title: Case C-392/06: Action brought on 21 September 2006 — Commission of the European Communities v Kingdom of Spain

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/28

         Action brought on 21 September 2006 — Commission of the European Communities v Kingdom of Spain
   (Case C-392/06)
   (2006/C 294/49)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: N. Yerrell and R. Vidal Puig, acting as Agents)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               declare that, by failing to bring into force the provisions necessary to comply with Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (1) and, in any event, by failing to communicate them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2002/15/EC expired on 23 March 2005.

      (1)  OJ L 80 of 23.3.2002, p. 35.


title: Case C-15/10: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 11 January 2010 — Etimine SA v Secretary of State for Work and Pensions

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/39

         Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 11 January 2010 — Etimine SA v Secretary of State for Work and Pensions
   (Case C-15/10)
   2010/C 63/62
   Language of the case: English

      Referring court

   High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

      Parties to the main proceedings

      Applicant: Etimine SA

      Defendant: Secretary of State for Work and Pensions

      Questions referred

               1.

               Are the challenged borate classifications in Commission Directive 2008/58 (1) (the 3oth ATP) and/or Commission Regulation 790/2009 (2) (‘the 1st ATP’) invalid on one of more of the following grounds:

                           (i)

                           The classifications were included in the 30th ATP in breach of essential procedural requirements?

                           (ii)

                           The classifications were included in the 30th ATP in breach of Directive 67/548 (3) (‘the DSD’) and/or as a result of manifest errors of assessment, in that:

                                       (a)

                                       The Commission did not apply or failed properly to apply the ‘normal handling and use’ principle contained in Annex VI to the DSD?

                                       (b)

                                       There was an unlawful application of risk assessment criteria?

                                       (c)

                                       The Commission failed to apply or misapplied the ‘appropriateness’ criterion in breach of point 4.2.3.3 of Annex VI to the DSD?

                                       (d)

                                       The Commission failed to have proper regard to the need for epidemiological/human data? and/or

                                       (e)

                                       The Commission unlawfully extrapolated data relating to one of the borate substances for the purposes of classifying the other borate substances and/or gave inadequate reasoning for that extrapolation contrary to Article 253 EC?

                           (iii)

                           The classifications were included in the 30th ATP in breach of the fundamental Community law principle of proportionality?

               2.

               Are the challenged borate classifications in the 1st ATP invalid, in that:

                           (i)

                           The 1st ATP was wrongly adopted using the procedure set out in Article 53 as its legal basis?

                           (ii)

                           The criteria for a new harmonised classification under Annex I to Regulation (EC) 1272/2008 (4) (‘the CLP Regulation’) were not applied, and instead Annex VII to the CLP Regulation was wrongly applied?

      (1)  Commission Directive 2008/58/EC of 21 August 2008 amending, for the purpose of its adaptation to technical progress, for the 30th time, Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (Text with EEA relevance)
   OJ L 246, p. 1

      (2)  Commission Regulation (EC) No 790/2009 of 10 August 2009 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (Text with EEA relevance)
   OJ L 235, p. 1

      (3)  Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances
   OJ 196, p. 1

      (4)  Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (Text with EEA relevance)

      OJ L 353, 31.12.2008, p. 1


title: Case T-178/11: Judgment of the General Court of 28 May 2013 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional shape of a bottle) (Community trade mark — Cancellation proceedings — Three-dimensional Community trade mark depicting the shape of a bottle — Absolute grounds for refusal)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/67

         Judgment of the General Court of 28 May 2013 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional shape of a bottle)
   (Case T-178/11) (1)

   (Community trade mark - Cancellation proceedings - Three-dimensional Community trade mark depicting the shape of a bottle - Absolute grounds for refusal)
   2013/C 225/149
   Language of the case: English

      Parties

      Applicants: Voss of Norway ASA (Oslo, Norway) (represented by: F. Jacobacci and B. La Tella, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral and V. Melgar, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Nordic Spirit AB (publ) (Stockholm, Sweden)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 12 January 2011 (Case R 785/2010-1) relating to cancellation proceedings between Nordic Spirit AB (publ) and Voss of Norway ASA

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Voss of Norway ASA to pay the costs.

      (1)  OJ C 145, 14.5.2011.


title: Case C-569/16: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 10 November 2016 — Stadt Wuppertal v Maria Elisabeth Bauer

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/21

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 10 November 2016 — Stadt Wuppertal v Maria Elisabeth Bauer
   (Case C-569/16)
   (2017/C 053/27)
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicant: Stadt Wuppertal

      Defendant: Maria Elisabeth Bauer

      Question referred

   Do Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (1) or Article 31(2) of the Charter of Fundamental Rights of the European Union allow the heir of a worker who died while in an employment relationship to be entitled to financial compensation in respect of the worker’s entitlement to minimum annual leave prior to his death, which is precluded by Paragraph 7(4) of the Bundesurlaubsgesetz (Federal Law on Paid Leave), read in conjunction with Paragraph 1922(1) of the Bürgerliches Gesetzbuch (the Civil Code)?

      (1)  OJ 2003 L 299, p. 9.


title: Case T-112/15: Action brought on 2 March 2015 — Hellenic Republic v Commission

text:
               26.5.2015

               EN

               Official Journal of the European Union

               C 171/27

         Action brought on 2 March 2015 — Hellenic Republic v Commission
   (Case T-112/15)
   (2015/C 171/32)
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: Ι.-Κ. Khalkias, G. Κanellopoulos, Ε. Leftheriotou and Α.-Ε. Vasilopoulou)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Commission Implementing Decision of 19 December 2014 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) [notified under document C(2014) 10135] (OJ 2012 L 369, p. 71), in so far as it excludes from European Union financing expenditure which was incurred in the field of area payments in the 2008 claim year and correspond to: (a) 10 % of the whole amount of expenditure incurred for pasture land payments, (b) 5 % of the whole amount of expenditure incurred for additional coupled payments and (c) 5 % of the whole amount of the expenditure incurred in the area of rural development.

      Pleas in law and main arguments

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

               1.

               With regard to the imposed 10 % correction with respect to pasture land:

                           —

                           The first plea in law in support of annulment is a claim of misinterpretation and misapplication of Article 2 of Commission Regulation (EC) No 796/2004 of 21 April 2004 (1), as concerns the definition of pasture, failure to state adequate statement of reasons and an infringement of the principle of proportionality.

               2.

               With regard to the imposed 5 % corrections with respect to additional coupled payments and measures for rural development:

                           —

                           the second plea in law in support of annulment is a claim that the financial correction to the extent of 5 % with respect to additional coupled payments was imposed on the basis of error as to the facts, failure to state adequate of reasons and an infringement of the principle of proportionality;

                           —

                           by the third plea in law in support of annulment, the applicant claims that there are no grounds for the imposition of the financial correction imposed to the extent of 5 % with respect to Pillar 2 payments and in any event the relevant assessment by the Commission is made on the basis of error as to the facts and is manifestly disproportionate to the risks which its findings with respect to Pillar 2 measures involve. In particular, as regards Measure 214 of the Rural Development Programme, the applicant claims that the correction which has been imposed is in part the second which has been imposed for the same reason and is therefore unlawful and should be annulled.

