title: Case F-136/07: Order of the Civil Service Tribunal of 26 June 2008 — Nijs v Court of Auditors (Staff — Officials — Previous complaint — Defect — Time-limit for instituting proceedings — Lateness — Manifest inadmissibility)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/62

         Order of the Civil Service Tribunal of 26 June 2008 — Nijs v Court of Auditors
   (Case F-136/07) (1)

   (Staff - Officials - Previous complaint - Defect - Time-limit for instituting proceedings - Lateness - Manifest inadmissibility)
   (2008/C 223/117)
   Language of the case: French
   Parties

      Applicant: Bart Nijs (Béreldange, Luxembourg) (represented initially by: F. Rollinger; subsequently by: F. Rollinger and A. Hertzog, lawyers)

      Defendant: Court of Auditors of the European Communities (represented by: T. Kennedy, J.-M. Stenier and G. Corstens, acting as Agents)
   Re:
   Annulment, on the one hand, of the decision of the Appointing Authority of 5 September 2007 to demote the applicant to Grade AD9, step 5, following a disciplinary procedure and, on the other, of the decisions to suspend him from his post, to open an administrative enquiry with regard to him and not to promote him to Grade AD 11 in 2007 — Claim for compensation for non-material and material harm
   Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Nijs is ordered to pay all the costs.

      (1)  OJ C 79, 29.3.2008, p. 37.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 28 March 1996 in Case C-161/95: Commission of the European Communities v. Hellenic Republic (Failure of a Member State to fulfil its obligations - Non-transposition of Directive 91/271/EEC - Urban waste water treatment

text:
No C 197/2           EN                    Official Journal of the European Communities                                    6 . 7. 96
within the prescribed period the laws, regulations and                1 . declares that, by not adopting within the period
administrative provisions necessary to comply with Council                 prescribed the laws, regulations and administrative
Directive 91/156/EEC of 18 March 1991 amending                             measures necessary to comply with Council Directive
Directive 75/442/EEC on waste ( OJ L 78 , 1991 , p . 32 ), the             91 /271/EEC of 21 May 1991 concerning urban waste
Hellenic Republic has failed to fulfil its obligations under the           water treatment, the Hellenic Republic has failed to
EC Treaty and the first-mentioned Directive — the Court                    fulfil its obligations under Article 19 of that
( Fifth Chamber), composed of D. A. O. Edward, President                   Directive;
of the Chamber, J.-P. Puissochet, C. Gulmann, P. Jann
and L. Sevôn ( Rapporteur), Judges; N. Fennelly,                      2 , orders the Hellenic Republic to pay the costs.
Advocate-General; R. Grass, Registrar, gave a judgment on
28 March 1996 , in which it:
                                                                      (M OJ No C 208 , 12 . 8 . 1995 .
1 , declares that, by not adopting within the period
     prescribed the laws, regulations and administrative
     measures necessary to comply with Council Directive
     91 /156/EEC of 18 March 1991 amending Directive
      75/442/EEC on waste, the Hellenic Republic has failed
     to fulfil its obligations under Article 2 of the
     first-mentioned Directive;
                                                                                JUDGMENT OF THE COURT
2 , orders the Hellenic Republic to pay the costs.                                            of 30 April 1996
                                                                      in Case C-13/94 (reference for a preliminary ruling from the
H OJ No C 208 , 12 . 8 . 1995 .                                       Industrial Tribunal, Truro ): P. v. S. and Cornwall County
                                                                                Council ^)
                                                                      (Equal treatment for men and women — Dismissal of a
                                                                                transsexual)
                                                                                ( 96/C 197/04
              JUDGMENT OF THE COURT                                                   (Language of the case: English)
                       (Fifth Chamber )
                      of 28 March 1996                                In Case C-13/94 : reference to the Court under Article 177 of
in Case C-161/95 : Commission of the European                         the EC Treaty by the Industrial Tribunal, Truro (United
            Communities v. Hellenic Republic 0 )                      Kingdom ), for a preliminary ruling in the proceedings
                                                                      pending before that court between P. and S. and Cornwall
 (Failure of a Member State to fulfil its obligations —               County Council, on the interpretation of Council Directive
Non-transposition of Directive 91/271/EEC — Urban                     76/207/EEC of 9 February 1976 on the implementation of
                    waste water treatment
                                                                      the principle of equal treatment for men and women as
                         { 96/C 197/03 )                              regards access to employment, vocational training and
                                                                      promotion, and working conditions ( OJ L 39 , 1976, p . 40 ),
                (Language of the case: Greek)                         the Court, composed of G. C. Rodriguez Iglesias, President,
                                                                      C. N. Kakouris, D. A. O. Edward, J.-P. Puissochet and G.
                                                                      Hirsch ( Presidents of Chambers ), G. F. Mancini, F. A.
 (Provisional translation; the definitive translation will be          Schockweiler, P. J. G. Kapteyn (Rapporteur), J. L. Murray,
          published in the European Court Reports)                     H. Ragnemalm and L. Sevôn, Judges; G. Tesauro,
                                                                      Advocate-General; L. Hewlett, Administrator, for the
                                                                       Registrar, has given a judgment on 30 April 1 996 , in which
 In Case C-161/95 : Commission of the European                         it ruled :
 Communities (Agent: Maria Kontou-Durande ) v. Hellenic
 Republic (Agents: Ioanna Galani-Maragkoudaki and Evi
 Skandalou ) — application for a declaration that, by not              in view of the objective pursued by Council Directive
 adopting or by not communicating to the Commission                    76/207/EEC of 9 February 1976 on the implementation of
 within the prescribed period the laws, regulations and                the principle of equal treatment for men and women as
 administrative provisions necessary to comply with Council            regards access to employment, vocational training and
 Directive 91/271 /EEC of 21 May 1991 concerning urban                 promotion, and working conditions, Article 5 (1 ) of the
 waste water treatment ( OJ L 135 , 1991 , p . 40 ), the Hellenic      Directive precludes dismissal of a transsexual for a reason
 Republic has failed to fulfil its obligations under the EC            related to a gender reassignment.
 Treaty and that Directive — the Court ( Fifth Chamber ),
 composed of D. A. O. Edward, President of the Chamber,
 J.-P. Puissochet, C. Gulmann, P. Jann and L. Sevôn                    (!) OJ No C 76 , 12 . 3 . 1994 .
  (Rapporteur), Judges; N. Fennelly, Advocate-General; R.
  Grass, Registrar, gave a judgment on 28 March 1996 , in
  which it:


title: Case T-471/09: Action brought on 27 November 2009 — Oetker Nahrungsmittel v OHIM — Bonfait (Buonfatti)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/63

         Action brought on 27 November 2009 — Oetker Nahrungsmittel v OHIM — Bonfait (Buonfatti)
   (Case T-471/09)
   2010/C 24/111
   Language in which the application was lodged: German

      Parties

      Applicant: Dr. August Oetker Nahrungsmittel KG (Bielefeld, Germany) (represented by: F. Graf von Stosch, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Bonfait BV

      Form of order sought

               —

               Annul the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 2 October 2009 in Case R 340/2007-4 concerning opposition No B 871 121;

               —

               order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Oetker Nahrungsmittel

      Community trade mark concerned: Word mark ‘Buonfatti’ for goods in Classes 29 and 30 (Application No 3 939 915)

      Proprietor of the mark or sign cited in the opposition proceedings: Bonfait BV

      Mark or sign cited in opposition: in particular, the Benelux word mark ‘Bonfait’ No 393 133 and the figurative Community trade mark ‘Bonfait’ No 648 816 for goods in Classes 29 and 30

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Annulment of the decision of the Opposition Decision and refusal of the application to register

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, (1) since there is no likelihood of confusion between the conflicting trade marks

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


title: Judgment of the Court (Sixth Chamber) of 29 April 2004 in Case C-496/99 P: Commission of the European Communities v CAS Succhi di Frutta SpA (Appeal — Common Agricultural Policy — Food aid — Commission decision amending conditions after the contracts awarded — Payment of tenderers in fruit other than those specified in the notice of invitation to tender)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/2

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 29 April 2004
   in Case C-496/99 P: Commission of the European Communities v CAS Succhi di Frutta SpA (1)

   (Appeal - Common Agricultural Policy - Food aid - Commission decision amending conditions after the contracts awarded - Payment of tenderers in fruit other than those specified in the notice of invitation to tender)
   (2004/C 118/04)
   Language of the case: Italian
   In Case C-496/99 P: appeal by the Commission of the European Communities (Agents: initially F. Ruggeri Laderchi, and subsequently T. van Rijn and L. Visaggio, assisted by A. Dal Ferro) against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 14 October 1999 in Joined Cases T-191/96 and T-106/97 CAS Succhi di Frutta SpA v Commission [1999] ECR II-3181, seeking to have that judgment set aside, the other party to the proceedings being: CAS Succhi di Frutta SpA, established in Castagnaro (Italy) (lawyers: initially A. Tizzano, G.M. Roberti and F. Sciaudone, and subsequently G.M. Roberti and F. Sciaudone): - the Court (Sixth Chamber), composed of: V. Skouris, acting for the President of the Sixth Chamber, J. N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen (Rapporteur), and F. Macken, Judges; S. Alber, Advocate General; R. Grass, Registrar, has given a judgment on 29 April 2004, in which it:

               1.

