title: Case T-34/03: Action brought on 4 February 2003 by André Hecq and Syndicat des Fonctionnaires Internationaux et Européens (SFIE) against Commission of the European Communities

text:
26.4.2003              EN                           Official Journal of the European Union                                          C 101/37
Decision of the Oppo-          Dismissal of the applicant’s appli-                —     the decision of the College of Commissioners of
sition Division:               cation for ‘clothing, footwear and                       5 December 2001 improperly terminating the
                               toys’. Dismissal of the opposition                       framework agreement of 20 September 1974, reiter-
                               as to the remainder.                                     ating its approval of ‘operational rules concerning
                                                                                the levels of concertation, the concertation body and
Decision of the Board of       Dismissal      of   the    applicant’s                   the relevant procedures’ dated 20 January 2000 and
Appeal:                        appeal.                                                  an alleged ‘agreement’ of 4 April 2001 on the
                                                                                ‘resources to be made available to the central and
Pleas in law:                  —     infringement                 of                    the local staff committees and the unions’;
                                     Article 8(1)(b) of Regulation
                                     (EC) No 40/94 (1);
                                                                            —     annul, to the extent necessary, the abovementioned
                               —     absence of risk of confusion;                decisions of 15 January 2002, 23 January 2002 and
                                                                                5 December 2001;
                               —     little distinctive character of
                                     the opposing trade mark
                                                                            —     order the defendant to pay damages amounting to
                               —     lack of similarity of trade
                                                                                EUR 100 000;
                                     marks
                               —     products largely dissimilar.
                                                                            —     order the defendant to pay the costs of of the action,
                                                                                pursuant to Article 69(2) of the Rules of Procedure and
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the                  the expenses necessarily incurred for the purpose of the
     Community trade mark (OJ 1994 L 11, p. 1).                                   proceedings, in particular the travel and subsistence
                                                                                expenses and the remuneration of agents, advisers or
                                                                                lawyers, under Article 73(b) of those rules.
Action brought on 4 February 2003 by André Hecq and                         Pleas in law and main arguments
Syndicat des Fonctionnaires Internationaux et Européens
(SFIE) against Commission of the European Communities
                          (Case T-34/03)                                    The applicant is an official of the Commission and secretary
                                                                            general of the ‘Syndicat des Fonctionnaires Internationaux et
                         (2003/C 101/68)                                    Européens’ (SFIE) trade union.
                    (Language of the case: French)
                                                                            In support of his application, the applicant alleges, first,
                                                                            infringement of the framework agreement of 20 September
                                                                            1974, in particular of the final provisions thereof, and breach
An action against the Commission of the European Communi-
                                                                            of the general principles of contract law. According to the
ties was brought before the Court of First Instance of the
                                                                            applicant, the framework agreement does not provide for
European Communities on 4 February 2003 by André Hecq,
                                                                            unilateral termination.
residing in Mondercange (Luxembourg), and Syndicat des
Fonctionnaires Internationaux et Européens (SFIE), whose
main offices are in Brussels, represented by Lucas Vogel,
lawyer.
                                                                            The applicant also alleges infringement of Articles 11 and 12
                                                                            of the framework agreement of 20 September 1974 in that
The applicant claims that the Court should:                                 the abovementioned provisions had not been agreed to by all
                                                                            the unions.
—     annul the decsion of the appointing authority of 4 Octo-
      ber 2002, notified to the applicant on 9 October 2002
      but received by him on 25 October 2002, rejecting the
      applicant’s complaint, lodged on 24 April 2002, pursuant              The applicant alleges next infringement of Article 24a of the
      to Article 90(2) of the Staff Regulations in which he                 Staff Regulations, Articles 18, 19 and 20 of the framework
      criticised various decisions, in particular:                          agreement of 20 September 1974, manifest error of assessment
                                                                            and breach of the principle of non-discrimination. According
      —     two separate decisions notified on 15 January 2002              to the applicant, the criteria relating to representativeness are
            and 23 January 2002 respectively;                               erroneous and arbitrary and favour certain unions.
 ---pagebreak--- C 101/38               EN                          Official Journal of the European Union                                         26.4.2003
Finally, the applicant alleges breach of the principle of non-             compensation for the material damage he allegedly suffered in
discrimination in that the contested decisions deprived the                the period between 1 July and 31 December 2001 and has
union of which the applicant is the secretary general of all               made the present application. In support of his arguments, he
manner of human and material resources without taking                      alleges infringement of the abovementioned article of the Staff
account of its representativeness.                                         Regulations.
Action brought on 31 January 2003 by José Pedro                            Action brought on 7 February 2003 by DaimlerChrysler
Pessoa e Costa against Commission of the European                          AG against the Office for Harmonisation in the Internal
                           Communities                                                   Market (Trade Marks and Designs)
                                                                                (Case T-39/03)
                          (Case T-36/03)
                                                                                (2003/C 101/70)
                         (2003/C 101/69)
                                                                           (Language of the case: to be determined pursuant to Article 131(2)
                    (Language of the case: French)                         of the Rules of Procedure — Language in which the application was
                                                                                submitted: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 An action against the Office for Harmonisation in the Internal
European Communities on 31 January 2003 by José Pedro                      Market (Trade Marks and Designs) was brought before the
Pessoa e Costa, residing in Brussels, represented by Albert                Court of First Instance of the European Communities on
Coolen, Jean-Noël Louis et Étienne Marchal, lawyers, with an               7 February 2003 by DaimlerChrysler AG, Stuttgart, Germany,
address for service in Luxembourg.                                         represented by M. Trimborn, lawyer. AXON Leasing GmbH,
                                                                           Grasbrunn, Germany, was also a party to the proceedings
                                                                           before the Board of Appeal.
The applicant claims that the Court should:
—     declare that the Commission commited an administrative               The applicant claims that the Court should:
      fault by not reinstating the applicant to the first vacancy
      at Grade A 5 commensurate with his abilities;                        —     annul the decision of the Fourth Board of Appeal of
                                                                                4 November 2002 in appeal No R 329/2001-4 and
—     order the Commission to reconstitute his career and, in                    dismiss the appeal;
      particular, to pay him the remuneration to which he is
      entitled in respect of the period from 1 August to                   —     order the defendant Office to pay the costs.
      31 December 2001 together with default interest calcu-
      lated at the rate of 1.5 % per annum;
—     order the defendant to pay the costs.                                Pleas in law and main arguments
                                                                           Applicant for Com-             The applicant
                                                                           munity trade mark:
Pleas in law and main arguments
                                                                           Community trade mark           The word mark ‘AXOR’ for goods
                                                                           sought:                        and services in Classes 12 and 37
The applicant, an official working for the defendant, on leave                                            (automobiles and parts therefor
on personal grounds until 30 June 2001, requested his                                                     (included in Class 12) and motor
reinstatement, in accordance with Article 40(4)(d) of the Staff                                           vehicle maintenance and repair)
Regulations of officials of the European Communities. On                                                  — application No 1111061
30 May 2002, the applicant lodged a complaint claiming that
the defendant had failed to reinstate him to the first vacancy             Proprietor of mark or          AXON Leasing GmbH
corresponding to his grade and abilities. The applicant claims             sign cited in the oppo-
that that complaint was partially rejected so far as concerns              sition proceedings:


title: Case T-451/10: Action brought on 28 September 2010 — Fuchshuber Agrarhandel v Commission

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/46

         Action brought on 28 September 2010 — Fuchshuber Agrarhandel v Commission
   (Case T-451/10)
   ()
   2010/C 317/81
   Language of the case: German

      Parties

      Applicant: Fuchshuber Agrarhandel GmbH (Hörsching, Austria) (represented by: G. Lehner, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               conduct a hearing;

               —

               order the Commission of the European Communities to pay the applicant within 14 days the sum of EUR 2 623 282,31, together with interest of 6 % per annum on the sum of EUR 1 641 372,50 Euro from 24 September 2007 and interest of 6 % per annum on the sum of EUR 981 909,81 from 16 October 2007;

               —

               declare that the Commission of the European Communities is obliged to compensate the applicant for any further losses in connection with consignment KUK459 awarded on 3 September 2007 and consignment KUK465 awarded on 17 September 2007;

               —

               rule that the Commission of the European Communities is to pay to the applicant’s lawyer the applicant’s costs within 14 days.

