title: Case C-400/08: Action brought on 16 September 2008 — Commission of the European Communities v Kingdom of Spain

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/29

         Action brought on 16 September 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-400/08)
   (2008/C 285/48)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa, R. Vidal Puig acting as Agents, and C. Fernández Vicién and I. Moreno-Tapia Rivas, lawyers)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               declare that, by imposing restrictions on the establishment of shopping centres, deriving from Law 7/1996 on retail commerce and the legislation of the Autonomous Community of Catalonia applicable in the matter (Law 18/2005 on trading establishments, Decree 378/2006 implementing Law 18/2005, and Decree 379/2006 approving the new sectional territorial plan for trading establishments), the Kingdom of Spain has failed to fulfil its obligations under Article 43 EC;

               —

               order Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   The Spanish and Catalan legislation at issue (Law 7/1996, Catalan Law 28/2005, Catalan Decrees 378/2006 and 379/2006) requires any operator wishing to start, extend, change its activity, transfer or assign a large shopping centre, to obtain a licence from the Generalidad, in addition to the compulsory municipal license required to start up an activity, the latter being intended to verify that the establishment conforms to the urban standards in force. The issue of commercial licences is subject to set of criteria, which include the compatibility of the project with the urban plan for commercial establishments (so that no establishment can be authorised if it does not comply with all the decisions in the plan), the location of the project in a consolidated urban area and the extent of market penetration by the applicant undertaking.
   The Commission takes the view that the Spanish and Catalan legislation at issue constitute unjustified restrictions on the freedom of establishment within the meaning of Article 43 EC for the following reasons:

               1.

               The requirement of a commercial license — in addition to the municipal license — issued according to certain criteria which relate not only to planning and the environment, but also to the potential economic repercussions of the creation certain kinds of large scale shopping centres on the competitive structure of the distribution market, and to the existence of a ‘market requirement’, makes the establishment of certain kinds of large scale shopping centres very difficult.

               2.

               The national legislation concerned has a discriminatory effect in that it facilitates the establishment of smaller shopping centres (which correspond to the traditional commercial distribution structure in Catalonia and, therefore, local commerce) as compared to the establishment of large shopping centres (which correspond to the distribution model used by companies from other Community States).

         The Commission takes the 46 of the EC Treaty (public policy, public security or public health) which, moreover, have not been relied on by the national authorities.
   In the Commission's opinion, the justifications relied on by the Spanish and Catalan authorities — protection of consumers (protection of small businesses in order to guarantee competitive supply in each market, protection of the environment and urban areas) cannot be accepted for the following reasons:

               1.

               The criteria laid down by the legislation at issue is not in fact intended to protect consumers as the national authorities state, but to favour the small business sector to the detriment of the big names of commercial distribution. Therefore, the measures are an inappropriate means of attaining the alleged objective as in reality they have an economic purpose.

               2.

               The measures at issue go beyond what is necessary to attain the objectives pursued. In any event, it is for the national authorities to prove that the objectives relied on could not have been achieved by less restrictive measures.


title: Case T-515/09 P: Order of the General Court of 18 October 2010 — Marcuccio v Commission (Appeal — Civil service — Officials — Refusal of an institution to translate a decision — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/41

         Order of the General Court of 18 October 2010 — Marcuccio v Commission
   (Case T-515/09 P) (1)

   (Appeal - Civil service - Officials - Refusal of an institution to translate a decision - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   2010/C 346/83
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

      Re:

   Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) of 7 October 2009 in Case F-3/08 Marcuccio v Commission ECR SC-0000 seeking the annulment of that order.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Luigi Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission in the present proceedings.

      (1)  OJ C 51, 27.2.2010.


title: Case C-152/05: Judgment of the Court (Second Chamber) of 17 January 2008 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Articles 18 EC, 39 EC and 43 EC — National legislation — Conditions for the grant of a subsidy for the construction or purchase of a dwelling for personal occupation — Dwelling required to be situated in the territory of the Member State concerned)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/4

         Judgment of the Court (Second Chamber) of 17 January 2008 — Commission of the European Communities v Federal Republic of Germany
   (Case C-152/05) (1)

   (Failure of a Member State to fulfil obligations - Articles 18 EC, 39 EC and 43 EC - National legislation - Conditions for the grant of a subsidy for the construction or purchase of a dwelling for personal occupation - Dwelling required to be situated in the territory of the Member State concerned)
   (2008/C 64/03)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and K. Gross, Agents)

      Defendant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze Bahr, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 18, 39 and 43 EC — National legislation under which a housing allowance (Eigenheimzulage) for the construction or purchase of a person's dwelling is granted only to persons subject to unlimited taxation in that Member State and only for dwellings situated in that State.
   Operative part of the judgment
   The Court:

               1)

               Declares that, by excluding in the first sentence of Paragraph 2(1) of the Law on subsidies for owner-occupied dwellings (Eigenheimzulagengesetz), in the version published in 1997, as amended by the ancillary budget law of 2004 (Haushaltsbegleitgesetz 2004), dwellings in another Member State from eligibility for the subsidy for owner-occupied dwellings granted to persons liable to unlimited taxation on income, the Federal Republic of Germany has failed to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC;

               2)

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 132, 28.5.2005.


title: Case C-677/16: Request for a preliminary ruling from the Juzgado de lo Social No 33 de Madrid (Spain) lodged on 29 December 2016 — Lucía Montero Mateos v Agencia Madrileña de Atención Social de la Consejería de Políticas Sociales y Familia de la Comunidad Autónoma de Madrid

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/15

         Request for a preliminary ruling from the Juzgado de lo Social No 33 de Madrid (Spain) lodged on 29 December 2016 — Lucía Montero Mateos v Agencia Madrileña de Atención Social de la Consejería de Políticas Sociales y Familia de la Comunidad Autónoma de Madrid
   (Case C-677/16)
   (2017/C 086/19)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social No 33 de Madrid

      Parties to the main proceedings

      Applicant: Lucía Montero Mateos

      Defendant: Agencia Madrileña de Atención Social de la Consejería de Políticas Sociales y Familia de la Comunidad Autónoma de Madrid

      Question referred

   Must clause 4(1) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP which forms part of the Community legal order by virtue of Council Directive 1999/70 (1) be interpreted as meaning that termination of a temporary ‘contrato de interinidad’ to cover a vacancy when the term for which the contract was concluded by the employer and the worker expires constitutes objective grounds justifying the Spanish legislature’s not providing in such a case for any compensation whatsoever for the termination of the contract, whereas compensation of 20 days’ pay for every year of service is provided for in the case of a comparable permanent worker dismissed on objective grounds?

      (1)  OJ 1999 L 175, p. 1.


title: Action brought on 24 June 1997 by Kaufring AG against the Commission of the European Communities (Case T-186/97)