               Dismisses the appeal;

               2.

               Orders the Commission of the European Communities to pay the costs of the appeal.

      (1)  OJ C 79 of 18.3.2000


title: Case C-535/03: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) by order of that court dated 10 December 2003, in the case of The Queen on the application of 1) Unitymark Ltd, 2) North Sea Fishermen's Organisation against Department for Environment, Food and Rural Affairs

text:
C 47/20                 EN                      Official Journal of the European Union                                          21.2.2004
Pleas in law and main arguments                                         Reference for a preliminary ruling by the High Court
                                                                        of Justice (England & Wales), Queen’s Bench Division
                                                                        (Administrative Court) by order of that court dated
The period within which the directive was to be implemented             10 December 2003, in the case of The Queen on the
expired on 30 July 2000.                                                application of 1) Unitymark Ltd, 2) North Sea Fishermen’s
                                                                        Organisation against Department for Environment, Food
                                                                                and Rural Affairs
(1) OJ 1998 L 213, p. 13.
                                                                                (Case C-535/03)
                                                                                (2004/C 47/33)
Reference for a preliminary ruling by the Oberlandesge-
richt München by order of that Court of 24 June 2003 in
the case of SA Scania Finance France against Rockinger                  Reference has been made to the Court of Justice of the
   Spezialfabrik für Anhängerkupplungen GmbH & Co.                      European Communities by an order of the High Court of
                                                                        Justice (England & Wales), Queen’s Bench Division (Adminis-
                                                                        trative Court) dated 10 December 2003, which was received
                         (Case C-522/03)                                at the Court Registry on 19 December 2003, for a preliminary
                                                                        ruling in the case of The Queen on the application of
                                                                        1) Unitymark Ltd, 2) North Sea Fishermen’s Organisation
                          (2004/C 47/32)                                against Department for Environment, Food and Rural Affairs,
                                                                        on the following questions:
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                  Are:
München of 24 June 2003, received at the Court Registry on
6 November 2003, for a preliminary ruling in the case of SA
                                                                        (1) paragraph 4(b), and the part of paragraph 6(a) which
Scania Finance France against Rockinger Spezialfabrik für
                                                                              refers to paragraph 4(b), of Annex XVII of Council
Anhängerkupplungen GmbH & Co. on the following ques-
                                                                              Regulation 2341/2002 of 20 December 2002 (1); and/or
tions:
1.    Is point 2 of Article 27 of the Brussels Convention of            (2) paragraph 4(b), and the part of paragraph 6(a) which
      27 September 1968, as amended by the Fourth Conven-                     refers to paragraph 4(b), of Annex XVII of Council
      tion on Accession of 29 November 1996, in conjunction                   Regulation 2341/2002 of 20 December 2002 as
      with the first paragraph of Article IV of the Protocol to               amended by Regulation 671/2003 of 10 April 2003 (2);
      the Brussels Convention of 27 September 1968, as                        and/or
      amended by the Fourth Convention on Accession of
      29 November 1996, to be interpreted as meaning that
      judicial documents may be served on a defendant, who at           (3) Article 1 of Commission Decision 2003/185 of 14 March
      the time of service of the document instituting proceed-                2003 (3) insofar as the Commission refuses to extend,
      ings is domiciled in a Contracting State other than the                 under paragraph 6(b) of Annex XVII of Council Regu-
      State of the court, only in accordance with the conven-                 lation 2341/2002, the number of days available to vessels
      tions concluded between the Contracting States?                         carrying the gear in the class referred to in paragraph 4(b)
                                                                              of that Annex, by two days,
2.    If not, is Article 12 EC to be interpreted as precluding a
      national rule under which service of a judicial document
      on a defendant who, at the time of the service, is                unlawful in their application to open gear beam trawlers
      domiciled in another Member State is deemed constituted           because they are:
      by a domestic service whereby the bailiff of the court
      lodges the document instituting proceedings with the
      public prosecution service, which forwards the docu-              (a)   contrary to Articles 33 (ex 39) and 34 (ex 40) EC,
      ments for transfer by contractual or diplomatic means,
      and, by registered letter with notice of delivery, notifies
      the foreign party of the service which has been effected?         (b) contrary to Articles 28 (ex 30) and 29 (ex 34) EC,
                                                                        (c)   disproportionate,
 ---pagebreak--- 21.2.2004                EN                          Official Journal of the European Union                                         C 47/21
(d) discriminatory, and/or                                                         person on the purchase of goods and services intended
                                                                                for both activities, is it necessary to include in the
                                                                                denominator of the fraction for calculation not only the
(e)    contrary to the fundamental freedom to pursue a trade or                    annual turnover but also the value of work in progress at
       business?                                                                   the end of each year which has not yet been put on the
                                                                                market and for which no value, total or partial, has been
                                                                                received?
(1) fixing for 2003 the fishing opportunities and associated conditions
    for certain fish stocks and groups of fish stocks, applicable in
    Community waters and, for Community vessels, in waters where             —     Or to the effect that only turnover is covered?
    catch limitations are required (OJ L 356, 31.12.2002, p. 12).
(2) amending Regulation (EC) No 2341/2002 fixing for 2003 the
    fishing opportunities and associated conditions for certain fish
    stocks and groups of fish stocks, applicable in Community waters
    and, for Community vessels, in waters where catch limitations are        (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
    required (OJ L 97, 15.04.2003, p. 11).                                       harmonization of the laws of the Member States relating to
(3) on the allocation of additional days absent from port to Member              turnover taxes — Common system of value added tax: uniform
    States in accordance with Annex XVII of Council Regulation                   basis of assessment (OJ L 145, 13.06.1977, p. 1).
    (EC) No 2341/2002 (Text with EEA relevance) (notified under              (2) CIVA (Value Added Tax Code).
    document number C(2003) 762) (OJ L 71, 15.03.2003, p. 28).
Reference for a preliminary ruling by the Supremo
Tribunal Administrativo, Portugal, by order of that Court                    Action brought on 22 December 2003 by the European
of 26 November 2003 in the case of António Jorge Lda                            Parliament against the Council of the European Union
                      against Fazenda Pública
                           (Case C-536/03)                                                             (Case C-540/03)
                            (2004/C 47/34)
                                                                                (2004/C 47/35)
Reference has been made to the Court of Justice of the
European Communities by order of the Supremo Tribunal
Administrativo, Portugal, of 26 November 2003, received at                   An action against the Council of the European Union was
the Court Registry on 22 December 2003, for a preliminary                    brought before the Court of Justice of the European Communi-
ruling in the case of António Jorge Lda against Fazenda Pública              ties on 22 December 2003 by the European Parliament,
on the following questions:                                                  represented by H. Duintjer Tebbens and A. Caiola, acting as
                                                                             Agents, with an address for service in Luxembourg.
—      In what sense must Article 19 of the Sixth Council
       Directive of 17 May 1977 (77/388/EEC) be inter-
       preted? (1)
                                                                             The European Parliament claims that the Court should:
—      Is Article 23 (4) of the CIVA (2) compatible with the
       abovementioned provision, when interpreted to the effect              —     Annul, pursuant to Article 230 EC, the last subparagraph
       that, where the taxable person is an undertaking engaged                    of Article 4(1), Article 4(6) and Article 8 of Council
       in the real-estate business, carrying out works in two                      Directive 2003/86/EC of 22 September 2003 on the right
       sectors of activity, one being the construction of buildings                to family reunification (1);
       for sale (exempt from VAT) and the other contract work
       (subject to VAT), in order to calculate the pro rata or
       percentage deduction of VAT borne by that taxable                     —     Order the defendant to pay the costs.


title: Judgment of the Court of First Instance of 3 February 2005 in Case T-172/03 Nicole Heurtaux v Commission of the European Communities (Officials — Refusal of promotion — Absence of statement of reasons — Comparative examination of merits — Action for annulment)

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/27

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 3 February 2005
   in Case T-172/03 Nicole Heurtaux v Commission of the European Communities (1)

   (Officials - Refusal of promotion - Absence of statement of reasons - Comparative examination of merits - Action for annulment)
   (2005/C 93/54)
   Language of the case: French
   In Case T-172/03: Nicole Heurtaux, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by J.-N. Louis, É. Marchal, A. Coolen and S. Orlandi, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: by J. Curall and V. Joris, with an address for service in Luxembourg) — application for annulment of the Commission's decision of 14 August 2002 not to promote the applicant to Grade B 2 under the 2002 promotion exercise — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, J.D. Cooke and D. Šváby, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 3 February 2005, in which it:

               1.