      (1)  Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in of Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18).


title: Case C-395/14: Judgment of the Court (Third Chamber) of 14 January 2016 (request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court — Germany)) — Vodafone GmbH v Bundesrepublik Deutschland (Reference for a preliminary ruling — Common regulatory framework for electronic communications networks and services — Directive 2002/21/EC — Article 7(3) — Procedure for consolidating the internal market for electronic communications — Directive 2002/19/EC — Articles 8 and 13 — Operator designated as having significant market power on a market — Obligations imposed by national regulatory authorities — Price control and cost accounting obligations — Authorisation of mobile call termination fees)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/9

         Judgment of the Court (Third Chamber) of 14 January 2016 (request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court — Germany)) — Vodafone GmbH v Bundesrepublik Deutschland
   (Case C-395/14) (1)

   ((Reference for a preliminary ruling - Common regulatory framework for electronic communications networks and services - Directive 2002/21/EC - Article 7(3) - Procedure for consolidating the internal market for electronic communications - Directive 2002/19/EC - Articles 8 and 13 - Operator designated as having significant market power on a market - Obligations imposed by national regulatory authorities - Price control and cost accounting obligations - Authorisation of mobile call termination fees))
   (2016/C 098/11)
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: Vodafone GmbH

      Defendant: Bundesrepublik Deutschland

      Operative part of the judgment

   Article 7(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that, when an national regulatory authority has required an operator which has been designated as having significant market power to provide mobile call termination services and has made the fees charged for this subject to authorisation following the procedure laid down in that provision, that national regulatory authority is required to carry out the procedure again before each authorisation of those fees to that operator, where that authorisation is likely to affect trade between the Member States within the meaning of that provision.

      (1)  OJ C 372, 20.10.2014.


title: Case T-74/04: Order of the Court of First Instance (Fifth Chamber) of 30 October 2009 — Nestlé v OHIM — Quick (QUICKY)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/38

         Order of the Court of First Instance (Fifth Chamber) of 30 October 2009 — Nestlé v OHIM — Quick (QUICKY)
   (Case T-74/04) (1)

   2010/C 11/70

      Language of the case: French

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

      (1)  OJ C 94, 17.4.2004.


title: Case C-143/09: Reference for a preliminary ruling from the Fővárosi Bíróság (Budapest, Hungary) lodged on 23 April 2009 — Pannon GSM Távközlési Rt. v Namzeti Hírközlési Hatóság Tanácsának Elnöke

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/25

         Reference for a preliminary ruling from the Fővárosi Bíróság (Budapest, Hungary) lodged on 23 April 2009 — Pannon GSM Távközlési Rt. v Namzeti Hírközlési Hatóság Tanácsának Elnöke
   (Case C-143/09)
   2009/C 153/46
   Language of the case: Hungarian

      Referring court

   Fővárosi Bíróság

      Parties to the main proceedings

      Applicant: Pannon GSM Tavközlesi Rt.

      Defendant: Nemzeti Hírközlési Hatóság Tanácsának Elnöke

      Questions referred

               (1)

               On the basis of Community law, in particular, the Act of Accession (OJ 2003 L 236) and Articles 10 and 249 EC, does Directive 2002/22/EC (1) of the European Parliament and the Council (‘the Universal Service Directive’), and in particular Article 13(2) thereof and Annex IV thereto, apply to the mechanisms for support and cost-sharing which Hungary, as a Member State, established for universal services provided in 2003, that is to say, before its accession on 1 May 2004, but in respect of which the obligation to finance, grant and pay support is based on decisions adopted in administrative procedures commenced and completed after the accession of Hungary to the European Union?

               (2)

               If Question (1) is answered in the affirmative, should the Universal Service Directive, and in particular Article 13(2) thereof and Annex IV thereto, be interpreted as meaning that a universal service provider is entitled to payment of support in an amount equivalent to the difference between the subscription prices of the preferential and the normal tariff packages it offers?

               (3)

               If Question (2) is answered in the negative, should support for the financing of a universal service, the amount of which is not calculated in accordance with the Universal Service Directive but on the basis of costs which are higher than its net value, be considered to be State aid compatible with the common market within the meaning of Article 87(1) EC?

               (4)

               On a proper construction of the provisions of the Universal Service Directive, may transitional measures be adopted by a Member State, applying, only in respect of universal services provided in 2003, that is, before accession, different rules from those of the Universal Service Directive, even if they allow the adoption of decisions on the operation of the support and cost-sharing mechanism based on such rules and, in particular, of decisions on contributions and payments of support, which are — effectively — unlimited in time?

               (5)

               Should the provisions of the Universal Service Directive relating to financing, in particular the last sentence of Article 13(2) and the provisions of Annex IV, be interpreted as meaning that they have direct effect?

      (1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive); OJ 2002 L 102, p. 51 — 77; Special edition in Hungarian, Chapter 13, Volume 29, p. 367 — 393.


title: Case C-479/15 P: Appeal brought on 7 September 2015 by Nanu-Nana Joachim Hoepp GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 9 July 2015 in Case T-89/11: Nanu-Nana Joachim Hoepp v EUIPO

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/14

         Appeal brought on 7 September 2015 by Nanu-Nana Joachim Hoepp GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 9 July 2015 in Case T-89/11: Nanu-Nana Joachim Hoepp v EUIPO
   (Case C-479/15 P)
   (2016/C 270/20)
   Language of the case: English

      Parties

      Appellant: Nanu-Nana Joachim Hoepp GmbH & Co. KG (represented by: A. Nordemann, Rechtsanwalt, M.C. Maier, Rechtsanwalt)

      Other party to the proceedings: European Union Intellectual Property Office (EUIPO)
   By order of 14 April 2016 the Court (Sixth Chamber) held that the appeal was inadmissible.


title: Case C-244/11: Action brought on 20 May 2011 — European Commission v Hellenic Republic

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/10

         Action brought on 20 May 2011 — European Commission v Hellenic Republic
   (Case C-244/11)
   2011/C 219/13
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: G. Zavvos and E. Montaguti)

      Defendant: Hellenic Republic

      Form of order sought

               —

               declare that, by enacting the approval requirements which are laid down in Article 11(1), in conjunction with Article 11(2), of Greek Law 3631/2008 and the approval requirements which are laid down in Article 11(3) of that Law, the Hellenic Republic has failed to fulfil its obligations under Article 63 of the Treaty on the Functioning of the European Union concerning the free movement of capital and Article 49 of the Treaty on the Functioning of the European Union concerning freedom of establishment;

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

   The Commission submits that the requirement for prior approval of the Inter-Ministerial Privatisation Committee in order to acquire voting rights from 20 % or more of the total share capital in companies of national strategic importance, as laid down in Article 11(1), in conjunction with Article 11(2), of Law 3613/2008, restricts the free movement of capital (Article 63 of the Treaty on the Functioning of the European Union) and freedom of establishment (Article 49 of the Treaty on the Functioning of the European Union). Although those measures, as the Greek Government asserts, are non-discriminatory, they may deter economic operators from investment of their capital in companies of national strategic importance and therefore also from establishment in Greece.
   The Commission further contends that Article 11(3) of Law 3613/2008 which provides for the mechanism of ex post control by the Minister for Economic Affairs and Finance in respect of certain company matters of decisive importance restricts the free movement of capital (Article 63 of the Treaty on the Functioning of the European Union) and freedom of establishment (Article 49 of the Treaty on the Functioning of the European Union), since it enables the State to render important decisions of the company invalid, on the basis of subsequent administrative grounds which are not known in advance. Therefore, the shareholders’ discretion to implement their decisions is restricted, and their actual participation in the management and control of companies of national strategic importance — and consequently also their establishment in Greece — are hindered.
   The Greek Government maintains that the Law at issue is restricted to just the privatisation of six companies of national strategic importance over which the State has control. The Commission, on the other hand, considers that in principle the Law’s scope remains unclear, because neither the companies targeted nor the sectors which fall within the scope of the new system are specified in the Law, with the result that the Law remains equivocal not only as to its present but also as to its future scope and therefore does not provide the requisite legal certainty.
   The Greek Government submits that the sole aim of the Law is to safeguard the public interest and to ensure that services are provided and networks operate continuously and smoothly. However, the Commission submits that the aim of the Law is, additionally, to safeguard the ability of the State to choose a strategic investor for companies of national strategic importance, to improve their competitiveness, and to ensure privatisation of companies of strategic importance for the national economy under transparent conditions. The Commission observes that, even if the provisions in question can be justified on the basis of reasons in the public interest, contrary to the case-law of the Court of Justice according to which systems of approval ‘must be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned, and all persons affected by a restrictive measure of that type must have a legal remedy available to them’, (1) the criteria which they lay down for the grant of approval are inappropriate for achieving the objective that is referred to in the Law. The privatisation criteria (conferral of prior approval but also ex post control with the possibility of annulment of the company’s decisions) which the provisions in question lay down are not clear, objective and precisely defined in the Law, and they do not have any relationship with the objectives pursued by the Law whilst they confer a broad discretion on the authorities, resulting in the subsequent imposition of additional restrictions on the privatisation of companies of national strategic importance, in the possible selective restriction of access of investors to privatised companies and market sectors, and in inability of the judicial authorities to review the way in which the administrative authorities have exercised the powers conferred upon them by the Law.
   The Commission submits that the Hellenic Republic has not put forward sufficient explanation or arguments to justify enactment of the foregoing restrictions and therefore Article 11(1), in conjunction with Article 11(2), and Article 11(3) of Law 3631/2008, in laying down, respectively, the system of prior approval and the system of ex post control, infringe Articles 63 and 49 of the Treaty on the Functioning of the European Union.

