title: Case C-384/01: Action brought on 5 October 2001 against the French Republic by the Commission of the European Communities

text:
C 348/14              EN                     Official Journal of the European Communities                                       8.12.2001
Reference for a preliminary ruling from the Verwaltungs-                      Republic has failed to fulfil its obligations under the Sixth
gerichtshof by order of that court of 13 September 2001                       Council VAT Directive 77/388/EEC (2);
in the case of Dr Gustav Schneider v Bundesminister für
                              Justiz                                    —     Order the Italian Republic to pay the costs.
                         (Case C-380/01)
                                                                        Pleas in law and main arguments
                         (2001/C 348/24)
                                                                        Under Article 11(A)(1)(a) of the Directive, Member States are
                                                                        required to include in the taxable amount not only that which
                                                                        constitutes the consideration paid by the purchaser or to the
Reference has been made to the Court of Justice of the
European Communities by an order of the Verwaltungsge-                  provider of the service, but also the subsidies provided by third
                                                                        parties to the supplier of the goods or the provider of the
richtshof (Administrative Court, Austria) of 13 September
2001, which was received at the Court Registry on 4 October             service, provided that such subsidies are ‘directly linked to the
2001, for a preliminary ruling in the case of Dr Gustav                 price of such supplies’.
Schneider v Bundesminister für Justiz on the following ques-
tion:                                                                   The Commission argues that the assistance paid to the
                                                                        processing undertakings which produce dried fodder consti-
                                                                        tutes part of the price of the good produced by such
Is Article 6 of Council Directive 76/207/EEC on the implemen-           undertakings, thus falling within the category ‘subsidies directly
tation of the principle of equal treatment for men and women            linked to the price of such supplies’ and which must therefore
as regards access to employment, vocational training and                be subject to tax.
promotion, and working conditions (1) to be interpreted as
meaning that the possibility required by that article of pursuing
claims (in the present case, a claim for compensation) by               (1) OJ 1995 L 15, p. 11.
judicial process is not adequately satisfied by the Austrian            (2) OJ 1977 L 145, p. 1.
Verwaltungsgerichtshof (Administrative Court) alone, in view
of that court’s legally limited powers (a court which hears
appeals on points of law only with no fact-finding powers)?
(1) OJ 1976 L 39, p. 40.
                                                                        Action brought on 5 October 2001 against the French
                                                                        Republic by the Commission of the European Communi-
                                                                                ties
                                                                                (Case C-384/01)
Action brought on 4 October 2001 by the Commission
of the European Communities against the Italian Republic                                          (2001/C 348/26)
                         (Case C-381/01)
                                                                        An action against the French Republic was brought before the
                                                                        Court of Justice of the European Communities on 5 October
                         (2001/C 348/25)
                                                                        2001 by the Commission of the European Communities,
                                                                        represented by E. Traversa and C. Giolito, acting as Agents,
                                                                        with an address for service in Luxembourg.
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 October               The Commission of the European Communities claims that
2001 by the Commission of the European Communities,                     the Court should:
represented by Enrico Traversa, acting as Agent.
                                                                        —     Declare that, by applying a reduced rate of VAT to the
                                                                              fixed part of the prices for gas and electricity supplied by
The applicant claims that the Court should:                                   the public networks, the French Republic has failed to
                                                                              fulfil its obligations under Article 12(3)(a) and (b) of Sixth
—     Declare that, by failing to levy value added tax (VAT) on               Council Directive 77/388/EC of 17 May 1977 on the
      the assistance paid pursuant to Council Regulation (EC)                 harmonisation of the laws of the Member States relating
      No 603/95 of 21 February 1995 on the common                             to turnover taxes — Common system of value added tax:
      organisation of the market in dried fodder (1), the Italian             uniform basis of assessment (1),
 ---pagebreak--- 8.12.2001                EN                    Official Journal of the European Communities                                    C 348/15
—     order the French Republic to pay the costs.                         Reference for a preliminary ruling by the Rechtbank van
                                                                          Eerste Aanleg te Veurne by judgment of 4 May 2001 in
                                                                          criminal proceedings brought against Klaus Hans Fritz
                                                                                Brügge; civil party: Benedikt Leliaert
                                                                                (Case C-385/01)
Pleas in law and main arguments
                                                                                (2001/C 348/27)
In this action the Commission is seeking a declaration of a
failure in two respects to comply with the provisions of the
Sixth Directive: first, a failure to comply with the first and            Reference has been made to the Court of Justice of the
third sentences of Article 12(3) (a) thereof, inasmuch as France          European Communities by judgment of 4 May 2001 by the
is applying a reduced rate contrary to that provision and,                Rechtbank van Eerste Aanleg te Veurne (Court of First Instance,
secondly, a failure to comply with Article 12(3) (b) concerning           Veurne), which was received at the Court Registry on 8 October
the procedure for authorisation of application of a reduced               2001, for a preliminary ruling in criminal proceedings brought
rate on supplies of natural gas and electricity.                          against Klaus Hans Fritz Brügge; civil party: Benedikt Leliaert,
                                                                          on the following question:
—     On the consultation procedure (Article 12(3)(b)): as long           Does application of Article 54 of the Schengen Agreement of
      as France had not replied to the request for additional             19 June 1990 allow the Belgian Openbaar Ministerie (Public
      information, the Commission was unable to take a                    Prosecutor’s Department) to require a German national to
      definitive view. In the absence of full information, despite        appear before the Belgian criminal courts and allow those
      a request to that effect, the Commission was entitled to            courts to sentence that national in the case where the German
      take the view that the French authorities had withdrawn             Public Prosecutor’s Department, on the basis of the same facts,
      their request. Consequently, by not forwarding the infor-           has offered that German national the opportunity to make
      mation requested by the Commission in order to enable               payment in an out-of-court settlement, which that national
      it to take a decision under Article 12(32)(b), France has           has accepted?
      failed to fulfil its obligations under that provision.
—     On the substance of the measure (Article 12(3)(a)): if
      the supply agreement is regarded as a specific service
      representing fixed costs as distinct from the actual supply
      of energy, the reduced rate would then have no legal basis
      in Article 12(3)(a) which refers to Annex H and in which            Action brought on 8 October 2001 by the Commission
      the agreement or the supply of energy does not feature.             of the European Communities against the Italian Republic
      Moreover, there is no warrant for that reduced rate in
      Article 12(3)(b) which merely mentions ‘supplies of
                                                                                (Case C-388/01)
      natural gas and electricity’. If, on the other hand, the
      agreement to supply is viewed as forming part of the
      actual supply of energy, then France is obliged to apply                                   (2001/C 348/28)
      the same rate to a transaction relating to the same asset
      in accordance with the principle of a single rate under
      Article 12(3)(a). Thus, under Article 12(3)(1b) it is then
      the whole of the transaction (agreement and supply)                 An action against the Italian Republic was brought before the
      which should be subject to the same reduced rate.                   Court of Justice of the European Communities on 8 October
      Consequently, notwithstanding all the distinctions which            2001 by the Commission of the European Communities,
      France has sought to draw between the agreement to                  represented by Marian Patakia and Roberto Amorosi, acting as
      supply and the actual supply of energy, and however                 Agents.
      such agreement maybe described, France cannot but be
      found to have failed to fulfil its obligations under
      Article 12(3)(a) and (b) of the Sixth VAT Directive.                The applicant claims that the Court should:
                                                                          —    Declare that, by maintaining in force discriminatory
                                                                               charges for admission to public museums, monuments,
(1) OJ 1977 L 145, p. 1.                                                       galleries, archaeological digs, parks and gardens in Italy,
                                                                               granted by local or decentralised authorises which only
                                                                               favour Italian nationals or residents within the territory
                                                                               of the administrative authority running the cultural sites
                                                                               in question and who are aged over 60 or 65 years, to the
                                                                               exclusion of tourists who are nationals of other Member


title: Case C-328/13: Judgment of the Court (Fourth Chamber) of 11 September 2014 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Österreichischer Gewerkschaftsbund v Wirtschaftskammer Österreich — Fachverband Autobus-, Luftfahrt- und Schifffahrtsunternehmungen (Reference for a preliminary ruling — Directive 2001/23/EC — Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses — Obligation on the transferee to maintain the terms and conditions agreed in a collective agreement until the entry into force of another collective agreement — Concept of collective agreement — National legislation providing that a rescinded collective agreement continues to have effect until the entry into force of another collective agreement)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/15