               Annuls the Commission's decision of 14 August 2002 not to promote the applicant to Grade B 2 under the 2002 promotion exercise.

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 184 of 2.8.2003.


title: Reference for a preliminary ruling from the Tribunale di Genova - Sezione prima civile - by an order of 9 May 1996 in the case of Icat Food SRL and Ministero delle Finanze dello Stato (Case C-183/96)

text:
No C 210/8               EN                   Official Journal of the European Communities                                 20 . 7 . 96
      instead of Article 100c of the EC Treaty, has resulted in a        Action brought on 29 May 1996 by the Federal Republic of
      breach of the essential procedural requirements laid               Germany against the Commission of the European
      down by that provision . Thus :                                                                Communities
                                                                                Case C-182/96 )
      — the Act was adopted without the submission of a
           proposal by the Commission ( it was adopted on the                                          96/C 210/ 17 )
           initiative of the French Republic ),
                                                                         An action against the Commission of the European
      — the Act was adopted without the European                         Communities was brought before the Court of Justice of the
           Parliament being consulted ; the European                     European Communities on 29 May 1996 by the Federal
           Parliament     was     not    even   informed   of   the      Republic of Germany, represented by Ernst Roder,
           initiative ,                                                  Ministerialrat in the Federal Ministry of Economic Affairs
                                                                         and Sabine Maass, probationary Regierungsràtin in the
      — since the Council chose to act within the framework              same Ministry.
           of Article K. 3 of the Treaty on European Union, its
           decision should have been unanimous, whereas, on
                                                                         The applicant claims that the Court should :
           the basis of Article 100c of the EC Treaty, the Act
           could ( from 1 January 1996 ) have been adopted by a          — annul Decision (K 96 ) 841 final of the Commission of
           qualified majority, pursuant to Article 100c ( 3 ) of               13 March 1 996 concerning fiscal aid in the field of
           the EC Treaty,                                                      depreciation favouring German undertakings,
      — by adopting the Act of 4 March 1996 in the
                                                                         — order the defendant to pay the costs .
           form of 'joint action', the Council created a
           misunderstanding as to the precise legal nature of the
           instrument .                                                  Pleas in law and main arguments
( ] ) 96/ 197/JHA, OJ No L 63 , 13 . 3 . 1996 , p . 8 .
                                                                         The pleas in law and main arguments are the same as those
( 2 ) OJ No L 164, 14 . 7 . 1995 , p . 1 .                               in Case C-46/96(M .
                                                                         (') OJ No C 108 , 13 . 4 . 1996 , p . 4 .
Reference for a preliminary ruling from the
Bundesverwaltungsgericht by order of that court of
21 March 1996, in the case of Georg Wilkens v.                           Reference for a preliminary ruling from the Tribunale di
                 Landwirtschaftskammer Hannover                          Genova — Sezione prima civile — by an order of 9 May
                           ( Case C-181 /96 )                            1996 in the case of Icat Food SRL and Ministero delle
                                                                                Finanze dello Stato
                             ( 96/C 210/16 )
                                                                                ( Case C-183 /96 )
Reference has been made to the Court of Justice of the                                               ( 96/C 210/ 18 )
European Communities by order of the Third Chamber of
the Bundesverwaltungsgericht ( Federal Administrative                    Reference has been made to the Court of Justice of the
Court ) of 21 March 1996 , which was received at the Court               European Communities by an order of the Tribunale di
Registry on 29 May 1996 , for a preliminary ruling in                    Genova — Sezione prima civile ( District Court, Genoa , First
the case of Georg Wilkens v. Landwirtschaftskammer                       Civil Section ) of 9 May 1996 which was received at the
( Chamber of Agriculture ) Hannover on the following                     Court Registry on 30 May 1996 . The grounds of the order
questions :                                                              and the questions referred for a preliminary ruling are the
                                                                         same as in Case C-47/95 , inter alia (') .
 1 . Does the second subparagraph of Article 3 ( a ) ( 1 ) of
       Regulation ( EEC ) No 857/84, as amended by                       f 1 ) OJ No C 119 , 13 . 5 . 1995 , p . 5 .
       Regulation ( EEC ) No 1639/91 ( 1 ), preclude granting a
       provisional special reference quantity to producers who
       have been asked to repay a non-marketing or conversion
       premium on account of a breach of the undertaking
       given by them ?
                                                                         Action brought on 31 May 1996 by the Commission of the
2 . If so, is that rule compatible with the Community law                      European Communities against the French Republic
       principles of the protection of legitimate expectations
       and proportionality ?                                                                      ( Case C-l 84/96 )
                                                                                ( 96/C 210/ 19 )
 (!) OJ No L 150 , 15 . 6 . 1991 , p . 35 .
                                                                         An action against the French Republic was brought before
                                                                         the Court of Justice on 31 May 1 996 by the Commission of


title: Case T-860/16: Action brought on 6 December 2016 — Wirecard v EUIPO (mycard2go)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/46

         Action brought on 6 December 2016 — Wirecard v EUIPO (mycard2go)
   (Case T-860/16)
   (2017/C 038/61)
   Language of the case: German

      Parties

      Applicant: Wirecard AG (Aschheim, Germany) (represented by: A. Bayer, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: European Union figurative mark containing the word element ‘mycard2go’– Application for registration No 14 303 465

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 3 October 2016 in Case R 281/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and refer the case to the defendant to take further steps in the registration proceedings for EU trade mark 014303465;

               —

               order EUIPO to pay the costs, including those incurred during the proceedings before the Board of Appeal of EUIPO.

      Pleas in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 and of Article 7(2) of Regulation No 207/2009.


title: Case T-63/01: Action brought on 16 March 2001 by The Procter & Gamble Company against the Office for Harmonization in the Internal Market

text:
5.5.2001               EN                    Official Journal of the European Communities                                        C 134/29
The Commission objects, in particular, to the inclusion in the          —     the principles and rules have not be observed regarding
area reserved to the incumbent operator of a guaranteed day-                  protection of services of general economic interest and in
or time-certain delivery service for time-sensitive electronic                particular of universal services. The applicant points out,
correspondence.                                                               in that respect, the particularly high costs of the universal
                                                                              postal system in Italy as well as the destabilising effect of
                                                                              the decision in question on the financial equilibrium of
                                                                              the provider of the universal service.
In support of its arguments, the applicant claims that:
                                                                        (1) OJ 1998 L 15, p. 14.
—    in the final decision the Commission altered substantially
     essential elements of the infringement complained of
     originally consisting in particular in: the definition of the
     relevant market and the legal classification and assessment
     of the infringement at issue. In this regard, the applicant
     takes the view that, in the final decision the Commission
     does not further identify the relevant market on the basis         Action brought on 16 March 2001 by The Procter &
     of a number of bundled services which, taken as a                  Gamble Company against the Office for Harmonization
     whole, confer on the service significant added-value by                                 in the Internal Market
     comparison with basic postal services. Rather, on the
     contrary, the Commission merely points to a single
     additional service (the date- and time-certain delivery of                                   (Case T-63/01)
     time-sensitive electronic mail) as a factor capable by itself
     of characterising a discrete relevant market.                                               (2001/C 134/61)
—    the Commission has not allowed either the applicant or                                (Language of the case: French)
     the Italian authorities to make their own points of view
     effectively known. Furthermore, despite a finding by               An action against the Office for Harmonization in the Internal
     the Commission originally that Directive 97/67/EC was              Market was brought before the Court of First Instance on
     essential for the legal assessment of the facts, that directive    16 March 2001 by The Procter & Gamble Company, estab-
     is not even cited in the final decision. In that respect, the      lished in Cincinnati (United States of America), represented by
     applicant affirms that the interpretation of the directive is      Thierry van Innis, lawyer, with an address for service in
     essential in order to decide whether the decree in issue is        Luxembourg.
     compatible. Indeed, if the Commission had assessed
     properly the decree in issue in the light of Directive
     97/67/EC, it would have concluded that the disputed                The applicant claims that the Court should:
     national provisions were fully consistent with the content
     and purpose of the directive itself.                               —     annul the Board of Appeal’s decision of 14 December
                                                                              2001;
                                                                        —     order the Office to pay all the costs.
—    the definition of the relevant market is vague and general
     inasmuch as it merely describes the service involved
     in general terms such as, basically, the time-certainty
     (date/time) of the service and the fact that the deadline          Pleas in law and main arguments
     for each delivery is subject to a contractual relationship
     with the user. The definition of the relevant market is not
                                                                        The action is directed against the decision of the Office’s Third
     even founded in the light of the relevant economic
                                                                        Board of Appeal, dated 14 December 2000 (Case R 74/1998-
     circumstances and practice of the Commission. Moreover,
                                                                        3), rejecting the applicant’s appeal against the decision of
     it has omitted to take into consideration the prices
                                                                        18 March 1998 whereby the examiner refused registration of
     charged to customers.
                                                                        the Community trade mark applied for under number 230680
                                                                        on the absolute ground referred to in Article 7(1)(e)(i) of
                                                                        Regulation No 40/94 on the Community trade mark.
—    there is no abuse of a dominant position, so that the
     Commission is mistaken in its hypothesis that Poste                Attention is drawn in this regard to the fact that, by decision
     Italiane has extended its position in the market with              of 15 March 1998, the same Board of Appeal rejected an
     respect to conventional deliveries into the neighbouring           application for registration in respect of the same mark. That
     but distinct market for day- or time-certain deliveries of         decision was annulled by the judgment delivered by the Court
     time-sensitive items.                                              of First Instance on 16 February 2000 in Case T-122/99
 ---pagebreak--- C 134/30              EN                   Official Journal of the European Communities                                       5.5.2001
Procter & Gamble Company v OHIM [2000] ECR II-265.                    Before adopting its decision, the Board of Appeal requested
Following delivery of that judgment, the examiner requested           the applicant to submit its observations on that other ground.
the applicant to submit further observations.
                                                                      In support of its claims, the applicant asserts that the Board of
However, in the concluding part of the contested decision,            Appeal has infringed Article 7(1)(b) of Regulation No 40/94
when dealing with the merits of the refusal to effect the             and has violated the right to a fair hearing, inasmuch as the
registration applied for, the Board of Appeal did not uphold          contested decision was taken by the same persons as those
the absolute ground regarded as valid by the examiner; instead,       who, in their capacity as members of the Third Board of
it considered that another absolute ground, namely that               Appeal, issued a decision on the substance of the matter on
provided for in Article 7(1)(b), justified the refusal of the         15 March 1999, relating to the same parties, the same
application for registration.                                         application for registration and the same absolute ground.