      (1)  See Case C-205/99 Analir and Others, paragraph 38; Case C-380/05 Centro Europa 7, paragraph 116; Case C-367/98 Commission v Portugal, paragraph 50; Case C-483/99 Commission v France, paragraph 46; and Case C-463/00 Commission v Spain, paragraph 69.


title: Case F-88/08: Judgment of the Civil Service Tribunal (Second Chamber) of 9 December 2010 — Vandeuren v European Training Foundation (ETF) (Civil service — Staff of the European Training Foundation — Temporary Agent — Contract of unlimited duration — Dismissal — Requirement to provide a valid reason — Abolition of a post — Duty of care — Reallocation)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/59

         Judgment of the Civil Service Tribunal (Second Chamber) of 9 December 2010 — Vandeuren v European Training Foundation (ETF)
   (Case F-88/08) (1)

   (Civil service - Staff of the European Training Foundation - Temporary Agent - Contract of unlimited duration - Dismissal - Requirement to provide a valid reason - Abolition of a post - Duty of care - Reallocation)
   2011/C 30/111
   Language of the case: French

      Parties

      Applicant: Monique Vandeuren (Pino Torinese, Italy) (represented initially by N. Lhoest, lawyer, and subsequently by N. Lhoest and L. Delhaye, lawyers)

      Defendant: European Training Foundation (ETF) (represented by: T. Ciccarone, Agent, and L. Levi, lawyer)

      Re:

   Civil service — Annul the defendant’s decision to dismiss the applicant, and order the European Foundation to provide compensation for the pecuniary and non-pecuniary damage suffered by the applicant.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision to dismiss Ms Vandeuren of 23 October 2007;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the European Training Foundation (ETF) to pay the costs.

      (1)  OJ C 327, 20.12.2008, p. 44.


title: Case T-474/11: Action brought on 6 September 2011 — Oster Weinkellerei v OHIM — Viñedos Emiliana (Igama)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/24

         Action brought on 6 September 2011 — Oster Weinkellerei v OHIM — Viñedos Emiliana (Igama)
   (Case T-474/11)
   2011/C 319/51
   Language in which the application was lodged: German

      Parties

      Applicant: Andreas Oster Weinkellerei KG (Cochem, Germany) (represented by: N. Schindler, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Viñedos Emiliana, SA (Santiago, Chile)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 June 2011 in Case R 637/2010-2;

               —

               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and pay the applicant’s costs;

               —

               In the alternative, stay the proceedings until delivery of a legally binding decision in the invalidity proceedings pending before OHIM concerning filing reference 000005716 C.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: Word mark ‘Igama’ for goods in Class 33.

      Proprietor of the mark or sign cited in the opposition proceedings: Viñedos Emiliana, SA.

      Mark or sign cited in opposition: Word mark ‘GAMMA’ for goods in Class 33.

      Decision of the Opposition Division: The opposition was upheld.

      Decision of the Board of Appeal: The appeal was dismissed.

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


title: Case C-184/12: Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Hof van Cassatie van België — Belgium) — United Antwerp Maritime Agencies (UNAMAR) NV v Navigation Maritime Bulgare (Rome Convention on the law applicable to contractual obligations — Articles 3 and 7(2) — Freedom of choice of the parties — Limits — Mandatory rules — Directive 86/653/EEC — Self-employed commercial agents — Contracts for sale or purchase of goods — Termination of the agency contract by the principal — National implementing legislation providing for protection going beyond the minimum requirements of the directive and providing also for protection for commercial agents in the context of contracts for the supply of services)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/12

         Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Hof van Cassatie van België — Belgium) — United Antwerp Maritime Agencies (UNAMAR) NV v Navigation Maritime Bulgare
   (Case C-184/12) (1)

   (Rome Convention on the law applicable to contractual obligations - Articles 3 and 7(2) - Freedom of choice of the parties - Limits - Mandatory rules - Directive 86/653/EEC - Self-employed commercial agents - Contracts for sale or purchase of goods - Termination of the agency contract by the principal - National implementing legislation providing for protection going beyond the minimum requirements of the directive and providing also for protection for commercial agents in the context of contracts for the supply of services)
   2013/C 367/19
   Language of the case: Dutch

      Referring court

   Hof van Cassatie van België

      Parties to the main proceedings

      Applicant: United Antwerp Maritime Agencies (UNAMAR) NV

      Defendant: Navigation Maritime Bulgare

      Re:

   Request for a preliminary ruling — Hof van Cassatie van België — Interpretation of Articles 3 and 7(2) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1), and Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17) — Freedom of choice of the parties — Limits — Commercial agency contract — Clause designating the law of the State of the principal to be the applicable law — Bringing of a case before the court of the commercial agent’s place of establishment

      Operative part of the judgment

   Articles 3 and 7(2) of the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 must be interpreted as meaning that the law of a Member State of the European Union which meets the minimum protection requirements laid down by Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents and which has been chosen by the parties to a commercial agency contract may be rejected by the court of another Member State before which the case has been brought in favour of the law of the forum, owing to the mandatory nature, in the legal order of that Member State, of the rules governing the situation of self-employed commercial agents, only if the court before which the case has been brought finds, on the basis of a detailed assessment, that, in the course of that transposition, the legislature of the State of the forum held it to be crucial, in the legal order concerned, to grant the commercial agent protection going beyond that provided for by that directive, taking account in that regard of the nature and of the objective of such mandatory provisions.

      (1)  OJ C 200, 7.7.2012.


title: Joined Cases T-53/04 to T-56/04, T-58/04 and T-59/04: Order of the Court of First Instance of 12 June 2007 — Budějovický Budvar v OHIM — Anheuser-Busch, Inc. (BUDWEISER) (Community trade mark — Opposition proceedings — Applications for a Community word mark BUDWEISER — Appellations of origin registered under the Lisbon Agreement — Article 8(4) of Regulation (EC) No 40/94 — Rejection of the opposition)

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/19

         Order of the Court of First Instance of 12 June 2007 — Budějovický Budvar v OHIM — Anheuser-Busch, Inc. (BUDWEISER)
   (Joined Cases T-53/04 to T-56/04, T-58/04 and T-59/04) (1)

   (Community trade mark - Opposition proceedings - Applications for a Community word mark BUDWEISER - Appellations of origin registered under the Lisbon Agreement - Article 8(4) of Regulation (EC) No 40/94 - Rejection of the opposition)
   (2007/C 170/34)
   Language of the case: English
   Parties

      Applicant: Budějovický Budvar, established in (České Budějovice, Czech Republic) (represented by: F. Fajgenbaum, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral and I. de Medrano Caballero, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Anheuser-Busch, Inc. (Saint Louis, Missouri, United States) (represented by: initially V. von Bomhard, A. Renck, A. Pohlmann, D. Ohlgart and B. Goebel, and subsequently V. von Bomhard, A. Renck, D. Ohlgart and B. Goebel, lawyers)
   Re:
   Action brought against six decisions of the Second Board of Appeal of OHIM of 3 December 2003 (Cases R 820/2001-2, R 822/2001-2, R 823/2001-2, R 921/2001-2, R 29/2002-2 and R 32/2002-2), concerning opposition proceedings between Budějovický Budvar, národní podnik and Anheuser-Busch, Inc.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the applications in Joined Cases T-53/04 to T-56/04, T-58/04 and T-59/04;

               2.