      Pleas in law and main arguments

   The applicant seeks compensation for the loss which it states that it has incurred because certain quantities of the maize purchased by it in 2007 from the stocks of the Hungarian intervention agency in two tender procedures were missing from the relevant warehouses.
   In the grounds of its application, the applicant submits inter alia that the Commission failed to exercise its supervisory powers over the Hungarian paying agency and also did not insist on observance of the Hungarian paying agency’s obligations. It further states that it would have suffered no loss if the Commission had, in law and in fact, laid down more stringent and more precise requirements and control mechanisms in relation to the warehouse keepers’ fitness and reliability, to the suitability of the storage locations, and to stock surveys in respect of, and the identification and storage of, the intervention goods.


title: Order of the Court of Justice (Third Chamber) of 27 April 2004 in Case C-358/02 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles): Yamina Haddad v Belgian State (Article 104(3) of the Rules of Procedure — Cooperation Agreement EEC-Morocco — Article 41(1) — Persons covered — Principle of non-discrimination in matters of social security — Disability allowance)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/26

      ORDER OF THE COURT OF JUSTICE

   (Third Chamber)
   of 27 April 2004
   in Case C-358/02 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles): Yamina Haddad v Belgian State (1)

   (Article 104(3) of the Rules of Procedure - Cooperation Agreement EEC-Morocco - Article 41(1) - Persons covered - Principle of non-discrimination in matters of social security - Disability allowance)
   (2004/C 118/46)
   Language of the case: French
   In Case C-358/02: reference to the Court under Article 234 EC from the Tribunal du travailed Bruxelles, for a preliminary ruling in the proceedings pending before that court between Yamina Haddad and Belgian State – on the interpretation of Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1) – the Court (Third Chamber), composed of: A Rosas, President of the Chamber, R. Schintgen (Rapporteur) and K. Schiemann, Judges; Advocate General: F.G. Jacobs; Registrar: R. Grass, made an order on 27 April 2004, the operative part of which is as follows:
   Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978, must be interpreted as meaning that it does not apply to the case of a student with Moroccan nationality, the wife of an unemployed Moroccan national who is also unemployed both resident in a Member State which refuses to grant a disability allowance to the claimant, when the couple are insured on a voluntary basis under the sickness insurance scheme of that State, where it is not proven that the claimant lives with a worker of Moroccan nationality with whom she has a close family relationship.

      (1)  OJ C 305 of 7.12.2002.


title: Case T-325/11: Judgment of the General Court of 10 May 2012 — Amador López v OHIM (AUTOCOACHING) (Community trade mark — Application for Community word mark AUTOCOACHING — Absolute grounds for refusal — Descriptive character — Article 8(1)(b) and (4) of Regulation (EC) No 207/2009)

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/12

         Judgment of the General Court of 10 May 2012 — Amador López v OHIM (AUTOCOACHING)
   (Case T-325/11) (1)

   (Community trade mark - Application for Community word mark AUTOCOACHING - Absolute grounds for refusal - Descriptive character - Article 8(1)(b) and (4) of Regulation (EC) No 207/2009)
   2012/C 184/21
   Language of the case: Spanish

      Parties

      Applicant: Pedro Germán Amador López (Barcelona, Spain) (represented by: A. Falcón Morales, lawyer)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 23 March 2011 (Case R 1665/2010-2) concerning an application for registration of the word mark AUTOCOACHING as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Pedro Germán Amador López to pay the costs.

      (1)  OJ C 252, 27.8.2011.


title: Case T-435/14: Judgment of the General Court of 22 September 2016 — Tose’e Ta’avon Bank v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Plea of illegality — Conferral of an implementing power on the Council — Criterion directed at the entities providing support to the Iranian Government — Error of law — Error of fact — Obligation to state reasons — Proportionality — Fundamental rights)

text:
               7.11.2016

               EN

               Official Journal of the European Union

               C 410/11

         Judgment of the General Court of 22 September 2016 — Tose’e Ta’avon Bank v Council
   (Case T-435/14) (1)

   ((Common foreign and security policy - Restrictive measures against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Plea of illegality - Conferral of an implementing power on the Council - Criterion directed at the entities providing support to the Iranian Government - Error of law - Error of fact - Obligation to state reasons - Proportionality - Fundamental rights))
   (2016/C 410/13)
   Language of the case: French

      Parties

      Applicant: Tose’e Ta’avon Bank (Teheran, Iran) (represented by: J.-M. Thouvenin, lawyer)

      Defendant: Council of the European Union (represented by: A. Vitro and M. Bishop, acting as Agents)

      Re:

   Application under Article 263 TFEU for annulment of the decision of the Council of the European Union to maintain the applicant’s name on the list in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39) and on the list in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1), as set out in a notice of 15 March 2014.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Tose’e Ta’avon Bank to pay the costs.

      (1)  OJ C 253, 4.8.2014.


title: Case T-190/15: Action brought on 16 April 2015 — Intervog/OHIM (meet me)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/42

         Action brought on 16 April 2015 — Intervog/OHIM (meet me)
   (Case T-190/15)
   (2015/C 198/58)
   Language of the case: French

      Parties

      Applicant: Intervog (Paris, France) (represented by: M.-R. Hirsch, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Figurative Community mark containing the word elements ‘meet me’ — Application for registration No 12 010 781

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 11 February 2015 in Case R 845/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Pleas in law

               —

               Infringement of Article 75 of Regulation No 207/2009 (failure to state reasons);

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009 (error of assessment in the analysis of the mark’s distinctive character);

               —

               Infringement of the principle of equality.


title: Case T-95/09 R III: Order of the President of the General Court of 25 November 2010 — United Phosphorus v Commission (Application for interim measures — Directive 91/414/EEC — Decision concerning the non-inclusion of napropamide in Annex I to Directive 91/414 — Extension of suspension of operation)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/39

         Order of the President of the General Court of 25 November 2010 — United Phosphorus v Commission
   (Case T-95/09 R III)
   (Application for interim measures - Directive 91/414/EEC - Decision concerning the non-inclusion of napropamide in Annex I to Directive 91/414 - Extension of suspension of operation)
   2011/C 30/70
   Language of the case: English

      Parties

      Applicant: United Phosphorus Ltd (Warrington, Cheshire, United Kingdom) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendant: European Commission (represented by: L. Parpala and F. Wilman, Agents)

      Re:

   Application for the extension of the suspension of operation of Commission Decision 2008/902/EC of 7 November 2008 concerning the non-inclusion of napropamide in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2008 L 326, p. 35)

      Operative part of the order

               1.

               The suspension of operation granted in paragraph 1 of the operative part of the order of the President of the Court of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission (not published in the ECR) is extended until 31 December 2011 or until the date of adoption of the decision in the main proceedings at the latest, if that decision is adopted earlier.

               2.

               The costs shall be reserved.


title: Case C-392/11: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 25 July 2011 — Field Fisher Waterhouse LLP v Commissioners for Her Majesty's Revenue and Customs

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/14

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 25 July 2011 — Field Fisher Waterhouse LLP v Commissioners for Her Majesty's Revenue and Customs
   (Case C-392/11)
   2011/C 282/27
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: Field Fisher Waterhouse LLP

      Defendant: Commissioners for Her Majesty's Revenue and Customs

      Questions referred

               1.

               The principal question in the present case is whether the services provided by landlords under a lease agreement with their tenants (‘the Services’) should be regarded as an element of a single exempt supply of a lease of land, either because the Services form objectively a single indivisible economic supply together with the lease or because they are ‘ancillary’ to the lease, which forms the principal supply (“the Principal Supply”). In determining this question and in the light of the ECJ's decision in Case C-572/07 Tellmer, how relevant is it that the Services could be (but are not in fact) supplied by persons other than the landlords, albeit under the terms of the present leases in question the tenants had no choice but to receive the services from the landlords?

               2.

               In determining whether there is a single supply, is it relevant that a failure by the tenant to pay the service charge would entitle the landlord not only to refuse to provide the Services but also to terminate the lease agreement with the tenant?

               3.

               If the answer to question 1 is that the possibility of third parties providing the Services direct to the tenant is relevant, is it merely a contributory factor in determining whether the Services are either a single, indivisible economic supply, which it would be artificial to split or an ancillary supply to the Principal Supply, or is it a determining factor? If it is merely a contributory factor or if it is not relevant at all, what other factors are relevant in determining whether the Services are an ancillary supply? In particular how relevant is it whether the Services are performed in or in respect of the demised premises which are the subject matter of the letting or in other parts of the building?

               4.

               If the possibility of third parties providing the Services is relevant, is more particularly what is relevant whether the Services could as a legal matter be supplied by third parties, even if this would be difficult in practice to organise or agree with the landlord, or is the practical possibility or the common practice in the provision of such services the relevant consideration?

               5.

               The Services in the present case represent a range of services provided in return for a single service charge. In the event that some of these services (e.g, cleaning of common parts, the provision of security services) are not part of a single indivisible economic supply or are to be regarded as ancillary to the Principal Supply, but other services are, would it be correct to apportion the total consideration between the various services in order to determine the portion of the consideration chargeable to tax and that portion not so chargeable? Alternatively would it be correct to regard the range of services provided as so closely linked to each other that they form‘a single indivisible economic supply which it would be artificial to split’ being of itself a single supply separate from the leasing of property?


title: Case T-330/12: Action brought on 19 July 2012 — Hut.com v OHIM — Intersport France (THE HUT)

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/27

         Action brought on 19 July 2012 — Hut.com v OHIM — Intersport France (THE HUT)
   (Case T-330/12)
   2012/C 295/48
   Language in which the application was lodged: English

      Parties

      Applicant: The Hut.com Ltd (Northwich, United Kingdom) (represented by: S. Malynicz, Barrister)

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

      Other party to the proceedings before the Board of Appeal: Intersport France (Longjumeau, France)

      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 27 April 2012 in case R 814/2011-2; and

               —

               Order the defendant and the other party before the Board of Appeal to bear their own costs and pay those of the applicant.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘THE HUT’, for inter alias services in class 35 — Community trade mark application No 8394091

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

      Mark or sign cited in opposition: French trade mark registration No 33228708 of the word mark ‘LA HUTTE’, for goods in classes 3, 5, 18, 22, 25 and 28

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

      Decision of the Board of Appeal: Partially annulled the contested decision

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009


title: Case T-224/12: Order of the General Court of 25 June 2014  — Accorinti and Others v ECB (Action for annulment — Economic and monetary policy — ECB — National central banks — Restructuring of the Greek Government debt — Eligibility of marketable debt instruments issued or fully guaranteed by Greece for the purposes of Eurosystem monetary policy operations — Sufficient maintenance of the credit quality threshold in order to remain eligible — Collateral enhancement in the form of a buy-back scheme for debt instruments for the benefit of the national central banks — Private creditors — Whether certain legal effects may be attributed to the contested measure — No legal interest in bringing proceedings — Lack of direct concern — Inadmissibility)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/49

         Order of the General Court of 25 June 2014 — Accorinti and Others v ECB
   (Case T-224/12) (1)

   ((Action for annulment - Economic and monetary policy - ECB - National central banks - Restructuring of the Greek Government debt - Eligibility of marketable debt instruments issued or fully guaranteed by Greece for the purposes of Eurosystem monetary policy operations - Sufficient maintenance of the credit quality threshold in order to remain eligible - Collateral enhancement in the form of a buy-back scheme for debt instruments for the benefit of the national central banks - Private creditors - Whether certain legal effects may be attributed to the contested measure - No legal interest in bringing proceedings - Lack of direct concern - Inadmissibility))
   2014/C 315/83
   Language of the case: Italian

      Parties

      Applicants: Alessandro Accorinti (Nichelino, Italy) and the other applicants whose names are set out in the annex to the order (represented by: S. Sutti and R. Spelta, lawyers)

      Defendant: European Central Bank (ECB) (represented by: initially A. Sáinz de Vicuña Barroso, S. Bening and P. Papapaschalis, and subsequently S. Bening and P. Papapaschalis, Agents, and E. Castellani, T. Lübbig and B. Kaiser, lawyers)

      Re:

   Application for annulment of Decision 2012/153/EU of the European Central Bank of 5 March 2012 on the eligibility of marketable debt instruments issued or fully guaranteed by the Hellenic Republic in the context of the Hellenic Republic’s debt exchange offer (ECB/2012/3) (OJ 2012 L 77, p. 19).

      Operative part of the order

               1.

               The action is dismissed as inadmissible;

               2.

               Mr Alessandro Accorinti and the other applicants whose names are set out in the annex shall pay the costs.

      (1)  OJ C 243, 11.8.2012.


title: Case T-742/16: Judgment of the General Court of 16 May 2017 — CW v Parliament (Civil service — Officials — Psychological harassment — Article 12a of the Staff Regulations — Obligation to provide assistance — Internal Rules for the Advisory Committee on Harassment and its Prevention in the Workplace — Article 24 of the Staff Regulations — Request for assistance — Rejection — Decision rejecting the complaint — Independent content — Premature nature of the complaint — None — Role and powers of the Advisory Committee on Harassment and its Prevention in the Workplace — Option for an official to approach the Committee — Non-contractual liability)

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/25

         Judgment of the General Court of 16 May 2017 — CW v Parliament
   (Case T-742/16) (1)

   ((Civil service - Officials - Psychological harassment - Article 12a of the Staff Regulations - Obligation to provide assistance - Internal Rules for the Advisory Committee on Harassment and its Prevention in the Workplace - Article 24 of the Staff Regulations - Request for assistance - Rejection - Decision rejecting the complaint - Independent content - Premature nature of the complaint - None - Role and powers of the Advisory Committee on Harassment and its Prevention in the Workplace - Option for an official to approach the Committee - Non-contractual liability))
   (2017/C 221/35)
   Language of the case: English

      Parties

      Applicant: CW (represented by: C. Bernard-Glanz, lawyer)

      Defendant: European Parliament (represented by: E. Taneva and M. Dean, acting as Agents)

      Re:

   Action pursuant to Article 270 TFEU seeking, first, annulment of the European Parliament’s decision of 8 April 2013 refusing to grant the request for assistance, submitted by the applicant because of the psychological harassment to which she felt she had been subjected by her superiors, and annulment of the decision of the Secretary-General of the Parliament of 23 October 2013 rejecting her complaint of 9 July 2013 and, second, damages to make good the loss the applicant is alleged to have suffered.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of 23 October 2013 of the Secretary General of the European Parliament, acting as the appointing authority, rejecting CW’s complaint of 9 July 2013;

               2.

               Rejects as inadmissible the application for annulment of the decision of the Parliament of 8 April 2013 rejecting the request for assistance made by CW;

               3.

               Orders the Parliament to pay CW, in respect of non-material damage suffered, a sum of EUR 2 000 with default interest from the date of delivery of the present judgment at the rate fixed by the European Central Bank (ECB) for its main refinancing operations;

               4.

               Dismisses the claim for damages as to the remainder;

               5.

               Declares that the Parliament is to bear its own costs and orders it to pay those incurred by CW in the original proceedings before the Civil Service Tribunal in the action in Case F-124/13, in the proceedings on appeal in Case T-309/15 P and in the present proceedings after referral back in Case T-742/16 RENV.

      (1)  OJ C 52, 22.2.2014 (case initially registered before the European Union Civil Service Tribunal under Case No F-124/13).


title: Case C-117/15: Request for a preliminary ruling from the Landgericht Köln (Germany) lodged on 9 March 2015 — Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/17

         Request for a preliminary ruling from the Landgericht Köln (Germany) lodged on 9 March 2015 — Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA)
   (Case C-117/15)
   (2015/C 198/23)
   Language of the case: German

      Referring court

   Landgericht Köln

      Parties to the main proceedings

      Applicant: Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH

      Defendant: Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA)

      Questions referred

               1.

               Is the question as to whether there is a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 (1) and/or within the meaning of Article 8(2) of Directive 2006/115 (2) always to be determined in accordance with the same criteria, namely that:

                           —

                           a user acts, in full knowledge of the consequences of its action, to provide access to the protected work to third parties which the latter would not have without that user’s intervention;,

                           —

                           the term ‘public’ refers to an indeterminate number of potential recipients of the service and, in addition, must consist of a fairly large number of persons, in which connection the indeterminate nature is established when ‘persons in general’ — and therefore not persons belonging to a private group — are concerned, and ‘a fairly large number of persons’ means that a certain de minimis threshold must be exceeded and that groups of persons concerned which are too small or insignificant therefore do not satisfy the criterion; in this connection not only is it relevant to know how many persons have access to the same work at the same time but it is also relevant to know how many of them have access to it in succession;

                           —

                           the public to which the work is communicated is a new public, that is to say, a public which the author of the work did not contemplate when he authorised its use by communication to the public, unless the subsequent communication uses a specific technical means which differs from that of the original communication; and

                           —

                           it is not irrelevant that the act of exploitation in question serves a profit-making purpose and also that the public is receptive to that communication and is not merely ‘reached’ by chance, although this is not an essential condition for the existence of a communication to the public?

               2.

               In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes it possible for the television programmes to be viewed and heard, is the question whether there is a communication to the public to be assessed according to the concept of ‘communication to the public’ under Article 3(1) of Directive 2001/29 or under Article 8(2) of Directive 2006/115 if the copyright and related rights of a wide range of persons concerned — in particular composers, songwriters and music publishers, but also performing artists, phonogram producers and authors of literary works as well as their publishing houses — are affected by the television programmes which have been made accessible?

               3.

               In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes television programmes accessible to its patients, is there a ‘communication to the public’ pursuant to Article 3(1) of Directive 2001/29 or pursuant to Article 8(2) of Directive 2006/115?

               4.

               If the existence of a communication to the public within this meaning is confirmed for cases such as that in the main proceedings, does the Court of Justice thereby uphold its case-law according to which no communication to the public takes place in the event of the radio broadcasting of protected phonograms to patients in a dental practice (see the judgment of 15 March 2012 in SCF, C-135/10) (3) or similar establishments?

      (1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L 167, p. 10.

      (2)  Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ 2006 L 376, p. 28.

      (3)  EU:C:2012:140.


title: Case C-430/10: Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 2 September 2010 — Hristo Gaydarov v Direktor na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/14

         Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 2 September 2010 — Hristo Gaydarov v Direktor na Glavna direktsia‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti
   (Case C-430/10)
   ()
   2010/C 301/21
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Sofia-grad (Bulgaria)

      Parties to the main proceedings

      Applicant: Hristo Gaydarov

      Defendant: Direktor na Glavna direktsia‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti

      Questions referred

               1.

               Is Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) to be interpreted, under the circumstances of the main proceedings, as being applicable where a national of a Member State is prohibited from leaving the territory of his own State because he has committed a criminal offence involving narcotic drugs in a third country, in so far as the following circumstances also exist:

                           1.1.

                           the abovementioned provisions of the directive were not expressly transposed in respect of the Member State’s own nationals;

                           1.2.

                           the grounds given by the national legislature for the adoption of the legitimate aims for a restriction on the freedom of movement of Bulgarian nationals are based on Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), (2) and

                           1.3.

                           the administrative measures are applied in connection with Article 71 of the Convention implementing the Schengen Agreement of 14 June 1985 and having regard to Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)?

               2.

               Does it follow from the limitations and conditions governing the exercise of the freedom of movement of European Union citizens and from the measures adopted to give them effect under European Union law, including Article 71(1), (2) and (5) of the Convention implementing the Schengen Agreement in conjunction with Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), under the circumstances of the main proceedings, that national legislation is lawful under which a Member State imposes on one of its nationals who has committed a criminal offence involving narcotic drugs the coercive administrative measure: ‘not to leave the country’, if that national was convicted of that offence by a court in a third country?

               3.

               Are the limitations and conditions governing the exercise of the freedom of movement of citizens of the European Union and the measures adopted to give them effect under European Union law, including Article 71(1), (2) and (5) of the Convention implementing the Schengen Agreement in conjunction with Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), under the circumstances of the main proceedings, to be interpreted as meaning that the conviction of a national of a Member State by a court in a third country for acts concerned with narcotic drugs which, under the law of that Member State, are classified as a serious intentional criminal offence, is sufficient ground for holding, on grounds of general and specific prevention, including guaranteeing a higher level of protection of the health of others in accordance with the precautionary principle, that the personal conduct of that national represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society for a future period of time, which is precisely defined by law and is not connected with the term served for the sentence imposed, but falls within the rehabilitation period?

      (1)  OJ 1993 L 317, p. 59

      (2)  OJ 2006 L 105, p. 1


title: Case C-180/17: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 7 April 2017 — X, Y v Staatssecretaris van Veiligheid en Justitie

text:
               26.6.2017

               EN

               Official Journal of the European Union

               C 202/12

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 7 April 2017 — X, Y v Staatssecretaris van Veiligheid en Justitie
   (Case C-180/17)
   (2017/C 202/18)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: X, Y

      Defendant: Staatssecretaris van Veiligheid en Justitie

      Questions referred

               1.

               Must Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98; ‘the Return Directive’), read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of Directive 2008/115/EC, the legal remedy of an appeal has automatic suspensory effect where the third-country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement? In other words, in such a case, should the expulsion of the third-country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third-country national concerned being required to submit a separate request to that effect?

               2.

               Must Article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (OJ 2013 L 180, p. 60), read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for the granting of international protection, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of an applicant be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the applicant concerned being required to submit a separate request to that effect?

               3.

               In order for there to be such automatic suspensory effect, is it still relevant whether the application for international protection which prompted the procedures of bringing an action in law and a subsequent appeal has been rejected on one of the grounds mentioned in Article 46(6) of Directive 2013/32/EU? Alternatively, does that requirement apply for all categories of asylum decisions as set out in that directive?


title: Case C-475/09 P: Appeal brought on 26 November 2009 by Territorio Histórico de Álava — Diputación Foral de Álava against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/16

         Appeal brought on 26 November 2009 by Territorio Histórico de Álava — Diputación Foral de Álava against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities
   (Case C-475/09 P)
   2010/C 37/17
   Language of the case: Spanish

      Parties

      Appellant: Territorio Histórico de Álava — Diputación Foral de Álava (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

      Other parties to the proceedings: Comunidad Autónoma del País Vasco — Goberierno Vasco, Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, Confederación Empresarial Vasca (Confebask), Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámera Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, Commission of the European Communities and Comunidad Autónoma de la Rioja

      Form of order sought

               —

               declare the appeal to be admissible and well founded;

               —

               set aside the judgment under appeal;

               —

               grant the form of order sought at first instance, that is the alternative claim to annul Article 3 of the contested decision;

               —

               alternatively, refer the case back to the Court of First Instance and, order it to examine the evidence rejected;

               —

               order the Commission to pay the costs of the proceedings at first instance and on appeal and the intervener, the Comunidad Autónoma de la Rioja to pay the costs of the proceedings at first instance.

      Pleas in law and main arguments

               1.

               The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude an order to recover the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) which relates to the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision.
               Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates.
               By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons.
               The CFI erred in law by holding that the Commission's attitude with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the case file, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.

               2.

               The CFI erred in law by failing to comply with the procedural rules regarding the assessment of evidence and by deciding not to require disclosure of the evidence requested by the applicant with respect to certain Commission documents that, in the light of the arguments used by the CFI in order to dismiss the applicant's application, are essential to the defence of its interests. The CFI also infringed the right to a fair trial, the principle of equality of arms and the rights of defence.
               The CFI, by failing to order the disclosure of the evidence requested, has infringed the fundamental right to a fair trial to which the applicant is entitled, by refusing to assess evidence which is essential to the applicant's case thereby infringing its rights of defence, since its application was dismissed on the ground that it had not proved what it specifically sought to establish with the evidence which was not produced: if not the Commission's final position with respect to the complaint of 1994 against the tax rules of 1993 (including a tax credit), which are measures which are essentially the same as the contested measure, which rejected that complaint, then at least the attitude of the Commission which would constitute an exceptional circumstance in so far as its conduct gave rise to a legitimate expectation that the 1993 tax measures were lawful, which led to the adoption of the contested tax measure in 1996.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

      (2)  Commission Decision of 10 May 1993 concerning a scheme of tax concessions for investment in the Basque country (OJ 1993 L 134, p. 25).


title: Judgment of the Court (Grand Chamber) of  17 January 2006  in Case C-1/04 Reference for a preliminary ruling from the Bundesgerichtshof in Susanne Staubitz-Schreiber (Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Applicability in time — Court having jurisdiction)

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/3

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 17 January 2006
   in Case C-1/04 Reference for a preliminary ruling from the Bundesgerichtshof in Susanne Staubitz-Schreiber (1)

   (Judicial cooperation in civil matters - Insolvency proceedings - Regulation (EC) No 1346/2000 - Applicability in time - Court having jurisdiction)
   (2006/C 60/06)
   Language of the case: German
   In Case C-1/04 Reference for a preliminary ruling under Article 234 EC from the Bundesgerichtshof (Germany), made by decision of 27 November 2003, received at the Court on 2 January 2004, in the proceedings brought by Susanne Staubitz-Schreiber — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and J. Malenovský, Presidents of Chambers, A. La Pergola, J.-P. Puissochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr, J. Klučka, U. Lõhmus and E. Levits, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, for the Registrar, gave a judgment on 17 January 2006, in which it ruled as follows:
   Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the court of the Member State within the territory of which the centre of the debtor's main interests is situated at the time when the debtor lodges the request to open insolvency proceedings retains jurisdiction to open those proceedings if the debtor moves the centre of his main interests to the territory of another Member State after lodging the request but before the proceedings are opened.

      (1)  OJ C 71, 20.03.2004.


title: Case C-433/03: Action brought on 10 October 2003 by the Commission of the European Communities against the Federal Republic of Germany

text:
29.11.2003            EN                         Official Journal of the European Union                                         C 289/15
Furthermore, in the present instance there are no grounds for                  ments with Romania, Poland and the Ukraine on trans-
allowing an exemption from the obligation to recover the aid.                  port by inland waterway, and refusing to revoke them;
                                                                         —     declare that the Federal Republic of Germany has
                                                                               breached its obligations under Regulation (EC) No 1356/
                                                                               96 (2), as the individual bilateral agreements on transport
                                                                               by inland waterway with Romania, Poland, the Ukraine,
                                                                               the Republic of Czechoslovakia and Hungary are incom-
Reference for a preliminary ruling by the Giudice di Pace                      patible with Regulation (EC) No 1356/96 and it has
di Milazzo by order of that Court of 18 April 2003 in the                      refused to revoke them;
   case of Provvidenza Regio against AXA Assicurazioni
                                                                         —     order the Federal Republic of Germany to pay the costs.
                        (Case C-425/03)
                        (2003/C 289/29)
                                                                         Pleas in law and main arguments
Reference has been made to the Court of Justice of the                   —     The Federal Republic of Germany has usurped the
European Communities by order of the Giudice di Pace di                        exclusive competence of the Community to conclude
Milazzo (Milazzo Magistrates’ Court) of 18 April 2003,                         international agreements within the meaning of the
received at the Court Registry on 6 October 2003, for a                        ‘AETR’ case-law by negotiating, concluding, ratifying and
preliminary ruling in the case of Provvidenza Regio against                    bringing into force individual bilateral agreements with
AXA Assicurazioni on the following question:                                   Romania, Poland and the Ukraine on transport by inland
                                                                               waterway which have an impact on the Community
                                                                               provisions which the Community adopted in Regulation
The questions of unconstitutionality raised in the present                     (EEC) No 3921/91. That regulation lays down the con-
proceedings concern Article 1 of Decree Law No 18/03, which                    ditions under which non-resident carriers may transport
removes from equitable assessment cases falling within the                     goods or passengers by inland waterway within a Member
jurisdiction of the Giudice di Pace concerning standard form                   State. Those conditions were widened in stages. The
contracts the value of which does not exceed EUR 1 100.                        balance thereby created is disturbed by Article 6 of the
                                                                               agreements concluded with Poland, Romania and the
                                                                               Ukraine whereby operators resident in third countries
                                                                               have access to cabotage in Germany.
                                                                         —     The Federal Republic of Germany has failed to fulfil
                                                                               its obligations under Article 10 EC by negotiating,
Action brought on 10 October 2003 by the Commission                            concluding, ratifying and bringing into force the con-
of the European Communities against the Federal Repub-                         tested bilateral agreements after the Council had granted
                         lic of Germany                                        the Commission authority to negotiate and the German
                                                                               Government could not have been unaware that nego-
                                                                               tiations for a multilateral agreement were in progress.
                        (Case C-433/03)
                                                                         —     The bilateral agreements concluded by the Federal Repub-
                        (2003/C 289/30)
                                                                               lic of Germany are incompatible with Council Regulation
                                                                               (EC) No 1356/96 on common rules applicable to the
                                                                               transport of goods or passengers by inland waterway
An action against the Federal Republic of Germany was                          between Member States with a view to establishing
brought before the Court of Justice of the European Communi-                   freedom to provide such transport services. The Polish,
ties on 10 October 2003 by the Commission of the European                      Ukrainian, Romanian, Czech, Slovak and Hungarian
Communities, represented by Claudia Schmidt and Wils                           barge owners and inland waterway transport undertak-
Wouter of its Legal Service, and Andreas Manville, Assistant in                ings, which may be allowed to carry out transport
its Legal Service, with an address for service in Luxembourg.                  between Germany and the other Member States under
                                                                               the contested agreements, do not satisfy the conditions
                                                                               laid down in that Regulation.
The Commission of the European Communities claims that
the Court should:
                                                                         (1) OJ 1991 L 373, p. 1.
—     declare that the Federal Republic of Germany has                   (2) OJ 1996 L 175, p. 7.
      breached its obligations under Article 10 EC and Regu-
      lation (EEC) No 3921/91 (1) by negotiating, concluding,
      ratifying and implementing individual bilateral agree-


title: Case T-9/13: Judgment of the General Court of 29 April 2015 — National Iranian Gas Company v Council (Common Foreign and Security Policy — Restrictive measures taken against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Objection of illegality — Error of law — Proportionality — Right to property — Jurisdiction of the Council — Obligation to state reasons — Rights of the defence — Review of the restrictive measures adopted — Right to effective judicial protection — Error of assessment)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/31

         Judgment of the General Court of 29 April 2015 — National Iranian Gas Company v Council
   (Case T-9/13) (1)

   ((Common Foreign and Security Policy - Restrictive measures taken against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Objection of illegality - Error of law - Proportionality - Right to property - Jurisdiction of the Council - Obligation to state reasons - Rights of the defence - Review of the restrictive measures adopted - Right to effective judicial protection - Error of assessment))
   (2015/C 198/41)
   Language of the case: French

      Parties

      Applicant: The National Iranian Gas Company (Teheran, Iran) (represented by: E. Glaser and S. Perrotet, lawyers)

      Defendant: Council of the European Union (represented by: A. Vitro and M. Bishop, Agents)

      Re:

   First, application for partial annulment of Article 1, point 8, of Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58) and, secondly, application for annulment of Decision 2012/635, of Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16), and of the decision communicated by the Council’s letter of 14 March 2014, in so far as the inclusion of the applicant’s name in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), and in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1) is concerned.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the National Iranian Gas Company to pay the costs.

      (1)  OJ C 79, 16.3.2013.


               23.2.2008

               EN

               Official Journal of the European Union

               C 51/2

         Lists for the purposes of determining the composition of the formations of the Court
   (2008/C 51/04)
   At its meeting on 15 January 2008, the Court drew up the list referred to in Article 11b(2) of the Rules of Procedure for determining the composition of the Grand Chamber as follows:

               Mr Tizzano

               Mr Kasel

               Mr Cunha Rodrigues

               Ms Toader

               Ms Silva de Lapuerta

               Mr Arabadjiev

               Sir Konrad Schiemann

               Mr von Danwitz

               Mr Makarczyk

               Mr Bonichot

               Mr Kūris

               Ms Lindh

               Mr Juhász

               Mr Bay Larsen

               Mr Arestis

               Mr Ó Caoimh

               Mr Borg Barthet

               Mr Levits

               Mr Ilešič

               Mr Lõhmus

               Mr Malenovský

               Mr Klučka

         At its meeting on 15 January 2008, the Court drew up the list referred to in the first subparagraph of Article 11c(2) of the Rules of Procedure for determining the composition of the First Chamber as follows:

               Mr Tizzano

               Mr Kasel

               Mr Borg Barthet

               Mr Levits

               Mr Ilešič

         At its meeting on 15 January 2008, the Court drew up the list referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure for determining the composition of the Fifth Chamber as follows:

               Mr Borg Barthet

               Mr Ilešič

               Mr Levits

               Mr Kasel


title: Case C-36/04: Action brought on 2 February 2004 by the Kingdom of Spain against the Council of the European Communities

text:
20.3.2004             EN                       Official Journal of the European Union                                            C 71/15
Action brought on 30 January 2004 by the Commission                    The Kingdom of Spain claims that the Court should:
of the European Communities against the Grand Duchy
                         of Luxembourg
                                                                       —     annul Articles 3, 4 and 6 of Council Regulation (EC)
                         (Case C-35/04)                                      No 1954/2003 (1) of 4 November 2003 on the manage-
                                                                             ment of the fishing effort relating to certain Community
                                                                             fishing areas and resources and modifying Regulation
                         (2004/C 71/24)                                      (EEC) No 2847/93 and repealing Regulations (EC)
                                                                             No 685/95 and (EC) No 2027/95, and
An action against the Grand Duchy of Luxembourg was                    —     order the defendant institution to pay the costs.
brought before the Court of Justice of the European Communi-
ties on 30 January 2004 by the Commission of the European
Communities, represented by K. Banks, acting as Agent, with
an address for service in Luxembourg.
The Commission of the European Communities claims that                 Pleas in law and main arguments
the Court should:
—     declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with           Breach of the principle of non-discrimination:
      Directive 2001/29/EC of the European Parliament and of
      the Council of 22 May 2001 on the harmonisation of
      certain aspects of copyright and related rights in the
                                                                       —     the use of the reference period laid down in Articles 3, 4
      information society (1), or, in any event, by failing to
                                                                             and 6 of the Regulation in question, which refers to the
      inform the Commission thereof, the Grand Duchy of
                                                                             period 1998 to 2002, discriminates against the Spanish
      Luxembourg has failed to fulfil its obligations under
                                                                             fleet on the basis of nationality, since for those years,
      Article 13 of that directive;
                                                                             pursuant to provisions in the Act of Accession of the
                                                                             Kingdom of Spain and the Republic of Portugal to the
—     order the Grand Duchy of Luxembourg to pay the costs.                  European Communities, the Spanish fleet’s access was
                                                                             limited to ICES areas V b, VI, VII and VIII a, b, d and e.
Pleas in law and main arguments
                                                                       —     the establishment of the sensitive area referred to in
                                                                             Article 6 is similarly discriminatory as regards the Spanish
The period for transposition of the directive expired on                     fleet, since the new sensitive area partly coincides with
22 December 2002.                                                            the so-called ‘Irish box’, where restrictions apply to the
                                                                             Spanish fleet in accordance with the Accession Treaty for
                                                                             the Kingdom of Spain and the Republic of Portugal.
(1) OJ 2001 L 167, p. 10.
                                                                       Misuse of power: The protection of the sensitive area provided
                                                                       for in Article 6 should have been established by applying the
                                                                       procedures laid down in Regulation (EC) No 850/1998 for the
                                                                       conservation of fishery resources through technical measures
                                                                       for the protection of juveniles of marine organisms, which
Action brought on 2 February 2004 by the Kingdom of
                                                                       establishes measures linked to certain time-periods and areas
 Spain against the Council of the European Communities
                                                                       or to the use of certain more selective types of fishing gear in
                                                                       order to ensure the survival of those juveniles. Instead, on the
                         (Case C-36/04)                                pretext of the conservation of hake, the Regulation at issue
                                                                       seeks to maintain discrimination against the Spanish fleet in
                                                                       the waters around Ireland.
                         (2004/C 71/25)
An action against the Council of the European Communities              (1) OJ 2003 L 289, p. 1.
was brought before the Court of Justice of the European
Communities on 2 February 2004 by the Kingdom of Spain,
represented by N. Díaz Abad, Abogado del Estado, with an
address for service in Luxembourg.


title: Case T-484/11: Order of the General Court of 14 September 2012 — Skyhawke Technologies v OHIM — British Sky Broadcasting and Sky IP International (SKYCADDIE)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/38

         Order of the General Court of 14 September 2012 — Skyhawke Technologies v OHIM — British Sky Broadcasting and Sky IP International (SKYCADDIE)
   (Case T-484/11) (1)

   2012/C 355/80
   Language of the case: English
   The President of the Fourth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 319, 29.10.2011.


title: Case T-199/06: Order of the General Court of 17 December 2009 — Akzo Nobel and Others v Commission

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/48

         Order of the General Court of 17 December 2009 — Akzo Nobel and Others v Commission
   (Case T-199/06) (1)

   2010/C 37/72

      Language of the case: English

   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 212, 2.9.2006.


               15.12.2016

               EN

               Official Journal of the European Union

               C 467/26

         Action brought on 26 September 2016 by the EFTA Surveillance Authority against Iceland
   (Case E-13/16)
   (2016/C 467/13)
   An action against Iceland was brought before the EFTA Court on 26 September 2016 by the EFTA Surveillance Authority, represented by Carsten Zatschler, Audur Ýr Steinarsdóttir and Øyvind Bø, acting as Agents of the EFTA Surveillance Authority, 35 Rue Belliard, B-1040 Brussels.
   The EFTA Surveillance Authority requests the EFTA Court to:

               1.

               Declare that Iceland has failed to fulfil its obligations arising from the Act referred to at point 17h of Chapter II of Annex XIII to the Agreement on the European Economic Area (Directive 2000/30/EC of the European Parliament and of the Council of 6 June 2000 on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Community) by not introducing the technical roadside inspections required by Article 3(1) of the Act.

               2.

               Order Iceland to bear the costs of these proceedings.

      Legal and factual background and pleas in law adduced in support:

               —

               The application addresses Iceland’s failure to comply, no later than 16 September 2014, with a reasoned opinion delivered by the EFTA Surveillance Authority on 16 July 2014 regarding that State’s failure to fulfil its obligations arising from the Act referred to at point 17h of Chapter II of Annex XIII to the Agreement on the European Economic Area (Directive 2000/30/EC of the European Parliament and of the Council of 6 June 2000 on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Community) by not introducing the technical roadside inspections required by Article 3(1) of the Act.


title: Case C-170/13: Judgment of the Court (Fifth Chamber) of 16 July 2015 (request for a preliminary ruling from the Landgericht Düsseldorf — Germany) — Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH (Competition — Article 102 TFEU — Undertaking holding a patent essential to a standard which has given a commitment, to the standardisation body, to grant third parties a licence for that patent on fair, reasonable and non-discriminatory terms (‘FRAND terms’) — Abuse of a dominant position — Actions for infringement — Action seeking a prohibitory injunction — Action seeking the recall of products — Action seeking the rendering of accounts — Action for damages — Obligations of the proprietor of a patent which is essential to a standard)

text:
               14.9.2015

               EN

               Official Journal of the European Union

               C 302/2

         Judgment of the Court (Fifth Chamber) of 16 July 2015 (request for a preliminary ruling from the Landgericht Düsseldorf — Germany) — Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH
   (Case C-170/13) (1)

   ((Competition - Article 102 TFEU - Undertaking holding a patent essential to a standard which has given a commitment, to the standardisation body, to grant third parties a licence for that patent on fair, reasonable and non-discriminatory terms (‘FRAND terms’) - Abuse of a dominant position - Actions for infringement - Action seeking a prohibitory injunction - Action seeking the recall of products - Action seeking the rendering of accounts - Action for damages - Obligations of the proprietor of a patent which is essential to a standard))
   (2015/C 302/02)
   Language of the case: German

      Referring court

   Landgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Huawei Technologies Co. Ltd

      Defendants: ZTE Corp., ZTE Deutschland GmbH

      Operative part of the judgment

               1.

               Article 102 TFEU must be interpreted as meaning that the proprietor of a patent essential to a standard established by a standardisation body, which has given an irrevocable undertaking to that body to grant a licence to third parties on fair, reasonable and non-discriminatory (‘FRAND’) terms, does not abuse its dominant position, within the meaning of that article, by bringing an action for infringement seeking an injunction prohibiting the infringement of its patent or seeking the recall of products for the manufacture of which that patent has been used, as long as:

                           —

                           prior to bringing that action, the proprietor has, first, alerted the alleged infringer of the infringement complained about by designating that patent and specifying the way in which it has been infringed, and, secondly, after the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms, presented to that infringer a specific, written offer for a licence on such terms, specifying, in particular, the royalty and the way in which it is to be calculated, and

                           —

                           where the alleged infringer continues to use the patent in question, the alleged infringer has not diligently responded to that offer, in accordance with recognised commercial practices in the field and in good faith, this being a matter which must be established on the basis of objective factors and which implies, in particular, that there are no delaying tactics.

               2.

               Article 102 TFEU must be interpreted as not prohibiting, in circumstances such as those in the main proceedings, an undertaking in a dominant position and holding a patent essential to a standard established by a standardisation body, which has given an undertaking to the standardisation body to grant licences for that patent on FRAND terms, from bringing an action for infringement against the alleged infringer of its patent and seeking the rendering of accounts in relation to past acts of use of that patent or an award of damages in respect of those acts of use.

      (1)  OJ C 215, 27.7.2013.


title: Case T-514/11: Judgment of the General Court of 4 June 2013 — i-content v OHIM — Decathlon (BETWIN) (Community trade mark — Opposition proceedings — Application for Community word mark BETWIN — Earlier Community figurative mark b’Twin — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/72

         Judgment of the General Court of 4 June 2013 — i-content v OHIM — Decathlon (BETWIN)
   (Case T-514/11) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark BETWIN - Earlier Community figurative mark b’Twin - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 225/158
   Language of the case: English

      Parties

      Applicant: i-content Ltd Zweigniederlassung Deutschland (Berlin, Germany) (represented by: A. Nordemann, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Decathlon SA (Villeneuve-d’Ascq, France)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 30 June 2011 (Case R 1816/2010-1), relating to opposition proceedings between Decathlon SA and i-content Ltd Zweigniederlassung Deutschland.

      Operative part of the judgment

   The Court:

               1.

               Annuls the Decision of the First Board of Appeal of OHIM of 30 June 2011 (Case R 1816/2010-1) so far as concerns the goods in Class 28 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘inflatable swimming pools for recreational use; jungle gyms (play equipment); stuffed plush animals; swimming pools [toys]; air pistols [toys], hand-held electronic video games; toy vehicles; toy models; electronic hand-held game units; counters for games; checkers [games]; playground apparatus; mechanical action toys; playthings, except playthings for pets; electronic games; toy balloons; dice; novelties for parties, dances (party favours); hand-held electronic games; game cards; pinball-type games; cups for dice; printing toys; question sets for board games; bingo card; model aircraft; skittles; dominoes; decorative wind socks; pinball machines; skill and action games; parlour games; slot machines, automatic; pinball machines (coin or non-coin operated); scale model aeroplanes; card games; flying disks; playing balls; games; cups for dice; dolls; skittles (games); remote-control vehicles (toys); quoits; darts; clay pigeon traps; scale-model vehicles; sledges; slot machines, automatic; chess; toy masks; puzzles; stuffed toys; hand-held computer games; darts; toy aircraft; tossing disc toys; clay pigeons (targets); tappets; teddy bears; hand-held video games; electronically-operated toy motor vehicles; battery operated toys; gaming chips; targets; stuffed toy bears; inflatable toys; board games; swings; kites; model cars’;

               2.

               So far as concerns the goods mentioned in Article 1, annuls the Opposition Division’s decision of 21 July 2010 and rejects the opposition;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders each party to bear its own costs.

      (1)  OJ C 355, 3.12.2011.


title: Case C-262/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 15 June 2006 — Deutsche Telekom AG v Bundesrepublik Deutschland

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/15

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 15 June 2006 — Deutsche Telekom AG v Bundesrepublik Deutschland
   (Case C-262/06)
   (2006/C 212/26)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: Deutsche Telekom AG

      Defendant: Bundesrepublik Deutschland
   Questions referred

               1.

               Are the first sentence of Article 27 of Directive 2002/21/EC (1) 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) and Article 16(1)(a) of Directive 2002/22/EC (2) 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) to be understood as meaning that a statutory requirement provided for under earlier national law for the authorisation of charges for the supply of voice telephony services to end-users by an undertaking with a dominant position in that market, and hence an administrative measure confirming that requirement, should be temporarily maintained?

         If the answer to the first question is in the negative:

               2.

               Does European Community law preclude such extensive continuation?

      (1)  OJ 2002 L 108, p. 33.

      (2)  OJ 2002 L 108, p. 51.


title: Case T-401/12: Action brought on 10 September 2012 — Klingel v OHIM — Develey (JUNGBORN)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/31

      Action brought on 10 September 2012 — Klingel v OHIM — Develey (JUNGBORN)
      (Case T-401/12)
      (2012/C 331/60)
      Language in which the application was lodged: German

         Parties

         Applicant: Robert Klingel OHG (Pforzheim, Germany) (represented by: T. Zeiher, lawyer)

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

         Other party to the proceedings before the Board of Appeal: Develey Holding GmbH & Co. Beteiligungs KG (Unterhaching, Germany)

         Form of order sought

                  —

                  Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2012 in Case R 936/2011-4;

                  —

                  reject the opposition to the protection of international registration W 1 002 323 — JUNGBORN;

                  —

                  in the alternative, refer the case back to the Board of Appeal for a further decision;

                  —

                  order the unsuccessful party to pay the costs of the proceedings.

         Pleas in law and main arguments

         Applicant for a Community trade mark: Robert Klingel OHG

         Community trade mark concerned: Word mark ‘JUNGBORN’ for goods in Classes 29, 30, 32 and 33 — international registration designating the European Union No W 1 002 323

         Proprietor of the mark or sign cited in the opposition proceedings: Develey Holding GmbH & Co. Beteiligungs KG

         Mark or sign cited in opposition: German word mark ‘BORN’ for goods in Classes 29, 30 and 32

         Decision of the Opposition Division: The opposition was allowed in part

         Decision of the Board of Appeal: Appeal dismissed

         Pleas in law: Infringement of Article 41(1)(a) and Article 8(1)(b) of Regulation No 207/2009


title: Case T-340/04: Action brought on 11 August 2004 by France Télécom S.A. against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/53

         Action brought on 11 August 2004 by France Télécom S.A. against the Commission of the European Communities
   (Case T-340/04)
   (2004/C 262/98)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 August 2004 by France Télécom S.A., established in Paris, represented by Christophe Clarenc and Javier Ruiz Calzado, lawyers.
   The applicant claims that the Court should:

               —

               annul Commission Decision C (2004) 1929 of 18 May 2004 ordering France Télécom S.A. and all undertakings directly or indirectly controlled by it to submit to an inspection pursuant to Article 20(4) of Regulation No 1/2003 (Case No COM/C-38.916);

               —

               order the Commission to pay in full the costs incurred by France Télécom in bringing the present action for annulment.

         Pleas in law and main arguments:
   The subject matter of the decision in question is ‘the suspected imposition of unfair selling prices in respect of high-speed Internet access for residential customers, contrary to Article 82 EC, with the intention of restricting and deterring competitors’ (Article 1 of the contested decision) and applies to the applicant and its subsidiary Wanadoo, and all undertakings directly or indirectly controlled by them (Article 3). The Commission considered that in order to confirm the alleged practices an inspection was required pursuant to Article 20(4) of Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1). It is the decision ordering that inspection which is challenged in the present case.
   In support of the form of order it seeks, the applicant first alleges that there has been a breach of the duty to state reasons. It states in this connection that it fails to understand why it is the addressee of the decision and it is the subject of that inspection. It points out that in accordance with the reasoning of its ‘Wanadoo’ decision of 16 July 2003, which recognised Wanadoo's independence from the applicant in its policy of fixing prices for the French residential market for high-speed internet access services, the Commission in its decision imputes to Wanadoo, and not to France Telecom, the allegedly unfair sale prices in question, and the alleged strategy of deterring competitors. Moreover, the Commission failed to explain why it found it necessary to order an inspection in respect of Wanadoo's selling prices, in spite of the fact that those prices are to be maintained by it under its decision of 16 July 2003 and furthermore had just been inspected and approved by the French competition authority.
   Second, the applicant complains that the contested decision disregarded the requirements of the principle of sincere cooperation which applies to the European Commission in its relations with national institutions, as established under Article 10 EC and set out in Regulation (EC) No 1/2003, first, by failing to inform the national court in full of the background to the case, then, by failing to consult the French competition authority, as provided in Article 11(6) of that regulation, even though the matter had been brought before it in January 2004.
   Third and finally, the applicant alleges an infringement of the principle of proportionality both in light of the apparent objective of the inspection and the background to it and the complete lack of evidence of the existence of a risk that evidence will be concealed or destroyed.

      (1)  OJ 2003 L 1, of 4.1.2003, p. 1.


title: Case T-365/11 P: Order of the General Court of 12 December 2011 — AO v Commission (Appeal — Civil service — Officials — Time-limit for appeal — Late submission — Signed original of the appeal lodged out of time — Unforeseeable circumstances — Article 43(6) of Rules of Procedure of the General Court — Appeal manifestly inadmissible)

text:
               11.2.2012

               EN

               Official Journal of the European Union

               C 39/14

         Order of the General Court of 12 December 2011 — AO v Commission
   (Case T-365/11 P) (1)

   (Appeal - Civil service - Officials - Time-limit for appeal - Late submission - Signed original of the appeal lodged out of time - Unforeseeable circumstances - Article 43(6) of Rules of Procedure of the General Court - Appeal manifestly inadmissible)
   2012/C 39/29
   Language of the case: English

      Parties

      Appellant: AO (Brussels, Belgium) (represented by: P. Lewisch, lawyer)

      Other party to the procedure: European Commission (represented by: J. Currall and J. Baquero Cruz, Agents)

      Re:

   Appeal against the order of the European Union Civil Service Tribunal (First Chamber) of 4 April 2011 in Case F-45/10 AO v Commission (not yet published in the ECR) seeking to have that order set aside.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               AO shall bear his own costs and those incurred by the European Commission.

      (1)  OJ C 282, 24.9.2011.


title: Case T-272/12: Action brought on 12 June 2012 — Energetický a průmyslový and EP Investment Advisors v Commission

text:
               18.8.2012

               EN

               Official Journal of the European Union

               C 250/17

         Action brought on 12 June 2012 — Energetický a průmyslový and EP Investment Advisors v Commission
   (Case T-272/12)
   2012/C 250/31
   Language of the case: English

      Parties

      Applicants: Energetický a průmyslový holding a.s. (Brno, Czech Republic) and EP Investment Advisors s.r.o. (Praha, Czech Republic) (represented by: K. Desai, Solicitor, J. Schmidt and M. Peristeraki, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission Decision of 28 March 2012, relating to a proceeding under Article 23 of Council Regulation (EC) No. 1/2003 (1) (refusal to submit to an inspection) in Case COMP/39793 — EPH and Others;

               —

               In the alternative, annul the amount of the fine imposed on the applicants in its entirety or reduce it to an appropriate amount;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on four pleas in law.

               1.

               First plea in law, alleging that the contested decision was adopted in violation of essential procedural requirements. In particular, the applicants submit that the contested decision was adopted in violation of their rights of defence, due to irregularities in the conduct of the inspection, notably because the Commission did not ensure that the relevant individuals had been properly informed of their duties in the course of the inspection nor of the consequences of non compliance.

               2.

               Second plea in law, alleging that the Commission's finding that the applicants refused to submit to the inspection is unfounded and disproportionate. The applicants argue that the evidence put forward by the Commission for the unblocking of an email account or the diversion of emails to the applicants' server in the case at hand was not sufficient to substantiate an infringement of Article 23(1) of Council Regulation (EC) No 1/2003. The applicants also argue that the inspection was not obstructed with intention or negligence by the applicants.

               3.

               Third plea in law, alleging that the contested decision is adopted in violation of the ‘presumption of innocence’ principle insofar as the Commission approached the case with insufficient care and transparency, whilst there were indications that the Commission was negatively predisposed against the applicants, as a result of unrelated events that could not be attributed to the applicants.

               4.

               Fourth (alternative) plea in law, put forward in support of the second form of order sought, in case the General Court decides not to annul the contested decision in its entirety, alleging that the Commission committed an error in law and infringed the principles of proportionality and due motivation when determining the fine.

      (1)  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 L1, p. 1)