
                                                                                establishing a control system applicable to the
                                                                                common fisheries policy (2), iii) article 21 of Regu-
                                                                                lation 2847/93, iv) article 31 of Regulation
                                                                                No 2847/93.


title: Case T-301/03: Action brought on 29 August 2003 by Canali Ireland Limited against the Office for Harmonisation in the Internal Market

text:
C 275/46               EN                        Official Journal of the European Union                                       15.11.2003
Action brought on 29 August 2003 by Canali Ireland                       Decision of the Board of      Annulent of the Decision of the
Limited against the Office for Harmonisation in the                      Appeal:                       Opposition Division and rejection
                         Internal Market                                                               of the opposition
                                                                         Pleas in Law:                 Incorrect       application      of
                         (Case T-301/03)
                                                                                Article 8(1)(b) of Regulation (EC)
                                                                                No 40/94 (risk of confusion).
                         (2003/C 275/77)
(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
                        submitted: English)
                                                                         Action brought on 4 September 2003 by Lidl Stiftung &
An action against the Office for Harmonisation in the Internal           Co. KG against the Office for Harmonisation in the
Market was brought before the Court of First Instance of the                 Internal Market (Trade Marks and Designs) (OHIM)
European Communities on 29 August 2003 by Canali Ireland
Limited, Dublin, (Ireland), represented by C. Gielen and O.                                       (Case T-303/03)
Schmutzer, lawyers. Canali S.p.A. was also a party to the
proceedings before the Board of Appeal.
                                                                                (2003/C 275/78)
The applicant claims that the Court should:
                                                                         (Language of the case to be determined pursuant to Article 131(2)
                                                                         of the Rules of Procedure — language in which the application was
—     annul the decision of the Second Board of Appeal of
                                                                                submitted: German)
      17 June 2003;
—     declare that the opposition filed against the application
      by the applicant for the mark CANAL JEAN CO succeeds
      and to refuse the application for this mark in its entirety        An action against the Office for Harmonisation in the Internal
      and/or to give any order that the Court deems fit;                 Market (Trade Marks and Designs) (OHIM) was brought before
                                                                         the Court of First Instance of the European Communities on
                                                                         4 September 2003 by Lidl Stiftung & Co. KG, Neckarsulm
—     order for payment of all cost of the proceedings against           (Germany), represented by P. Groß, lawyer. REWE-Zentral AG,
      the applicant.                                                     Cologne (Germany), was also a party to the proceedings before
                                                                         the Board of Appeal.
Pleas in law and main arguments                                          The applicant claims that the Court should:
Applicant for Com-            Canal Jean Co., Inc.                       —     declare void and annul the decision of 30 June 2003 of
munity trade mark:                                                             the First Board of Appeal of the Office for Harmonisation
                                                                               in the Internal Market (Trade Marks and Designs) on the
Community trade mark          Figurative trade mark ‘CANAL —                   appeal in Case R 408/2002-1 concerning registration of
sought:                       JEAN          CO.’     Application               the Community trade mark ‘Salvita’ under Application
                              No 425363, relating to goods                     No 609339;
                              in Class 25 (Articles of clothing,
                              footwear, head gear).                      —     order the defendant to reimburse the applicant the costs
                                                                               of these proceedings.
Proprietor of mark or         The applicant
sign cited in the oppo-
sition proceedings:
                                                                         Pleas in law and main arguments
Mark or sign cited in         Italian trade mark registration
opposition:                   No 513948 for the word mark
                              ‘CANALI’ for goods and services            Applicant for Com-            REWE-Zentral AG
                              in Classes 3, 6, 9, 14, 16, 18, 20,        munity trade mark:
                              25, 34 and 42
                                                                         Community trade mark          The word mark ‘Salvita’ for goods
Decision of the Oppo-         Admission of the opposition                sought:                       in Classes 5, 29, 30 and 32 —
sition Division:                                                                                Application No 609339


title: Case C-236/03 P: Appeal brought on 2 June 2003 by the Commission of the European Communities against the judgment delivered on 19 March 2003 by the Third Chamber of the Court of First Instance of the European Communities in case T-213/00 between CMA CGM and thirteen other liner shipping companies and the Commission of the European Communities

text:
C 184/22               EN                        Official Journal of the European Union                                         2.8.2003
Is it contrary to Articles 12, 43 et seq. and 49 et seq. of the EC       Pleas in law and main arguments
Treaty, and Article 3(2) of Council Directive 92/50/EEC (1) of
18 June 1992 relating to the coordination of procedures for the
award of public service contracts, to include in the general             The Commission submits that the CFI'S ruling contains
specifications and special administrative clauses and technical          numerous contradictions and inconsistencies, not to say distor-
specifications governing public competitions relating to home            tions and that, accordingly, the contested judgment would
respiratory treatments and other assisted breathing techniques:          render the division of offenders into groups, which is a key
                                                                         element of the Guidelines, unworkable. The Commission main-
                                                                         tains that it followed an approach which is both entirely
1)    the requirement that, in order to qualify to tender, under-        reasonable and wholly consonant with the principle of non-
      takings must already have offices open to the public in            discrimination.
      the province or capital of the province in which the
      service is to be provided;
                                                                         In the Commission's submission, the CFI has erred in finding
2)    award criteria which favour:                                       that the Decision contained inadequate reasoning and has, in
                                                                         any event, exceeded the bounds of its jurisdiction.
      a)    tenders from undertakings established within a
            1 000 Km radius of the capital in which the service          According to the Commission the contested ruling would
            is to be provided;                                           severely fetter the Commission's discretion when setting fines,
                                                                         and would be virtually tantamount to imposing on the
      b)    undertakings which already have offices open to the          Commission a duty to apply a mathematical or ‘scientifically’
            public in certain towns in that province; or                 verifiable formula. This would seriously undermine the
                                                                         Commission's discretion, and thus its power and duty to
      c)    undertakings which have been providing the service           pursue infringements of Articles 81 and 82 of the Treaty.
            previously?
                                                                         Finally the Commission contests the CFI's finding that the
(1) OJ L 209 of 18.06.1992, p. 1.                                        imposition of fines was time-barred and maintains that such
                                                                         finding is unsustained by any reasoning in the judgment.
                                                                         (1) OJ C 124, 24.05.2003, p. 18.
Appeal brought on 2 June 2003 by the Commission of the
European Communities against the judgment delivered on
19 March 2003 by the Third Chamber of the Court of
First Instance of the European Communities in case T-213/
00 (1) between CMA CGM and thirteen other liner ship-
ping companies and the Commission of the European
                                                                         Reference for a preliminary ruling from the Tribunal
                            Communities
                                                                         d'Instance de Roubaix by judgment of that court of
                                                                         15 May 2003 in the case of Banque Sofinco SA against
                        (Case C-236/03 P)                                                   Daniel and Carole Djemoui
                          (2003/C 184/39)
                                                                                (Case C-237/03)
An appeal against the judgment delivered on 19 March 2003                                         (2003/C 184/40)
by the Third Chamber of the Court of First Instance of the
European Communities in case T-213/00 between CMA CGM
and thirteen other liner shipping companies and the Commis-
sion of the European Communities was brought before the                  Reference has been made to the Court of Justice of the
Court of Justice of the European Communities on 2 June 2003              European Communities by judgment of the Tribunal d'instance
by the Commission of the European Communities, represented               (District Court), Roubaix of 15 May 2003 received at the
by P. Oliver, acting as agent, with an address for service in            Court Registry on 4 June 2003, for a preliminary ruling in
Luxembourg.                                                              the case of Banque Sofinco SA against Daniel and Carole
                                                                         Djemoui on the following questions:
The Appellant claims that the Court should:
                                                                         1.    Must Council Directives 87/102/EC (1) of 22 December
—     annul point 1 of the judgment of the Court of First                      1986 and 90/88/EC (2) of 22 February 1990 be inter-
      Instance of 19 March 2003 in Case T-213/00 (CMA                          preted as requiring the national court to favour the
      CGM v. Commission);                                                      interpretation of national law obliging consumer credit
                                                                               institutions to inform the borrower/consumer in writing
—     reject the Respondents' Application in its entirety;                     of the current annual percentage rate of charge, before
                                                                               each renewal of a credit agreement renewable in instal-
—     order the Respondents to pay the Commission's costs.                     ments in which the interest is stipulated to be variable?