         Judgment of the Court (Fourth Chamber) of 11 September 2014 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Österreichischer Gewerkschaftsbund v Wirtschaftskammer Österreich — Fachverband Autobus-, Luftfahrt- und Schifffahrtsunternehmungen
   (Case C-328/13) (1)

   ((Reference for a preliminary ruling - Directive 2001/23/EC - Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses - Obligation on the transferee to maintain the terms and conditions agreed in a collective agreement until the entry into force of another collective agreement - Concept of collective agreement - National legislation providing that a rescinded collective agreement continues to have effect until the entry into force of another collective agreement))
   2014/C 409/21
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Österreichischer Gewerkschaftsbund

      Defendant: Wirtschaftskammer Österreich — Fachverband Autobus-, Luftfahrt- und Schifffahrtsunternehmungen

      Operative part of the judgment

   Article 3(3) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that the terms and conditions laid down in a collective agreement, which, pursuant to the law of a Member State, despite the rescission of that agreement, continue to produce their effects as regards the employment relationship which was governed by them before the agreement was terminated, constitute ‘terms and conditions agreed in any collective agreement’ so long as that employment relationship is not subject to a new collective agreement or a new individual agreement is not concluded with the employees concerned.

      (1)  OJ C 274, 21.9.2013.


title: Case C-428/07: Reference for a preliminary ruling from High Court of Justice (England and Wales), Queen's Bench Division, Administrative Court made on 14 September 2007 — The Queen on the application of Mark Horvath v Secretary of State for Environment, Food and Rural Affairs

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/22

         Reference for a preliminary ruling from High Court of Justice (England and Wales), Queen's Bench Division, Administrative Court made on 14 September 2007 — The Queen on the application of Mark Horvath v Secretary of State for Environment, Food and Rural Affairs
   (Case C-428/07)
   (2007/C 297/36)
   Language of the case: English
   Referring court
   High Court of Justice (England and Wales), Queen's Bench Division, Administrative Court
   Parties to the main proceedings

      Applicant: Mark Horvath

      Defendant: Secretary of State for Environment, Food and Rural Affairs
   Questions referred

               1.

               Where a Member State has provided for a system of devolved government, in relation to which powers are retained to the central state authorities to act for the whole of the territory of the Member State to ensure compliance with that Member State's obligations under Community law, in relation to Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71, and (EC) No 2529/2001 (1) (‘the Council Regulation’):

                           a)

                           Can a Member State include requirements relating to the maintenance of visible public rights of way in its standards of good agricultural and environmental condition under Article 5 and Annex IV to Council Regulation 1782/2003?

                           b)

                           Where a Member State's internal constitutional arrangements provide that different devolved administrations shall have legislative competence in relation to different constituent parts of that Member State, can it give rise to impermissible discrimination for constituent parts to have different standards of good agricultural and environmental condition under Article 5 of and Annex IV to the Council Regulation?

      (1)  OJ L 270, p. 1.


title: Case C-532/03: Action brought on 19 December 2003 by the Commission of the European Communities against Ireland

text:
C 85/12               EN                        Official Journal of the European Union                                          3.4.2004
     case, namely the existence of a causal link between the            2.    Does Article 3(1) of the Successiewet constitute a pro-
     alleged conduct and the harm pleaded. As the Court of                    hibited means of arbitrary discrimination or a disguised
     First Instance observed, it is not disputed that there must              restriction on the free movement of capital within the
     be a direct link of cause and effect between the wrongful                meaning of Article 58(3) EC where applicable to a capital
     act of the institution concerned and the harm pleaded, a                 movement between a Member State and a non-member
     causal link in respect of which applicants bear the burden               country, having regard also to the Declaration on
     of proof. In addition, that causal link relates to the                   Article 73d of the Treaty establishing the European
     decisive cause of the harm. None the less, the Court of                  Community adopted on the occasion of the signature of
     First Instance confused decisive cause and exclusive cause.              the ‘Final Act and Declarations of the Intergovernmental
     It has never been claimed that the Commission’s conduct                  Conferences on the European Union’ of 7 February 1992.
     was the exclusive cause of the attack of 27 March 2002.
     On the other hand, it was amply demonstrated in the
     application that the Commission’s conduct was a decisive           (1) Law on Succession.
     cause. In attempting to show that the alleged conduct
     was not the exclusive cause of the harm pleaded the
     Court of First Instance committed a manifest error of law
     by which it deprived the appellants of a hearing which
     they could legitimately expect.
—    the Court of First Instance distorted the clear sense of the
     pleas put forward by the appellants in claiming, on the            Action brought on 19 December 2003 by the Commission
     one hand, that the appellants agreed that the attack had                   of the European Communities against Ireland
     not been financed by the funds in question and, on the
     other, that they had neither proved nor claimed that                                        (Case C-532/03)
     Palestinian education was exclusively dependent on the
     funds in question, merely stating that the European
     Community is the Palestinians’ largest provider of funds.                                    (2004/C 85/18)
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 19 December 2003
                                                                        by the Commission of the European Communities, represented
                                                                        by K. Wiedner, acting as agent, assisted by J. E. Flynn QC, with
                                                                        an address for service in Luxembourg.
Reference for a preliminary ruling by the Gerechthof                    The Applicant claims that the Court should:
Herzogenbusch by order of that Court of 5 November
2003 in the case of M.E.A. van Hilten-van der Heijden                   1.    declare that, in permitting emergency ambulance services
against Inspecteur van de Belastingdienst/Particulieren/                      to be provided by Dublin City Council without the
           Ondernemingen Buitenland te Heerlen                                Eastern Regional Health Authority undertaking any prior
                                                                              advertising, Ireland has failed to comply with its obli-
                                                                              gations under the Treaty; and
                        (Case C-513/03)
                                                                        2.    order Ireland to pay the Commission’s costs.
                         (2004/C 85/17)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the                  The Commission takes the view that, in the circumstances of
European Communities by order of the Gerechthof Herzogen-               the case, the maintaining of the arrangement for provision of
busch of 5 November 2003, received at the Court Registry on             ambulance services between Dublin City Council and the
8 December 2003, for a preliminary ruling in the case of                Eastern Regional Health Authority without undertaking any
M.E.A. van Hilten-van der Heijden against Inspecteur van                prior advertising is a breach of the free movement rules of the
de Belastingdienst/Particulieren/Ondernemingen Buitneland te            Treaty (notably Articles 43 and 49) and thereby of the general
Heerlen on the following questions:                                     principles of Community law (notably those of transparency
                                                                        and equality or non-discrimination) which are to be respected
                                                                        in situations to which Community law applies.
1.   Does Article 3(1) of the Netherlands Successiewet (1)
     constitute a permitted restriction within the meaning of
     Article 57(1) EC?