               Orders Budějovický Budvar, národní podnik to pay the costs.

      (1)  OJ C 94, 17.4.2004.


title: Case F-73/11: Judgment of the Civil Service Tribunal (Third Chamber) of 24.4.2013 — CB v Commission (Civil service — Officials — Open competition — Notice of competition EPSO/AD/181/10 — Non-admission to the assessment tests)

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/41

         Judgment of the Civil Service Tribunal (Third Chamber) of 24.4.2013 — CB v Commission
   (Case F-73/11) (1)

   (Civil service - Officials - Open competition - Notice of competition EPSO/AD/181/10 - Non-admission to the assessment tests)
   2013/C 171/84
   Language of the case: English

      Parties

      Applicant: CB (Brussels, Belgium) (represented by: S. Rodrigues, C. Bernard-Glanz and A. Blot, lawyers)

      Defendant: European Commission (represented by: J. Currall, acting as Agent, and by A. Dal Ferro, lawyer)

      Re:

   Application to annul the decision not to admit the applicant to the assessment tests in the competition EPSO/AD/181/10.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action.

               2.

               Orders the European Commission to bear its own costs and to pay half of the costs incurred by CB.

               3.

               Orders CB to bear half of his own costs.

      (1)  OJ C 282, 24.9.11, p. 53.


title: Case T-135/10: Action brought on 23 March 2010 — Pieno žvaigždės v OHIM — Fattoria Scaldasole (Iogurt.)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/47

         Action brought on 23 March 2010 — Pieno žvaigždės v OHIM — Fattoria Scaldasole (Iogurt.)
   (Case T-135/10)
   2010/C 134/76
   Language in which the application was lodged: English

      Parties

      Applicant: AB ‘Pieno žvaigždės’ (Vilnius, Lithuania) (represented by: I. Lukauskienė and R. Žabolienė, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Fattoria Scaldasole Srl (Monguzzo, Italy)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 January 2010 in case R 1070/2009-2; and

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘Iogurt.’, for goods in class 29

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited: Lithuanian trade mark registration of the figurative mark ‘jogurtas’, for goods in class 29; Community trade mark registration of the figurative mark ‘jogurt’, for goods in class 29

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Deemed the appeal not to have been filed

      Pleas in law: Infringement of Article 60 of Council Regulation No 207/2009 in conjunction with Article 8 of Commission Regulation No 2869/95 (1) as the Board of Appeal wrongly concluded that the fee for appeal was not paid within the prescribed time-limit of two months from the date of notification of the appealed decision.

      (1)  Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ L 303, p. 33)


title: Case F-71/08: Judgment of the Civil Service Tribunal (First Chamber) of 19 November 2009 — N v Parliament (Staff case — Officials — Appraisal — Staff report — Setting of objectives — Manifest error of assessment — Admissibility — Act which does not adversely affect an official)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/74

         Judgment of the Civil Service Tribunal (First Chamber) of 19 November 2009 — N v Parliament
   (Case F-71/08) (1)

   (Staff case - Officials - Appraisal - Staff report - Setting of objectives - Manifest error of assessment - Admissibility - Act which does not adversely affect an official)
   2010/C 24/137
   Language of the case: French

      Parties

      Applicant: N (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

      Defendant: European Parliament (represented by: K. Zejdová, R. Ignătescu and S. Seyr, acting as Agents)

      Re:

   Annulment of the applicant’s staff report for the period from 16/8/2006 to 31/12/2006.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the Secretary General of the European Parliament of 12 September 2007 adopting N’s definitive staff report for the period from 16 August 2006 to 31 December 2006;

               2.

               Rejects the remainder of the application;

               3.

               Orders the European Parliament to pay the costs.

      (1)  OJ C 272, 25.10.2008, p. 51.


title: Case T-405/04: Action brought on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/23

         Action brought on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-405/04)
   (2004/C 314/56)
   Language of the case: German
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG, Hamburg (Germany), represented by M. Wolter, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 August 2004 in Case R 912/2002-2;

               —

               declare that the provisions of Article 7(1)(b) and (c) and 7(2) do not prevent publication of the mark applied for, ‘Caipi’, for goods in Class 33 (alcoholic beverages (not including beer));

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

               Applicant for the Community trade mark:

               The applicant

               The trade mark applied for:

               Word mark ‘Caipi’ for goods in Class 33 (alcoholic beverages (not including beer)), application No 2 655 967

               Decision of the examiner:

               Refusal to register the mark applied for

               Decision of the Board of Appeal:

               Dismissal of the appeal

               Grounds of claim:

               Infringement of Article 7(1)(b) and (c) and of Article 12 of Regulation (EC) No 40/94.  (1) Wrongful failure to take account of earlier national registrations.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case T-162/10: Action brought on 13 April 2010 — Niki Luftfahrt GmbH v Commission

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/45

      Action brought on 13 April 2010 — Niki Luftfahrt GmbH v Commission
      (Case T-162/10)
      (2010/C 161/72)
      Language of the case: German

         Parties

         Applicant: Niki Luftfahrt GmbH (Vienna, Austria) (represented by: H. Asenbauer, lawyer)

         Defendant: European Commission

         Form of order sought

                  —

                  Annul the contested Commission Decision C(2009) 6690 of 28 August 2009, Case COMP/M.5440 — Lufthansa/Austrian Airlines in accordance with the first paragraph of Article 264 TFEU (formerly the first paragraph of Article 231 EC); and

                  —

                  Order the European Commission to pay the applicant’s costs in accordance with Article 87(2) of the Rules of Procedure.

         Pleas in law and main arguments

      The applicant challenges Commission Decision C(2009) 6690 final of 28 August 2009 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.5440 — Lufthansa/Austrian Airlines). In that decision the Commission takes the view that, the acquisitions by Deutsche Lufthansa AG of sole control over the Austrian Airlines company — subject to the implementation of the commitments submitted by Deutschen Lufthansa AG — is compatible with the common market and the EEA Agreement.
      In support of its action for annulment the applicant, which operates a privately financed airline, submits, first, that the Commission has infringed the EC Treaty (or the TFEU) and the rules of law relating to its application. It is claimed in this connection that the Commission based its decision on a market definition which hampers an assessment of all negative effects of the concentration on competition. Further, the applicant submits that the Commission incorrectly assessed the impact of the concentration in particular with regard to flight routes to Eastern Europe, so that in this respect there was a gross and manifest misappraisal. Furthermore, the Commission did not follow the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (1). According to the applicant, the Commission in particular failed to take into account that the concentration at issue has negative effects on competition in the common market, because as a result the competitiveness of the remaining competitors in the market would be significantly impeded, that there are no alternative players on the relevant market and that entry into the relevant market is not sufficiently easy. Further, the applicant states that Deutschen Lufthansa AG’s commitments which were accepted by the Commission are not suited to prevent a significant impediment to effective competition.
      Second, the applicant alleges infringement of Article 253 EC (Article 296 the TFEU), inasmuch as the Commission has not stated proper reasons for the contested decision, in that it does not state on the basis of what specific arguments a restriction in competition on flight routes to Eastern Europe can be excluded. Furthermore, it is alleged that the investigation of the case was incomplete.
      Third, the applicant claims that there has been a misuse of power by the Commission.