text:
18 . 10 . 97            EN                  Official Journal of the European Communities                                   C 318/ 17
and a manifest error of assessment in that neither the Joint           and the acceptance of the A.TR.l movement certificate,
Committee nor the investigating authority sought to place              the Turkish customs authorities had charged no
the allegations in proper perspective by weighing them                 proportionate duty on components of third country origin,
against the applicant's service record, although the                   Member States were called upon by the Commission to
excellence of that record could and should have served as              effect post-clearance recovery of duties on colour
a mitigating factor, leading to greater clemency in the                television sets imported from Turkey. The applicant lodged
decision adopted.                                                      a complaint at the Hauptzollamt Krefeld against the
                                                                       revised assessment notice which followed, and claimed
                                                                       remission of the duties claimed retrospectively.
(') Case T- 14 1 /97 Bernard Yasse v. BEI.
                                                                       Intensive correspondence followed between the applicant
                                                                       and the Federal Ministry of Finance, the Federal Ministry
                                                                       of Finance and the Turkish Government, and with the
                                                                       Commission .
Action brought on 24 June 1997 by Kaufring AG against
        the Commission of the European Communities
                                                                       In August 1996, the Federal Republic of Germany referred
                          ( Case T-186/97)                             to the Commission for a ruling pursuant to Article 13 of
                            ( 97/C 318/34 )                            Council Regulation ( EEC) No 1430/79 on the repayment
                                                                       or remission of import or export duties as to whether it
                                                                       was justified to remit the import duties in this case .
                  (Language of the case: German)
                                                                       The Commission thereupon issued the contested decision
An action against the Commission of the European                       of 19 February 1997, addressed to Germany, to the effect
Communities was brought before the Court of First                      that remission of import duties in the applicant's case was
Instance of the European Communities on 24 June 1997                   not justified .
by Kaufring AG, whose registered office is at Dusseldorf,
represented by Dietrich Ehle , Rechtsanwalt, Cologne, with
an address for service in Luxembourg at the Chambers of                The applicant takes the view that the import duties
Marc Lucius, 6 rue Michel Welter, Luxembourg.                          imposed on the value of the finished colour television sets
                                                                       must be remitted . It alleges infringement of the duty to
                                                                       state reasons pursuant to Article 190 of the EC Treaty,
The applicant claims that the Court should:                            and of its rights to be heard and put forward arguments in
                                                                       its defence at the time the contested decision was adopted.
— annul         Commission        Decision   REM      15/96    of
     19 February 1997, refusing the remission of a payment             The applicant further argues that the Commission based
     of DM 545 727,35,                                                 its decision only on Article 13 of Regulation ( EEC )
                                                                       No 1430/79 , and in applying that provision committed
                                                                       obvious legal and factual errors, especially a clearly
— order the Commission to pay the costs .                              erroneous determination and assessment of the facts . In
                                                                       particular, the Commission was clearly wrong to
                                                                       determinate that the completed A.TR.l movement
                                                                       certificates    did not constitute  a  fact on which the
 Pleas in law and main arguments adduced in support:
                                                                       applicant was entitled to rely by way of 'special
                                                                       circumstances'. Neither the Turkish exporters nor the
                                                                       applicant as importer could be accused of 'obvious
 During the period from September to December 1992, the                negligence' or any other fault.
 applicant imported a number of consignments of colour
 television sets from Turkey, which were produced there
 using parts which came partly from third countries
 (particularly Korea and Japan). The applicant had bought              Finally, the applicant argues that the Commission was
 the sets before importation from Crown Europe GmbH in                 manifestly in error, when applying Article 13 of
 Gelsenkirchen .      On    the   basis  of A.TR.l     movement         Regulation ( EEC ) No 1430/79, in failing to apply also the
 certificates which were produced and found by the Haupt              principles of proportionality, equal treatment and
 zollamt Krefeld to be in order, no duties were levied on               reasonableness . The applicant as importer has, it
 the applicant's importation of the sets.                               maintains, been retrospectively burdened with duties the
                                                                        non-levying of which fell clearly outside the area of risks
                                                                        it can be expected to bear.
 After the Commission carried out an investigation in 1993
 of various colour television manufacturers in Turkey, and
 established that, on the exportation of the television sets


title: Reference for a preliminary ruling from the Netherlands Raad van State by order of that court of 19 November 1998 in the case of W. N. against Staatssecretaris van Financiën (Case C-420/98)

text:
C 48/8               EN                 Official Journal of the European Communities                                  20.2.1999
coordinating procedures for the award of public supply                 which she had acquired and also for the inappropriate
contracts (OJ L 13, 15.1.1977, p. 1), as amended by                    development of her career and the delay in her career
Directive 88/295/EEC, (OJ L 127, 20.5.1988, p. 1), and of              advancement;
Article 1 of Council Directive 93/36/EEC of 14 June 1993
coordinating procedures for the award of public supply             Ð declare unlawful Article 45(2), (3) and (4) of the Staff
contracts (OJ L 199, 9.8.1993, p. 1) Ð the Court (Fifth                Regulations having regard to the principles of equal
Chamber), composed of: J.-P. Puissochet, President of the              treatment and entitlement to freedom;
Chamber, P. Jann (Rapporteur), J. C. Moitinho de
Almeida, C. Gulmann and M. Wathelet, Judges; S. Alber,
                                                                   Ð order the Commission to pay all the costs of both
Advocate-General; H. von Holstein, Deputy Registrar, has
                                                                       actions at first instance and of the present proceedings.
given a judgment on 17 December 1998, in which it held:
                                                                   In the alternative, in the event that the Court of Justice
A body such as Coillte Teoranta is a contracting authority         considers that the case is not ready for judgment, the
within the meaning of Article 1(b) of Council Directive            appellant claims that the Court of Justice should:
77/62/EEC of 21 December 1976 coordinating procedures
for the award of public supply contracts, as amended by
                                                                   Ð set aside in part the judgment of the Court of First
Council Directive 88/295/EEC.
                                                                       Instance of 15 September 1998 in Case T-23/96;
(1) OJ C 318, 18.10.1997.
                                                                   Ð refer the case back to the Court of First Instance for it
                                                                       to give judgment, on the basis of the principles to be
                                                                       specified by the Court of Justice;
                                                                   Ð order the Commission to pay the costs of these
                                                                       proceedings.
Appeal brought on 23 October 1998 by Elsa De Persio,
an employee of the Commission of the European
                                                                   Pleas in law and main arguments adduced in support:
Communities, against the judgment delivered on
15 September 1998 by the Second Chamber of the Court
of First Instance of the European Communities in Case              1. Infringement of the obligation to respond to all
T-23/96 Elsa De Persio v. Commission of the European                   requests made by the appellant;
 Communities, intervener: Council of the European Union
                     (Case C-418/98 P)                             2. Incorrect appraisal of the plea alleging lack of equal
                                                                       treatment and encroachment upon the freedom of
                       (1999/C 48/15)                                  officials covered by the derogation relating to officials
                                                                       in Grades B, C and D;
An appeal against the judgment delivered on 15 September
1998 by the Second Chamber of the Court of First                   3. Errors in law, infringement of the rules of procedure
Instance of the European Communities in Case T-23/96                   concerning the burden of proof borne by the
Elsa De Persio v. Commission of the European                           defendant and manifest error of assessment regarding
Communities, intervener: Council of the European Union,                the provisions relating to the appointing authority;
was brought before the Court of Justice of the European
Communities on 23 October 1998 by Elsa De Persio, an               4. Error in law regarding the applicable procedure and
employee of the Commission of the European                             powers concerning changes to the staff organisation of
Communities, represented by Franco Giampietro, of the                  the Publications Office and the Commission;
Rome Bar, with an address for service at 114 Via
Sacchetti, Rome.                                                   5. Errores in iudicando and infringement of the
                                                                       requirements       relating   to    burden    of   proof
The appellant claims that the Court of Justice should:                 (paragraphs 123 to 149 of the contested judgment).
Ð declare void or non-existent, or annul, the decison
    transferring the appellant, adopted by the Director
    General for Personnel of the Commission and the
    preparatory measures on which it is based;
                                                                   Reference for a preliminary ruling from the Netherlands
                                                                   Raad van State by order of that court of 19 November
Ð declare unlawful the conduct of the administration               1998 in the case of W. N. against Staatssecretaris van
    from 13 January 1995 to 10 June 1996;                                                      FinancieÈn
                                                                                (Case C-420/98)
Ð consequently, order the Commission to pay                                                 (1999/C 48/16)
    compensation, on an equitable basis, for the
    non-material damage suffered by the appellant and the
    adverse effect on her peace of mind and physical               Reference has been made to the Court of Justice of the
    health, and for loss of the specific professional status       European Communities by order of the Netherlands Raad
 ---pagebreak--- 20.2.1999             EN                 Official Journal of the European Communities                                   C 48/9
van State (Council of State) of 19 November 1998,                   The applicant claims that the Court should:
received at the Court Registry on 23 November 1998, for
a preliminary ruling in the case of W. N. against
Staatssecretaris van FinancieÈn on the following questions:         (a) declare that the Italian Republic
1. Must the words a loss of tax' in Article 4(1)(a) of
                                                                        Ð by requiring family members of beneficiaries of
     Council Directive 77/799/EEC (1) be interpreted as
                                                                            Directive 90/364/EEC (1) to have resources
     meaning that the loss of tax in question necessarily
                                                                            one-third higher in amount than the minimum
     arises from an express act on the part of the
                                                                            which family members of beneficiaries of Directive
     competent authority of another Member State?
                                                                            90/365/EEC (2) must have;
2. How should the word abnormaal' in the Dutch
     version of that provision be interpreted in that                   Ð by limiting the methods of proof which may be
     connection?                                                            submitted and, in particular, by providing that
                                                                            certain documents must be issued or certified by
                                                                            the authorities of another Member State; and
3. If Article 4(1)(a) is not applicable, can Article 4(3) of
     the directive give rise to an obligation to exchange
     information spontaneously?                                         Ð by requiring students, who are citizens of other
                                                                            Member States, requesting recognition of their
                                                                            right of residence in Italy within the meaning of
(1) OJ L 336, 27.12.1977, p. 15.                                            Directive 93/96/EEC (3) and members of their
                                                                            family to guarantee to the Italian authorities that
                                                                            they have resources of a certain amount and, as
                                                                            regards the means to be used for that purpose, not
                                                                            clearly leaving the student a choice between
                                                                            making a declaration or such alternative means as
                                                                            are at least equivalent, and by not allowing the
Reference for a preliminary ruling by the Corte di Appello
                                                                            declaration to be used where the student is
di Napoli by order of that court of 29 October 1998 in
                                                                            accompanied by members of his family
             the case brought by Alfredo Albore
                       (Case C-423/98)
                        (1999/C 48/17)                                  has failed to fulfil its obligations under the
                                                                        above-mentioned Council Directives 90/364/EEC (1),
                                                                        90/365/EEC (2) and 93/96/EEC (3);
Reference has been made to the Court of Justice of the
European Communities by order of the Corte di Appello
di Napoli (Appeal Court, Naples) of 29 October 1998,                (b) order the Italian Republic to pay the costs.
which was received at the Court Registry on 25 November
1998, for a preliminary ruling in the case brought by
Alfredo Albore on a question as to the compatibility of
                                                                    Pleas in law and main arguments adduced in support
Article 18 of Law No 898/1976, as amended by Article 9
of Law No 104/1990, with Articles 6, 52 and 67 of the
Treaty.
                                                                    Ð The amount of family members' income
                                                                        The Commission considers that by requiring family
                                                                        members of beneficiaries of Directive 90/364/EEC to
                                                                        have resources one-third higher in amount than the
Action brought on 25 November 1998 by the Commission                    minimum which family members of beneficiaries of
 of the European Communities against the Italian Republic               Directive 90/365/EEC must have, the Italian Republic
                       (Case C-424/98)                                  has failed to fulfil its obligations under Directive
                                                                        90/364/EEC.
                        (1999/C 48/18)
An action against the Italian Republic was brought before           Ð The documents which beneficiaries of
the Court of Justice of the European Communities on                     Directives 90/364/EEC and 90/365/EEC
25 November 1998 by the Commission of the European                      must submit
Communities, represented by Antonio Aresu, of its Legal
Service, acting as Agent, with an address for service in
Luxembourg at the Office of Carlos Gómez de la Cruz,                    The Commission considers that, by limiting the
Wagner Centre, Kirchberg.                                               methods of proof which may be submitted, and by