title: Case T-398/02: Action brought on 30 December 2002 by Linea Gig S.r.l. (in liquidation) against the Commission of the European Communities

text:
22.2.2003              EN                          Official Journal of the European Union                                             C 44/43
      no scientific evidence that the processing of food waste,            Action brought on 30 December 2002 by Linea Gig S.r.l.
      as performed in the Federal Republic of Germany under                (in liquidation) against the Commission of the European
      stricter conditions in recent years, presents a risk of                                          Communities
      contamination. The risk is, on the contrary, reduced
      because illegal disposal and use as feed is prevented and
      food and kitchen waste are subject to treatment which                                          (Case T-398/02)
      destroys pathogens to a scientifically proven degree.
      There are adequate measures of control to ensure com-
      pliance with those legal requirements and the constituents
      of animal feed are traceable. The system used in the                                            (2003/C 44/80)
      Federal Republic of Germany for the collection and
      treatment of food waste and its processing into feed thus
      already meets the objectives of the regulation and there                                 (Language of the case: Italian)
      was no need for any wider authorisation in Community
      law. The possibility of extending the duration of dero-
      gations should have been made dependent on scientific
      evidence.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 30 December 2002 by Linea Gig
2.    It is incompatible with the general principle of equality            S.r.l. (in liquidation), represented by Lucio D’Amario and
      for the inflexible time restriction placed on derogating             Bruno Lazia, Lawyers.
      provisions to treat the various systems used in the
      Member States for processing food waste, and in particu-
      lar the processing into feed of food waste adequately
      treated or not, as being the same. There is no justification         The applicant claims that the Court should:
      for that in the principle governing the regulation, which
      is the prevention of contamination. Scientific evidence
      showed clearly that the way in which food waste was                  —      annul the contested decision, in whole or in so far as it
      treated in the Federal Republic of Germany was sufficient                   concerns the applicant;
      to avoid the spread of pathogens.
                                                                           —      in the alternative, annul Article 3 of the decision in so far
                                                                                as it imposes a fine on the applicant;
3.    The time-limit imposed for derogations is an unjustified
      encroachment on freedom of property and freedom to                   —      in the further alternative, reduce the amount of the fine
      pursue an occupation, and on freedom as to how business                     imposed on the applicant;
      is run, because the member undertakings of plaintiffs 1
      and 2 are entitled to special protection of their right to
                                                                           —      order the Commission to pay the costs;
      rely on being able to pursue their activities and continue
      to use their facilities — most of which have been only
      recently modernised. Their facilities and their activities           —      order the Commission to reimburse the whole of the
      have been brought into compliance with stringent legal                      costs incurred by the applicant in the administrative
      requirements which are based on scientific evidence. They                   proceedings.
      must therefore be able to rely on being able to continue
      to pursue their activities and use their facilities as long as
      they keep to those stricter requirements and no new
      scientific evidence is available. In addition, the regulation’s
      provisions take no account of the fact that as a rule it is
      not possible for the food waste processors concerned to              Pleas in law and main arguments
      alter the use of their facilities and business premisses.
                                                                           The present action is directed against the Decision of 30 Octo-
                                                                           ber 2002 COMP/35.587 PO Video Games, COMP/35.706 PO
                                                                           Nintendo Distribution and COMP/36.321 Omega-Nintendo
( 1) OJ 2002 L 273, p. 1.                                                  doc. C(2000) 4072 final, wherein the Commission found that
                                                                           the applicant had infringed Article 81(1) EC and Article 53(1)
                                                                           of the EEA agreement as a result of its involvement, during the
                                                                           period from 1 October 1992 to the end of December 1997, in
                                                                           a series of agreements and concerted practices in the market
                                                                           for video game consols and cartridges compatible with the
                                                                           Nintendo console, the purpose and effect of the agreements
                                                                           and practices being to limit parallel exports of Nintendo
 ---pagebreak--- C 44/44                 EN                       Official Journal of the European Union                                       22.2.2003
consols and cartridges. The applicant is alleged to have                 Action brought on 31 December 2002 by Eurocermex
participated actively in a distribution agreement which imped-           S.A. against the Office for Harmonisation in the Internal
ed exports and to have provided information to assist with                                           Market
retracing the origins of parallel exports. A fine of
EUR 1,5 million was also imposed on the applicant.
                                                                                (Case T-399/02)
                                                                                (2003/C 44/81)
The applicant does not propose to dispute the material facts
upon which the decision rests. However, it submits that the                                 (Language of the case: French)
decision is vitiated, in law, in a number of respects, putting
forward the following pleas:
                                                                         An action against the Office for Harmonisation in the Internal
—     Incorrect application of Article 81 EC in so far as concerns       Market was brought before the Court of First Instance of the
      the first distribution agreement concluded between Linea           European Communities on 31 December 2002 by Eurocermex
      Gig S.r.l. Nintendo Corporation Ltd. and error in finding          S.A., established in Evere, Belgium, represented by André
      the applicant responsible for the anti-competitive conduct         Bertrand, lawyer.
      attributed to the parties involved.
                                                                         The applicant claims that the Court should:
—     Inconsistency within the decision and infringement of
      Article 253 EC. It is submitted in this regard that, despite
                                                                         —     annul the decision by which the examiner found that the
      the fact that relations and dealings between Nintendo and
                                                                               three-dimensional trade mark at issue was not such as to
      its retail and wholesale customers and relations and
                                                                               constitute a valid trade mark for ‘beers, mineral and
      dealings between John Menzies and its customers were
                                                                               aerated waters and fruit juices’, ‘restaurants, bars and
      identical to relations and dealings between Nintendo and
                                                                               snack bars’;
      its authorised distributors, the Commission decided to
      assess them in different fashions and alleged involvement
      in the supposed agreements and concerted practices only            —     send the case back to the examiner for prosecution;
      against Nintendo and its national distributors.
                                                                         —     order the Office to pay the costs.
—     Failure to assess the economic context in which the
      supposed agreements and/or concerted practices
      occurred. The applicant says that the Commission failed
      properly to define the relevant markets, failed to assess          Pleas in law and main arguments:
      Nintendo’s position in the relevant markets identified —
      instead merely evaluating its market shares in certain
                                                                         The trade mark in ques-       three-dimensional mark rep-
      Member States — and failed to assess Nintendo’s market
                                                                         tion:                         resenting a ‘long neck’ bottle on
      position in 1990, the year in which the distribution
                                                                                the neck of which a piece of
      agreements were concluded, or at all during the period
                                                                                lemon has been plugged, claiming
      1992 to 1997, instead arbitrarily choosing certain other
                                                                                the colours yellow and green.
      years.
                                                                         Goods or services con-        goods in Classes 16, 25, 32
                                                                         cerned:                       and 42.
—     Infringement of Article 15(2) of Regulation EEC No 17/
      62 and breach of the principles of equality and pro-               Decision        contested     25 and refusal as regards Class-
      portionality in the Commission’s assessment of the                 before grant of regis-        es 32 and 42.
      intention behind the applicant’s conduct and its fixing of         tration as regards Class-
      the amount of the fine, in that it set the fine higher than        es 16 and the Board of
      the maximum permissible sum, selected the wrong                    Appeal:
      basic amount and failed to take account of mitigating
      circumstances.
                                                                         Grounds pleaded:              Infringement of Article 7(1)(b)
                                                                                and (3) of Regulation (EC) No 40/
                                                                                94.


title: Case C-263/00: Reference for a preliminary ruling by the Hessisches Finanzgericht by order of that court of 21 February 2000 in the case of Medi Bayreuth Weihermüller & Voigtmann GmbH & Co. KG v Oberfinanzdirektion Koblenz