         (1)  OJ 2004 C 31, p. 5.


title: Case C-155/10: Judgment of the Court (First Chamber) of 15 September 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom) — Williams and Others v British Airways plc (Working conditions — Directive 2003/88/EC — Organisation of working time — Right to annual leave — Airline pilots)

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/7

         Judgment of the Court (First Chamber) of 15 September 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom) — Williams and Others v British Airways plc
   (Case C-155/10) (1)

   (Working conditions - Directive 2003/88/EC - Organisation of working time - Right to annual leave - Airline pilots)
   2011/C 319/11
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Applicants: Williams and Others

      Defendant: British Airways plc

      Re:

   Reference for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Article 7 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) and of Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) — Scope of the obligations laid down by the directives as to the nature and level of allowances for paid annual leave — Extent of the Member States’ freedom to lay down the conditions therefor — Paid annual leave granted to airline pilots

      Operative part of the judgment

   Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time and Clause 3 of the Agreement annexed to Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation, concluded by the Association of European Airlines (AEA), the European Transport Workers’ Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA), must be interpreted as meaning that an airline pilot is entitled, during his annual leave, not only to the maintenance of his basic salary, but also, first, to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided and, second, to all the elements relating to his personal and professional status as an airline pilot.
   It is for the national court to assess whether the various components comprising that worker’s total remuneration meet those criteria.

      (1)  OJ C 161, 19.6.2010.


title: Case C-484/10: Judgment of the Court (Fifth Chamber) of 1 March 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Asociación para la Calidad de los Forjados (Ascafor), Asociación de Importadores y Distribuidores de Acero para la Construcción (Asidac) v Administración del Estado and Others (Free movement of goods — Quantitative restrictions and measures having equivalent effect — Directive 89/106/EEC — Construction products — Non-harmonised standards — Labels of quality — Requirements relating to certification bodies)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/5

         Judgment of the Court (Fifth Chamber) of 1 March 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Asociación para la Calidad de los Forjados (Ascafor), Asociación de Importadores y Distribuidores de Acero para la Construcción (Asidac) v Administración del Estado and Others
   (Case C-484/10) (1)

   (Free movement of goods - Quantitative restrictions and measures having equivalent effect - Directive 89/106/EEC - Construction products - Non-harmonised standards - Labels of quality - Requirements relating to certification bodies)
   2012/C 118/07
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicants: Asociación para la Calidad de los Forjados (Ascafor), Asociación de Importadores y Distribuidores de Acero para la Construcción (Asidac)

      Defendants: Administración del Estado, Calidad Siderúrgica SL, Colegio de Ingenieros Técnicos Industriales, Asociación Española de Normalización y Certificación (AENOR), Consejo General de Colegios Oficiales de Aparejadores y Arquitectos Técnicos, Asociación de Investigación de las Industrias de la Construcción (Aidico) Instituto Tecnológico de la Construcción, Asociación Nacional Española de Fabricantes de Hormigón Preparado (Anefhop), Ferrovial Agromán SA, Agrupación de Fabricantes de Cemento de España (Oficemen), Asociación de Aceros Corrugados Reglamentarios y su Tecnología y Calidad (Acerteq)

      Re:

   Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 28 and 30 EC (now Articles 34 and 36 TFEU) — Construction products — Products not covered by harmonisation measures such as those provided for by Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ 1989 L 40, p. 12) — Placing on the market made subject either to a superior quality certificate issued in accordance with methods satisfying detailed conditions equivalent to those imposed by the national authorities or to prior approval with regard to those conditions, even though obtained in the Member State of origin

      Operative part of the judgment

   Articles 34 TFEU and 36 TFEU must be interpreted as meaning that the requirements laid down in Article 81 of the structural concrete regulations (EHE-08) approved by Royal Decree No 1247/2008 of 18 July 2008, read in conjunction with Annex 19 to those regulations, for official recognition of certificates demonstrating the quality level of reinforcing steel for concrete granted in a Member State other than the Kingdom of Spain constitute a restriction on the free movement of goods. Such a restriction may be justified by the objective of the protection of human life and health, provided the requirements laid down are not higher than the minimum standards required for the use of reinforcing steel for concrete in Spain. In such a case, it is for the referring court to ascertain — where the entity granting the certificate of quality which must be officially recognised in Spain is an approved body within the meaning of Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Council Directive 93/68/EEC of 22 July 1993 — which of those requirement go beyond what is necessary for the purposes of attaining the objective of the protection of human life and health.

      (1)  OJ C 346, 18.12.2010.


title: Case C-303/10: Order of the President of the Court of 11 January 2011 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Administración General del Estado v Red Nacional de Ferrocarriles Españoles (RENFE)

text:
               16.4.2011

               EN

               Official Journal of the European Union

               C 120/10

         Order of the President of the Court of 11 January 2011 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Administración General del Estado v Red Nacional de Ferrocarriles Españoles (RENFE)
   (Case C-303/10) (1)

   2011/C 120/23
   Language of the case: Spanish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 246, 11.09.2010.


title: Case C-543/08: Judgment of the Court (First Chamber) of 11 November 2010 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 56 EC and 43 EC — Free movement of capital — Golden shares in EDP — Energias de Portugal held by the Portuguese State — Restrictions on the acquisition of holdings and participation in the management of a privatised company)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/3

         Judgment of the Court (First Chamber) of 11 November 2010 — European Commission v Portuguese Republic
   (Case C-543/08) (1)

   (Failure of a Member State to fulfil obligations - Articles 56 EC and 43 EC - Free movement of capital - Golden shares in EDP - Energias de Portugal held by the Portuguese State - Restrictions on the acquisition of holdings and participation in the management of a privatised company)
   2011/C 13/05
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: G. Braun, P. Guerra e Andrade and M. Teles Romão, acting as Agents)

      Defendant: Portuguese Republic (represented by: L. Inez Fernandes, Agent, C. Botelho Moniz and P. Gouveia e Melo, advogados)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 56 EC — Golden shares held by the Portuguese State in the company EDP — Energias de Portugal

      Operative part of the judgment

   The Court:

               1.

               Declares that by maintaining for the Portuguese State and other public bodies special rights in EDP — Energias de Portugal such as those provided for in this instance by Law No 11/90 of 5 April 1990 concerning the framework law on privatisations (Lei No 11/90, Lei Quadro das Privatizações), by Decree-Law No 141/2000 of 15 July 2000 approving the fourth phase of the re-privatisation of the share capital of EDP — Electricidade de Portugal SA, and by the articles of association of that company, allocated in connection with golden shares held by the Portuguese State in the share capital of that company, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC.

               2.

               Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 19, 24.01.2009.


title: Case C-29/12: Order of the President of the Ninth Chamber of the Court of 12 June 2013 — European Commission v Federal Republic of Germany

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/56

         Order of the President of the Ninth Chamber of the Court of 12 June 2013 — European Commission v Federal Republic of Germany
   (Case C-29/12) (1)

   2013/C 225/108
   Language of the case: German
   The President of the Ninth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 98, 31.3.2012.


title: Joined Cases T-156/07 and 232/07: Judgment of the General Court of 13 September 2010 — Spain v Commission (Rules on the use of languages — Notice of open competitions for the recruitment of administrators — Publication in all the official languages — Amendments — Regulation No 1 — Articles 27, 28 and Article 29(1) of the Staff Regulations — Article 1(1) and (2) of Annex III to the Staff Regulations — Obligation to state reasons — Principle of non-discrimination)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/24

         Judgment of the General Court of 13 September 2010 — Spain v Commission
   (Joined Cases T-156/07 and 232/07) (1)

   (Rules on the use of languages - Notice of open competitions for the recruitment of administrators - Publication in all the official languages - Amendments - Regulation No 1 - Articles 27, 28 and Article 29(1) of the Staff Regulations - Article 1(1) and (2) of Annex III to the Staff Regulations - Obligation to state reasons - Principle of non-discrimination)
   2010/C 301/37
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: Case T-156/07, F. Díez Moreno and, Case T 232/07, F. Díez Moreno and N. Díaz Abad, abogados del Estado)

      Defendant: European Commission (represented initially by: J. Currall, L. Escobar Guerrero and H. Krämer, and subsequently by J. Currall, H. Krämer and J. Baquero Cruz, Agents, assisted by A. Dal Ferro, lawyer)

      Interveners in support of the applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, Agent) (Cases T-156/07 and T-232/07); and Hellenic Republic (represented by: S. Vodina and M. Michelogiannaki, Agents) (Case T-156/07)

      Re:

   Application for annulment, first, of the Notice of Open Competition EPSO/AD/94/07 to constitute a reserve pool of Administrators (AD 5) in the field of information, communication and media (OJ 2007 C 45 A, p. 3) and, second, of the Notice of Open Competition EPSO/AD/95/07 to constitute a reserve pool of Administrators (AD 5) in the field of information science (library/documentation) (OJ 2007 C 103 A, p. 7).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders the Kingdom of Spain to bear its own costs and to pay those of the European Commission;

               3.

               Orders the Republic of Lithuania and the Hellenic Republic to bear their own costs.

      (1)  OJ C 140, 23.6.2007.


title: Case C-601/10: Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 92/50/EEC and 2004/18/EC — Public service contracts — Additional land registry and town planning services — Negotiated procedure without prior publication of a contract notice)

text:
               17.12.2011

               EN

               Official Journal of the European Union

               C 370/15

         Judgment of the Court (Sixth Chamber) of 27 October 2011 — European Commission v Hellenic Republic
   (Case C-601/10) (1)

   (Failure of a Member State to fulfil obligations - Directives 92/50/EEC and 2004/18/EC - Public service contracts - Additional land registry and town planning services - Negotiated procedure without prior publication of a contract notice)
   2011/C 370/25
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: M. Patakia and D. Kukovec, acting as Agents)

      Defendant: Hellenic Republic (represented by: S. Chala and D. Tsagkaraki, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 8 and 11(3) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) and of Articles 20 and 31(4) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Award of a contract without prior publication of a contract notice — Contract relating to additional land-registry and town-planning services — Municipalities of Vasilika, Kassandra, Egnatia and Arethousa

      Operative part of the judgment

   The Court:

               1.

               Declares that, by having awarded, by means of a negotiated procedure without prior publication of a contract notice, public contracts for additional land registry and town planning services which do not appear in the initial contract concluded by the municipalities of Vasilika, Kassandra, Egnatia and Arethousa, the Hellenic Republic has failed to fulfil its obligations under Articles 8 and 11(3) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997, and Articles 20 and 31(4) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 63, 26.2.2011.


title: Case T-803/14: Action brought on 9 December 2014 — Gervais Danone v OHIM — San Miguel (B'lue)

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/44

         Action brought on 9 December 2014 — Gervais Danone v OHIM — San Miguel (B'lue)
   (Case T-803/14)
   (2015/C 034/52)
   Language in which the application was lodged: English

      Parties

      Applicant: Compagnie Gervais Danone (Paris, France) (represented by: A. Lakits, lawyer)

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

      Other party to the proceedings before the Board of Appeal: San Miguel, Fábricas de Cerveza y Malta, SA (Barcelona, Spain)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word element ‘B’lue’ — Community trade mark registration No 1 0 5 49  509

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 30 September 2014 in Case R 1382/2013-5

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision;

               —

               Order OHIM to bear the costs of the present proceedings and the other party to bear the costs of the proceedings before the OHIM.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case T-426/13: Action brought on 14 August 2013 — L’Oréal v OHIM — Cosmetica Cabinas (AINHOA)

text:
               19.10.2013

               EN

               Official Journal of the European Union

               C 304/21

         Action brought on 14 August 2013 — L’Oréal v OHIM — Cosmetica Cabinas (AINHOA)
   (Case T-426/13)
   2013/C 304/36
   Language in which the application was lodged: English

      Parties

      Applicant: L’Oréal SA (Paris, France) (represented by: M. Granado Carpenter and M. Polo Carreño, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Cosmetica Cabinas, SL (El Masnou, Spain)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 June 2013 given in Case R 1642/2012-1;

               —

               Award the applicant the costs incurred by the present proceedings.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘AINHOA’ for services and goods in Classes 3, 35 and 39 — Community trade mark registration No 2 720 811

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Party applying for revocation of the Community trade mark: The applicant

      Decision of the Cancellation Division: Revoked the rights of the CTM proprietor in respect of services in Classes 35 and 39 and rejected the application for revocation in respect of ‘cosmetic products’ in Class 3

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (1).

      (1)  OJ L 78, p. 1


title: Case T-505/12: Judgment of the General Court of 12 February 2015 — Compagnie des montres Longines, Francillon v OHIM — Cheng (B) (Community trade mark — Opposition proceedings — Application for the Community figurative mark B — Earlier international figurative mark representing two extended wings — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — No damage to reputation — Article 8(5) of Regulation No 207/2009)

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/24

      Judgment of the General Court of 12 February 2015 — Compagnie des montres Longines, Francillon v OHIM — Cheng (B)
      (Case T-505/12) (1)

      ((Community trade mark - Opposition proceedings - Application for the Community figurative mark B - Earlier international figurative mark representing two extended wings - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - No damage to reputation - Article 8(5) of Regulation No 207/2009))
      (2015/C 107/31)
      Language of the case: English

         Parties

         Applicant: Compagnie des montres Longines, Francillon SA (Saint-Imier, Switzerland) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

         Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially F. Mattina, and subsequently P. Bullock, acting as Agents)

         Other party to the proceedings before the Board of Appeal of OHIM: Xiuxiu Cheng (Budapest, Hungary)

         Re:

      Action brought against the decision of the Fifth Board of Appeal of OHIM of 14 September 2012 (Case R 193/2012-5), relating to opposition proceedings between Compagnie des montres Longines, Francillon SA and Xiuxiu Cheng.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Compagnie des montres Longines, Francillon SA, to pay the costs.

         (1)  OJ C 26, 26.1.2013.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 6 July 1995 in Case C-470/93 (reference for a preliminary ruling from the Landgericht Köln): Verein gegen Unwesen in Handel und Gewerbe Köln eV v. Mars GmbH (Free movement of goods - Measures having an effect equivalent to quantitative restrictions - Presentation of a product likely to restrict freedom to fix retail prices and mislead the consumer)

text:
No C 229/10             EN                   Official Journal of the European Communities                                       2 . 9 . 95
4. a taxable person may claim, with retroactive effect from             (b) on the ground that the new presentation gives the
      the date on which the national legislation contrary to the               impression to the consumer that the volume and the
      Sixth Directive came into force, a refund of VAT paid                    weight of the product have been considerably
      without being due, by following the procedural rules                     increased.
      laid down by the domestic legal system of the Member
      State concerned, provided that those rules are not less
      favourable than those relating to similar, domestic               ( ] ) OJ No C 43 , 12 . 2 . 1994 .
      actions nor framed in a way such as to render virtually
      impossible the exercise of rights conferred by
      Community law.
(') OJ No C 124, 6 . 5 . 1993 .
( 2 ) OJ No L 145 , 13 . 6 . 1977, p . 1 .
                                                                                ORDER OF THE COURT
                                                                                ( First Chamber )
                                                                                of 28 June 1995
                                                                        in Case C-258/94 P: Paulo Branco v. Court of Auditors of
                                                                                the European Communities ( 1 )
                JUDGMENT OF THE COURT                                                    (Appeal manifestly inadmissible)
                          (Fifth Chamber)                                                             95/C 229/ 19
                            of 6 July 1995
in Case C-470/93 ( reference for a preliminary ruling from
the Landgericht Köln ): Verein gegen Unwesen in Handel                                  (Language of the case: Portuguese)
           und Gewerbe Köln eV v. Mars GmbH ( 1 )
 (Free movement of goods — Measures having an effect
equivalent to quantitative restrictions — Presentation of a              (Provisional translation; the definitive translation will be
product likely to restrict freedom to fix retail prices and                        published in the European Court Reports)
                     mislead the consumer)
                             ( 95/C 229/18 )
                                                                         In Case C-25 8/94 P : Paulo Branco, an official of the Court of
                                                                         Auditors of the European Communities, and subsequently
                 (Language of the case: German)                          of the Commission of the European Communities, resident
                                                                         in Brussels, represented by Raoul Wagener and David
                                                                         M. Travessa Mendes, both of the Luxembourg Bar, 6-12,
 In Case C-470/93 : reference to the Court under Article 177             Place d'Armes, Luxembourg — appeal against the order of
 of the EC Treaty by the Landgericht Koln ( Germany ) for a              the Court of First Instance of the European Communities of
 preliminary ruling in the proceedings pending before that               20 July 1994 in CaseT-45/93 between Paulo Branco and the
 court between Verein gegen Unwesen in Handel und                         Court of Auditors of the European Communities ([ 1994]
 Gewerbe Koln eV v. Mars GmbH — on the interpretation of                 ECR-SC 11-641 ), seeking to have that order set aside, the
 Article 30 of the EC Treaty, the Court ( Fifth Chamber ),               other party to the proceedings being the Court of Auditors
 composed of: C. Gulmann ( Rapporteur ), President of the                 of the European Communities ( Agents : Jean-Marie Stenier
 Chamber, P. Jann, J. C. Moitinho de Almeida, D. A. O.                    and Jan Inghelram ) — the Court ( First Chamber ), composed
 Edward and L. Sevon, Judges; P. Leger, Advocate-General;                 of: P. Jann , President of the Chamber ( Rapporteur ), D. A. O.
 H. A. Riihl , Principal Administrator, has given a judgment              Edward and L. Sevon, Judges; A. M. La Pergola,
 on 6 July 1995 , in which it rules :                                     Advocate-General; R. Grass, Registrar , made an order on
                                                                          28 June 1995 , the operative part of which is as follows :
 Article 30 ofthe EC Treaty is to be interpreted as precluding
 a national measure from prohibiting the importation and                  1 . the appeal is dismissed;
 marketing of a product lawfully marketed in another
 Member State, the quantity of which was increased during a
 short publicity campaign and the wrapping of which bears                 2 . the appellant is ordered to pay the costs.
  the marking '+ 10% ':
                                                                          (') OJ No C 331 , 26 . 11 . 1994 .
  (a) on the ground that that presentation may induce the
        consumer into thinking that the price of the goods
        offered is the same as that at which the goods had
        previously been sold in their old presentation;


title: Case F-20/09: Action brought on 9 March 2009 — Juvyns v Council

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/46

         Action brought on 9 March 2009 — Juvyns v Council
   (Case F-20/09)
   2009/C 113/98
   Language of the case: French

      Parties

      Applicant: Marc Juvyns (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, of the decisions to promote less deserving officials to that grade.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the appointing authority’s decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade;

               —

               order the Council of the European Union to pay the costs.


title: Case C-268/12 P: Appeal brought on 30 May 2012 by Cadila Healthcare Ltd against the judgment of the General Court (Fifth Chamber) delivered on 15 March 2012 in Case T-288/08: Cadila Healthcare Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/10

         Appeal brought on 30 May 2012 by Cadila Healthcare Ltd against the judgment of the General Court (Fifth Chamber) delivered on 15 March 2012 in Case T-288/08: Cadila Healthcare Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-268/12 P)
   2012/C 258/17
   Language of the case: English

      Parties

      Appellant: Cadila Healthcare Ltd (represented by: S. Malynicz, Barrister)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Novartis AG

      Form of order sought

   The appellant seeks the following Order:

               —

               The judgment of the General Court in case T-288/08 dated 15 March 2012 shall be annulled.

               —

               The Office and intervener shall bear their own costs and pay those of the applicant.

      Pleas in law and main arguments

   The appellant submits that the contested judgment shall be annulled on the following grounds:

               The General Court breached Article 113 of the Rules of Procedure in that it should have ruled that the proceedings had become devoid of purpose in light of the fact that by the date of the judgment the earlier mark had not been renewed and further that the additional six months grace period under Article 47(3) CTMR (1) had expired.

               On the question of phonetic similarity, the General Court distorted the evidence and incorrectly assessed the facts, and its decision contains a substantive inaccuracy in the findings attributable to the documents submitted to it.

               The General Court failed to take into account of the involvement of professionals in the sale of pharmaceutical products.

               On the question of visual similarity, the General court misapplied its own case law to the effect that the beginnings of marks are generally considered to be the most important and that in marks which are relatively short such as those in this case, the central elements are as important as the elements at the beginning and end of the sign.

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


C 149/28               EN                   Official Journal of the European Communities                                     27.5.2000
Question 2                                                                 whose cooking salt content, expressed in terms of sodium
                                                                           chloride and calculated on the basis of the dry matter,
Does the fact that the employment occurs in a very large                   exceeds 2.0 %, compatible with the requirements of Article
undertaking and that that undertaking frequently uses tempor-              28 of the Treaty on European Union and are they capable
ary workers have any bearing on the answer to Question 1?                  of being justified under Article 30 of that instrument?
                                                                       2. Are Articles 1.3 and 8 of the Royal Decree of 2 September
(1) OJ L 39 of 14.2.1976, p. 40.                                           1985 on bread and other bakery products and Article 14
(2) OJ L 348 of 28.11.1992, p. 1.                                          of the Law of 24 January 1977 on the protection of
                                                                           consumers’ health in relation to foodstuffs and other
                                                                           products compatible with the requirements of Article 28
                                                                           of the Treaty on European Union and are they capable of
                                                                           being justified under Article 30 of that instrument?
                                                                       3. Are Articles 4(2) and 5 of the Royal Decree of 17 April
Reference for a preliminary ruling, by the Court of First                  1980 concerning advertising of foodstuffs and Article 14
Instance, Brussels, (55th Chamber), 28 March 2000, in the                  of the Law of 24 January 1977 on the protection of
Case of Christina Bellamy v Procureur du Roi — Party                       consumers’ health in relation to foodstuffs and other
       liable in civil law: English Shop Wholesale SA                      products compatible with the requirements of Article 28
                                                                           of the Treaty on European Union and are they capable of
                         (Case C-123/00)                                   being justified under Article 30 of that instrument?
                         (2000/C 149/52)
Reference has been made to the Court of Justice of the
European Communities by order of the Court of First Instance,
Brussels, 28 March 2000, received at the Court Registry on                    Removal from the register of Case C-20/99 (1)
31 March 2000, for a preliminary ruling in the case of
Christina Bellamy v Procureur du Roi — Party liable in civil                                   (2000/C 149/53)
law: English Shop Wholesale SA, on the following questions:
                                                                       By order of 25 January 2000 the President of the Court of
1. Are Articles 1.3 and 8 of the Royal Decree of 2 September           Justice of the European Communities has ordered the removal
    1985 on bread and other bakery products and Article 14             from the register of Case C-20/99: Commission of the
    of the Law of 24 January 1977 on the protection of                 European Communities v Republic of Austria.
    consumers’ health in relation to foodstuffs and other
    products, in so far as they prohibit the marketing of bread        (1) OJ C 86 of 27.3.1999.


title: Case C-331/06: Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 31 July 2006 — K.D. Chuck v Raad van bestuur van de Sociale Verzekeringsbank

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/17

         Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 31 July 2006 — K.D. Chuck v Raad van bestuur van de Sociale Verzekeringsbank
   (Case C-331/06)
   (2006/C 281/27)
   Language of the case: Dutch
   Referring court
   Rechtbank Amsterdam
   Parties to the main proceedings

      Applicant: K.D. Chuck

      Defendant: Raad van bestuur van de Sociale Verzekeringsbank
   Question referred
   Where a worker is resident outside the Community on the date on which he reaches pensionable age, should Article 48 of the Regulation (1) be applied in the same way as in a case where the worker concerned is resident in the territory of the Community?