title: Case T-185/04: Order of the Court of First Instance of 11 September 2007 — Lancôme v OHIM — Baudon (AROMACOSMETIQUE) (Community trade mark — Invalidity proceedings — Community word mark AROMACOSMETIQUE — Earlier national word mark AROMACOSMETIQUE — Invalidity of the earlier national word mark — No need to adjudicate)

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/26

         Order of the Court of First Instance of 11 September 2007 — Lancôme v OHIM — Baudon (AROMACOSMETIQUE)
   (Case T-185/04) (1)

   (Community trade mark - Invalidity proceedings - Community word mark AROMACOSMETIQUE - Earlier national word mark AROMACOSMETIQUE - Invalidity of the earlier national word mark - No need to adjudicate)
   (2007/C 283/47)
   Language of the case: French
   Parties

      Applicant: Lancôme parfums et beauté & Cie SNC (Paris, France) (represented by: M. Antoine-Lalance, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Jacqueline Baudon (Paris, France)
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 March 2004 (Case R 39/2002-4) concerning the invalidity proceedings 155 C 000866335/1 between Ms Jacqueline Baudon and Lancôme parfums et beauté & Cie SNC
   Operative part of the judgment

               1.

               There is no need to adjudicate on the action.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 217, 28.8.2004.


title: Case T-493/13: Action brought on 13 September 2013 — Schmidt Spiele v OHIM (Representation of a games board)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/49

         Action brought on 13 September 2013 — Schmidt Spiele v OHIM (Representation of a games board)
   (Case T-493/13)
   2013/C 325/78
   Language of the case: German

      Parties

      Applicant: Schmidt Spiele GmbH (Berlin, Germany) (represented by T. Sommer, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of OHIM of 3 July 2013 in Case R 1768/2012-1;

               —

               Order OHIM to pay the costs;

               —

               Set a date for the oral procedure.

      Pleas in law and main arguments

      Community trade mark concerned: the figurative mark including the representation of a games board for goods and services in Classes 9, 16, 28 and 41 — Community trade mark application No 10 592 095

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 7(1)(b) and (3) of Regulation (EC) No 207/2009


title: Judgment of the Court (Sixth Chamber) of 18 November 1999 in Case C-209/97: Commission of the European Communities v Council of the European Union (Regulation (EC) No 515/97 — Legal basis — Article 235 of the EC Treaty (now Article 308 EC) or Article 100a of the EC Treaty (now, after amendment, Article 95 EC))

text:
19.2.2000               EN                      Official Journal of the European Communities                                              C 47/5
or withdrawal within the meaning of Council Regulation (EEC)                                   JUDGMENT OF THE COURT
No 1408/71 of 14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons and to
members of their families moving within the Community, as amended                                       (Fifth Chamber)
by Council Regulation (EEC) No 1248/92 of 30 April 1992.
                                                                                of 18 November 1999
(1) OJ C 55 of 20.2.1998.
                                                                           in Case C-107/98 (reference for a preliminary ruling from
                                                                           the Tribunale Amministrativo Regionale per l’Emilia-
                                                                           Romagna): Teckal Srl v Comune di Viano, Azienda Gas-
                                                                                Acqua Consorziale (AGAC) di Reggio Emilia (1)
                 JUDGMENT OF THE COURT
                                                                           (Public service and public supply contracts — Directives
                                                                           92/50/EEC and 93/36/EEC — Award by a local authority of
                         (Sixth Chamber)                                   a contract for the supply of products and provision of
                                                                             specified services to a consortium of which it is a member)
                      of 18 November 1999
in Case C-209/97: Commission of the European Communi-                                                    (2000/C 47/08)
           ties v Council of the European Union (1)
(Regulation (EC) No 515/97 — Legal basis — Article 235                                            (Language of the case: Italian)
of the EC Treaty (now Article 308 EC) or Article 100a of the
      EC Treaty (now, after amendment, Article 95 EC))
                          (2000/C 47/07)                                   (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: French)
                                                                           In Case C-107/98: reference to the Court under Article 177 of
                                                                           the EC Treaty (now Article 234 EC) from the Tribunale
(Provisional translation; the definitive translation will be published     Amministrativo Regionale per l’Emilia-Romagna (Regional
                   in the European Court Reports)                          Administrative Court for Emilia Romagna), Italy, for a prelimi-
                                                                           nary ruling in the proceedings pending before that court
In Case C-209/97: Commission of the European Communities                   between Teckal Srl and Comune di Viano, Azienda Gas-Acqua
(Agents: M. Nolin and P. van Nuffel), supported by the Euro-               Consorziale (AGAC) di Reggio Emilia — on the interpretation
pean Parliament, (Agents: J. Schoo and J.-L. Rufas Quintana) v             of Article 6 of Council Directive 92/50/EEC of 18 June 1992
Council of the European Union (Agents: B. Hoff-Nielsen,                    relating to the coordination of procedures for the award of
M.C. Giorgi and F. Anton), supported by the French Republic                public service contracts (OJ 1992 L 209, p. 1) — the Court
(Agents: M. Perrin de Brichambaut and F. Pascal) — application             (Fifth Chamber), composed of: D.A.O. Edward, President of the
for the annulment of Council Regulation (EC) No 515/97 of                  Chamber, L. Sevón, J.-P. Puissochet, P. Jann (Rapporteur) and
13 March 1997 on mutual assistance between the administrat-                M. Wathelet, Judges; G. Cosmas, Advocate General; H.A. Rühl,
ive authorities of the Member States and cooperation between               Principal Administrator, for the Registrar, has given a judgment
the latter and the Commission to ensure the correct application            on 18 November 1999, in which it has ruled:
of the law on customs and agricultural matters (OJ 1997 L 82,
p. 1) — the Court (Sixth Chamber), composed of: P.J.G. Kap-
teyn, acting for the President of the Sixth Chamber, G. Hirsch             Council Directive 93/36/EEC of 14 June 1993 coordinating pro-
(Rapporteur) and H. Ragnemalm, Judges; A. Saggio, Advocate                 cedures for the award of public supply contracts is applicable in the
General; R. Grass, Registrar, has given a judgment on 18 Nov-              case where a contracting authority, such as a local authority, plans to
ember 1999, in which it:                                                   conclude in writing, with an entity which is formally distinct from it
                                                                           and independent of it in regard to decision-making, a contract for
1. Dismisses the application;                                              pecuniary interest for the supply of products, whether or not that
                                                                           entity is itself a contracting authority.
2. Orders the Commission of the European Communities to pay the
    costs and the European Parliament and the French Republic to
    bear their own costs.
                                                                           (1) OJ C 209 of 4.7.1998.
(1) OJ C 228 of 26.7.1997.