text:
C 285/2                 EN                    Official Journal of the European Communities                                      7.10.2000
Reference for a preliminary ruling by the Hessisches                     21 June 2000, which was received at the Court Registry on
Finanzgericht by order of that court of 21 February 2000                 24 July 2000, for a preliminary ruling in the case of Fincantieri
in the case of Medi Bayreuth Weihermüller & Voigtmann                    — Cantieri Navali Italiani SpA and Finmeccanica SpA v
     GmbH & Co. KG v Oberfinanzdirektion Koblenz                         Federico Bianchi and Others, on the following questions:
                         (Case C-263/00)
                                                                         Must Articles 1(2)(e) and 2(1)(c) of Council Regulation (EEC)
                                                                         No 3541/92 (1) of 7 December 1992 be interpreted as meaning
                         (2000/C 285/03)                                 that Italian natural persons (in this case the respondent
                                                                         lawyers) are not permitted, in reliance on a transfer of a claim
Reference has been made to the Court of Justice of the                   pro solvendo (for payment of fees for legal representation) by an
European Communities by order of the Hessiches Finanzger-                Iraqi subject (in this case Rafidain Bank), to require in Italy
icht (Finance Court, Hessen) of 21 February 2000, received at            from an Italian legal person (in this case Fincantieri and
the Court Registry on 28 June 2000, for a preliminary ruling             Finmeccanica) payment in respect of an award of costs to the
in the case of Medi Bayreuth Weihermüller & Voigtmann                    Iraqi subject (the transferor of the claim) contained in an Italian
GmbH & Co. KG v Oberfinanzdirektion Koblenz (Principal                   judgment which has become res judicata?
Revenue Office, Koblenz) on the following questions:
a)    Does the description ‘orthopaedic appliances’ within the
      meaning of CN Code No 9021 cover functional knee                   (1) OJ L 361 of 10.12.1992, p. 1.
      supports with tracking stays and functional knee orthoses
      with a supportive effect, consisting essentially of neo-
      prene, with two removable aluminium side stays, 30 cm
      and 37 cm long respectively, with extension-limited
      polycentric joints and two Velcro fastening straps, where
      proper use of each of the above appliances requires an
      individual setting of the joints with extension-limiting
      wedges?
                                                                         Reference for a preliminary ruling by the Oberster
b)    Does the term ‘solely’, used in Note 1(b) of CN Chapter 90
                                                                         Gerichtshof of the Republic of Austria, by a decision of
      and in Note 2(b) to CN Chapters 61 and 62 allow the
                                                                         that court of 27 June 2000 in the case of Johann Franz
      elasticity of the material to be regarded as the sole relevant
                                                                         Duchon v Pensionsversicherungsanstalt der Angestellten
      criterion even if the supportive function is strengthened
      by other materials?
                                                                                (Case C-290/00)
c)    If Question b) is answered in the affirmative:
      Is General Rule A.3(b) in the General rules for the                                         (2000/C 285/05)
      interpretation of the comined nomenclature suitable for
      determining the question when the supportive function              Reference has been made to the Court of Justice of the
      of the other materials is predominant, or what other               European Communities by a decision of the Oberster Gerichts-
      criteria should be used to determine the question?                 hof (Supreme Court) of the Republic of Austria of 27 June
                                                                         2000, which was received at the Court Registry on 24 July
                                                                         2000, for a preliminary ruling in the case of Johann Franz
                                                                         Duchon v Pensionsversicherungsanstalt der Angestellten on
                                                                         the following questions:
                                                                         1.    Does the situation of an employed person who, as a
                                                                               national of a country which is now a Member State, was
Reference for a preliminary ruling by the Corte di Appello                     employed prior to the accession of that Member State in
di Genova, First Civil Division, by order of that court of                     another Member State and sustained an accident there,
21 June 2000 in the case of Fincantieri — Cantieri Navali                      fall within the scope of Council Regulation (EEC)
Italiani SpA and Finmeccanica SpA v Federico Bianchi                           No 1408/71 of 14 June 1971(1) on the application of
                            and Others                                         social security schemes to employed persons, to self-
                                                                               employed persons and to members of their families
                         (Case C-289/00)                                       moving within the Community, as amended and updated
                                                                               by Council Regulation (EEC) No 2001/83 of 2 June
                                                                               1983 (2), as amended by Council Regulation (EEC)
                         (2000/C 285/04)
                                                                               No 1249/92 of 30 April 1992 (3), where the person
                                                                               concerned applies for an occupational disability pension
Reference has been made to the Court of Justice of the                         after the accession of the Member State and the accident
European Communities by an order of First Civil Division of                    at work can have the effect of establishing entitlement to
the Corte di Appello di Genova (Genoa Appeal Court) of                         an occupational disability pension?


title: Case T-25/04: Judgment of the Court of First Instance of 12 September 2007 — González y Díez v Commission (State aid — Aid to cover exceptional restructuring costs — Withdrawal of an earlier decision — Expiry of the ECSC Treaty — Competence of the Commission — Continuity of the Community legal order — No infringement of essential procedural requirements — Protection of legitimate expectations — Manifest error of assessment)

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/24

         Judgment of the Court of First Instance of 12 September 2007 — González y Díez v Commission
   (Case T-25/04) (1)

   (State aid - Aid to cover exceptional restructuring costs - Withdrawal of an earlier decision - Expiry of the ECSC Treaty - Competence of the Commission - Continuity of the Community legal order - No infringement of essential procedural requirements - Protection of legitimate expectations - Manifest error of assessment)
   (2007/C 247/36)
   Language of the case: Spanish
   Parties

      Applicant: González y Díez SA, (Villabona-Llanera, Spain), (represented by J. Díez-Hochleitner and A. Martínez Sánchez, lawyers),

      Defendant: Commission of the European Communities (represented initially by J. Buendía Sierra, acting as Agent, and subsequently by C. Urraca Caviedes, acting as Agent, the latter assisted by Buendía Sierra, lawyer)
   Re:
   Action for annulment of Articles 1, 3 and 4 of Commission Decision 2004/340/EC of 5 November 2003 on aid for González y Díez SA to cover exceptional expenses (aid for 2001 and misuse of aid for 1998 and 2000), and amending Commission Decision 2002/827/ECSC (OJ 2004 L 119, p. 26).
   Operative part of the judgment
   The Court:

               1.

               Annuls Article 3(b), in so far as it concerns the amount of EUR 54 057,63 (ESP 8 994 433), and Article 4(1)(b) of Commission Decision 2004/340/EC of 5 November 2003 concerning aid to the company González y Díez SA to cover exceptional costs (aid for 2001 and incorrect use of the aid for 1998 and 2000), amending Decision No 2002/827/ECSC.

               2.

               Dismisses the action as to the remainder.

               3.

               Orders the applicant to bear four-fifths of its own costs and to pay four-fifths of the costs incurred by the Commission. The Commission shall bear a fifth of its own costs and pay a fifth of the costs incurred by González y Díez.

      (1)  OJ C 71, 20.3.2004.


title: Case C-491/10 PPU: Judgment of the Court (First Chamber) of 22 December 2010 (reference for a preliminary ruling from the Oberlandesgericht Celle (Germany)) — Joseba Andoni Aguirre Zarraga v Simone Pelz (Judicial cooperation in civil matters — Regulation (EC) No 2201/2003 — Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility — Parental responsibility — Rights of custody — Child abduction — Article 42 — Enforcement of a certified judgment ordering the return of a child handed down by a (Spanish) court with jurisdiction — Power of the requested (German) court to refuse enforcement of that judgment in a case of serious infringement of the child’s rights)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/12

         Judgment of the Court (First Chamber) of 22 December 2010 (reference for a preliminary ruling from the Oberlandesgericht Celle (Germany)) — Joseba Andoni Aguirre Zarraga v Simone Pelz
   (Case C-491/10 PPU) (1)

   (Judicial cooperation in civil matters - Regulation (EC) No 2201/2003 - Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility - Parental responsibility - Rights of custody - Child abduction - Article 42 - Enforcement of a certified judgment ordering the return of a child handed down by a (Spanish) court with jurisdiction - Power of the requested (German) court to refuse enforcement of that judgment in a case of serious infringement of the child’s rights)
   2011/C 63/23
   Language of the case: German

      Referring court

   Oberlandesgericht Celle

      Parties to the main proceedings

      Applicant: Joseba Andoni Aguirre Zarraga

      Defendant: Simone Pelz

      Re:

   Reference for a preliminary ruling — Oberlandesgericht Celle — Interpretation of Article 42 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Abduction of a child — Enforcement of a decision ordering the return of a child taken by a (Spanish) court having jurisdiction — Power of the (German) court responsible for enforcement to refuse to enforce that decision where there has been a serious infringement of the rights of the child

      Operative part of the judgment

   In circumstances such as those of the main proceedings, the court with jurisdiction in the Member State of enforcement cannot oppose the enforcement of a certified judgment, ordering the return of a child who has been wrongfully removed, on the ground that the court of the Member State of origin which handed down that judgment may have infringed Article 42 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, interpreted in accordance with Article 24 of the Charter of Fundamental Rights of the European Union, since the assessment of whether there is such an infringement falls exclusively within the jurisdiction of the courts of the Member State of origin.