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (English special edition: Series I Chapter 1971(II) p. 416).


title: Case T-161/10: Action brought on 8 April 2010 — Longevity Health Products v OHIM — Tecnifar (E-PLEX)

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/47

         Action brought on 8 April 2010 — Longevity Health Products v OHIM — Tecnifar (E-PLEX)
   (Case T-161/10)
   2010/C 148/77
   Language in which the application was lodged: English

      Parties

      Applicant: Longevity Health Products, Inc. (Nassau, Bahamas) (represented by: J. Korab, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Tecnifar — Industria Tecnica Farmaceutica, SA (Lisbon, Portugal)

      Form of order sought

               —

               Admit the complaint filed by the applicant;

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 February 2010 in case R 662/2009-4 and dismiss the opposition filed by the other party to the proceedings before the Board of Appeal with respect to pharmaceutical and veterinary medical products with the exception of medicinal products for diseases related to the central nervous system; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark “E-PLEX”, for goods and services in classes 3, 5 and 35

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

      Mark or sign cited: Portuguese trade mark registration of the word mark “EPILEX”, for goods in class 5

      Decision of the Opposition Division: Partially allowed the opposition

      Decision of the Board of Appeal: Partially dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly found that there was a likelihood of confusion between the trade marks concerned.


title: Case C-253/09: Action brought on 8 July 2009 — Commission of the European Communities v Republic of Hungary

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/6

         Action brought on 8 July 2009 — Commission of the European Communities v Republic of Hungary
   (Case C-253/09)
   2009/C 233/10
   Language of the case: Hungarian

      Parties

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

      Defendant(s): Republic of Hungary

      Form of order sought

               —

               Declare that the Republic of Hungary has failed to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement by giving less favourable treatment to the purchase of residential property in Hungary on the sale of residential property in another State than is given to the purchase of residential property in Hungary on the sale of residential property in Hungary.

               —

               order the Republic of Hungary to pay the costs.

      Pleas in law and main arguments

   The subject of the present action is the provision of Hungarian tax law under which, to establish the taxable amount at the time of acquisition of residential property situated in Hungary, it is only possible to deduct the price of the property sold from the value of the property purchased if the former is situated in Hungary.
   This rule is contrary to the principles of freedom of movement for persons and freedom of establishment laid down by Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement.
   The purpose of the above provisions of Community law is to facilitate the exercise of professional activity of any type anywhere in the Community for citizens of the Member States and, at the same time prohibit any measure as a result of which citizens of any Member State of the Community who, in exercise of their right to freedom of movement, wish to carry out an economic activity in the territory of another Member State are placed in a less favourable position. It is settled case-law that provisions which prevent or discourage a national of a Member State from leaving his country of origin to exercise his right to freedom of movement constitute obstacles to that freedom even where they apply regardless of the nationality of the persons concerned.
   However, the Hungarian tax law which is the subject of this action is a provision of that sort. As a result of the exclusion of the tax advantage described, foreign or Hungarian citizens who exercise their right to freedom of movement and live for some time in another Member State and purchase property there, will have less incentive to purchase residential property in Hungary than those who live in Hungary and buy a new property to replace that they already have in the territory of the country. In that way, the Hungarian legislation may, clearly, have the effect of discouraging citizens of other Member States from settling in Hungary. The Commission considers that such persons, who may have already paid taxes of a similar amount in the State where they previously resided when they bought their property, are in the same situation as those who bought their previous residence in Hungary. Consequently, such persons must receive the same treatment. However, since the Hungarian legislation places those who buy residential property to replace property in any other Member State in a worse position than those who likewise bought property but already had property within the territory, it treats situations which are objectively the same differently and thus constitutes discriminatory legislation.
   The only argument put forward by the Government of the Republic of Hungary is not such as to justify such a breach of law.
   First, as regards the objection relating to the need to guarantee the cohesion of the tax system, it must be observed that, in the present case, no direct relationship can be discerned between the tax advantage in question and the offsetting of that advantage through a particular tax base, which is required so that the alleged need to guarantee the cohesion of the tax system can constitute a justified limitation on the exercise of the fundamental freedoms. From an economic point of view, there is no direct relationship between the acquisition of another property and the obligation to pay tax, and the sale of the first property and the taxes paid at that point in time, these being matters which only the Hungarian legislature considers to be connected.
   Finally, regarding the argument put forward by the Hungarian Government that the need to take account of properties sold in other Member States and the taxes paid at the time of their purchase and the prevention of abuses which may have occurred in connection with those transactions would cause serious administrative problems, the Commission states that potential administrative difficulties cannot in any event justify the infringement of the fundamental freedoms guaranteed by Community law. The Republic of Hungary does have the option of imposing specific requirements in order to obtain the necessary information, but those requirements may not be disproportionate to the objective pursued.


title: Case C-17/10: Judgment of the Court (Grand Chamber) of 14 February 2012 (reference for a preliminary ruling from the Krajský soud v Brně — Czech Republic) — Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže (Competition — Cartel, in the territory of a Member State, which commenced before the accession of that State to the European Union — Cartel of international scope having effects in the territory of the Union and the European Economic Area — Article 81 EC and Article 53 of the EEA Agreement — Prosecution and sanction of the infringement for the period prior to the date of accession and the period following that date — Fines — Delimitation of the powers of the Commission and those of the national competition authorities — Imposition of fines by the Commission and by the national competition authority — Ne bis in idem principle — Regulation (EC) No 1/2003 — Articles 3(1) and 11(6) — Consequences of the accession of a new Member State to the Union)

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/3

         Judgment of the Court (Grand Chamber) of 14 February 2012 (reference for a preliminary ruling from the Krajský soud v Brně — Czech Republic) — Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže
   (Case C-17/10) (1)

   (Competition - Cartel, in the territory of a Member State, which commenced before the accession of that State to the European Union - Cartel of international scope having effects in the territory of the Union and the European Economic Area - Article 81 EC and Article 53 of the EEA Agreement - Prosecution and sanction of the infringement for the period prior to the date of accession and the period following that date - Fines - Delimitation of the powers of the Commission and those of the national competition authorities - Imposition of fines by the Commission and by the national competition authority - Ne bis in idem principle - Regulation (EC) No 1/2003 - Articles 3(1) and 11(6) - Consequences of the accession of a new Member State to the Union)
   2012/C 98/04
   Language of the case: Czech

      Referring court

   Krajský soud v Brně

      Parties to the main proceedings

      Applicants: Toshiba Corporation,T&D Holding, formerly Areva T&D Holding SA, Alstom Grid SAS, formerly Areva T&D SAS, Alstom Grid AG, formerly Areva T&D AG, Mitsubishi Electric Corp., Alstom, Fuji Electric Holdings Co. Ltd, Fuji Electric Systems Co. Ltd, Siemens Transmission & Distribution SA, Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens AG, Hitachi Ltd, Hitachi Europe Ltd, Japan AE Power Systems Corp., Nuova Magrini Galileo SpA

      Defendant: Úřad pro ochranu hospodářské soutěže

      Re:

   Reference for a preliminary ruling — Krajský soud v Brně — Interpretation of Article 81 EC, of Article 50 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1), of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), and in particular Arts. 3(1) and 11(6) thereof, and of point 51 of the of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43) — Cartel in the territory of a Member State, which commenced before that State’s accession to the European Union and ended after that event — Imposition of fines by the Commission and by the national competition authority — Competence of the national authority to sanction the same conduct with regard to the period before the accession — Non bis in idem principle

      Operative part of the judgment

               1.

               The provisions of Article 81 EC and Article 3(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty must be interpreted as meaning that, in the context of a proceeding initiated after 1 May 2004, they do not apply to a cartel which produced effects, in the territory of a Member State which acceded to the Union on 1 May 2004, during periods prior to that date.

               2.

               The opening by the European Commission of a proceeding against a cartel under Chapter III of Regulation No 1/2003 does not, pursuant to Article 11(6) of Regulation No 1/2003, read in combination with Article 3(1) of the same regulation, cause the competition authority of the Member State concerned to lose its power, by the application of national competition law, to penalise the anti-competitive effects produced by that cartel in the territory of the said Member State during periods before the accession of the latter to the European Union.
               The ne bis in idem principle does not preclude penalties which the national competition authority of the Member State concerned imposes on undertakings participating in a cartel on account of the anti-competitive effects to which the cartel gave rise in the territory of that Member State prior to its accession to the European Union, where the fines imposed on the same cartel members by a Commission decision taken before the decision of the said national competition authority was adopted were not designed to penalise the said effects.

      (1)  OJ C 100, 17.4.2010.