title: Reference for a preliminary ruling by the Tribunale di Genova - Sesta Sezione Civile, by order of that court of 14 December 1996 in the case of Italiana Petroli (IP) SpA against Borsana Srl (Case C-2/97)

text:
No C 94/4              1 EN 1                  Official Journal of the European Communities                                        22. 3 . 97
2. order the Commission to pay the costs.                                 Court), Genoa — Sesta Sezione Civile ( Civil Division VI)
                                                                          — of 14 December 1996, received at the Court Registry
Pleas in law and main arguments adduced in support:                       on 3 January 1997, for a preliminary ruling in the case of
                                                                          Italiana Petroli SpA against Borsana Sri on the following
— Infringement of Articles 93 and 174 of the EC Treaty                    questions :
So far as concerns the State aid of Pta 4 200 million which
the Directorate-General of the Patrimonio del Estado                      ( a ) On a proper construction of Articles 3 , 4 and 5 of
provided by way of a capital injection (Article 2 of                            Directive 90/394/EEC ( J ) of 28 June 1990 on the
Decision 92/317/EEC), the only thing which remains in                           protection of workers from the risks related to
force after the judgment delivered by the Court on                              exposure to carcinogens at work ( Sixth individual
14 September 1994 (2) is the characterization of that aid                       Directive ), is the obligation to adopt measures to
as unlawful, such unlawfulness deriving from the fact that                      reduce and replace the risk, and to avoid or reduce
it was not notified to the Commission. That aspect cannot                       exposure to carcinogens, contingent on the outcome of
be interpreted as indicating that Decision 92/317/EEC was                       the ' assessment of risks ' referred to in Article 3 ?
not annulled. The essential content of that Decision,
namely the fact that it declares the aid to be incompatible
with Community law with all the consequences resulting                          If so, does Directive 90/394/EEC preclude a national
therefrom, was annulled by the judgment. Accordingly, the                       implementing provision which provides that the
present case does not concern a 'partial' annulment of                          employer is under a duty to take action to replace or
Decision 92/317/EEC with regard to that aid; that                               reduce, in so far as is 'technically possible', the use of
annulment can, on the contrary, be described as total . The                     carcinogens and/or to reduce the level of exposure of
annulment        is  'communicated '      to  the   whole   of   the
                                                                                workers 'to as low a level as is technically possible',
preparatory acts taken by the Commission, so that it                            whether or not a definite risk has first been found to
should have initiated a fresh procedure under Article 93                        exist and duly assessed under Article 3 of the
(2 ) of the EC Treaty, rather than sought, because it was to                    Directive, and which imposes, in the event of failure to
its advantage, to correct a posteriori certain acts affected                    fulfil those obligations, criminal penalties — including
by the annulment.                                                               custodial sentences — which, as worded, do not differ
                                                                                from those provided for cases where, despite the fact
— Breach of the rights of the defence and of the principle                      that a definite risk has been found to exist and duly
       of legal certainty                                                       quantified, the employer fails to adopt the measures
                                                                                prescribed by law ?
By preventing the Kingdom of Spain from submitting new
observations as to the compatibility of the aid it had
granted to Hytasa with the common market, the                             ( b) Does Community law as laid down by Article 4 of
Commission breached the principle of audi alteram                               Directive 89/655/EEC (2 ) (in so far as it distinguishes,
partem and breached the rights of the defence to which all                      in terms of the periods allowed for adapting work
Member States are entitled whose conduct is called in
                                                                                equipment, between equipment already provided to
question. Since it considered that in its judgment of                           workers by 31 December 1992 and that provided after
14 September 1994 the Court had merely annulled in part                         that date) preclude a national implementing provision
Decision 92/317/EEC and that it was sufficient to replace                       which, arguably in contravention of the principles of
it with another one in order to bring the procedure to an                       reasonableness and proportionality, makes no such
end, the Commission sent a letter on 13 October 1995 to                         distinction and sets a uniform period of three months
the Spanish authorities to inform them, essentially, that                       for its entry into force for all intents and purposes
the effect of the new decision was practically decided                           ( even where the employer is subject to harsh criminal
already and that nothing they could say or do would be of                       penalties )?
any effect.
f 1 ) OJ No L 171 , 26 . 6 . 1992 .
(2 ) Joined Cases C-278 , C-279 and            C-280/92,   Spain   v.     ( c ) On a proper construction of Articles 3 , 4 and 5 of
      Commission [ 1994] ECR I, p. 4103 .                                       Directive 90/394/EEC ( and of the corresponding
                                                                                article in Legislative Decree 626/94 implementing that
                                                                                measure ), are employers — and, respectively, the other
                                                                                persons referred to in Article 6 of Legislative Decree
                                                                                626/94 — subject to obligations and responsibilities
                                                                                regarding the reduction of the benzene content in
Reference for a preliminary ruling by the Tribunale di                          petrol to levels lower than those set by Directive 85/
Genova — Sesta Sezione Civile, by order of that court of                        210/EEC ( 3 ) and to the even lower levels set by Decree
                                                                                Law No 294/96 ?
14 December 1996 in the case of Italiana Petroli (IP) SpA
                         against Borsana Sri
                             ( Case C-2/97)                               C ) OJ No L 196, 26 . 7 . 1990, p. 1 .
                                                                          (2 ) OJ No L 393 , 30. 12 . 1989, p . 13 .
                               ( 97/C 94/08 )                             ( 3 ) OJ No L 96, 3.4 . 1985 , p. 25 .
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale ( District