      (1)  OJ C 346, 18.12.2010.


title: Case C-557/13: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 29 October 2013 — Hermann Lutz v Elke Bäuerle as administrator in the insolvency proceedings concerning the assets of ECZ Autohandel GmbH

text:
               18.1.2014

               EN

               Official Journal of the European Union

               C 15/9

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 29 October 2013 — Hermann Lutz v Elke Bäuerle as administrator in the insolvency proceedings concerning the assets of ECZ Autohandel GmbH
   (Case C-557/13)
   2014/C 15/12
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Defendant and appellant: Hermann Lutz

      Applicant and respondent: Elke Bäuerle as administrator in the insolvency proceedings concerning the assets of ECZ Autohandel GmbH

      Questions referred

               1.

               Is Article 13 of Council Regulation (EC) No 1436/2000 (1) of 29 May 2000 on insolvency proceedings, [the Insolvency Regulation]) applicable if the payment challenged by the insolvency administrator of a sum attached before the opening of the insolvency proceedings was made only after the opening of the proceedings?

               2.

               If the reply to the first question is in the affirmative: does the defence under Article 13 of the Insolvency Regulation also apply to limitation periods or other time-bars relating to actions to set aside transactions under the law which governs the dispute concerning the contested legal transaction (lex causae)?

               3.

               If the reply to the second question is in the affirmative: are the relevant procedural requirements for asserting a claim for the purpose of Article 13 of the Insolvency Regulation also to be determined according to the lex causae or by the lex fori concursus?

      (1)  OJ 2000 L 160, p. 1


title: Case C-346/13: Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 25 June 2013 — Ville de Mons v KPN Group Belgium SA

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/22

         Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 25 June 2013 — Ville de Mons v KPN Group Belgium SA
   (Case C-346/13)
   2013/C 252/35
   Language of the case: French

      Referring court

   Cour d’appel de Mons

      Parties to the main proceedings

      Appellant: Ville de Mons

      Respondent: KPN Group Belgium SA

      Question referred

   Does Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services [(the ‘Authorisation Directive’)] (1) preclude local authorities from introducing a tax, for budgetary or other reasons, on the economic activity of telecommunications operators, in the form of the presence on their territory of GSM pylons, masts or antennas used for the purposes of that activity?

      (1)  OJ 2002 L 108, p. 21.


title: Case C-188/09: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 28 May 2009 — Dyrektor Izby Skarbowej w Białymstoku v Profaktor Kulesza, Frankowski, Trzaska spółka jawna w Białymstoku

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/6

         Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 28 May 2009 — Dyrektor Izby Skarbowej w Białymstoku v ‘Profaktor’ Kulesza, Frankowski, Trzaska spółka jawna w Białymstoku
   (Case C-188/09)
   2009/C 193/06
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Appellant: Dyrektor Izby Skarbowej w Białymstoku

      Respondent:‘Profaktor’ Kulesza, Frankowski, Trzaska spółka jawna w Białymstoku

      Questions referred

               1.

               Do the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC (1) of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes, in conjunction with Articles 2, 10(1) and (2) and 17(1) and (2) of Sixth Council Directive 77/388/EEC (2) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, rule out the possibility of introducing temporary forfeiture of the right to reduce the amount of tax due by an amount equivalent to 30 % of the input tax on the acquisition of goods and services in relation to taxable persons who effect sales to natural persons not engaged in commercial activities, and to persons engaged in commercial activities in the form of individual agricultural holdings, and who fail to fulfil the obligation to keep records of turnover and amounts of tax due by using cash registers, pursuant to Article 111(2) of the Ustawa o Podatku od Towarów i Usług (Law on the tax on goods and services) of 11 March 2004 (Dziennik Ustaw No 54, item 535, as subsequently amended), in conjunction with Article 111(1) thereof?

               2.

               Can ‘special measures’ within the terms of Article 27(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, consist, regard being had to their character and purpose, in a temporary restriction of the scope of a taxable person’s right to reduce tax referred to in Article 111(2) of the Ustawa o Podatku od Towarów i Usług of 11 March 2004 (Dziennik Ustaw No 54, item 535, as subsequently amended), in conjunction with Article 111(1) thereof, in relation to taxable persons who fail to fulfil the obligation to keep records of turnover and amounts of tax by using cash registers, with the result that the introduction thereof requires compliance with the procedure set out in Article 27(2) to (4) of the abovementioned Sixth Council Directive of 17 May 1977?

               3.

               Does the right of a Member State referred to in Article 33(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, encompass the right to impose a sanction on taxable persons who fail to fulfil the obligation to keep records of turnover and amounts of tax by using cash registers in the form of temporary forfeiture of the right to reduce the amount of tax due by an amount equivalent to 30 % of the input tax on the acquisition of goods and services referred to in Article 111(2) of the Ustawa o Podatku od Towarów i Usług of 11 March 2004 (Dziennik Ustaw No 54, item 535, as subsequently amended), in conjunction with Article 111(1) thereof?

      (1)  OJ, English Special Edition 1967, p. 14.

      (2)  OJ 1977 L 145, p. 1.


title: Action brought on 24 May 1996 by the Commission of the European Communities against the Grand Duchy of Luxembourg (Case C-179/96)

text:
No C 247/4              EN                  Official Journal of the European Communities                                       24 . 8 .
                                                          COURT OF JUSTICE
Action brought on 24 May 1996 by the Commission of the                 The applicant claims that the Court should :
European Communities against the Grand Duchy of
                             Luxembourg                                1 . declare that, in so far as it precludes, by regulation or
                         ( Case C- 179/96                                   administrative practice, by reason of nationality,
                                                                            Community workers, whether employees or
                            ( 96/C 247/05 )                                 self-employed , and the members of their families, on the
                                                                            one hand from having large-family status recognized for
An action against the Grand Duchy of Luxembourg was                         the purpose of the award of the relevant benefits
brought before the Court of Justice on 24 May 1996 by the                   provided for the members of large families, and, on the
Commission of the European Communities, represented by                      other hand, from being awarded family supplements,
Dimitrios Gouloussis, acting as Agent, with an address for                  the Hellenic Republic is in breach of its obligations
service in Luxembourg at the office of Carlos Gomez de la                   under Community law, in particular Articles 48
Cruz, of the Legal Service, Wagner Centre , Kirchberg.                      and 52 of the EC Treaty, Article 7 ( 1 ) of Regulation
                                                                            No 1612/68 ('), Article 7 of Regulation No 1251 /70 ( 2 ),
                                                                            Article 7 of Directive 75/34/EEC ( 3 ), and Article 3 of
The applicant claims that the Court should :                                Regulation No 1408/71 ( 4 );
1 . declare that, by requiring general agents to have their            2 . order the Hellenic Republic to pay the costs .
    registered office ( in the case of legal persons ) or their
    residence ( in the case of natural persons ) in
    Luxembourg, and by requiring directors, general agents,            Pleas in law and main arguments adduced in support:
    inspectors, representatives and brokers, and any other
    person carrying on insurance operations, to reside in              Article 7 ( 2 ) of Regulation No 1612/68 , applying Article 48
    Luxembourg, the Grand Duchy of Luxembourg has                      of the Treaty, provides that Community workers are to
    failed to fulfil its obligations under Article 59 of the EC        enjoy the same social and tax advantages as national
    Treaty;
                                                                       workers and , according to the settled case-law of the Court,
                                                                       that provision may not be interpreted restrictively . The
                                                                       Commission is of the opinion that the recognition of
2 . order the Grand Duchy of Luxembourg to pay the
    costs .
                                                                       large-family status and the grant of the benefits and family
                                                                       supplements referred to above to large families constitute
                                                                       Community advantages within the meaning of that article .
Pleas in law and main arguments adduced in support:                    Moreover, no rule of demographic policy can justify
                                                                       measures discriminating against Community nationals who
The restriction on freedom to provide insurance services               reside and work in Greece .
which is imposed by the legislation referred to on account of
the fact that a supplier of those services is established in a         (')  OJ , English Special Edition 1968 ( II ), p. 475 .
Member State other than the one in which the service is                (2)  OJ , English Special Edition 1970 ( II ), p. 402 .
provided is manifestly contrary to Article 59 of the EC                (■') OJ No L 14 , 1975 ,  p . 10 .
Treaty, since it makes it impossible for nationals of Member           (4 ) OJ , English Special Edition 1971 ( II ), p. 416 .
States established in a Community country other than
Luxembourg to carry on their activities by providing
services in Luxembourg.
                                                                       Reference for a preliminary ruling by the Pretura
                                                                       Circondariale di Roma, Tivoli Division, by orders of that
                                                                       court of 21 February and 15 May 1996 in the criminal
                                                                       proceedings pending before that court against Mario
Action brought on 3 June 1996 by the Commission of the                                     Modesti and Lahlou Hassan
   European Communities against the Hellenic Republic                                   ( Cases C-191 /96 and C-196/96 )
                         ( Case C-185 /96 )
                                                                                ( 96/C 247/07 )
                           ( 96/C 247/06 )
                                                                       Reference has been made to the Court of Justice of the
An action against the Hellenic Republic was brought before             European Communities by orders of the Pretura
the Court of Justice on 3 June 1996 by the Commission of               Circondariale di Roma ( District Magistrates ' Court, Rome ),
the European Communities, represented by Maria Patakia ,               Tivoli Division , of 21 February 1996 and 15 May 1996 ,
of the Commission 's Legal Service, with an address for                which were received at the Court Registry on 3 June and
service in Luxembourg at the office of Carlos Gomez de la              10 June 1996 , for a preliminary ruling in the criminal
Cruz, also of the Commission's Legal Service, Wagner                   proceedings pending before that court against Mario
Centre , Kirchberg .                                                   Modesti and Lahlou Hassan .


title: Case T-133/06: Judgment of the Court of First Instance of 23 October 2008 — TIM and TTV v OHIM — PAST PERFECT (Community trade mark — Invalidity proceedings — Community word mark PAST PERFECT — Rejection of the application for a declaration of invalidity — Article 7(1)(b), (c) and (d) of Regulation (EC) No 40/94 — Article 7(2))

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/29

         Judgment of the Court of First Instance of 23 October 2008 — TIM and TTV v OHIM — PAST PERFECT
   (Case T-133/06) (1)

   (Community trade mark - Invalidity proceedings - Community word mark PAST PERFECT - Rejection of the application for a declaration of invalidity - Article 7(1)(b), (c) and (d) of Regulation (EC) No 40/94 - Article 7(2))
   (2008/C 313/51)
   Language of the case: English
   Parties

      Applicants: TIM The International Music Company AG and TTV Tonträger-Vertrieb-2000 GmbH (Hamburg, Germany) (represented initially by J. Wendt and G. Kukuk, and subsequently by J. Wendt, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Past Perfect Ltd (Bucknell, Oxfordshire, United Kingdom) (represented initially by S. Disraeli, and subsequently by K. Tinkler, Solicitors)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 3 February 2006 (Case R 150/2005-1), relating to invalidity proceedings between TIM The International Music Company AG and TTV Tonträger-Vertrieb-2000 GmbH, on the one hand, and Past Perfect Ltd, on the other.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders TIM The International Music Company AG and TTV Tonträger-Vertrieb-2000 GmbH to pay the costs.

      (1)  OJ C 154, 1.7.2006.


title: Partial removal from the register in Joined Cases T-85/93 and Others

text:
C 299/28              EN                      Official Journal of the European Communities                                 16.10.1999
3. In evaluating those eligible for promotion, the Promotions            Diekmeier and Others v Council of the European Union and
    Committee did not follow the criteria laid down in the               Commission of the European Communities.
    promotion guidelines, but relied on other criteria. Those
    criteria also contravened the recommendations formulated
                                                                         (1) OJ C 74 of 25.3.1995 and C 159 of 24.6.1995.
    by the Directorate-General to which the applicant belongs.
Partial removal from the register in Joined Cases T-85/93                        Removal from the register of Case T-2/98 (1)
                         and Others (1)
                                                                                (1999/C 299/42)
                        (1999/C 299/40)
                                                                                (Language of the case: Dutch)
                  (Language of the cases: German)
                                                                         By order of 1 February 1999 the President of the Second
                                                                         Chamber of the Court of First Instance of the European
By order of 21 May 1999, the President of the Fourth Chamber,
                                                                         Communities has ordered the removal from the register of
Extended Composition, of the Court of First Instance of the
                                                                         Case T-2/98: Petra Van Eynde-Neutens v Commission of the
European Communities has ordered the removal of Case
T-252/94 from the list of cases in Joined Cases T-85/93 and              European Communities.
Others: Helmut Bösl v Council of the European Union and
Commission of the European Communities.                                  (1) OJ C 55 of 20.2.1998.
(1) OJ C 275 of 1.10.1994.
                                                                                Removal from the register of Case T-168/98 (1)
Partial removal from the register in Joined Cases T-366/94                                       (1999/C 299/43)
                         and Others (1)
                                                                                (Language of the case: French)
                        (1999/C 299/41)
                                                                         By order of 11 February 1999 the President of the First
                  (Language of the cases: German)                        Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the register of
                                                                         Case T-168/98: Anastasios Bisopoulos v Commission of the
By order of 21 May 1999, the President of the Fourth Chamber
                                                                         European Communities.
of the Court of First Instance of the European Communities
has ordered the removal of Cases T-16/95 and T-100/95 from
the list of cases in Joined Cases T-366/94 and Others: Hilde             (1) OJ C 397 of 19.12.1998.


title: Case T-297/01: Action brought on 6 December 2001 by SIC — Sociedade Independente de Comunicação S.A. against Commission of the European Communities