title: Case C-251/06: Judgment of the Court (Fourth Chamber) of 8 November 2007 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz, Austria) — Firma Ing. Auer — Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr (Indirect taxes — Raising of capital — Transfer of the seat of a company — Abolition of the capital duty charged to a company)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/17

         Judgment of the Court (Fourth Chamber) of 8 November 2007 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz, Austria) — Firma Ing. Auer — Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr
   (Case C-251/06) (1)

   (Indirect taxes - Raising of capital - Transfer of the seat of a company - Abolition of the capital duty charged to a company)
   (2007/C 315/28)
   Language of the case: German
   Referring court
   Unabhängiger Finanzsenat, Außenstelle Linz
   Parties to the main proceedings

      Applicant: Firma Ing. Auer — Die Bausoftware GmbH

      Defendant: Finanzamt Freistadt Rohrbach Urfahr
   Re:
   Reference for a preliminary ruling — Unabhängiger Finanzsenat — Interpretation of Article 4(1)(a) and (g), Article 4(3)(b) and Article 7(2) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — Capital duty charged to a company which has transferred its effective centre of management from a Member State which has abolished capital duty to a Member State which charges capital duty
   Operative part of the judgment
   Article 4(1)(g) and (3)(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985 and by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted to the effect that the waiver by a Member State of the charging of capital duty does not preclude a company falling within one of the categories referred to in Article 3(1)(a) of that directive from being classified as a capital company for the purposes of charging capital duty within the meaning of Article 4(1)(g) of that directive if its effective centre of management is transferred from that Member State to another Member State in which that duty is still levied. Nevertheless, the result of such an interpretation cannot be to encourage conduct characterised by the putting in place of artificial arrangements with the sole aim of obtaining a fiscal advantage. It is for the national court to verify whether there is objective evidence of action constituting an abusive practice of that kind in the circumstances of the main proceedings.

      (1)  OJ C 212, 2.9.2006.


title: Action brought on 28 October 1997 by the Italian Republic against the Commission of the European Communities (Case C-372/97)