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 158, 5.7.2003

text:
19.7.2003        EN                      Official Journal of the European Union                         C 171/43
                                                            III
                                                         (Notices)
                                                     (2003/C 171/72)
                 Last publication of the Court of Justice in the Official Journal of the European Union
          OJ C 158, 5.7.2003
          Past publications
          OJ C 146, 21.6.2003
          OJ C 135, 7.6.2003
          OJ C 124, 24.5.2003
          OJ C 112, 10.5.2003
          OJ C 101, 26.4.2003
          OJ C 83, 5.4.2003
                                               These texts are available on:
                                          EUR-Lex: http://europa.eu.int/eur-lex
                                           CELEX: http://europa.eu.int/celex


title: Action brought on 19 October 1996 by Prolafer Srl against the Commission of the European Communities (Case T-165/96)

text:
No C 40/22           I EN                 Official Journal of the European Communities                                      8 . 2 . 97
Action brought on 19 October 1996 by Prolafer Sri                    The applicant therefore alleges infringement of Decision
   against the Commission of the European Communities                3855/91 /ECSC and the erroneous and discriminatory
                        ( Case T-165/96 )
                                                                     interpretation of the second paragraph of Article 4
                                                                     thereof.
                           ( 97/C 40/51 )
                                                                     O Commission Decision No 3855/91 /ECSC of 27 November
                                                                         1991 establishing Community rules for aid to the steel
                 (Language of the case: Italian)                         industry ( OJ No L 362 , 31 . 12 . 1991 , p. 57 ).
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 19 October                   Action brought on 19 October 1996 by Societa Ferriera
1996 by Prolafer Sri , whose registered office is at Bergamo         Acciaieria Casilina SpA against the Commission of the
(Italy ), represented by Carmine Punzi and Filippo Satta , of                             European Communities
the Rome Bar, with an address for service in Luxembourg
                                                                                ( Case T-166/96 )
at the Chambers of Charles Turk, 13A Avenue Guillaume .
                                                                                ( 97/C 40/52 )
                                                                                (Language of the case: Italian)
The applicant claims that the Court should uphold the
application and annul the contested measures .                       An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 19 October
Pleas in law and main arguments adduced in support:                  1996 by Societa Ferriera Acciaieria Casilina SpA, whose
                                                                     registered office is at Rome , represented by Carmine Punzi
                                                                     and Filippo Satta, of the Rome Bar, with an address for
The applicant, a steel company which is in liquidation,              service in Luxembourg at the Chambers of Charles Turk ,
has brought an action directed against the same decision             13A Avenue Guillaume .
which is the subject matter of Case T-164/96 Moccia Irme
v. Commission, in so far as it affects it, and also against          The applicant claims that the Court should uphold the
the decision of 12 December 1994 , in so far as, in order            application and annul the contested measures .
to define the criteria under the second indent of the
second paragraph of Article 4 of the 'Steel Aid Code ' ( 1 ),        Pleas in law and main arguments adduced in support:
it has provided that ' regularly produced' must be
understood as meaning production ' in 1993 [...] on                  The applicant, an Italian steel company, has brought an
average one shift per day, that is, at least 8 hours per day,        action directed principally against the same decision which
5 days per week ', without taking account of interruptions           is the subject-matter of Cases T-l 64/96 Moccia Irme SpA
to production resulting from force majeure.                          v. Commission and T-165/96 Prolafer v. Commission, in
                                                                     so far as it concerns itself.
                                                                     The pleas and main arguments are analogous to those
The applicant points out that its lack of production during          already relied on in the abovementioned cases.
the reference period is not due to a management choice
but arises solely and exclusively from a measure taken by
the Italian criminal judicial authority which has ordered
the attachment of its plant on grounds of environmental
pollution .
                                                                     Action brought on 19 October 1996 by Societa Dora
                                                                     Ferriera Acciaieria Sri, in liquidation, against the
In its view, it is unlawful to allow State aid for the                         Commission of the European Communities
scrapping of steel plant on condition that there has been                                     ( Case T-l 67/96 )
regular production in the brief reference period, without
taking into account that such regularity may have been                                            ( 97/C 40/53 )
prevented by factors wholly outwith the control of the                                 (Language of the case: Italian)
 undertaking .
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
The applicant further alleges that . the principle of equal          Instance of the European Communities on 19 October
 treatment has been breached inasmuch as the Commission               1996 by Dora Ferriera Acciaieria Sri , in liquidation,
 has approved such aid intended for undertakings which               whose registered office is in Bergamo, represented by
 had not reached the minimum level of production. In view             Carmine Punzi and Filippo Satta , of the Rome Bar, with
 of this, it cannot be seen why a voluntary interruption of           an address for service in Luxembourg at the Chambers of
 the production cycle may justify failure to reach the                Charles Turk, 13A Avenue Guillaume .
 minimum level of production , while a total block on
 activity imposed by an order of the criminal judicial                The applicant claims that the Court should uphold the
 authority is held to be irrelevant to that end.                      application and annul the contested measures .


title: Case C-291/00: Reference for a preliminary ruling by the Tribunal de grande instance de Paris (Third Chamber — Second section) by decision of that court of 23 June 2000 in the case of S.A. LTJ Diffusion v S.A. Sadas Vertbaudet

text:
23.9.2000              EN                    Official Journal of the European Communities                                         C 273/9
Action brought on 20 July 2000 by the Commission of                     State universities and higher-education establishments are
the European Communities against the Federal Republic                   commissioned to carry out. It maintains that the argument
                           of Germany                                   advanced by the (German) Federal Government, to the effect
                                                                        that it is not possible in practice to draw a distinction between
                         (Case C-287/00)                                research activities and teaching activities (the latter being
                                                                        exempt from tax under Article 13(A)(1)(i), is based — as is
                                                                        apparent from the situation in other Member States — on
                         (2000/C 273/13)                                domestic factors which cannot be invoked by a Member State.
An action against the Federal Republic of Germany was                   (1) OJ L 145 of 13 June 1977, p. 1.
brought before the Court of Justice of the European Communi-
ties on 20 July 2000 by the Commission of the European
Communities, represented by Günter Wilms and Kilian Gross,
of its Legal Service, with an address for service in Luxembourg
at the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre C 254, Kirchberg.
                                                                        Reference for a preliminary ruling by the Tribunal de
The applicant claims that the Court should:                             grande instance de Paris (Third Chamber — Second
                                                                        section) by decision of that court of 23 June 2000 in the
(1) declare that, by exempting the research activities of State              case of S.A. LTJ Diffusion v S.A. Sadas Vertbaudet
      universities and higher education establishments from
      turnover tax pursuant to Paragraph 4(21a) of the Umsatz-
      steuergesetz (Law on Turnover Taxes) of 12 December                                        (Case C-291/00)
      1996, the Federal Republic of Germany has failed to fulfil
      its obligations under Article 2 of the Sixth Council                                       (2000/C 273/14)
      Directive 77/388/EEC (1) of 17 May 1977 on the harmon-
      ization of the laws of the Member States relating to              Reference has been made to the Court of Justice of the
      turnover taxes — Common system of value added tax:                European Communities by order of the Tribunal de grande
      uniform basis of assessment, as most recently amended;            instance de Paris (Regional Court, Paris), received at the Court
                                                                        Registry on 23 June 2000, for a preliminary ruling in the case
(2) order the Federal Republic of Germany to pay the costs.             of S.A. LTJ Diffusion v S.A. Sadas Vertbaudet on the following
                                                                        question:
Pleas in law and main arguments                                         Does the prohibition contained in Article 5(1) of Directive
                                                                        89/104 of 21 December 1988 to approximate the laws of the
The exemption from turnover tax of research activities which            Member States relating to trade marks (1) only cover identical
State universities and higher-education establishments are              reproduction — with no element being added or omitted —
commissioned to carry out, pursuant to Paragraph 4(21a) of              of the sign or signs constituting a mark, or can it extend to:
the Umsatzsteuergesetz (Law on Turnover Taxes), in the
version thereof introduced by Paragraph 4(5) of the Umsatz-             (1) reproduction of the distinctive feature of a mark compo-
steuer-Änderungsgesetz (Law amending the legislation on                      sed of a number of elements?
turnover taxes) of 12 December 1996 (BGBI. 1996, Part I,
p. 1851 et seq.), is contrary to Article 2(1) of the Sixth              (2) reproduction of all the constituent elements of the mark
Directive. In the context of research activities which they are               where new elements are added?
commissioned to undertake (i.e. research projects normally
based on an agreement specifying inter alia the type and scope          (1) OJ L 40 of 11.2.1989, p. 1.
of the services and consideration to be furnished), State
universities and higher-education establishments provide ser-
vices and are thus, in principle, taxable persons within the
meaning of Article 4 of the Sixth Directive. According to
Article 5 of the directive, bodies governed by public law are
not, however, to be regarded as taxable persons in so far as
they are engaged in activities as public authorities.
                                                                        Action brought on 3 August 2000 by the Commission of
                                                                        the European Communities against the Grand-Duchy of
In undertaking research which they have been commissioned                                          Luxembourg
to carry out, State universities and higher-education establish-
ments are clearly not engaged in activities as public authorities.
                                                                                (Case C-297/00)
On the contrary, such activities are based on a private-law
commercial relationship between the university or higher-
education establishment concerned and the party by whom                                          (2000/C 273/15)
the research in question is commissioned. In the Commission’s
view, the effect of Part A of Article 13 of the Sixth Directive is      An action against the Grand-Duchy of Luxembourg was
to preclude exemption from tax in respect of research which             brought before the Court of Justice of the European Communi-


title: Judgment of the Court (Sixth Chamber) of 5 October 1999 in Case C-10/98 P: Azienda Agricola "Le Canne" Srl v Commission of the European Communities (Appeal — Aquaculture — Regulations (EEC) Nos 4028/86 and 1116/88 — Community financial aid — Reduction of aid)