text:
6.4.2002               EN                      Official Journal of the European Communities                                        C 84/59
Action brought on 6 December 2001 by SIC — Sociedade                      In view of the inactivity of the Community institution, the
Independente de Comunicação S.A. against Commission                      applicant, in accordance with Article 232 of the EC Treaty, in
                 of the European Communities                              August 1995 requested the Commission to adopt a position
                                                                          on the complaint, in particular with regard to the request that
                                                                          it initiate the procedure under Article 88(2) of the EC Treaty.
                         (Case T-297/01)
                         (2002/C 84/110)                                  The Commission requested additional information of the
                                                                          Portuguese authorities.
                  (Language of the case: Portuguese)
                                                                          Disappointed with that request, which it considered to be
                                                                          merely interlocutory in nature, and in view of the Com-
                                                                          mission’s failure to act, SIC brought an action for failure to act
An action against the Commission of the European Communi-                 under Article 232 of the EC Treaty (Case T-231/95).
ties was brought before the Court of First Instance of the
European Communities on 6 December 2001 by SIC —
Sociedade Independente de Comunicação S.A., whose regis-
tered office is at Carnaxide, Linda-a-Velha (Portugal), represent-        Following the adoption by the Commission of the decision of
ed by Carlos Botelho Moniz, lawyer.                                       7 November 1996 on the financing from public funds granted
                                                                          to RTP, the action for failure to act was emptied of purpose
                                                                          and the applicant abandoned the action.
The applicant claims that the Court should:
                                                                          Meanwhile, on 22 October 1996 SIC lodged a fresh complaint
—     find the action admissible;                                         with the Commission against the Portuguese Republic claiming
                                                                          infringement of Articles 87 and 88 of the EC Treaty in respect
                                                                          of the manner in which the concession for public service
—     order the Commission to pay all the costs.                          television was granted.
                                                                          The second complaint was, in essence, based on the same legal
Pleas in law and main arguments                                           grounds as the first.
The applicant is a commercial company whose sole object is                On 6 October 1997 the applicant received a copy of the
the pursuit of television broadcasting activities.                        abovementioned decision of the Commission of 7 November
                                                                          1996 addressed to the Portuguese Republic concerning the
                                                                          financing of public television channels in which the Com-
                                                                          mission took the view that the measures referred to did not
On 30 July 1993, the applicant lodged with Directorate                    amount to State aid granted by the Portuguese State to RTP
General for Competition — DG IV of the Commission —                       and were therefore not covered by the Treaty State aid rules.
a complaint against the Portuguese Republic and RTP —
Radiotelevisão Portuguesa, alleging breach of Community
rules on competition, in particular of Articles 87 and 88 of the
EC Treaty.                                                                By application of 3 March 1997 SIC brought an action for
                                                                          annulment of that decision (Case T-46/97).
The complaint concerned a number of measures adopted by
the Portuguese Government in favour of RTP, a public operator             In the judgment delivered on 10 May 2000, the Court of First
holding the public service television concession, taking the              Instance held that the Commission was under a duty to initiate
view that such measure constituted State aid within the                   the procedure under Article 88(2) of the EC Treaty in respect
meaning of Article 87 of the EC Treaty and that such aid had              of a number of financial measures adopted by the Portuguese
been granted contrary to Article 88(3) of the Treaty.                     State vis-à-vis RTP.
More than 2 years after the complaint was lodged, and despite             By letter of 3 January 2001, SIC asked the Commission what
various approaches by SIC, SIC found that the Commission                  measures it intended to adopt in order to comply with the
had failed to adopt a position on the complaint.                          judgment.
 ---pagebreak--- C 84/60                EN                      Official Journal of the European Communities                                     6.4.2002
In the absence of any reply from the Commission, the                            complaints of 22 October 1996 and 20 June 1997 lodged
applicant, by letter of 26 July 2001, called upon it to take                    by the applicant;
action in accordance with the second paragraph of Article 232.
                                                                          3.    order the Commission to pay all the costs.
After the expiry of the period of two months prescribed by the
Treaty, the Commission had not initiated the procedure nor
responded to the call to take action.
                                                                          Pleas in law and main arguments
In early November 2001, after the abovementioned two-
month period had expired, the applicant received a letter from            The applicant is a commercial company whose sole object is
the Commission informing it that the internal preparatory                 the pursuit of television broadcasting activities.
work for compliance with the judgment of the Court of First
Instance of May 2000 was almost complete.
                                                                          On 22 October 1996, the applicant lodged with Directorate
                                                                          General for Competition — DG IV of the Commission —
The applicant takes the view that that letter is a merely                 a complaint against the Portuguese Republic and RTP —
provisional step which does not define the position of the                Radiotelevisão Portuguesa, alleging breach of Community rules
defendant institution.                                                    on competition, in particular of Articles 87 and 88 of the EC
                                                                          Treaty.
                                                                          The complaint concerned a number of measures adopted by
                                                                          the Portuguese Government in favour of RTP, a public operator
                                                                          holding the public service television concession, taking the
                                                                          view that such measure constituted State aid within the
Action brought on 6 December 2001 by SIC — Sociedade                      meaning of Article 87 of the EC Treaty and that such aid had
Independente de Comunicação S.A. against Commission                      been granted contrary to Article 88(3) of the Treaty.
                 of the European Communities
                         (Case T-298/01)                                  The complaint related, in particular, to compensatory pay-
                                                                          ments made in 1994, 1995 and 1996 by the Portuguese
                                                                          Republic to RTP.
                         (2002/C 84/111)
                  (Language of the case: Portuguese)                      The payments for 1994 and 1995 were the subject of a
                                                                          Commission decision of 7 November 1996, against which an
                                                                          action for annulment was brought.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                The failure to act which constitutes the subject-matter of the
European Communities on 6 December 2001 by SIC —                          present action relates to the compensatory payment for 1996.
Sociedade Independente de Comunicação S.A., whose regis-
tered office is at Carnaxide, Linda-a-Velha (Portugal), represent-
ed by Carlos Botelho Moniz, lawyer.                                       Such a measure constitutes State aid within the meaning of
                                                                          Article 87 of the EC Treaty, since it was implemented by the
                                                                          Portuguese State contrary to Article 88(3) without previously
The applicant claims that the Court should:                               notifying the Commission.
1.   find the action admissible;
                                                                          The measure was brought to the attention of the Commission
2.   accordingly, in view of the duty incumbent on the                    by means of the complaint of 22 October 1996, that is to say,
     Commission under Articles 87 and 88 of the EC Treaty as              more than 5 years ago, no decision having been taken by that
     regards the preliminary assessment of State aid measures             Community institution with regard to the 1996 compensatory
     brought to its attention, as well as of the general principles       payment until the end of November 2001.
     of law to which it is subject, in particular the principles
     of legality, good administration and care, declare that the
     Commission failed, contrary to Articles 87 and 88 of the             On 20 June 1997 the applicant lodged with Directorate
     Treaty and the abovementioned general principles of law,             General for Competition — DG IV of the Commission — a
     in its duty to adopt a decision regarding the request for            fresh complaint against the Portuguese Republic and RTP
     the procedure under Article 88(2) to be initiated in                 alleging breach of Community rules on competition, in
     respect of the measures which were the subject of the                particular of Articles 87 and 88 of the EC Treaty.


title: Case T-146/17: Action brought on 7 March 2017 — Mondi v ACER

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/34

         Action brought on 7 March 2017 — Mondi v ACER
   (Case T-146/17)
   (2017/C 129/52)
   Language of the case: German

      Parties

      Applicant: Mondi AG (Vienna, Austria) (represented by: B. Rajal, lawyer)

      Defendant: Agency for the Cooperation of Energy Regulators (ACER)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision given by the Board of Appeal of the defendant on 17 February 2017 in Case A-001-2017 (consolidated) concerning the rejection of the application for leave to intervene lodged by the applicant; and

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two pleas in law:

               1.

               First plea in law, alleging infringement of Article 11 of the Rules of Procedure of the Board of Appeal of the defendant and infringement of Article 41 of the Charter of Fundamental Rights of the European Union, since the Board of Appeal erred in finding that the applicant had no legitimate interest in the outcome of the appeal proceedings.

               2.

               Second plea in law, alleging infringement of the right to be heard, since the Board of Appeal failed to notify the applicant of the position taken by the defendant in relation to the application made by the applicant for leave to intervene.


title: Action brought on 24 November 1998 by the Commission of the European Communities against the Kingdom of Spain (Case C-421/98)