text:
C 387/ 10                EN                  Official Journal of the European Communities                                       20 . 12 . 97
1989 , p. 1 , 'the Trade Mark Directive') to be interpreted                     The Italian Republic states that the aid is, all in all ,
as meaning that the trade mark entitles its proprietor to                       of an extremely modest amount. Apart from the very
prohibit a third party from using the mark for goods                            limited extent of the aid, which in itself is indicative
which have been put on the market under that mark in a                          of the fact that it is hardly likely to have any impact
State which is not a Contracting State ?                                        on Community trade or competition, it is noteworthy
                                                                                that no mention is or has been made of any such
                                                                                impact;
May the proprietor of the trade mark on the basis of
Article 7 ( 1 ) of the Trade Mark Directive alone seek an
order that the third party cease using the trade mark for
goods which have been put on the market under that                      ( b ) Incorrect exclusion of the permitted derogations,
mark in a State which is not a Contracting State ?                              without reasons being given: infringement and
                                                                                misapplication of Article 92 ( 3 ) ( c ) of the EC Treaty
                                                                                and of Article 3 ( 1 ) ( d ) of Council Regulation ( EEC )
                                                                                No 1107/70 of 4 June 1970 ( 2 ).
                                                                                The Commission states that the derogations provided
      Action brought on 28 October 1997 by the Italian                          for by both the above provisions are inapplicable .
      Republic against the Commission of the European                           However, rather than giving a definitive ruling of
                             Communities
                                                                                incompatibility, the Commission merely expresses
                          ( Case C-372/97)                                      doubts concerning legality and then concludes,
                                                                                without a proper and logical statement of reasons,
                            ( 97/C 387/ 15 )                                    that the derogations are unavailable;
An action against the Commission of the European                         (c)     Incorrect description of the measures as ' new' aid.
Communities was brought before the Court of Justice on
                                                                                The fact that the measures concerned predate the
28 October 1997 by the Italian Republic, represented by
Oscar Fiumara, Avvocato dello Stato, with an address for
                                                                                1981 Law and the 1985 Law and were thus adopted
                                                                                before the entry into force of the Community
service in Luxembourg at the Italian Embassy, 5 Rue
Marie-Adelaide .
                                                                                legislation which liberalized the carriage of goods by
                                                                                road by way of cabotage by opening up the sector to
                                                                                competition implies that such measures, where they
                                                                                are regarded as ' aid', should be described as 'existing
The applicant claims that the Court should:                                      aid '.
— annul in its entirety the decision of the Commission of
      the European Communities of 30 July 1997 (C ( 97 )                         The Commission, having treated the measures in
      2735 final ) ( M ,                                                         question as new aid, and, as a result, as being subject
                                                                                to the procedure provided for in Article 93 ( 3 ), and
                                                                                having in consequence adopted a decision declaring
                                                                                the measures to be unlawful and incompatible,
— in the alternative, annul the part of that decision                            expressly requiring the funds to be repaid to the
      ( Article 5 ) which imposes the obligation to recover the                  State, a serious infringement of essential procedural
      aid granted as from 1 July 1990, plus interest,                            requirements has been committed rendering the
                                                                                decision invalid, at least in so far as it requires
                                                                                recovery the aid paid;
 — in both cases, order the Commission of the European
      Communities to pay the costs.
                                                                          ( d ) Infringement of the principle of the protection of
                                                                                legitimate expectations and the principle of
 Pleas in law and main arguments adduced in support:
                                                                                reasonableness as regards the instruction that aid
                                                                                paid as from 1 July 1990 be recovered . Since the aid
                                                                                has been paid for many years, the requirement of
 (a )   Incorrect classification of the measures as aid .                         recovery is inimical to the principles of the protection
        The measures provided for by Regional Law No 4/                           of legitimate expectations and legal certainty. It is
        1985 cannot be regarded as constituting prohibited                        inconceivable that the State and economic operators
        aid, for two reasons: they do not affect intra                           themselves could, in 1981 and then in 1985 , foresee
        Community trade and they are not liable to have any                       that the aid, which at that time was granted as a
        impact on competition .                                                   matter of routine, would so many years later be
 ---pagebreak--- 20 . 12 . 97                                     Official Journal of the European Communities                                  C 387/ 11
          regarded as unlawful solely as regards that granted               Reference for a preliminary ruling by the Tribunal de
          on or after 1 July 1990 .                                         Commerce ( Second Chamber), Tournai, by judgment of
                                                                            that court of 30 October 1997 in the case of General
(') Concerning aid granted to the Friuli Venezia Giulia Region in                         Motors Corporation v. Yplon SA
       favour of road hauliers of that region.                                                     ( Case C-375/97 )
( 2 ) OJ English Special Edition 1979 ( II ), p. 360 .
                                                                                ( 97/C 387/17 )
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Tribunal de
                                                                            Commerce ( Second Chamber), Tournai, of 30 October
Reference for a preliminary ruling by the Bayerische                        1997, received at the Court Registry on 3 November
Verwaltungsgerichtshof by order of that court of                            1997, for a preliminary ruling in the case of General
20 October 1997 in the case of Anton Feyrer v. Landkreis                    Motors Corporation v. Yplon SA on the following
Rottal-Inn ( also party: Landesanwaltschaft Bayern as                       question:
                 representative of the public interest )
                              Case C-374/97                                 On reading Article 13 A ( 1 ) ( c ) of the Uniform Benelux
                              ( 97/C 387/ 16 )                              Law introduced pursuant to the amending protocol in
                                                                            force since 1 January 1996, what is the proper
                                                                            construction of the term 'repute of the trade mark ' and
Reference has been made to the Court of Justice of the                      may it also be said that such 'repute' applies throughout
European Communities by order of the Bayerische                             the Benelux countries or to part thereof?
Verwaltungsgerichtshof ( Bavarian Administrative Court )
of 20 October 1997, received at the Court Registry on
3 November 1997, for a preliminary ruling in the case of
Anton Feyrer v. Landkreis Rottal-Inn, represented by the
Landrat ( also party: Landesanwaltschaft Bayern as
representative of the public interest) on the following                     Reference      for a preliminary ruling by the
questions:                                                                  Arrondissementsrechtbank Rotterdam by order of that
                                                                            court of 30 October 1997 in the criminal proceedings
 1 . Can an individual oppose the collection of fees higher                                against Florus Ariel Wijsenbeek
        than the standard amounts listed in point 1 of the                                          ( Case C-378/97 )
        annex relating to Article 2 ( 1 ) of Council Directive 85/                                    ( 97/C 387/ 18 )
        73/EEC (') as amended by Council Directive 93/ 118/
        EC ( 2 ) where the Member State has not transposed
        Directive 93/ 118/EC into national law within the
                                                                            Reference has been made to the Court of Justice of the
        prescribed period ?                                                 European Communities by an order of the
                                                                            Arrondissementsrechtbank ( District Court ) Rotterdam of
 2 . Can a Member State collect fees higher than the                        30 October 1997, received at the Court Registry on
        standard amounts in reliance in point 4 ( b ) of the                5 November 1997, for a preliminary ruling in the criminal
        annex relating to Article 2 ( 1 ) of Council Directive 85/          proceedings against Florus Ariel Wijsenbeek on the
        73/EEC as amended by Directive 93/ 118/EC provided                  following questions :
        that the fees levied do not exceed the actual costs, no
        further conditions being imposed ?                                  Are the second paragraph of Article 7a of the EC Treaty,
                                                                            which provides that the internal market is to comprise an
                                                                            area without internal frontiers in which the free movement
 3 . Is the authorization given to Member States under
        Article 2 ( 3 ) of Council Directive 85/73/EEC as                   of persons is ensured, and Article 8a of the EC Treaty,
        amended by Directive 93/ 118/EEC to collect an                      which confers on all citizens of the Union the right to
        amount exceeding the Community fees dependent on                    move and reside freely within the territory of the Member
        the total fee collected in the Member State as a whole               States, to be interpreted as precluding national legislation
        and the actual inspection costs in the Member State as               of a Member State imposing an obligation, accompanied
        a whole or is it sufficient, when the Member State has               by criminal penalties for failure to comply, on persons
        delegated authorization to collect the fees to the local             ( whether or not citizens of the European Union ) to present
         authorities, that the total fee collected by the local              a passport on entry into a Member State whenever that
         authority is not greater than the actual inspection                 person enters the Member State through the national
        costs of that authority ?                                            airport coming from another Member State ?
 (') OJ L 32, 5 . 2 . 1985 , p . 14 .                                        Does any other provision of Community law preclude
 ( 2 ) OJ L 340 , 31 . 12 . 1993 , p . 15 .                                  such an obligation ?


title: Case C-152/13: Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 26 March 2013 — Holger Forstmann Transporte GmbH & Co. KG v Hauptzollamt Münster

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/2

         Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 26 March 2013 — Holger Forstmann Transporte GmbH & Co. KG v Hauptzollamt Münster
   (Case C-152/13)
   2013/C 189/02
   Language of the case: German

      Referring court

   Finanzgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Holger Forstmann Transporte GmbH & Co. KG

      Defendant: Hauptzollamt Münster

      Questions referred

               1.

               Is the term ‘manufacturer’, within the meaning of the first indent of Article 24(2) of Council Directive 2003/96/EC (1) of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, OJ 2003 L 283, p. 51, to be interpreted as also including coachbuilders or dealers, when they have fitted the fuel tank as part of a process of producing the vehicle, and the production process was, for technical and/or economic reasons, carried out through division of labour by various independent businesses?

               2.

               If the first question should be answered in the affirmative: What interpretation is to be given, in such cases, to the factual criterion, in the first indent of Article 24(2) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, OJ 2003 L 283, p. 51, whereby the vehicles in question must be ‘of the same type’?

      (1)  OJ L 283, p. 51.


title: Case C-387/08 P: Appeal by VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH against the order of the Court of First Instance (Second Chamber) of 25 June 2008 in Case T-185/08 VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH v Commission of the European Communities, brought on 27 August 2008

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/22

         Appeal by VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH against the order of the Court of First Instance (Second Chamber) of 25 June 2008 in Case T-185/08 VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH v Commission of the European Communities, brought on 27 August 2008
   (Case C-387/08 P)
   2009/C 141/39
   Language of the case: German

      Parties

      Appellants: VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH (represented by: C. Antweiler, Rechtsanwalt)

      Other party to the proceedings: Commission of the European Communities
   On 27 August 2008 VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH brought an appeal before the Court of Justice of the European Communities against the order of the Court of First Instance of the European Communities of 25 June 2008 in Case T-185/08 VDH Projektentwicklung GmbH and Edeka Handelsgesellschaft Rhein-Ruhr mbH v Commission of the European Communities. The appellants are represented by Dr Clemens Antweiler, Rechtsanwalt, Rotthege Wassermann & Partner, Postfach 20 06 69, DE-40103 Düsseldorf.
   By order of 3 April 2009, the Court of Justice of the European Communities (Seventh Chamber) dismissed the appeal and decided that the appellants must bear their own costs.


title: Case T-536/08: Judgment of the General Court of 13 September 2013 — Huvis v Council (Dumping — Imports of polyester staple fibres originating in South Korea — Maintenance of anti-dumping duties following a partial interim review — Action for annulment — Direct and individual concern — Admissibility — Equal treatment and non-discrimination — Article 9(5) and Article 21(1) of Regulation (EC) No 384/96 (now Article 9(5) and Article 21(1) of Regulation (EC) No 1225/2009))

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/17

         Judgment of the General Court of 13 September 2013 — Huvis v Council
   (Case T-536/08) (1)

   (Dumping - Imports of polyester staple fibres originating in South Korea - Maintenance of anti-dumping duties following a partial interim review - Action for annulment - Direct and individual concern - Admissibility - Equal treatment and non-discrimination - Article 9(5) and Article 21(1) of Regulation (EC) No 384/96 (now Article 9(5) and Article 21(1) of Regulation (EC) No 1225/2009))
   2013/C 313/30
   Language of the case: English

      Parties

      Applicant: Huvis Corp. (Seoul, South Korea) (represented: initially by J.-F. Bellis, F. Di Gianni and R. Antonini, and subsequently by J.-F. Bellis, F. Di Gianni and A. Scalini, lawyers)

      Defendant: Council of the European Union (represented by: J.-P. Hix and B. Driessen, Agents, assisted initially by G. Berrisch and G. Wolf, and subsequently by G. Berrisch, lawyers)

      Intervener in support of the defendant: European Commission (represented: intially by M. França and H. van Vliet, and subsequently by M. França and J.-F. Brakeland, Agents)

      Re:

   Action for annulment of Council Regulation (EC) No 893/2008 of 10 September 2008 maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People’s Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2008 L 247, p. 1), as regards the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Huvis Corp. to bear its own costs and to pay those incurred by the Council of the European Union;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 55, 7.3.2009.


title: Case C-547/15: Request for a preliminary ruling from the Kúria (Hungary) lodged on 20 October 2015 — Interservice d.o.o. Koper v Sándor Horváth

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/9

         Request for a preliminary ruling from the Kúria (Hungary) lodged on 20 October 2015 — Interservice d.o.o. Koper v Sándor Horváth
   (Case C-547/15)
   (2016/C 027/11)
   Language of the case: Hungarian

      Referring court

   Kúria

      Parties to the main proceedings

      Applicant: Interservice d.o.o. Koper

      Defendant: Sándor Horváth

      Questions referred

               1.