text:
22.1.2000               EN                      Official Journal of the European Communities                                             C 20/3
                 JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                         of 12 October 1999
                         of 5 October 1999                                 in Case C-379/97 (reference for a preliminary ruling from
                                                                           the Sø- og Handelsret): Pharmacia & Upjohn SA v
in Case C-10/98 P: Azienda Agricola ‘Le Canne’ Srl v                                                 Paranova A/S (1)
       Commission of the European Communities (1)
                                                                           (Trade-mark rights — Pharmaceutical products — Parallel
(Appeal — Aquaculture — Regulations (EEC) Nos 4028/86                                 imports — Replacement of a trade mark)
and 1116/88 — Community financial aid — Reduction of
                                  aid)
                                                                                (2000/C 20/05)
                           (2000/C 20/04)
                                                                                (Language of the case: Danish)
                    (Language of the case: Italian)
                                                                           (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                        in the European Court Reports)
                   in the European Court Reports)
                                                                           In Case C-379/97: reference to the Court under Article 177 of
In Case C-10/98 P: Azienda Agricola ‘Le Canne’ Srl, established            the EC Treaty (now Article 234 EC) from the Sø- og Handelsret
in Porto Viro (Italy), represented by G. Schiller, G. Carraro and          (Marine and Commercial Court), Denmark, for a preliminary
F. Mazzonetto, of the Padua Bar, with an address for service in            ruling in the proceedings pending before that court between
Luxembourg at the Chambers of G. Arendt, 8-10 Rue Mathias                  Pharmacia & Upjohn SA, formerly Upjohn SA, and Paranova
Hardt — Appeal against the judgment of the Court of First                  A/S — on the interpretation of Articles 30 and 36 of the EC
Instance of the European Communities (Third Chamber) of                    Treaty (now, after amendment, Articles 28 EC and 30 EC)
7 November 1997 in Case T-218/95 Le Canne v Commission                     and of Article 7 of First Council Directive 89/104/EEC of
[1997] ECR II-2055, seeking to have that judgment set aside,               21 December 1988 to approximate the laws of the Member
the other party to the proceedings being: Commission of the                States relating to trade marks (OJ 1989 L 40, p. 1) —
European Communities (Agent: E. de March, assisted by A. Dal               the Court, composed of: G.C. Rodrı́guez Iglesias, President,
Ferro) — the Court (Sixth Chamber) composed of P.J.G. Kap-                 J.C. Moitinho de Almeida, D.A.O. Edward and R. Schintgen
teyn, President of the Chamber, G. Hirsch, J.L. Murray (Rappor-            (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann (Rappor-
teur), H. Ragnemalm and R. Schintgen, Judges, Advocate Gen-                teur), G. Hirsch, P. Jann and M. Wathelet, Judges; F.G. Jacobs,
eral: G. Cosmas, Registrar: H. von Holstein, Deputy Registrar              Advocate General; H. von Holstein, Deputy Registrar, for the
has given a judgment on 5 October 1999, in which it:                       Registrar, has given a judgment on 12 October 1999, in which
                                                                           it has ruled as follows:
1. Sets aside the judgment of the Court of First Instance of
    7 November 1997 in Case T-218/95 Le Canne v Commission;
                                                                           The condition of artificial partitioning of the markets between
                                                                           Member States, as laid down in the judgments in Case 102/77
2. Declares Telex No 12 497 of 27 October 1995 null and void               Hoffmann-La Roche v Centrafarm [1978] ECR 1139 and in Joined
    on account of failure to comply with the procedure provided            Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb
    for by Articles 44(1) and 47 of Council Regulation (EEC)               and Others v Paranova [1996] ECR 1-3457, means that it is
    No 4028/86 of 18 December 1986 on Community measures                   necessary, in order to determine whether the proprietor of a trade
    to improve and adapt structures in the fisheries and aquaculture       mark may, under national law, prevent a parallel importer of
    sector and Article 7 of Commission Regulation (EEC)                    pharmaceutical products from replacing the trade mark used in the
    No 1116/88 of 20 April 1988 laying down detailed rules for             Member State of export by that which the proprietor uses in the
    the application of decisions granting aid for projects concerning      Member State of import, to assess whether the circumstances
    Community measures to improve and adapt structures in the              prevailing at the time of marketing in the Member State of import
    fisheries and aquaculture sector and in structural works in coastal    make it objectively necessary to replace the original trade mark by
    waters;                                                                that used in the Member State of import in order that the product in
                                                                           question may be marketed in that State by the parallel importer.
3. Orders the Commission of the European Communities to pay the
    costs of both sets of proceedings.
                                                                           (1) OJ No C 387 of 20.12.1997.
(1) OJ C 94 of 28.3.1998.


title: Case C-520/07 P: Judgment of the Court (First Chamber) of 17 September 2009 — Commission of the European Communities v MTU Friedrichshafen GmbH (Appeals — Restructuring aid — Decision ordering the recovery of aid incompatible with the common market — Article 13(1) of Regulation (EC) No 659/1999 — Joint and several liability)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/14

         Judgment of the Court (First Chamber) of 17 September 2009 — Commission of the European Communities v MTU Friedrichshafen GmbH
   (Case C-520/07 P) (1)

   (Appeals - Restructuring aid - Decision ordering the recovery of aid incompatible with the common market - Article 13(1) of Regulation (EC) No 659/1999 - Joint and several liability)
   2009/C 267/23
   Language of the case: German

      Parties

      Appellant: Commission of the European Communities (represented by: K. Gross and B. Martenczuk, acting as Agents)

      Other party to the proceedings: MTU Friedrichshafen GmbH (represented by: Th. Lübbig and M. le Bell, Rechtsanwälte)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen v Commission, in which the Court of First Instance annulled Article 3(2) of Commission Decision 2002/898/EC of 9 April 2002 on the State aid implemented by Germany for SKL Motoren- und Systembautechnik GmbH, in so far as it orders MTU Friedrichshafen GmbH to repay jointly and severally a sum of EUR 2,71 million — Limits and conditions on the application of Article 13(1) of Council Regulation (EC) No 659/1999 of 22 March 1999, allowing the Commission to adopt a final decision finding aid to be incompatible with the common market on the basis of the information available if a Member State fails to comply with an information injunction

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the Commission of the European Communities to pay the costs.

      (1)  OJ C 22, 26.1.2008.


title: Case T-459/13: Judgment of the General Court of 16 October 2014  — Larrañaga Otaño v OHIM (GRAPHENE) (Community trade mark — Application for Community word mark GRAPHENE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/40

         Judgment of the General Court of 16 October 2014 — Larrañaga Otaño v OHIM (GRAPHENE)
   (Case T-459/13) (1)

   ((Community trade mark - Application for Community word mark GRAPHENE - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   2014/C 421/55
   Language of the case: Spanish

      Parties

      Applicants: Joseba Larrañaga Otaño (San Sebastián, Spain) and Mikel Larrañaga Otaño (San Sebastián) (represented by: F. Bueno Salamero, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: Ó. Mondéjar Ortuño, acting as Agent)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 12 June 2013 (Case R 210/2013-2) concerning an application for registration of the word sign GRAPHENE as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Joseba Larrañaga Otaño and Mikel Larrañaga Otaño to pay the costs.

      (1)  OJ C 313, 26.10.2013.


title: Case C-165/01: Reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court) of the Austrian Republic by decision of that Court of 14 March 2001 in the case of Betriebsrat der Vertretung der Europäischen Kommission in Österreich (Works council of the Representation of the European Commission in Austria) v Commission of the European Communities