title: Judgment of the Court of First Instance of 3 June 1999 in Case T-17/96: Télévision Française 1 SA (TF1) v Commission of the European Communities (State aid - Public television broadcasting - Complaint - Action for failure to act - Commission's obligation to carry out an investigation - Time-limits - Procedure under Article 88(2) EC (ex Article 93(2)) - Serious difficulties - Article 81 EC (ex Article 85) - Service of formal notice - Adoption of a position - Article 86 EC (ex Article 90) - Whether admissible)

text:
C 265/6                   EN                    Official Journal of the European Communities                                        18.9.1999
                                                          COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 3 June 1999
                           of 28 April 1999
                                                                           in Case T-17/96: Télévision Française 1 SA (TF1) v
                                                                                Commission of the European Communities (1)
in Case T-221/95: Endemol Entertainment Holding BV v
         Commission of the European Communities (1)
                                                                           (State aid — Public television broadcasting — Complaint —
                                                                           Action for failure to act — Commission’s obligation to carry
                                                                           out an investigation — Time-limits — Procedure under
(Competition — Regulation (EEC) No 4064/89 — Decision
                                                                           Article 88(2) EC (ex Article 93(2)) — Serious difficulties —
declaring a concentration incompatible with the common
                                                                           Article 81 EC (ex Article 85) — Service of formal notice —
market — Article 22 of Regulation No 4064/89 — Rights
                                                                           Adoption of a position — Article 86 EC (ex Article 90) —
  of the defence — Access to the file — Dominant position)
                                                                                Whether admissible)
                           (1999/C 265/09)                                                           (1999/C 265/10)
                                                                                (Language of the case: French)
                     (Language of the case: English)
                                                                           In Case T-17/96: Télévision Française 1 SA (TF1), whose
                                                                           registered office is in Paris represented by Georges Vandersan-
In Case T-221/95: Endemol Entertainment Holding BV, estab-                 den, Jean-Paul Hordies and Agnès Maqua, of the Brussels Bar,
lished in Zevenend, Netherlands, represented by Onno                       with an address for service in Luxembourg at the offices of
W. Brouver and Peter Wytinck, of the Brussels Bar, and Martijn             Fiduciaire Myson SARL, 30 Rue de Cessange v Commission of
van Empel, of the Amsterdam Bar, with an address for service               the European Communities (Agents: Gérard Rozet and Klaus
in Luxembourg at the Chambers of Jacques Loesch, 11 Rue                    Wiedner), supported by the French Republic (Agents Catherine
Goethe, v Commission of the European Communities (Agent:                   de Salins, Philippe Martinet and Frédérik Million) — application
Wouter Wils) — application for the annulment of Commission                 under Article 232 EC (ex Article 175) for a declaration that
Decision 96/346/EC of 20 September 1995 relating to a                      the Commission failed to fulfil its obligations under the Treaty
proceeding pursuant to Council Regulation (EEC) No 4064/89                 by not adopting a position on the complaint submitted by
(IV/M.553-RTL/Veronica/Endemol) (0J 1996 L 134, p. 32),                    the applicant against the French Republic concerning the
which declared the agreement creating the joint venture                    compatibility of the methods of financing the public television
Holland Media Groep to be incompatible with the common                     broadcasting channels, France 2 and France 3 (France Télé-
market — the Court of First Instance (Fourth Chamber,                      vision) with Articles 81 EC (ex Article 85), 86(1) EC (ex
Extended Composition), composed of: P. Lindh, President,                   Article 90(1)) and 92 of the EC Treaty (now, after amendment,
R. Garcia-Valdecasas, K. Lenaerts, J.D. Cooke and M. Jaeger,               Article 87 EC), and, in the alternative, an application under
Judges; H. Jung, Registrar, has given a judgment on 28 April               Article 173 of the EC Treaty (now, after amendment,
1999, in which it:                                                         Article 230 EC) for annulment of the purported decision
                                                                           rejecting the applicant’s complaint, set out in a letter from the
                                                                           Commission of 11 December 1995 — the Court of First
                                                                           Instance (Third Chamber, Extended Composition), composed
1. Dismisses the application.
                                                                           of M. Jaeger, President, K. Lenaerts V. Tiili, J. Azizi and P. Men-
                                                                           gozzi, Judges; H. Jung, Registrar, gave a judgment on 3 Juni
                                                                           1999, the operative part of which is as follows:
2. Orders the applicant to bear, in addition to its own costs, one
     fifth of the costs incurred by the defendant until the withdrawal
     of the parties on 7 October 1996 together with all of those           1. The Commission has failed to fulfil its obligations under the EC
     incurred subsequently.                                                     Treaty by not adopting a decision on the complaint lodged by
                                                                                Télévision Française 1 SA on 10 March 1993 concerning State
                                                                                aid.
(1) OJ C 64 of 2.3.1996.                                                   2. There is no need to adjudicate on the allegation that the
                                                                                Commission failed unduly to act under Articles 81 EC (ex