               Must Article 96(2) of Regulation (EEC) No 2913/92 (1) establishing the Community Customs Code be interpreted as meaning that not only the person who enters into a transport agreement with the seller for the transport of the goods (the contractual or main carrier), but also the person who carries out the transport, in full or in part, on the basis of another transport agreement concluded with the contractual or main carrier (the transport subcontractor), is to be regarded as a carrier of the goods?

               2.

               If the first question is answered in the affirmative, must Article 96(2) of Regulation (EEC) No 2913/92 establishing the Community Customs Code be interpreted as meaning that, in a case such as that in the main proceedings, the transport subcontractor is required, before continuing the transport of the goods, to ensure in a satisfactory manner that the main carrier actually produced the goods at the customs office of destination in the manner prescribed?

      (1)  Corrigendum to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302) (OJ 2014 L 367, p. 126).


title: Case T-60/12: Order of the General Court of 20 September 2012 — Western Digital and Western Digital Ireland v Commission

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/38

         Order of the General Court of 20 September 2012 — Western Digital and Western Digital Ireland v Commission
   (Case T-60/12) (1)

   2012/C 355/81
   Language of the case: English
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 98, 31.3.2012.


title: Case T-528/11: Action brought on 6 October 2011 — Aloe Vera of America v OHIM — Diviril (FOREVER)

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/18

         Action brought on 6 October 2011 — Aloe Vera of America v OHIM — Diviril (FOREVER)
   (Case T-528/11)
   2011/C 362/27
   Language in which the application was lodged: English

      Parties

      Applicant: Aloe Vera of America, Inc. (Dallas, United States) (represented by: R. Niebel and F. Kerl, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Other party to the proceedings before the Board of Appeal: Diviril-Distribuidora de Viveres do Ribatejo, Lda (Alenquer, Portugal)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 August 2011 in case R 742/2010-4; and

               —

               Order the defendant and, as appropriate, the other party to the proceedings before the Board of Appeal to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘FOREVER’, for goods in classes 3, 5, 30, 31 and 32 — Community trade mark application No 5617089

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Portuguese trade mark registration No 297697 of the figurative mark ‘4 EVER’, for goods in class 32

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed: (i) to correctly assess the proof of use provided by the other party to the proceedings before the Board of Appeal; (ii) to correctly identify the aural differences between the opposed trade marks; (iii) to correctly identify the conceptual differences between the trade marks in conflict; and (iv) to correctly identify the visual differences between the opposed trade marks.


title: Reference for a preliminary ruling by the 4ª Vara Criminal do Círculo do Porto by decision of that court of 21 April 1998 in the case of Ministério Público against Maria Amélia Nunes and Evangelina de Matos (Case C-186/98)

text:
C 209/28              EN                  Official Journal of the European Communities                                    4.7.98
2. If so, is the fact of making membership of the                    above provisions require Member States to adapt their
    occupational pension scheme for medical specialists              legislation to comply with Community directives within
    . . . compulsory a measure adopted by a Member State             the periods prescribed therein. Although the period
    which nullifies the useful effect of the competition             prescribed in Article 3 of Directive 92/101/EEC expired on
    rules applicable to undertakings, or is this the case            1 January 1994, the Hellenic Republic had not adopted
    only under certain conditions, and if so, under which?           the laws, regulations and administrative provisions
                                                                     necessary to comply with that directive.
3. If the last question must be answered in the negative,
                                                                     (1) OJ L 347, 28.11.1992, p. 64.
    can      other    circumstances     render     compulsory
    membership incompatible with Article 90 of the
    Treaty, and if so, which?
                                                                     Reference for a preliminary ruling by the 4.a Vara Criminal
                                                                     do Círculo do Porto by decision of that court of 21 April
                                                                     1998 in the case of MinisteÂrio PuÂblico against Maria
Action brought on 15 May 1998 by the Commission of                             AmeÂlia Nunes and Evangelina de Matos
 the European Communities against the Hellenic Republic
                                                                                (Case C-186/98)
                       (Case C-185/98)
                                                                                (98/C 209/58)
                         (98/C 209/57)
                                                                     Reference has been made to the Court of Justice of the
An action against the Hellenic Republic was brought                  European Communities by decision of the 4.a Vara
before the Court of Justice on 15 May 1998 by the                    Criminal do Círculo do Porto (Fourth Criminal Chamber,
Commission of the European Communities, represented                  Oporto Circuit) of 21 April 1998, which was received at
by M. Patakia, of the Commission's Legal Service, with an            the Court Registry on 18 May 1998, for a preliminary
address for service in Luxembourg at the office of Carlos            ruling in the case of MinisteÂrio PuÂblico against Maria
Gómez de la Cruz, also of the Commission's Legal                     AmeÂlia Nunes and Evangelina de Matos on the following
Service, Wagner Centre, Kirchberg.                                   questions:
The applicant claims that the Court should:                          Ð did the Community legislation in force at the material
                                                                         time treat the conduct with which the defendants are
                                                                         charged as criminal?
(1) declare that, by failing to adopt, within the period
      prescribed, the laws, regulations and administrative
      provisions necessary to comply with Council                        and
      Directive 92/101/EEC of 23 November 1992
      amending Directive 77/91/EEC on the formation of               Ð does a Member State have the power to impose
      public limited liability companies and the                         criminal sanctions on conduct which causes only
      maintenance and alteration of their capital (1), the               economic damage to the Community in respect of
      Hellenic Republic has failed to fulfil its obligations             which Community law only provides for civil
      under the EC Treaty and that directive,                            sanctions?
(2) in the alternative, declare that, by failing to
      communicate to the Commission the measures
      adopted in order to transpose the said directive into
      national law, the Hellenic Republic has failed to fulfil
      its obligations under the EC Treaty and that directive,                  Removal from the register of C-21/95 (1)
                                                                                (98/C 209/59)
(3) order the Hellenic Republic to pay the costs.
                                                                     By order of 3 March 1998 the President of the Court of
Pleas in law and main arguments adduced in support:                  Justice of the European Communities has ordered the
                                                                     removal from the register of Case C-21/95 (reference for a
                                                                     preliminary ruling from the Tribunale Amministrativo
Under the third paragraph of Article 189 of the EC Treaty,           Regionale del Lazio): Toscana TV and Others v. Ministero
a directive is to be binding, as to the result to be achieved,       delle Poste e Telcomunicazioni.
upon each Member State to which it is addressed. Under
Article 5 of the Treaty, the Member States are to take all
                                                                     (1) OJ C 74, 25.3.1995.
appropriate measures to ensure fulfilment of the
obligations arising out of the Treaty or resulting from
action taken by the institutions of the Community. The


title: Case T-123/17: Action brought on 28 February 2017 — Exaa Abwicklungsstelle für Energieprodukte v ACER

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/26

         Action brought on 28 February 2017 — Exaa Abwicklungsstelle für Energieprodukte v ACER
   (Case T-123/17)
   (2017/C 129/40)
   Language of the case: German

      Parties

      Applicant: Exaa Abwicklungsstelle für Energieprodukte 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 of 17 February 2017 given by the Board of Appeal of the defendant 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 three 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 second paragraph of Article 296 TFEU (serious failure to state reasons).