text:
C 200/40               EN                     Official Journal of the European Communities                                      14.7.2001
—    As regards examination of the merits, the CFI failed to             —     order the European Commission to compensate him for
     comply with its obligation to stay within the limits of                   material and non-material damage;
     the application and exceeded them, thereby infringing
     Community law.                                                      —     order the Commission to pay the costs.
—    The CFI also infringed Article 33(1), second sentence,
     ECSC in that it failed to examine whether there had been
     a manifest failure by the Commission to observe a                   Pleas and main arguments
     relevant provision and failed to appreciate that the
     application did not even satisfy the requirement to show            —     Breach of the right to a fair hearing: Before the decision
     the alleged manifestness of the infringement.                             was taken to transfer him, the appellant was approached
                                                                               in vague and general terms by his line manager for alleged
—    Furthermore, the CFI infringed Article 33(1) ECSC in so
                                                                               lack of care and attention in his work, which was
     far as it annulled the contested decision as a whole and
                                                                               subsequently contradicted in his staff report. It was thus
     not merely with regard to the part of the decision with
                                                                               that, without being heard beforehand and without the
     which the CFI found fault, namely the authorisation of
                                                                               chance to make any comments, a decision to transfer him
     the merger of RAG with SBW, not the merger with
                                                                               was taken by the appointing authority.
     Preussag Anthrazit GmbH.
—    Finally, the CFI infringed its duty to state reasons, because
     it did not adequately deal with the arguments submitted
     by the Commission and the interveners in their pleadings
     and at the hearing, even though they related to main
     grounds of the decision.
(1) Not yet published in the European Court Reports.
                                                                         Reference for a preliminary ruling from the Oberster
                                                                         Gerichtshof (Supreme Court) of the Austrian Republic by
                                                                         decision of that Court of 14 March 2001 in the case of
                                                                         Betriebsrat der Vertretung der Europäischen Kommission
                                                                         in Österreich (Works council of the Representation of
                                                                         the European Commission in Austria) v Commission of
                                                                                the European Communities
Appeal brought on 12 April 2001 by Franco Campoli
against the judgment delivered on 6 March 2001 by the                                             (Case C-165/01)
Fifth Chamber of the Court of First Instance of the
European Communities in Case T-100/00 between Franco
 Campoli and Commission of the European Communities                                               (2001/C 200/74)
                                                                         Reference has been made to the Court of Justice of the
                        (Case C-161/01 P)
                                                                         European Communities by a decision of the Oberster Gericht-
                                                                         shof of 14 March 2001, which was received at the Court
                         (2001/C 200/73)                                 Registry on 18 April 2001, for a preliminary ruling in the case
                                                                         of Betriebsrat der Vertretung der Europäischen Kommission in
                                                                         Österreich (Works council of the Representation of the
An appeal against the judgment delivered on 6 March 2001                 European Commission in Austria) v Commission of the
by the Fifth Chamber of the Court of First Instance of the               European Communities, on the following questions:
European Communities in Case T-100/00 between Franco
Campoli and the Commission of the European Communities                   1.    Is Article 79 of the Conditions of Employment of Other
was brought before the Court of Justice of the European                        Servants of the European Communities [Article 3 of
Communities on 12 April 2001 by Franco Campoli, represent-                     Council Regulation (EEC, Euratom, ECSC) No 259/68 of
ed by S. Diana, lawyer, with an address for service in Brussels.               29 February 1968 (1)], under which the conditions of
                                                                               employment of local staff, in particular: (a) the manner of
The appellant claims that the Court should:                                    their engagement and termination of their contract, (b)
                                                                               their leave, and (c) their remuneration is to be determined
—    set aside the judgment of the Court of First Instance of                  by each institution in accordance with current rules and
     6 March 2001 in Case T-100/00;                                            practice in the place where they are to perform their
                                                                               duties, to be understood as a reference to the relevant
—    annul the two decisions taken by Mr Lemmel (No 05266                      national law on employment, which, in the case of
     of 11 June 1999 and of 2 December 1999), concerning                       Austria, also requires the application of the law on labour
     the removal of Franco Campoli and the appointment of                      relations in the workplace laid down in Part II of the
     Chantal Bruetschy to the ‘Foodstuffs — Legislation and                    Austrian Arbeitsverfassungsgesetz (Labour Constitution
     scientific and technical aspects’ unit;                                   Act)?
 ---pagebreak--- 14.7.2001              EN                     Official Journal of the European Communities                                    C 200/41
2.    Are the provisions of Article 9 of the Staff Regulations                meaning that the said Articles 43 and 48 do not affect
      of the European Communities (Article 2 of Council                       the applicability of the Netherlands rules laid down in
      Regulation (EEC, Euratom, ECSC) No 259/68 of 29 Febru-                  that law, on the ground that the provisions in question
      ary 1968) and those contained in Annex II to the Staff                  are justified for the reasons stated by the Netherlands
      Regulations concerning the Staff Committee, which also                  legislature?
      represents the interests of local staff of the Communities,
      to be interpreted as laying down exhaustive rules on
      collective employment law and the powers of co-decision
      of local staff and thus as precluding the application of the
      law on labour relations in the workplace laid down in the
      Austrian Labour Constitution Act to local staff serving in
      the Vienna representation of the Commission of the                 Reference for a preliminary ruling by the Hoge Raad der
      European Communities?                                              Nederlanden by decision of 11 April 2001 in the case of
                                                                            Bosal Holding BV and Staatssecretaris van Financiën
(1) OJ 1968, L 56, p. 1.
                                                                                (Case C-168/01)
                                                                                (2001/C 200/76)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by decision of 11 April 2001 by
                                                                         the Hoge Raad der Nederlanden (Supreme Court of the
                                                                         Netherlands), which was received at the Court Registry on
Reference for a preliminary ruling by the Kantongerecht                  19 April 2001, for a preliminary ruling in the case of Bosal
te Amsterdam by order of 5 February 2001 in the case of                  Holding BV and Staatssecretaris van Financiën on the following
Kamer van Koophandel en Fabrieken voor Amsterdam                         questions:
                       and Inspire Art Ltd                               1.   Does Article 52 of the EC Treaty, read in conjunction
                                                                              with Article 58 thereof (now, following amendment,
                          (Case C-167/01)                                     Article 43 EC, read in conjunction with Article 48
                                                                              thereof), or any other rule of EC law, preclude a Member
                                                                              State from granting a parent company subject to tax in
                         (2001/C 200/75)                                      that Member State a deduction on costs relating to a
                                                                              holding owned by it only if the relevant subsidiary
Reference has been made to the Court of Justice of the                        company makes profits which are subject to tax in
European Communities by order of 5 February 2001 by the                       the Member State in which the parent company is
Kantongerecht te Amsterdam (Amsterdam Cantonal Court),                        established?
which was received at the Court Registry on 19 April 2001,
for a preliminary ruling in the case of Kamer van Koophandel             2.   Does it make any difference to the answer to Question 1
en Fabrieken voor Amsterdam and Inspire Art Ltd on the                        if, where the subsidiary company is subject to tax based
following questions:                                                          on its profits in the Member State concerned but the
                                                                              parent company is not, the relevant Member State takes
1.    Is (the new) Article 43 in conjunction with Article 48 of               no account of the abovementioned costs in levying tax
      the Treaty establishing the European Community to be                    on the subsidiary company?
      interpreted as precluding the Netherlands, pursuant to
      the Wet op de formeel buitenlandse vennootschappen of
      17 December 1997, from attaching additional conditions,
      such as those laid down in Articles 2 to 5 of that law, to
      the establishment in the Netherlands of a branch of a
      company which has been set up in the United Kingdom
      with the sole aim of securing the advantages which that            Appeal brought on 19 April 2001 by Compañı́a Interna-
      offers compared to incorporation under Netherlands law,            cional de Pesca y Derivados SA (INPESCA) against the
      given that Netherlands law imposes stricter rules than             judgment delivered on 7 February 2001 by the Court of
      those applying in the United Kingdom with regard to the            First Instance of the European Communities (Second
      setting-up of companies and payment for shares, and                Chamber) in Case T-186/98 between Compañı́a Interna-
      given that the Netherlands law infers that aim from the            cional de Pesca y Derivados SA (INPESCA) and the
      fact that the company carries on its activities entirely or                 Commission of the European Communities
      almost entirely in the Netherlands and, furthermore, does
      not have any real connection with the State in which the                                 (Case C-170/01 P)
      law under which it was formed applies?
2.    If, on a proper construction of those articles of the Treaty,                             (2001/C 200/77)
      it is held that the provisions of the Wet op de formeel
      buitenlandse vennootschappen are incompatible with                 An appeal against the judgment delivered on 7 February 2001
      them, must Article 46 of the Treaty be interpreted as              by the Court of First Instance of the European Communities


title: Judgment of the Court (First Chamber) of 21 July 2005 in Case C-30/04: Reference for a preliminary ruling from the Tribunale di Bolzano in Ursel Koschitzki v Istituto nazionale della previdenza sociale (INPS) (Social security for migrant workers — Regulation (EEC) No 1408/71 — Old-age pension — Calculation of the theoretical amount of benefit — Inclusion of the amount necessary to reach the minimum pension under national legislation)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/15

      JUDGMENT OF THE COURT

   (First Chamber)
   of 21 July 2005
   in Case C-30/04: Reference for a preliminary ruling from the Tribunale di Bolzano in Ursel Koschitzki v Istituto nazionale della previdenza sociale (INPS) (1)

   (Social security for migrant workers - Regulation (EEC) No 1408/71 - Old-age pension - Calculation of the theoretical amount of benefit - Inclusion of the amount necessary to reach the minimum pension under national legislation)
   (2005/C 217/29)
   Language of the case: Italian
   In Case C-30/04: reference for a preliminary ruling under Article 234 EC from the Tribunale di Bolzano (Italy), made by decision of 9 January 2004, received at the Court on 28 January 2004, in the proceedings between Ursel Koschitzki and Istituto nazionale della previdenza sociale (INPS) — the Court (First Chamber), composed of K. Lenaerts, President of the Fourth Chamber, acting for the President of the First Chamber, N. Colneric (Rapporteur), K. Schiemann, E. Juhász and M. Ilešič, Judges; F.G. Jacobs, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 21 July 2005, in which it ruled:
   Article 46(2)(a) of Council Regulation (EEC) 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, in its version amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended by Council Regulation (EC) No 3096/95 of 22 December 1995, must be interpreted as meaning that, in order to determine the theoretical amount of the pension on which the calculation of the pro rata pension is based, the competent institution is not required to take into consideration a supplement intended to bring the pension to the minimum level under national legislation where, on account of the fact that the income limits fixed by the national legislation on that supplement are exceeded, an insured person who has worked exclusively in the Member State concerned cannot lay claim to such a supplement.