                                                                                Article 85) and 86 EC (ex Article 90).
                                                                           3. The action is inadmissible in so far as it is directed against the
                                                                                Commission’s failure to act under Article 82 EC (ex Article 86).
 ---pagebreak--- 18.9.1999                EN                       Official Journal of the European Communities                                        C 265/7
4. There is no need to adjudicate on the alternative form of                     JUDGMENT OF THE COURT OF FIRST INSTANCE
     annulment order sought.
5. The Commission shall bear its own costs together with those                                       of 17 June 1999
     incurred by the applicant, with the exception of the costs incurred
     by the applicant as a result of the intervention by the French          in Case T-82/96: Associação dos Refinadores de Açúcar
     Republic.                                                               Portugueses (ARAP) and Others v Commission of the
                                                                                European Communities (1)
6. The French Republic shall bear its own costs, together with the
     costs incurred by the applicant as a result of its intervention.
                                                                             (State aid — Complaints from competing undertakings —
                                                                             Judicial protection of complainants — Sugar — Aid granted
(1) OJ C 95 of 30.3.1996.                                                    in implementation of a general State aid scheme approved
                                                                             by the Commission — State aid for vocational training —
                                                                             State aid for co-financing under the rules on Structural
                                                                                Funds)
                                                                                (1999/C 265/12)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: English)
                           of 19 May 1999
                                                                             In Case T-82/96: Associação dos Refinadores de Açúcar
in Joined Cases T-34/96 and T-163/96: Bernard Connolly                       Portugueses (ARAP), established in Lisbon, Alcântara Refinari-
                                                                             as — Açúcares SA, established in Santa Iria de Azóia, Portugal,
       v Commission of the European Communities (1)
                                                                             and RAR Refinarias de Açúcar Reunidas SA, established in
                                                                             Oporto, Portugal, represented by Gerard van der Wal, Advo-
(Officials — Disciplinary proceedings — Removal from post                    caat with a right of audience before the Hoge Raad der
— Articles 11, 12 and 17 of the Staff Regulations —                          Nederlanden, with an address for service in Luxembourg at the
Freedom of expression — Duty of an official to show good                     Chambers of Aloyse May, 31 Grand-Rue v Commission of
faith and to exercise dignity in the performance of his duties)              the European Communities (Agents: Nicholas Khan, Anders
                                                                             Christian Jessen and James Flett), supported by Portuguese
                           (1999/C 265/11)                                   Republic (Agents Susana Brasil de Brito and Luis Inez Fernan-
                                                                             des), and DAI — Sociedade de Desenvolvimento Agro-
                                                                             industrial SA, established in Monte da Barca, Portugal, rep-
                                                                             resented by Luis Sáragga Leal, Dulce Franco and Ricardo
                    (Language of the cases: French)                          Oliveira, of the Lisbon Bar, with an address for service in
                                                                             Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue
In Joined Cases T-34/96 and T-163/96: Bernard Connolly, a                    — application for annulment of the Commission decision of
former official of the Commission of the European Communi-                   11 January 1996 not to raise objections to State Aid N11/95
ties, residing in Everberg (Belgium), represented by Jacques                 in favour of DAI — Sociedade de Desenvolvimento Agro-
Sambon and Pierre-Paul Van Gehuchten, of the Brussels Bar,                   industrial SA and of the Commission’s letter to the applicants
with an address for service in Luxembourg at the Chambers of                 of 19 March 1996 — the Court (Fourth Chamber), composed
Louis Schiltz, 2 Rue du Fort Rheinsheim against Commission                   of: R.M. Moura Ramos, President, R. Garcia-Valdecasas. V. Tiili,
of the European Communities (Agents: Gianluigi Valsesia and                  P. Lindh and P. Mengozzi, Judges; A. Mair, Administrator, for
Julian Currall) — application, in the first place, for annulment             the Registrar, has given a judgment on 17 June 1999, in which
of the opinion of the Disciplinary Board of 7 December 1995                  it:
and of the Commission decision of 16 January 1996 removing
the applicant from his post, and, second, for compensation —
                                                                             1. Dismisses the application.
the Court of First Instance (First Chamber), composed of
B. Vesterdorf, President, J. Pirrung and M. Vilaras, Judges; H.
Jung, Registrar, has given a judgment on 19 May 1999, the                    2. Orders the applicants to bear their own costs and to pay those
operative part of which is as follows:                                            of the defendant and the intervener DAI — Sociedade de
                                                                                Desenvolvimento Agro-industriel SA.
1. Case T-34/96 is removed from the Register of the Court;
2. The application in Case T-163/96 is dismissed;                            3. Orders the Portuguese Republic to bear its own costs.
3. Each party shall bear its own costs.
                                                                             (1) OJ C 233 of 10.8.1996.
(1) OJ C 133 of 4.5.1996 and OJ C 370 of 7.12.1996.


title: Case T-99/02: Action brought on 5 April 2002 by Ineos NV against the Commission of the European Communities

text:
C 156/30                EN                     Official Journal of the European Communities                                     29.6.2002
Grounds of claim:              Violation of Article 8(5) of               According to the applicant, the Commission made manifest
                               Council Regulation 40/94 (1).              errors of assessment and errors in law in concluding that the
                               According to the applicant, the            commitments are sufficient to take away the said competitive
                               trade mark is detrimental to the           concerns and has therefore violated Articles 2 (2) and 8 (2) of
                               repute of the earlier trade mark           the Merger Regulation (2).
                               and constitutes an unfair advan-
                               tage for Delta.
                                                                          In the contested Decision in the present case, the Commission
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the           imposed on Shell and DEA the obligation to make available,
    Community trade mark (OJ 11, p. 1)
                                                                          up to a certain quantity, access to Shell’s terminal facilities to
                                                                          producers of ethylene. This remedy is based, according to the
                                                                          applicant, on an error of assessment. The applicant submits
                                                                          that this obligation is unclear in its definition of the entities
                                                                          that should be granted access. As a consequence, this remedy
                                                                          could be made ineffective if access is granted to entities who
                                                                          should not, according to the applicant, benefit from this access.
Action brought on 5 April 2002 by Ineos NV against the                    The remedy is also limited in time, while the situation after its
         Commission of the European Communities                           expiry will remained the same as it was originally. Furthermore,
                                                                          the applicant claims that the volume of ethylene that can be
                          (Case T-99/02)                                  put on the ARG+market in this manner is insufficient to
                                                                          remedy the constraints on competition caused by the oper-
                                                                          ation.
                         (2002/C 156/58)
                    (Language of the case: English)
                                                                          The Commission also made an error in law since there is no
                                                                          protection for third parties on the market until the remedies
                                                                          in the Shell/DEA case and in the BP/E.ON case become
An action against the Commission of the European Communi-                 effective. The remedies imposed in each case are only effective
ties was brought before the Court of First Instance of the                if the remedies in the other case are operative as well. The
European Communities on 5 April 2002 by Ineos NV,                         remedies to be given by Shell/DEA will not, however, be
represented by Mr Julian Ellison, Mr Mark Clough QC and Mr                operative until 1 January 2003 or later. Therefore, the
Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).                 jointly dominant position will, according to the applicant, be
                                                                          unconstrained until all the remedies are operative. Meanwhile,
                                                                          the contested Decision does not provide for any interim
The applicant claims that the Court should:                               protection for third parties.
—     annul, under Article 230 of the EC Treaty, the Com-
      mission Decision in case no. COMP/M.2389-Shell/DEA
      in its entirety and/or insofar as it concerns the market for        The applicant claims in addition that the errors of assessment
      supply of merchant ethylene;                                        and the error in law of the Commission concerning the remedy
                                                                          in the BP/E.ON case is another ground for annulment of the
—     order the Commission to pay the costs.                              Decision contested in the present case since both cases are so
                                                                          closely related to each other. In the BP/E.ON case, the
                                                                          Commission considered that the commitment to reduce the
                                                                          combined shareholding of BP and Veba Oel, by two out of
Pleas in law and main arguments                                           three shares, would achieve open access at reasonable prices
                                                                          for use of the ARG pipe network.
The applicant in the present case is a purchaser of merchant
ethylene on the ARG+ pipeline network in Belgium, the
Netherlands and western Germany.
                                                                          The applicant argues that the remedy in the BP/E.ON case
                                                                          gives no control over how the future shareholders will conduct
The applicant contests the Decision of the Commission                     themselves with regard to the company’s future strategy, and
declaring an operation where Deutsche Shell GmbH would                    that there is, therefore, no guarantee that this remedy would
acquire sole control of the undertaking DEA Mineraloel AG                 reconstitute the ARG pipe network as a common carrier.
under certain conditions compatible with the common market                Furthermore, the applicant states that the transfer of a share
and the EEA Agreement. These conditions were necessary                    needs the unanimous approval of all the other shareholders,
since the operation gave rise to competition concerns on the              which constitutes an element of uncertainty in the remedy.
ARG+ merchant ethylene market. In particular, there was a                 The applicant submits also that the Commission has made an
risk of creating a joint dominant position of Shell/DEA and               error in law since the remedy gives no provisional solution to
BP/Veba Oel (case no. COMP/M.2533-BP/E.ON (1). These cases                the problems of lack of access and high transportation charges
were treated similarly by the Commission.                                 on the pipe network until the divestment of the shares.
 ---pagebreak--- 29.6.2002               EN                       Official Journal of the European Communities                                         C 156/31
According to the applicant, the remedy in the Shell/DEA case                Pleas in law and main arguments
remains ineffective as long as this problem is not addressed.
According to the applicant, the commitment from BP/E.ON,
that it will not use its voting rights to block any special                 The applicant in the present case is a purchaser of merchant
resolutions pending the sale of the shares to be divested, is               ethylene outside the ARG+ pipeline network.
insufficient and remains unclear on what is to happen in a
number of situations. The applicant claims therefore that this
commitment does not offer an interim solution at all.
                                                                            The applicant contests the Decision of the Commission
                                                                            declaring an operation where Deutsche Shell GmbH would
                                                                            acquire sole control of the undertaking DEA Mineraloel AG
                                                                            under certain conditions compatible with the common market
(1) With the operation examined by the Commission in this case, BP,         and the EEA Agreement. These conditions were necessary
    together with E.ON would acquire joint control of Veba Oel. The         since the operation gave rise to substantial competition
    Decision of the Commission in case no. COMP/M.2533-BP/E.ON              concerns on the ARG+ merchant ethylene market. In particu-
    is also contested by this applicant in Case T-101/02.                   lar, there was a risk of creating a joint dominant position of
(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on              Shell/DEA and BP/Veba Oel (case no. COMP/M.2533-BP/
    the control of concentrations between undertakings (OJ L 395 of         E.ON (1).
    30.12.1989 p. 1; text republished in OJ L 257 of 21.9.1990,
    p. 13).
                                                                            According to the applicant, the present Decision has an
                                                                            important effect on the ARG+ merchant ethylene market.
                                                                            There is a clear price link between this market and markets for
                                                                            merchant ethylene outside the ARG+, in which the applicant
                                                                            operates.
                                                                            The pleas and arguments put forward in the present case are
                                                                            the same as those put forward in Case T-99/02.
Action brought on 5 April 2002 by EVC International N.V.
against the Commission of the European Communities
                                                                            (1) With the operation examined by the Commission in this case, BP,
                                                                                together with E.ON, would acquire joint control of Veba Oel. The
                           (Case T-100/02)                                      Decision of the Commission in case no. COMP/M.2533-BP/E.ON
                                                                                is also contested by this applicant in Case T-102/02.
                          (2002/C 156/59)
                    (Language of the case: English)
                                                                            Action brought on 5 April 2002 by Ineos NV against the
An action against the Commission of the European Communi-                             Commission of the European Communities
ties was brought before the Court of First Instance of the
European Communities on 5 April 2002 by EVC International
N.V., represented by Mr Julian Ellison, Mr Mark Clough QC                                              (Case T-101/02)
and Mr Matthew Hall of Ashurst Morris Crisp, Brussels
(Belgium).
                                                                                (2002/C 156/60)
The applicant claims that the Court should:                                                     (Language of the case: English)
—      annul under Article 230 of the EC Treaty, the Commission
       Decision in case no. COMP/M.2389-Shell/DEA in its
       entirety and/or insofar as it concerns the market for                An action against the Commission of the European Communi-
       supply of merchant ethylene;                                         ties was brought before the Court of First Instance of the
                                                                            European Communities on 5 April 2002 by Ineos NV,
                                                                            represented by Mr Julian Ellison, Mr Mark Clough QC and Mr
—      order the Commission to pay the costs                                Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).


title: JUDGMENT OF THE COURT (Third Chamber) of 13 July 1995 in Case C-474/93 (reference for a preliminary ruling from the Arrondissementsrechtbank te Zwolle (Netherlands)): Hengst Import BV and Anna Maria Campese (Brussels Convention - Article 27 (2) - Concept of document instituting the proceedings or equivalent document)

text:
  14 . 10 . 95          EN                  Official Journal of the European Communities                                  No C 268/3
  separate judgment or decree. It does not apply to the                proceedings or . . . an equivalent document ' within the
  situation where a defendant raises, as a pure defence, a claim       meaning ofArticle 27 (2) ofthe Convention of2 7 September
  which he allegedly has against the plaintiff. The defences           1968 on Jurisdiction and the Enforcement ofJudgments in
  which may be raised and the conditions under which they              Civil and Commercial Matters, as amended by the
  may be raised are governed by national law.                          Convention of 9 October 1978 on the accession of the
                                                                       Kingdom of Denmark, Ireland and the United Kingdom of
                                                                       Great Britain and Northern Ireland.
. C ) OJ No C 231 , 27 . 8 . 1993 .
                                                                       (') OJ No C 43 , 12 . 2 . 1994 .
                JUDGMENT OF THE COURT
                         ( Third Chamber)
                           of 13 July 1995
  in Case C-474/93 (reference for a preliminary ruling from
  the Arrondissementsrechtbank te Zwolle (Netherlands )):                             JUDGMENT OF THE COURT
        Hengst Import BV and Anna Maria Campese (')                                           (Fourth Chamber )
  (Brussels Convention — Article 27 (2) — Concept of                                            of 13 July 1995
  document instituting the proceedings or equivalent                   in Case C-l 16/94 (reference for a preliminary ruling from
                               document)
                                                                       the Social Security Commissioner, London ): Jennifer
                            ( 95/C 268/05 )                                          Meyers v. Adjudication Officer ( ! )
                                                                       (Equal treatment for men and women — Directive
                                                                        76/207/EEC — Conditions governing access to
                  (Language of the case: Dutch)                           employment — Working conditions — Family credit)
                                                                                ( 95/C 268/06 )
  (Provisional translation; the definitive translation will be
            published in the European Court Reports)
                                                                                (Language of the case: English)
  In Case C-474/93 : reference to the Court under the Protocol
  of 3 June 1971 on the interpretation by the Court of Justice         In Case C-l 16/94 : reference to the Court under Article 177
  of the Convention of 27 September 1968 on Jurisdiction               of the EC Treaty from the Social Security Commissioner,
  and the Enforcement of Judgments in Civil and Commercial             London, for a preliminary ruling in the proceedings pending
  Matters by the Arrondissementsrechtbank te Zwolle                    before that court between Jennifer Meyers and the
  ( Netherlands ) for a preliminary ruling in the proceedings          Adjudication Officer, on the interpretation of Council
  pending before that court between Hengst Import BV and               Directive 76/207/EEC of 9 February 1976 on the
  Anna Maria Campese on the interpretation of Article 27 ( 2 )         implementation of the principle of equal treatment for men
  of the abovementioned Convention of 27 September 1968                and women as regards access to employment, vocational
   ( OJ No L 304, p. 36 ) as amended by the Convention of              training and promotion, and working conditions ( OJ No
  9 October 1978 on the accession of the Kingdom of                    L 39 , p. 40 ) — the Court ( Fourth Chamber ), composed of:
  Denmark , Ireland and the United Kingdom of Great Britain            P. J. G. Kapteyn ( Rapporteur ), President of the Chamber,
  and Northern Ireland ( OJ No L 304, p. 1 and — amended                C. N. Kakouris and H. Ragnemalm, Judges; C. O. Lenz,
  text — p. 77) — the Court (Third Chamber), composed of:              Advocate-General; L. Hewlett, Administrator, for the
   C. Gulmann, President of the Chamber, J. C. Moitinho de             Registrar, has given a judgment on 13 July 1995 , in which it
  Almeida (Rapporteur) and D. A. O. Edward, Judges; F. G.               rules :
  Jacobs, Advocate-General; R. Grass, for the Registrar, has
  given a judgment on 13 July 1995, in which it rules:
                                                                        a benefit with the characteristics and purpose of family
   the decreto ingiuntivo within the meaning ofBook IV ofthe            credit is concerned with both access to employment and
   Italian Code of Civil Procedure (Articles 633 to 656),               working conditions and falls, therefore, within the scope of
   together with the application instituting the proceedings,           Council Directive 76/207/EEC of 9 February 1976 on the
   must be regarded as 'the document which instituted                   implementation of the principle of equal treatment for men


title: Case C-306/09: Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 31 July 2009 — I.B. v Conseil des ministres

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/11

         Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 31 July 2009 — I.B. v Conseil des ministres
   (Case C-306/09)
   2009/C 233/19
   Language of the case: French

      Referring court

   Cour consitutionnelle

      Parties to the main proceedings

      Applicant: I.B.

      Defendant: Conseil des ministres

      Questions referred

               1.

               Is a European arrest warrant issued for the purposes of the execution of a sentence imposed in absentia, without the convicted person having been informed of the date and place of the hearing, and against which that person still has a remedy, to be considered to be, not an arrest warrant issued for the purposes of the execution of a custodial sentence or detention order within the meaning of Article 4(6) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (1) but an arrest warrant for the purposes of prosecution within the meaning of Article 5(3) of the Framework Decision?

               2.

               If the reply to the first question is in the negative, are Article 4(6) and Article 5(6) of the Framework Decision to be interpreted as not permitting the Member States to make the surrender to the judicial authorities of the issuing State of a person residing on their territory who is the subject, in the circumstances described in the first question, of an arrest warrant for the purposes of the execution of a custodial sentence or detention order, subject to a condition that that person be returned to the executing State in order to serve there the custodial sentence or detention order imposed by a final judgment against that person in the issuing State?

               3.

               If the reply to the second question is in the affirmative, do the articles in question contravene Article 6(2) of the Treaty on European Union and, in particular, the principles of equality and non-discrimination?

               4.

               If the reply to the first question is in the negative, are Articles 3 and 4 of the Framework Decision to be interpreted as preventing the judicial authorities of a Member State from refusing the execution of a European arrest warrant if there are valid grounds for believing that its execution would have the effect of infringing the fundamental rights of the person concerned, as enshrined by Article 6(2) of the Treaty on European Union?

      (1)  OJ 2002 L 190, p. 1.


title: Judgment of the Court of 17 June 2003 in Case C-383/01 (Reference for a preliminary ruling from the Østre Landsret): De Danske Bilimportører v Skatteministeriet, Told- og Skattestyrelsen (Free movement of goods — Charge on the registration of new motor vehicles — Internal taxation — Measure having an equivalent effect to a quantitative restriction)

text:
2.8.2003                EN                            Official Journal of the European Union                                                C 184/11
                  JUDGMENT OF THE COURT                                       tion (EC) No 2955/94 of 5 December 1994, within 12 months
                                                                              following the date of acceptance of the export declaration, except in
                                                                              cases of force majeure or where the exporter, having acted with
                           (Third Chamber)                                    diligence in seeking to obtain that proof, is unable to submit it within
                                                                              that period and the competent authority has granted an extension of
                           of 26 June 2003                                    the deadline.
in Case C-334/01 (Reference for a preliminary ruling from                     (1) OJ C 317 of 10.11.2001.
the Verwaltungsgericht Frankfurt am Main): Glencore
Grain Rotterdam BV v Bundesanstalt für Landwirtschaft
                          und Ernährung (1)
(Agriculture — Common organisation of the markets in
cereals — Standing invitation to tender — Cereal products
for export to ACP States — Event causing time to begin to                                        JUDGMENT OF THE COURT
run for production of proof of entry for consumption into the
State of destination — Second indent of the second subpar-                                                of 17 June 2003
agraph of Article 8(2) of Regulation (EC) No 2372/95 and
        Article 47(2) of Regulation (EEC) No 3665/87)
                                                                              in Case C-383/01 (Reference for a preliminary ruling from
                                                                              the Østre Landsret): De Danske Bilimportører v Skattemi-
                            (2003/C 184/19)                                                  nisteriet, Told- og Skattestyrelsen (1)
                    (Language of the case: German)                            (Free movement of goods — Charge on the registration of
                                                                              new motor vehicles — Internal taxation — Measure having
                                                                                an equivalent effect to a quantitative restriction)
(Provisional translation; the definitive translation will be published in
                      the European Court Reports)
                                                                                (2003/C 184/20)
                                                                                (Language of the case: Danish)
In Case C-334/01: Reference to the Court under Article 234
EC by the Verwaltungsgericht Frankfurt am Main (Germany)
for a preliminary ruling in the proceedings pending before that               (Provisional translation; the definitive translation will be published in
court between Glencore Grain Rotterdam BV and Bundesanstalt                                          the European Court Reports)
für Landwirtschaft und Ernährung, on the interpretation of the
second indent of the second paragraph of Article 8(2) of
Commission Regulation (EC) No 2372/95 of 10 October                           In Case C-383/01: Reference to the Court under Article 234
1995 on the issuing of standing invitations to tender for the                 EC by the Østre Landsret (Denmark) for a preliminary ruling
sale of common wheat of breadmaking quality held by the                       in the proceedings pending before that court between De
French and German intervention agencies for export to certain                 Danske Bilimportører and Skatteministeriet, Told- og Skatte-
ACP countries in the 1995/96 marketing year (OJ 1995 L 242,                   styrelsen, on the interpretation of Articles 28 EC and 30 EC,
p. 3) and of Article 47(2) of Commission Regulation (EEC)                     the Court, composed of: J.-P. Puissochet, President of the Sixth
No 3665/87 of 27 November 1987 laying down common                             Chamber, acting for the President, M. Wathelet (Rapporteur)
detailed rules for the application of the system of export                    and R. Schintgen (Presidents of Chambers), C. Gulmann, A. La
refunds on agricultural products (OJ 1987 L 351, p. 1), as                    Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr
amended by Commission Regulation (EC) No 2955/94 of                           and J.N. Cunha Rodrigues, Judges; F.G. Jacobs, Advocate
5 December 1994 (OJ 1994 L 312, p. 5), the Court (Third                       General; H. von Holstein, Deputy Registrar, has given a judg-
Chamber), composed of: J.-P. Puissochet, President of the                     ment on 17 June 2003, in which it has ruled:
Chamber, F. Macken (Rapporteur) and J.N. Cunha Rodrigues,
Judges; J. Mischo, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on                     1.    A charge on the registration of new motor vehicles established
26 June 2003, in which it has ruled:                                                by a Member State which does not have any domestic produc-
                                                                                tion of vehicles, such as that laid down by the lov om
                                                                                registreringsafgift af motorkøretøjer (Law on registration duty
The second indent of the second subparagraph of Article 8(2) of                     on motor vehicles), in the version resulting from Consolidating
Commission Regulation (EC) No 2372/95 of 10 October 1995 on                         Law No 222 of 14 April 1999, constitutes internal taxation
the issuing of standing invitations to tender for the sale of common                whose compatibility with Community law must be examined in
wheat of breadmaking quality held by the French and German                          the light not of Article 28 EC, but of Article 90 EC.
intervention agencies for export to certain ACP countries in the
1995/96 marketing year must be interpreted as meaning that proof              2.    Article 90 EC must be interpreted as not precluding such a
of importation of the goods into the ACP State or States concerned,                 charge.
which is necessary for release of the security of ECU 40 per tonne,
must be supplied, in accordance with Article 47(2) of Commission
Regulation (EEC) No 3665/87 of 27 November 1987 laying down                   (1) OJ C 331 of 24.11.2001.
common detailed rules for the application of the system of export
refunds on agricultural products, as amended by Commission Regula-


title: Case T-342/08: Order of the Court of First Instance (Seventh Chamber) of 11 March 2009 — Batchelor v Commission

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/44

         Order of the Court of First Instance (Seventh Chamber) of 11 March 2009 — Batchelor v Commission
   (Case T -342/08) (1)

   2009/C 113/90

      Language of the case: English

   The President of the Court of First Instance (Seventh Chamber) has ordered that the case be removed from the register.

      (1)  C 272, 25.10.2008.


title: Case T-149/12: Judgment of the General Court of 16 January 2014 — Investrónica, SA v OHIM — Olympus Imaging (MICRO) (Community trade mark — Opposition proceedings — Application for the Community figurative mark MICRO — Earlier national figurative mark micro — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation No 207/2009 — Power to alter decisions)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/34

         Judgment of the General Court of 16 January 2014 — Investrónica, SA v OHIM — Olympus Imaging (MICRO)
   (Case T-149/12) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark MICRO - Earlier national figurative mark micro - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation No 207/2009 - Power to alter decisions)
   2014/C 52/62
   Language of the case: English

      Parties

      Applicant: Investrónica, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J.L. Rivas Zurdo, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Geroulakos, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Olympus Imaging Corp. (Tokyo, Japan) (represented by: C. Opatz, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 31 January 2012 (Case R 347/2011-4), relating to opposition proceedings between Investrónica, SA and Olympus Imaging Corp.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 January 2012 (Case R 347/2011-4).

               2.

               Allows the opposition with regard to the goods covered by Class 9 and corresponding to the following description: ‘Photographic apparatus and instruments, digital cameras, interchangeable lenses, and parts and accessories therefor as far as included in Class 9’.

               3.

               Orders OHIM to bear its own costs, together with half of the costs incurred by Investrónica, SA.

               4.

               Orders Olympus Imaging Corp. to bear its own costs, together with half of the costs incurred by Investrónica, SA.

      (1)  OJ C 194, 30.6.2012.


title: Case C-177/04: Action brought on 14 April 2004 by the Commission of the European Communities against the Republic of France

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/34

         Action brought on 14 April 2004 by the Commission of the European Communities against the Republic of France
   (Case C-177/04)
   (2004/C 118/65)
   An action against the Republic of France was brought before the Court of Justice of the European Communities by the Commission of the European Communities, represented by G. Valero Jordana and B. Stromsky, acting as Agents, with an address for service in Luxembourg
   The Commission of the European Communities claims that the Court should:

               1.

               find that, by failing to take the measures required to implement the judgment of the Court of Justice of the European Communities of 25 April 2002 in Case C-52/00 on the incorrect transposition of Directive 85/374/EEC (1), the French Republic has failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European Community;

               2.

               order the French Republic to pay the Commission of the European Communities (Community own resources account) a fine of EURO 137,150 per day of delay in implementing the judgment in Case C-52/00 from the day on which judgment is delivered in this case until the day on which the judgment in Case C-52/00 (2) is implemented;

               3.

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   Implementation of the judgment of the Court of 25 April 2002 entails amending provisions of the French civil code that are incompatible with Directive 85/374. The French Republic ought therefore to have begun the necessary legislative procedure immediately after the judgment was delivered. However the amendments have still not been adopted. A fine of EURO 137,150 per day of delay in implementing the judgement is appropriate to the seriousness and durations of the infringement and takes account of the requirement that the penalty be effective.

      (1)  Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products

      (2)  [2002] ECR I-3827


title: Case C-294/03: Action brought on 7 July 2003 by the Commission of the European Communities against Ireland

text:
6.9.2003                 EN                        Official Journal of the European Union                                         C 213/19
Action brought on 7 July 2003 by the Commission of the                     In accordance with Article 228 (2) of the EC Treaty, the
            European Communities against Ireland                           Commission asks the Court to impose a penalty payment of
                                                                           EUR 21 600 on Ireland for each day’s delay in implementing
                                                                           the Court’s judgment in Case C-392/96, beginning from the
                           (Case C-294/03)                                 day on which the Court gives its judgment in the present case.
                           (2003/C 213/32)                                 (1 ) OJ L 175, 05.07.1985, p. 40.
An action against Ireland was brought before the Court of
Justice of the European Communities on 7 July 2003 by the
Commission of the European Communities, represented by
Xavier Lewis and Florence Simonetti, acting as agents, with an
address for service in Luxembourg.
                                                                           Appeal brought on 2 July 2003 by Alessandrini Srl and
                                                                           Others against the judgment delivered on 10 April 2003
The Applicant claims that the Court should:                                by the Fifth Chamber of the Court of First Instance of the
                                                                           European Communities in Joined Cases T-93/00 and
                                                                           T-46/01 between Alessandrini Srl and Others and the
1)    Declare that, by failing to adopt the laws, regulations                        Commission of the European Communities
      or administrative provisions necessary to comply with
      Article 4 (2) of Council Directive 85/337/EEC of 27 June
      1985 on the assessment of the effects of certain public                                      (Case C-295/03 P)
      and private projects on the environment (1) in respect of
      peat extraction projects or, in any event, by failing to
      notify such provisions to the Commission, Ireland has
                                                                                (2003/C 213/33)
      not implemented all the measures necessary to comply
      with the judgment of the Court of 21 September 1999 in
      Case C-392/96 Commission v. Ireland and has failed to
      fully fulfil its obligations under Article 228 of the Treaty;
                                                                           An appeal against the judgment delivered on 10 April 2003
2)    Order Ireland to pay to the Commission of the European               by the Fifth Chamber of the Court of First Instance of the
      Communities, into the account EC own resources, a                    European Communities in Joined Cases T-93/00 and T-46/01
      penalty payment of EUR 21 600 for each day of delay in               between Alessandrini Srl and Others and the Commission of
      implementing the measures necessary to comply with                   the European Communities was brought before the Court of
      the judgment in Case C-392/96, from delivery of the                  Justice of the European Communities on 2 July 2003 by
      judgment in these proceedings until judgment in Case                 Alessandrini Srl and Others, represented by W. Viscardini and
      C-392/96 has been complied with,                                     G. Donà.
3)    Order Ireland to pay the costs.
                                                                           The appellants claim that the Court should:
                                                                           1.    set aside the judgment of the Court of First Instance of
                                                                                10 April 2003 in Joined Cases T-93/00 and T-46/01 as
Pleas in law and main arguments
                                                                                to that part which deals with the application for damages;
                                                                           2.    order the Commission to pay the appellants damages for
This application concerns the failure by Ireland to comply                       the losses sustained as a result of the Commission’s failure
with the judgment of 21 September 1999 in Case C-392/96                          to grant certificates for the import of bananas from non-
in so far as Ireland has taken inadequate measures since that                    member countries, in the sum quantified in para-
judgment to ensure that Irish legislation complies with Council                  graph 114-A of the pleading, totalling LIT 370 983 900
Directive 85/337/EEC of 27 June 1985 on the assessment of                        (EUR 191 597,20) together with currency re-valuation
the effects of certain public and private projects (‘the Directive’)             and interest, and
in respect of peat extraction projects covered by point 2(a) of
Annex II of that Directive. Although Ireland has taken some
measures in an effort to execute the judgment, they remain                 3.    order the Commission to reimburse the appellants their
inadequate in theory and have not been implemented in                            costs of the proceedings both at first instance and on
practice.                                                                        appeal.


title: Case C-359/99: Reference for a preliminary ruling by the Tribunale di Brescia, Seconda Sezione Stralcio (Second Chamber, [Liquidations]) by order of 2 September 1999 in the case of Autogolf s.r.l. against Ministero delle Finanze, (Ministry of Finance)

text:
4.12.1999               EN                      Official Journal of the European Communities                                     C 352/27
(3) Article 1 of Regulation No 1404/99, although failing to                Reference for a preliminary ruling by the Tribunale
      fix the derived intervention price for white sugar for Italy,        di Brescia, Seconda Sezione Stralcio (Second Chamber,
      confirmed it, and also the relevant quantities, for the              [Liquidations]) by order of 2 September 1999 in the case
      United Kingdom, Ireland, Portugal, Finland and Spain.                of Autogolf s.r.l. against Ministero delle Finanze, (Ministry
                                                                                of Finance)
      Not being apprised of the reasons which motivated the                                          (Case C-359/99)
      withholding of an intervention price for Italy or of those
      for doing so for the other Member States, the Italian                                          (1999/C 352/43)
      Government considers that there has been a breach of the
      principle of equality and an instance of unequal treatment.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Tribunale di Brescia,
                                                                           Seconda Sezione Stralcio, of 2 September 1999, received at
(1) OJ 1999 L 164, p. 15.                                                  the Court Registry on 24 September 1999, for a preliminary
(2) OJ 1999 L 164, p. 13.                                                  ruling in the case of Autogolf s.r.l. against Ministero delle
(3) OJ 1981 L 177, p. 4.                                                   Finanze on the following questions:
                                                                           Is Article 11(1) of Italian Law No 448 of 23 December 1998
                                                                           (G.U.R.I. No 302 of 29 December 1998, ordinary supplement)
                                                                           compatible with Community law, in particular with Articles 10
                                                                           and 12 of Council Directive 69/335/EEC (1) of 17 July 1969
                                                                           concerning indirect taxes on the raising of capital, inasmuch
                                                                           as it provides that the administrative charge is payable at a flat
                                                                           annual rate for registration of ‘other company documents’ for
                                                                           each of the years from 1985 to 1992, equal to the sum of
                                                                           the sum of ITL 750 000 for public limited companies and
Reference for a preliminary ruling by the Tribunale di                     partnerships limited by shares and ITL 400 000 for private
Brescia, Seconda Sezione Stralcio, (District Court, Brescia,               limited companies?
Second Chamber [Liquidations]) by order of 2 September
1999 in the case of T.M.A. Tecnologie Meccaniche Avanza-
te s.r.l. and Federchemicals s.r.l. against Ministero delle                Is Article 11(3) of Law No 448/98 compatible with Com-
                               Finanze                                     munity law, inasmuch as it provides that interest on the sums
                                                                           to be reimbursed in so far as they exceed the sum provided for
                                                                           by Article 11(1) should be calculated according to the legal
                          (Case C-358/99)                                  rate in force at the date on which that Law entered into force
                                                                           (2,5 % per annum) and not according to the rate provided for
                                                                           by Article 5 with respect to Article 1 of Law No 29 of
                          (1999/C 352/42)                                  26 January 1961, as subsequently amended?
Reference has been made to the Court of Justice of the                     (1) OJ, English Special Edition 1969 (11), p. 412.
European Communities by order of the Tribunale di Brescia,
Seconda Sezione Stralcio, of 2 September 1999, received at
the Court Registry on 24 September 1999, for a preliminary
ruling in the case of T.M.A. Tecnologie Meccaniche Avanzate
s.r.l. and Federchemicals s.r.l. against Ministero delle Finanze
on the following question:
Is Article 11(1) of Italian Law No 448 of 23 December 1998                 Reference for a preliminary ruling by the Tribunale di
(G.U.R.I. No 302 of 29 December 1998, ordinary supplement)                 Brescia, Terza Seconda Sezione Civile (District Court,
compatible with Community law, in particular with Articles 10              Brescia, Third Civil Chamber) by order of 2 September
and 12 of Council Directive 69/335/EEC (1) of 17 July 1969                 1999 in the case of Union Factor s.p.a. and Others, against
concerning indirect taxes on the raising of capital, inasmuch                                   Ministero delle Finanze
as it provides that the administrative charge is payable at a flat
annual rate for registration of ‘other company documents’ for
each of the years from 1985 to 1992, equal to the sum of                                             (Case C-360/99)
the sum of ITL 750 000 for public limited companies and
partnerships limited by shares and ITL 400 000 for private                                           (1999/C 352/44)
limited companies?
                                                                           Reference has been made to the Court of Justice of the
(1) OJ, English Special Edition 1969 (11), p. 412.                         European Communities by order of the Tribunale di Brescia,
                                                                           Terza Sezione Civile, of 2 September 1999, received at the
                                                                           Court Registry on 24 September 1999, for a preliminary ruling
                                                                           in the case of Union Factor s.p.a. and Others against Ministero
                                                                           delle Finanze on the following questions:


title: Case C-513/06 P: Appeal brought on 18 December 2006 by Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 27 September 2006 in Case T-168/01: GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc v Commission of the European Communities

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/13

         Appeal brought on 18 December 2006 by Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 27 September 2006 in Case T-168/01: GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc v Commission of the European Communities
   (Case C-513/06 P)
   (2007/C 42/22)
   Language of the case: English
   Parties

      Appellant: Commission of the European Communities (represented by: T. Christoforou, F. Castillo de la Torre et E. Gippini Fournier, Agents)

      Other parties to the proceedings: European Association of Euro Pharmaceutical Companies (EAEPC), Bundesverband der Arzneimittel-Importeure eV, Spain Pharma, SA, Asociación de exportadores españoles de productos farmacéuticos (Aseprofar), GlaxoSmithKline Services Unlimited, anciennement Glaxo Wellcome plc
   Form of order sought
   The applicant claims that the Court should:

               —

               set aside points 1 and 3 to 5 of the operative part of the judgment of the Court of First Instance of 27 September 2006 in Case T-168/01, GlaxoSmithKline Services Ltd. v. Commission of the European Communities;

               —

               give final judgment in the matter by dismissing the application for annulment in Case T-168/01 as unfounded;

               —

               order the Applicant in Case T-168/01 to pay the costs of the Commission arising from that case and from the present appeal.

         Pleas in law and main arguments
   The Commission agrees with the conclusions of the Court of First Instance concerning the reasoning of the contested decision; the existence of an agreement between undertakings; the alleged misuse of powers and the alleged infringement of the principle of subsidiary and of Article 43 EC.
   Concerning the part of the judgment dealing with existence of an anticompetitive ‘effect’ the Commission contests the reasoning followed by the Court of First Instance. It maintains that the Court's analysis confirming the existence of the restrictive ‘effects’ constitutes in reality an analysis of the restrictive ‘object’ of the agreement having due regard to the legal and economic context, and should have led the Court to confirm the Decision's finding that the agreement had an anticompetitive object. Concerning the other findings about ‘effects’, the Commission has serious objections in particular regarding: the definition of the relevant market; the dismissal of the Commission's findings under Article 81(1)(d) with the legally erroneous argument that the different prices were charged on different geographic markets; and a number of other findings made in the in the judgment where the Court substitutes its own assessment of the factual and economic evidence for that of the Commission, an exercise that is not permissible in judicial review. However, given that the Commission shares the ultimate conclusions reached by the Court, i.e that the agreement in question produced anticompetitive effects, it does not intend at this stage to raise grounds of appeal against this part of the judgment.
   The present appeal raises two series of pleas. The first series relates to the findings concerning Article 81(1), and in particular the errors of law and distortions in the interpretation and application of the notion of ‘object’ in the provision, as well as the many distortions, errors of law, and inadequacies or contradictions in the reasoning in relation with ‘legal and economic context’ of the agreement. The second series of pleas relates to the findings under Article 81(3): first and foremost those relating to the first condition contemplated in this provision, but also the lack of examination of several other conditions.