               3.

               Third 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: Case C-628/13: Judgment of the Court (Second Chamber) of 11 March 2015 (request for a preliminary ruling from the Cour de cassation — France) — Jean-Bernard Lafonta v Autorité des marchés financiers (Reference for a preliminary ruling — Approximation of laws — Directive 2003/6/EC — Article 1, point (1) — Directive 2003/124/EC — Article 1(1) — Inside information — Concept of ‘information of a precise nature’ — Potential effect in a particular direction on the prices of financial instruments)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/5

         Judgment of the Court (Second Chamber) of 11 March 2015 (request for a preliminary ruling from the Cour de cassation — France) — Jean-Bernard Lafonta v Autorité des marchés financiers
   (Case C-628/13) (1)

   ((Reference for a preliminary ruling - Approximation of laws - Directive 2003/6/EC - Article 1, point (1) - Directive 2003/124/EC - Article 1(1) - Inside information - Concept of ‘information of a precise nature’ - Potential effect in a particular direction on the prices of financial instruments))
   (2015/C 146/06)
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Appellant: Jean-Bernard Lafonta

      Respondent: Autorité des marchés financiers

      Operative part of the judgment

   On a proper construction of point (1) of Article 1 of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards the definition and public disclosure of inside information and the definition of market manipulation, in order for information to be regarded as being of a precise nature for the purposes of those provisions, it need not be possible to infer from that information, with a sufficient degree of probability, that, once it is made public, its potential effect on the prices of the financial instruments concerned will be in a particular direction.

      (1)  OJ C 39, 8.2.2014.


title: Action brought on 14 January 1998 by Centre d'Action Culturelle du Sart-Tilman asbl against the Commission of the European Communities (Case T-15/98)

text:
C 94/32                EN                Official Journal of the European Communities                                   28.3.98
Ð order, further, the defendants jointly to pay the costs.          Luigi Pecetti, Nicola Maria Spadaccino, Giovanni Tria,
                                                                    Vito Stefano Tria and Nicola Utzeri, represented by
Pleas in law and main arguments adduced in support:                 Gregorio Leone, of the Milan Bar, and Mark Clough, of
                                                                    the Bar of England and Wales, with an address for service
                                                                    in Luxembourg at the Chambers of Aloyse May, 31
The applicants, all of which are companies whose                    Grand-Rue.
principal business is that of customs forwarding services,
carried on either by the partners of the company or by
customs agents employed by them, seek compensation for              The applicants claim that the Court should:
what they claim to be the abrupt removal, with effect
from January 1993, of customs formalities for intra-                Ð declare the defendants liable, within the meaning of
Community trade, and from 1 January 1995 in respect of                  the second paragraph of Article 215 of the Treaty, for
the EFTA countries, the result of which was essentially the             the damage caused to the applicant companies by the
closure of customs posts and the dismissal of customs                   repercussions on their activities as authorised customs
officials.                                                              agent as a result of the provisions adopted by the
                                                                        Council when organising the free movement of goods
                                                                        within the single market from 1 January 1993 without
The applicants observe that Article 8 a of the Treaty of
                                                                        taking the measures necessary to protect the interests
Rome, introduced by the Single European Act, introduced
                                                                        of the applicants, as well as for the fact that the
the concept of the internal market into Community law
                                                                        Commission has not proposed, nor has the Council
and that as a result of the secondary legislation adopted in
                                                                        adopted, the measures necessary for the legitimate
order to organise the free movement of goods according to
                                                                        protection of the rights of the applicants,
the new guidelines, the intra-Community customs activity
was removed.
                                                                    Ð order, moreover, the defendants jointly to pay the
                                                                        costs.
The applicants point out, first, that the Commission failed
to propose, and the Council failed to adopt, transitional
measures which would have enabled those affected to                 Pleas in law and main arguments adduced in support:
adapt gradually to the new situation and, secondly, that
the measures adopted by the Community bodies to                     The pleas-in-law and main arguments are identical with
overcome those difficulties were in no way compensatory             those relied on in Case T-12/98 Argon srl and Others v.
in nature.                                                          Council and Commission.
The applicants further state that, in the context of the
Community legislative action which caused the damage,
the Community authorities disregarded the acquired rights
of the customs and forwarding agents as well as the
principles of the protection of legitimate expectations and         Action brought on 14 January 1998 by Centre d'Action
non-discrimination.                                                 Culturelle du Sart-Tilman asbl against the Commission of
                                                                                the European Communities
In the alternative, the applicants, in claiming no-fault                                   (Case T-15/98)
liability, also allege not only that the principle of equality                              (98/C 94/79)
in bearing public burdens has been breached but also that
the conduct of the Community bodies is tantamount to
                                                                                (Language of the case: French)
depriving them of their acquired rights.
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 14 January
                                                                    1998 by Centre d'Action Culturelle du Sart-Tilman asbl,
                                                                    established in LieÁge (Belgium), represented by Bernadette
Action brought on 9 January 1998 by Carlo Chiappe and               Graulich, of the LieÁge Bar, with an address for service in
Others against the Council of the European Union and the            Luxembourg at the Chambers of Guy Arendt, 7 Val
          Commission of the European Communities                    Sainte-Croix.
                        (Case T-13/98)
                         (98/C 94/78)                               The applicant claims that the Court should:
                (Language of the case: Italian)                     Ð order the defendant to pay to the applicant BEF
                                                                        12 323 006,
An action against the Council of the European Union and
the Commission of the European Communities was                      Ð order the defendant to pay to the applicant interest at
brought before the Court of First Instance of the European              the rate of 8 % on that amount as from 18 October
Communities on 9 January 1998 by Carlo Chiappe, Giulio                  1990,
Comoglio, Sergio De Bona, Piero Luciano Galbiati,
Umberto Greco, Mario Malugani, Alessandro Michelucci,               Ð order the defendant to pay the costs.
 ---pagebreak--- 28.3.98              EN                   Official Journal of the European Communities                                   C 94/33
Pleas in law and main arguments adduced in support:                  and 87/0296/B2, of which it has been unlawfully deprived.
                                                                     (1) Case C-199/91 Foyer Culturel du Sart-Tilman SARL v.
The applicant, a non-profit-making association governed                  Commission [1993] ECR I-2689.
by Belgian law, which has promoted a series of training              (2) OJ L 289, 22.10.1983, p. 1.
projects, states that the Belgian State submitted to the
European Social Fund, in its own name and on behalf of
the applicant itself, several applications for assistance
which gave rise to Commission decisions approving them
in six files bearing the numbers 84/3643/B6, 85/0077/B4,
85/0186/B6, 86/0274/B2, 87/0295/B2 and 87/0296/B2, as                Action brought on 16 January 1998 by Wirtschaftsver-
well as to the payment of advances. In December 1988 the             einigung Stahl and Others against the Commission of the
Belgian authorities informed the Commission that the                                    European Communities
applicant was being wound up and asked it to stop all                                        (Case T-16/98)
payments and inform it of the sums not yet disbursed in
respect of the approved files. The decisions to reduce                                        (98/C 94/80)
financial assistance finally taken by the Commission were
the subject of an action before the Court of Justice which,                         (Language of the case: German)
by judgment of 25 May 1993 (1), upheld in part the
applicant's claims.                                                  An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 16 January
The applicant claims that the Commission has still not               1998 by Wirtschaftsvereinigung Stahl, of Düsseldorf, AG
adopted the measures to comply with that judgment and                der Dillinger Hüttenwerke, of Dillingen/Saar, EKO Stahl
that failure to act has given rise to the damage allegedly           GmbH, of Eisenhüttenstadt, Krupp Thyssen Nirosta
suffered by the applicant.                                           GmbH, of Bochum, Thyssen Krupp Stahl GmbH, of
                                                                     Duisburg, Preussag Stahl AG, of Salzgitter, Stahlwerke
                                                                     Bremen GmbH, of Bremen, and Thyssen Stahl AG, of
In support of its claims it states in particular that:               Duisburg,       represented     by    Jochim     Sedemund,
                                                                     Rechtsanwalt, Berlin, with an address for service in
                                                                     Luxembourg at the Chambers of Aloyse May, 31 Grand-
                                                                     Rue.
Ð under the legislation applicable at the time when the
    applications for assistance were submitted and
    subsequently approved by the Commission, between                 The applicants claim that the Court should:
    1984 and 1987, a promoter whose application for
    assistance is approved by the Commission is entitled             Ð annul Commission Decision 98/4/ECSC of 26
    to payment of an advance and, following a further                     November 1997 relating to a proceeding pursuant to
    application accompanied by a detailed report certified                Article 65 of the ECSC Treaty (Case IV/36.069
    by the Member State, to payment of the balance,                       Wirtschaftsvereinigung Stahl),
                                                                     Ð order the Commission to pay the costs.
Ð Article 6 of Council Regulation (EEC) No 2950/83 of
    17 October 1983 on the implementation of Decision                Pleas in law and main arguments adduced in support:
    83/516/EEC (2), provides for the circumstances in
    which Fund assistance may be suspended, reduced or               By the contested decision the Commission prohibited the
    withdrawn and the amounts paid by way of an                      implementation of the information exchange agreement
    advance refunded,                                                notified by the applicants on 28 May 1996, on the ground
                                                                     of infringement of Article 65 of the ECSC Treaty (1).
Ð the right of a promoter whose applications have been               The applicants submit that the Commission infringed the
    approved and which received an advance to receive                principle of legal certainty by conceptual and logical
    the outstanding amount may not be removed other                  inconsistency in the interpretation of Article 65 (1) of the
    than in observance of the prescribed procedures, and             ECSC Treaty, a provision imposing a monetary penalty
                                                                     whose interpretation is subject to the principle of
                                                                     certainty. Second, the Commission breached the principles
Ð in particular the right must be inferred of a promoter             of the burden of proof: according to the case-law, the
    to a decision by the Commission on the application               Commission is dispensed from the need to prove that
    for payment of the balance submitted by the Member               there has been an actual restriction of competition only if
    State of which it has the nationality.                           the agreement is either intended to restrict competition or
                                                                     else anti-competitive per se. There is no question of that,
                                                                     however, in the case of the present market information
Finally, the applicant states that, in the absence of any            system, since that is to be regarded from the point of view
proper investigation by the Fund regarding its claims, it            of competition law as either neutral or even promoting
cannot but set its damage at the level of the amount of the          competition. The contested decision does not even attempt
balance of the assistance in files 85/0186/B6, 87/0295/B2            to carry out a corresponding empirical examination.


title: Case C-363/16: Action brought on 30 June 2016 — European Commission v Hellenic Republic

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/19

         Action brought on 30 June 2016 — European Commission v Hellenic Republic
   (Case C-363/16)
   (2016/C 305/27)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: Α. Bouchagiar and B. Stromsky, acting as Agents)

      Defendant: Hellenic Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that the Hellenic Republic, by failing to take within the prescribed time-limits all the measures required for the implementation of Commission Decision of 22 February 2012 in case SA.26534 (C 27/2010 ex ΝΝ 6/2009) on the State aid granted by Greece to United Textiles or, in any event, by failing adequately to inform the Commission of the measures taken in accordance with Article 4 of the decision, failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and under the Treaty on the Functioning of the European Union;

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

               Pursuant to the European Commission Decision of 22 February 2012 in case SA.26534, the Hellenic Republic is required to recover within four months the aid incompatible with the internal market which it granted to United Textiles, that is the State guarantee in 2007 and the rescheduling of overdue debts for social insurance contributions in 2009, and is also required adequately to inform the European Commission of the measures taken to that end.

               2.

               However, the Hellenic Republic did not recover the aid at issue within four months, as it was required to do. In addition, the Hellenic Republic continues to be in breach of its obligation to take the required measures to implement the decision. By Decree-Law of 30 December 2015 the Greek authorities extended by six months the public auction procedure for the sale of assets of United Textiles with a view to investigating the possible resumption of its operations, without the aid incompatible with the internal market having been recovered. In any event, the Hellenic Republic has failed adequately to inform the European Commission of the relevant measures for the implementation of the decision.


title: Case C-140/01: Action brought on 27 March 2001 by the Commission of the European Communities against the Kingdom of Belgium

text:
2.6.2001                EN                  Official Journal of the European Communities                                          C 161/11
Action brought on 27 March 2001 by the Commission                      The applicant claims that the Court should:
of the European Communities against the Kingdom of
                              Belgium
                                                                       —     Declare that, by applying a reduced rate of VAT to
                                                                             supplies, intra-Community acquisitions or importations
                          (Case C-140/01)
                                                                             of two or three-wheel vehicles whose cylinder capacity is
                                                                             less than 50 cubic centimetres and which fall within the
                          (2001/C 161/20)                                    legal definition of a moped, the Kingdom of Spain has
                                                                             failed to fulfil its obligations under Article 12 of the Sixth
                                                                             VAT Directive (1).
An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 27 March
2001 by the Commission of the European Communities,                    —     Order the Kingdom of Spain to pay the costs.
represented by B. Mongin, acting as Agent, with an address for
service in Luxembourg.
The Commission of the European Communities claims that
the Court should:                                                      Pleas in law and main arguments
(1) declare that, by failing to notify the laws, regulations and
      administrative measures necessary in order to comply
      with Council Directive 98/18/EC of 17 March 1998                 The Commission cannot accept, in the absence of any legal
      on safety rules and standards for passenger ships (1),           basis, the Kingdom of Spain’s argument that:
      alternatively to adopt the measures necessary in order to
      comply therewith, the Kingdom of Belgium has failed to
      fulfil its obligations under the said directive and under        (a)   mopeds are used by social groups with lower purchasing
      the EC Treaty;                                                         power, for which reason it is appropriate to apply the
                                                                             criteria ‘cultural or social services’.
(2) order the Belgian Government to pay the costs.
                                                                       (b) the mopeds at issue, by reason of their specific technical
                                                                             characteristics, are not able to compete with other
Pleas in law and main arguments                                              vehicles with a different configuration and greater cylin-
                                                                             der capacity and therefore competition is not distorted
The pleas in law and main arguments are analogous to those                   when a reduced rate of VAT is applied to them.
in Case C-132/01; the time-limit for transposition prescribed
by Article 14(1) of the directive expired on 1 July 1998.
                                                                       The alleged absence of any distortion of competition is
                                                                       completely irrelevant as regards the case provided for in
(1) OJ L 144, 15.5.1998, p. 1.
                                                                       Annex H, to which Article 12(3)(a) refers. If account is taken
                                                                       of the fact that it is in the nature of an exception, the power
                                                                       conferred by the Sixth Directive to apply reduced rates may be
                                                                       used only restrictively in respect of the categories of goods and
                                                                       services listed in Annex H. That prevents the exception or
                                                                       derogation to the rule concerning the normal rate of tax being
                                                                       extended (by means of assimilation, broad interpretation or
                                                                       analogy) to other categories of goods or services from those
                                                                       specifically and exhaustively listed in Annex H. In the present
Action brought on 30 March 2001 by the Commission of                   case the reduced rate applied to mopeds is totally contrary to
the European Communities against the Kingdom of Spain                  the Directive.
                          (Case C-144/01)
                                                                       (1) Council Directive 77/388/EEC of 17 May 1977 on the harmonis-
                          (2001/C 161/21)                                  ation of the laws of the Member States relating to turnover taxes
                                                                           — Common system of value added tax: uniform basis of
                                                                           assessment (OJ L 145, 13.6.1977, p. 1).
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 30 March
2001 by the Commission of the European Communities,
represented by Mr Diaz-Llanos La Roche and Mr Gómez de la
Cruz Talegón, whose address for service in Luxembourg is that
of Mr Gómez de la Cruz, Wagner Centre C2/254, Kirchberg.