text:
C 20/20               EN                    Official Journal of the European Communities                                  23.1.1999
Reference for a preliminary ruling by the Pretura                      on 24 November 1998 by the Commission of the
Circondariale di Genova by order of that court of                      European Communities, represented by I. Martínez del
26 September 1998 in the case of Marcella Moretti v.                   Peral and B. Mongin, of its Legal Service, with an address
                Banco Ambrosiano Veneto SpA                            for service in Luxembourg at the Office of Carlos Gómez
                                                                       de la Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                        (Case C-419/98)
                         (1999/C 20/32)
                                                                       The applicant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by an order of the Pretura
Circondariale di Genova (District Magistrate's Court,                  (1) declare that, by providing, in the second paragraph of
Genoa) of 26 September 1998, which was received at the                       Article 10 of Royal Decree No 1081/1989 (1) of
Court Registry on 23 November 1998, for a preliminary                        28 August 1989, that architects qualified in other
ruling in the case of Marcella Moretti v. Banco                              Member States whose qualifications are recognised
Ambrosiano Veneto SpA, on the following questions:                           under Council Directive 85/384/EEC (2) of 10 June
                                                                             1985 on the mutual recognition of diplomas,
                                                                             certificates   and   other     evidence    of   formal
1. Whether the Norme Bancarie Uniforme (Uniform                              qualifications in architecture, including measures to
     Bank Rules) laid down by the ABI (1) for its members                    facilitate the effective exercise of the right of
     in relation to contracts for the opening of current                     establishment and freedom to provide services may
     account credit facilities Ð since they are laid down                    not pursue in Spain any professional activities other
     and applied in a uniform and binding manner by the                      than those which they are authorised to carry on in
     banks belonging to the ABI Ð are compatible with                        their country of origin pursuant to the qualifications
     Article 85 of the Treaty, where they make the credit                    obtained by them there, save in collaboration with
     facility subject to conditions for determination of an                  another professional person authorised to carry on
     interest rate which is not previously determined and is                 those activities and holding a professional
     not determinable by the customer, and they are liable                   qualification which is also recognised under Spanish
     adversely to affect trade between the Member States                     law', the Kingdom of Spain has failed to fulfil its
     and have as their object and effect the prevention,                     obligations under Articles 2 and 10 of Directive
     restriction or distortion of competition within the                     85/384/EEC;
     Common Market;
2. What effects any finding of incompatibility in                      (2) order the Kingdom of Spain to pay the costs.
     accordance with 1 above may have on the
     corresponding clauses of the contracts for the opening
     of a current account credit facility, concluded
                                                                       Pleas in law and main arguments adduced in support:
     downstream' by member banks with individual
     customers, since, as a group, the banks belonging to
     the ABI may be regarded, within the meaning and for
     the purposes of Article 86 of the Treaty, as holding a            Articles 2 and 10 of Directive 85/384/EEC lay down the
     joint dominant position in the national credit market,            fundamental principle that persons holding diplomas,
     whose specific application of the rules in question (in           certificates or other formal qualifications in architecture
     connection with determination of the interest payable             awarded by a Member State other than the host Member
     on the loan) is regarded as an abuse.                             State are to have the same rights and be subject to the
                                                                       same obligations as persons possessing such qualifications
(1) Associazione Bancaria Italiana Ð Italian Banking Association.      in the host Member State. Where an architectural
                                                                       qualification constitutes evidence that its holder has
                                                                       received training which meets the requirements of
                                                                       Articles 3 and 4 of Directive 85/384/EEC, the principle of
                                                                       mutual recognition must apply, without the host Member
                                                                       State being entitled to call in question the quality of the
                                                                       training undergone in the Member State of origin.
                                                                       Moreover, the Community legislature, conscious of the
Action brought on 24 November 1998 by the Commission
                                                                       fact that architectural training may be more
of the European Communities against the Kingdom of
                                                                       comprehensive in the host Member State, has expressly
                               Spain
                                                                       provided, in Article 16(2) of the Directive, for a
                        (Case C-421/98)                                mechanism guaranteeing adequate protection to recipients
                                                                       of architectural services, whereby the host Member State
                         (1999/C 20/33)                                may regulate the use of professional titles in such a way as
                                                                       to require a migrant architect to provide evidence of the
                                                                       title employed by him in his Member State of origin or the
An action against the Kingdom of Spain was brought                     Member State from which he comes. Where a migrant
before the Court of Justice of the European Communities                architect is unable to show that he has undergone the
 ---pagebreak--- 23.1.1999               EN                  Official Journal of the European Communities                                    C 20/21
additional training required in order to obtain the                    Reference for a preliminary ruling from the Hoge Raad
corresponding title in the host Member State, Article 16               der Nederlanden by judgment of that court of 6 November
provides that that State may require the migrant architect             1998 in the case of Marca Mode CV against 1. Adidas AG
to use the title employed in his Member State of origin or                               and 2. Adidas Benelux BV
the Member State from which he comes in a suitable
form' to be specified by the host Member State. The                                           (Case C-425/98)
Directive does not authorise the host Member State to                                          (1999/C 20/35)
adopt other measures, such as the imposition of an
obligation requiring the architect in question to work in
collaboration with a professional person who is qualified
in the host Member State to pursue to the activities for
                                                                       Reference has been made to the Court of Justice of the
which the migrant architect has not received the
                                                                       European Communities by judgment of the Hoge Raad
prescribed training. Such measures constitute a
                                                                       der Nederlanden (Supreme Court of the Netherlands) of
disproportionate restriction on the architect's freedom of
                                                                       6 November 1998, received at the Court Registry on
establishment and, a fortiori, on freedom to provide
                                                                       26 November 1998, for a preliminary ruling in the case of
services.
                                                                       Marca Mode CV against 1. Adidas AG and 2. Adidas
                                                                       Benelux BV on the following question:
(1) Boletin Oficial del Estado No 214 of 7 September 1989.
(2) OJ L 223, 21.8.1985, p. 15.
                                                                       Where:
                                                                       (a) a trade mark has a particularly distinctive character,
                                                                            either per se or because of the reputation it enjoys
                                                                            with the public; and
Reference for a preliminary ruling by the Tribunal de
PremieÁre Instance de Bruxelles (Sixth Chamber) by
judgment of that court of 10 November 1998 in the case
of Colonia Versicherung Aktiengesellschaft, Zweignieder-               (b) a third party, without the consent of the proprietor of
lassung München and 17 others against the Belgian State,                    the mark, uses, in the course of trade in goods or
  Minister of Finance, Customs and Excise Administration                    services which are identical with, or similar to, those
                                                                            for which the trade mark is registered, a sign which
                         (Case C-422/98)                                    so closely corresponds to the mark as to create a
                                                                            likelihood of its being associated with that mark,
                          (1999/C 20/34)
                                                                       must Article 5(1)(b) of Directive 89/104/EEC (1) be
Reference has been made to the Court of Justice of the                 interpreted as meaning that the exclusive right enjoyed by
European Communities by judgment of the Sixth                          the proprietor entitles him to prevent the use of the sign
Chamber of the Tribunal de PremieÁre Instance de                       by that third party if the distinctive character of the mark
Bruxelles (Court of First Instance, Brussels) of                       is such that the possibility of such association giving rise
10 November 1998, received at the Court Registry on                    to confusion cannot be ruled out?
26 November 1998, for a preliminary ruling in the case of
Colonia Versicherung Aktiengesellschaft, Zweigniederlas-
sung München and 17 others v. Belgian State, Minister of               (1) OJ L 40, 11.2.1989, p. 1.
Finance, Customs and Excise Administration on the
following question:
Does not Paragraph 210 of the Ministerial Decree of
22 January 1948, by requiring an importer into Belgium
of manufactured tobacco products to which tax bands are                Action brought on 26 November 1998 by the Commission
affixed, where those products are not fit for consumption,             of the European Communities against the Hellenic
to destroy them in Belgium under the supervision of the                                            Republic
Belgian customs authorities and by not according
probative value to documents drawn up by the customs                                          (Case C-426/98)
authorities of another Member State as proof of such
                                                                                (1999/C 20/36)
destruction constitute a measure having effects equivalent
to a quantitative restriction?'
                                                                       An action against the Hellenic Republic was brought
                                                                       before the Court of Justice of the European Communities


title: Case C-317/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba Alassini v Telecom Italia SpA

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/10

         Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba Alassini v Telecom Italia SpA
   (Case C-317/08)
   (2008/C 236/15)
   Language of the case: Italian
   Referring court
   Giudice di Pace di Ischia
   Parties to the main proceedings

      Applicant: Rosalba Alassini

      Defendant: Telecom Italia SpA
   Question referred
   Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

      (1)  OJ L 108, p. 51.

      (2)  OJ L 171, p. 12.

      (3)  Commission Recommendation.

      (4)  Commission Recommendation.


title: Case F-27/10: Judgment of the Civil Service Tribunal (Second Chamber) of 10 March 2011 — Begue and Others v Commission (Civil service — Members of the contract staff — Staff entitled to an allowance for regular stand-by duty — Article 55 and Article 56b of the Staff Regulations — Regulation (EEC, Euratom, ECSC) No 495/77)

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/23

         Judgment of the Civil Service Tribunal (Second Chamber) of 10 March 2011 — Begue and Others v Commission
   (Case F-27/10) (1)

   (Civil service - Members of the contract staff - Staff entitled to an allowance for regular stand-by duty - Article 55 and Article 56b of the Staff Regulations - Regulation (EEC, Euratom, ECSC) No 495/77)
   2012/C 138/44
   Language of the case: French

      Parties

      Applicant(s): Christian Begue and Others (Marcy, France) (represented by: A. Woimant, lawyer)

      Defendant: European Commission (represented by: D. Martin and B. Eggers, Agents)

      Re:

   Application for annulment of the decision refusing the applicants payment with retroactive effect of the allowance for standby duty referred to in Article 56b of the Staff Regulations

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action.

               2.

               Orders the applicants to bear their own costs and to pay those incurred by the Commission.

      (1)  OJ C 179, 3.7.2010, p. 58.