      (1)  OJ C 85 of 03.04.2004.


Avis juridique important

|

E1997P0004

Action brought on 9 September 1997 by The Norwegian Bankers' Association against the EFTA Surveillance Authority (Case E-4/97)

Official Journal C 366 , 04/12/1997 P. 0007 - 0008

Action brought on 9 September 1997 by The Norwegian Bankers' Association against the EFTA Surveillance Authority (Case E-4/97) (97/C 366/06)An action against the EFTA Surveillance Authority was brought before the EFTA Court on 9 September 1997 by The Norwegian Bankers' Association, represented by Jonas W. Myhre, Supreme Court advocate, Hjort DA, Postboks 471 Sentrum, N-0105 Oslo.The applicant claims that:1. The decision of the EFTA Surveillance Authority of 9 July 1997 concerning 'Husbanken` is annulled (Decision No 177/97).2. The EFTA Surveillance Authority shall bear the Applicant's costs connected with the legal action.Factual background:- The Norwegian Bankers's Association was established in 1915. The members of the association, a total of 28, are banks, mortgage institutions and other financial institutions that are entitled by law to carry on activities in Norway,- Husbanken is a State institution governed by Act No 3 of 1 March 1946 relating to the Norwegian State housing bank (Lov om Den Norske Stats Husbank). Husbanken provides house-building loans on a large scale without means-testing of the applicants, but requirements are applied as to size and standard,- it is the opinion of the Norwegian Bankers' Association that the present arrangement for publicly-supported housing finance through Husbanken is highly detrimental to competitive conditions in the Norwegian credit and makes it impossible for the member institutions of the Association to compete on equal terms with Husbanken in the area of basic security loans for new dwellings,- on these grounds, the Norwegian Bankers' Association decided to lodge a complaint dated 7 November 1995 on behalf of its member institutions concerning the framework conditions for Husbanken with the EFTA Surveillance Authority,- On 9 July 1997, the EFTA Surveillance Authority took the following decision:1. 'The complaint initiated by letter of 7 November 1995 (Doc. No 96-6439-A) concerning the framework conditions for Husbanken and their compatibility with the provisions of the EEA Agreement on State aid and competition, is closed without further action by the Authority.2. The Norwegian Authorities, the complainant and the European Commission shall be informed by means of a copy of this decision.`Pleas in law and main arguments adduced in support- The applicant refers to Article 36 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, signed on 2 May 1992, for annulment of the abovementioned decision of the EFTA Surveillance Authority.- The application is based on the following grounds:- the EFTA Surveillance Authority has not instigated formal proceedings concerning State aid, in spite of the fact that the EFTA Surveillance Authority, in its contested decision of 9 July 1997, has concluded that Husbanken is the recipient of State aid which is not compatible with Article 61 of the EEA Agreement,- in its handling of the complaint from the Norwegian Bankers' Association, the EFTA Surveillance Authority has failed to comply with essential procedural requirements, namely its obligation to provide an adequate statement of reasons according to Article 16 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice,- the EFTA Surveillance Authority has wrongfully interpreted and applied Article 59 (2) of the EEA Agreement when it found that restrictions or distortions of competition as a result of the framework conditions for Husbanken do not go beyond what is required to allow the undertaking to perform the services of general economic interest with which it has been entrusted and thus that the aid granted by the Norwegian State should be allowed by way of derogation under the abovementioned


title: Judgment of the Court (Sixth Chamber) of 8 June 2000 in Case C-400/98 (reference for a preliminary ruling from the Bundesfinanzhof): Finanzamt Goslar v Brigitte Breitsohl (Turnover taxes — Common system of value added tax — Articles 4, 17 and 28 of the Sixth Directive 77/388/EEC — Status as taxable person and exercise of the right to deduct in the event of failure of the economic activity envisaged, prior to the first VAT determination — Supplies of buildings and the land on which they stand — Whether possible to limit the option for tax to buildings only, thereby excluding the land)

text:
23.9.2000                 EN                      Official Journal of the European Communities                                             C 273/3
                   JUDGMENT OF THE COURT                                     2.    Article 4(3)(a) of the Sixth Directive 77/388 is to be
                                                                                interpreted as meaning that the option for taxation exercised at
                                                                                the time of the supply of buildings or parts of buildings and the
                           (Sixth Chamber)                                         land on which they stand must relate inseparably to the
                                                                                buildings or parts of buildings and the land on which they
                                                                                stand.
                             of 8 June 2000
                                                                             (1) OJ C 1 of 4.1.1999.
in Case C-400/98 (reference for a preliminary ruling
from the Bundesfinanzhof): Finanzamt Goslar v Brigitte
                              Breitsohl (1)
(Turnover taxes — Common system of value added tax —
Articles 4, 17 and 28 of the Sixth Directive 77/388/EEC —
Status as taxable person and exercise of the right to deduct
in the event of failure of the economic activity envisaged,
prior to the first VAT determination — Supplies of buildings
and the land on which they stand — Whether possible to
limit the option for tax to buildings only, thereby excluding                                  JUDGMENT OF THE COURT
                                the land)
                                                                                (Second Chamber)
                            (2000/C 273/04)
                                                                                of 8 June 2000
                     (Language of the case: German)                          in Case C-46/99: Commission of the European Communi-
                                                                                ties v French Republic (1)
                                                                             (Failure by a Member State to fulfil its obligations —
(Provisional translation; the definitive translation will be published
                                                                             Directive 93/104/EC — Organisation of working time —
                     in the European Court Reports)
                                                                                Failure to transpose)
In Case C-400/98: reference to the Court under Article 177 of                                           (2000/C 273/05)
the EC Treaty (now Article 234 EC) from the Bundesfinanzhof,
Germany, for a preliminary ruling in the proceedings pending
before that court between Finanzamt Goslar and Brigitte
Breitsohl — on the interpretation of Articles 4, 17 and 28 of                                     (Language of the case: French)
the Sixth Council Directive 77/388/EEC of 17 May 1977 on
the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax:
uniform basis of assessment (OJ 1977 L 145 p. 1) —                           (Provisional translation; the definitive translation will be published
the Court, (Sixth Chamber), composed of: J. C. Moitinho de                                       in the European Court Reports)
Almeida, (Rapporteur), President of the Chamber, R. Schintgen,
G. Hirsch, V. Skouris and F. Macken, Judges; D. Ruiz-Jarabo
Colomer, Advocate General; R. Grass, Registrar, has given a                  In Case C-46/99: Commission of the European Communities
judgment on 8 June 2000, in which it has ruled:                              (Agent: D. Gouloussis) v French Republic (Agents: K. Rispal-
                                                                             Bellanger and C. Bergeot) — application for a declaration that,
                                                                             by failing to adopt and, in the alternative, by failing to
1.    Articles 4 and 17 of the Sixth Council Directive 77/388/EEC            communicate to the Commission within the prescribed period,
      of 17 May 1977 on the harmonisation of the laws of the                 the laws, regulations and administrative provisions necessary
      Member States relating to turnover taxes — Common system               fully to comply with Council Directive 93/104/EC of 23 Nov-
      of value added tax: uniform basis of assessment are to be              ember 1993 concerning certain aspects of the organisation of
      interpreted as meaning that the right to deduct the value added        working time (OJ 1993 L 307, p. 18) the French Republic has
      tax paid on transactions carried out with a view to the                failed to fulfil its obligations under the EC Treaty and that
      realisation of a planned economic activity still exists even where     directive — the Court (Second Chamber), composed of:
      the tax authority is aware, from the time of the first tax             R. Schintgen, President of the Chamber, G. Hirsch and V. Skou-
      assessment, that the economic activity envisaged, which was to         ris (Rapporteur), Judges; S. Alber, Advocate General; R. Grass,
      give rise to taxable transactions, will not be taken up.               Registrar, has given a judgment on 8 June 2000, in which it: