title: Case C-90/99: Action brought on 16 March 1999 by the Commission of the European Communities against the Portuguese Republic

text:
5.6.1999                EN                       Official Journal of the European Communities                                         C 160/5
Reference for a preliminary ruling from the Tribunal                        The applicant claims that the Court of Justice should:
Administratif of the Grand Duchy of Luxembourg
(Second Chamber) by judgment of that court of 11 March                      — declare that, by failing to adopt the laws, regulations and
1999 in the case of Patrick Zurstrassen v. Administration                        administrative provisions necessary to comply fully and
                  des Contributions Directes                                     correctly with Commission Directive 96/4/EC (1), Euratom
                                                                                of 16 February 1996 amending Directive 91/321/EEC on
                                                                                infant formulae and follow-on formulae, the Portuguese
                           (Case C-87/99)                                        Republic has failed to fulfil its obligations under the third
                                                                                paragraph of Article 189 of the EC Treaty and Article 2 of
                                                                                Directive 96/4/EC,
                          (1999/C 160/09)
                                                                            — in the alternative, declare that by failing to inform the
Reference has been made to the Court of Justice of the                           Commission forthwith of such measures, the Portuguese
European Communities by a judgment of the Tribunal Admini-                       Republic has failed to fulfil its obligations under the same
                                                                                provisions;
stratif (Administrative court) of the Grand Duchy of Luxem-
bourg (Second Chamber) of 11 March 1999, which was
received at the Court Registry on 12 March 1999, for a                      — order the Portuguese Republic to pay the costs.
preliminary ruling in the case of Patrick Zurstrassen v.
Administration des Contributions Directes on the following
question:                                                                   Contentions and principal arguments adduced in support
— Do Article 48 of the Treaty on European Union and Article                 The contentions and principal arguments adduced in support
    1(1) of Regulation (EEC) No 1612/68 (1) of the Council on               are similar to those in Case C-78/99 (2), the period for
    freedom of movement for workers within the Community,                   implementing the directive expired on 31 March 1997.
    of 15 October 1968 preclude national rules which subject
    the joint assessment to tax of two spouses and their
    classification in tax bracket II, which allows the spouses a            (1) OJ L 49, 22.2.1996, p. 12.
    lighter tax burden under certain circumstances than that                (2) See p. 3 of this Official Journal.
    imposed on them if taxed individually, to the condition
    that the two spouses — who are not separated either de
    facto or by virtue of a judicial decision — must have their
    respective residences for tax purposes in the same State,
    and which thereby exclude from that tax regime a spouse
    who establishes himself in one Member State, leaving the
    rest of his family in another Member State?
                                                                            Action brought on 17 March 1999 by the Commission
(1) OJ, English Special Edition 1968 (II), p. 475.                          of the European Communities against the Portuguese
                                                                                Republic
                                                                                (Case C-91/99)
                                                                                (1999/C 160/11)
                                                                            An action against the Portuguese Republic was brought before
                                                                            the Court of Justice on 17 March 1999 by the Commission of
Action brought on 16 March 1999 by the Commission                           the European Communities, represented by Ana Maria Alves
of the European Communities against the Portuguese                          Vieira, of its Legal Service, acting as Agent, with an address for
                              Republic                                      service in Luxembourg at the office of Carlos Gómez de la
                                                                            Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                           (Case C-90/99)
                                                                            The applicant claims that the Court of Justice should:
                          (1999/C 160/10)                                   — declare that, by failing to adopt within the prescribed
                                                                                period all the measures needed to comply fully with
                                                                                Council Directive 96/43/EC (1) of 26 June 1996 amending
An action against the Portuguese Republic was brought before                     and consolidating Directive 85/73/EEC (2) and amending
the Court of Justice on 16 March 1999 by the Commission of                       Directives 90/675/EEC (3) and 91/496/EEC (4), the Portu-
the European Communities, represented by Francisco de Sousa                      guese Republic has failed to fulfil its obligations under the
Fialho, of its Legal Service, acting as Agent, with an address for               Treaty,
service in Luxembourg at the office of Carlos Gómez de la
Cruz, also of its Legal Service, Wagner Centre, Kirchberg.                  — order the Portuguese Republic to pay the costs.
 ---pagebreak--- C 160/6                   EN                   Official Journal of the European Communities                                         5.6.1999
Contentions and principal arguments adduced in support                    Action brought on 17 March 1999 by the Commission
                                                                          of the European Communities against the Portuguese
                                                                                Republic
The contentions and principal arguments adduced in support
are similar to those in Case C-78/99 (5); the period for
implementing the directive expired on 1 July 1997.                                                     (Case C-93/99)
                                                                                (1999/C 160/13)
( 1) OJ L 162, 1.7.1996, p. 1.
( 2) OJ L 32, 5.2.1985, p. 14.
( 3) OJ L 373, 31.12.1990, p. 1.                                          An action against the Portuguese Republic was brought before
( 4) OJ L 268, 24.9.1991, p. 56.                                          the Court of Justice on 17 March 1999 by the Commission of
( 5) See p. 3 of this Official Journal.                                   the European Communities, represented by Ana Maria Alves
                                                                          Vieira, of its Legal Service, acting as Agent, with an address for
                                                                          service in Luxembourg at the office of Carlos Gómez de la
                                                                          Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                                                                          The applicant claims that the Court of Justice should:
                                                                          — declare that, by failing to adopt within the prescribed
Action brought on 17 March 1999 by the Commission                               period all the measures needed to comply fully with
of the European Communities against the Portuguese                              Council Directive 96/22/EC (1) of 29 April 1996 repealing
                                 Republic                                       Directives 81/602/EEC (2) and 88/299/EEC (3), the Portu-
                                                                                guese Republic has failed to fulfil its obligations under the
                                                                                Treaty,
                             (Case C-92/99)
                                                                          — order the Portuguese Republic to pay the costs.
                            (1999/C 160/12)
                                                                          Contentions and principal arguments adduced in support
An action against the Portuguese Republic was brought before
the Court of Justice on 17 March 1999 by the Commission of
                                                                          The contentions and principal arguments adduced in support
the European Communities, represented by Ana Maria Alves
                                                                          are similar to those in Case C-78/99 (4); the period for
Vieira, of its Legal Service, acting as Agent, with an address for
                                                                          implementing the Directive expired on 1 July 1997.
service in Luxembourg at the office of Carlos Gómez de la
Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                                                                          ( 1) OJ L 125, 23.5.1996, p. 10.
The applicant claims that the Court of Justice should:                    ( 2) OJ L 222 , 7.8.1981, p. 32.
                                                                          ( 3) OJ L 128, 21.5.1988, p. 36.
                                                                          ( 4) See p. 3 of this Official Journal.
— declare that, by failing to adopt within the prescribed
      period all the measures needed to comply fully with
      Council Directive 96/23/EC (1) of 29 April 1996 repealing
      Directives 85/358/EEC (2) and 86/469/EEC (3) and
      Decisions 89/187/EEC(4) and 91/664/EEC (5), the Portu-
      guese Republic has failed to fulfil its obligations under the
      Treaty,
                                                                          Reference for a preliminary ruling from the Bundesverga-
— order the Portuguese Republic to pay the costs.                         beamt by order of that tribunal of 5 March 1999 in the
                                                                          review procedure of ARGE Gewässerschutz v. Bundesmi-
                                                                                nisterium für Land- und Forstwirtschaft
Contentions and principal arguments adduced in support
                                                                                (Case C-94/99)
The contentions and principal arguments adduced in support
are similar to those in Case C-78/99 (6); the period for                                              (1999/C 160/14)
implementing the directive expired on 1 July 1997.
                                                                          Reference has been made to the Court of Justice of the
( 1) OJ L 125, 23.5.1996, p. 10.                                          European Communities by an order of the Bundesvergabeamt
( 2) OJ L 191, 23.7.1985, p. 46.                                          (Federal Procurement Office), Austria, of 5 March 1999, which
( 3) OJ L 275, 26.9.1986, p. 36.                                          was received at the Court Registry on 17 March 1999, for a
( 4) OJ L 66, 10.3.1989, p. 37.                                           preliminary ruling in the review procedure of ARGE Gewässer-
( 5) OJ L 368, 31.12.1991, p. 17.                                         schutz v. Bundesministerium für Land- und Forstwirtschaft on
( 6) See p. 3 of this Official Journal.                                   the following questions:
                                                                          I.    Does the decision of a contracting authority to admit to an
                                                                                award procedure bodies which receive subsidies of any


title: Action brought on 24 December 1998 by the Kingdom of Spain against the Commission of the European Communities (Case C-479/98)

text:
C 71/14                EN                    Official Journal of the European Communities                                  13.3.1999
(3) On the correct interpretation of Article 4(1) of                    Pleas in law and main arguments adduced in support:
     Commission Decision 97/534/EC:
                                                                        1. The present case does not concern a loan made by a
     (a) must specified risk material be removed and                        State organisation to an undertaking for investment
         stained at the point of production; and                            purposes; instead, it relates to the recovery of a debt
                                                                            due in respect of unpaid social security contributions,
     (b) is the point of production for those purposes the                  to be effected in one of the ways provided for in the
         place at which the animals are slaughtered?                        social security legislation and under the circumstances
                                                                            laid down therein.
(4) If the answer to Question 1 is No, may a Member                         To attach different conditions to the deferral of
     State nonetheless justify under Article 36 of the Treaty               payment of the debt, and to impose an interest rate
     on the grounds of the protection of human health                       different from the statutory rate, as advocated by the
     measures including a prohibition on the importation                    Commission, would entail an act contrary to the
     from another Member State of:                                          Spanish social security legislation which the Spanish
                                                                            legislature alone is competent to adopt, as provided
     (a) specified risk material within the meaning of the                  for by Article 118 of the Treaty.
         said Decision;
                                                                        2. The Commission appears to question the lawfulness of
         or                                                                 the very system of deferral or payment in instalments
                                                                            which exists under Spanish law; however, it is not
                                                                            empowered to pronounce on the lawfulness of that
     (b) bovine heads       containing     such   specified   risk
                                                                            system, the determination thereof being a matter
         material?
                                                                            falling within the legislative competence of the State.
(1) Council Directive 89/662/EEC of 11 December 1989
    concerning veterinary checks in intra-Community trade with a        3. In accordance with the normal regulatory practice
    view to the completion of the internal market (OJ L 395,                regarding the deferral of debts due to the social
    30.12.1989, p. 13).                                                     security authorities, Royal Decree No 505/85 on the
(2) Commission Decision 97/534/EC of 30 July 1997 on the                    organisation and operation of the FOGASA refers to
    prohibition of the use of material presenting risks as regards          the application of the statutory interest rate
    transmissible spongiform encephalopathies (Text with EEA                determined in accordance with Article 1 of the 1984
    relevance) (OJ L 216, 8.8.1997, p. 95).                                 Law. The present case does not concern State aid but
                                                                            relates instead to the application of legislation laying
                                                                            down generally applicable rules.
                                                                        4. The general nature of the application of the statutory
                                                                            interest rate to agreements concerning the repayment
Action brought on 24 December 1998 by the Kingdom                           of wages and salaries paid by FOGASA and the
of Spain against the Commission of the European                             deferral of debts due to the social security authorities
                          Communities                                       is such as to preclude the existence of any unlawful
                                                                            State aid.
                        (Case C-479/98)
                         (1999/C 71/24)                                 5. The contested decision is based on an           inaccurate
                                                                            comparison, in that it treats a creditor      seeking to
                                                                            recover a debt due to it in the same way as   an investor
An action against the Commission of the European                            who is seeking to obtain an economic          benefit by
Communities was brought before the Court of Justice of                      granting a loan.
the European Communities on 24 December 1998 by the
Kingdom of Spain, represented by M. López-Monís
Gallego, Abogado del Estado, acting as Agent, with an
address for service in Luxembourg at the Spanish
Embassy, 4-6 Boulevard Emmanuel Servais.
                                                                        Action brought on 28 December 1998 by the Kingdom
The applicant claims that the Court should:                             of Spain against the Commission of the European
                                                                                Communities
                                                                                (Case C-480/98)
(1) annul the Commission's decision of 28 October 1998
     concerning State aid granted to SNIACE, of                                                (1999/C 71/25)
     Torrelavega, Cantabria;
                                                                        An action against the Commission of the European
(2) order the defendant institution to pay the costs.                   Communities was brought before the Court of Justice of


title: Case C-609/15: Request for a preliminary ruling from the Letrado de la Administración de Justicia del Juzgado de Violencia sobre la Mujer Único de Terrassa (Spain) lodged on 18 November 2015 — María Assumpció Martínez Roges v José Antonio García Sánchez

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/36

         Request for a preliminary ruling from the Letrado de la Administración de Justicia del Juzgado de Violencia sobre la Mujer Único de Terrassa (Spain) lodged on 18 November 2015 — María Assumpció Martínez Roges v José Antonio García Sánchez
   (Case C-609/15)
   (2016/C 038/49)
   Language of the case: Spanish

      Referring court

   Letrado de la Administración de Justicia del Juzgado de Violencia sobre la Mujer Único de Terrasa

      Parties to the main proceedings

      Applicant: María Assumpció Martínez Roges

      Defendant: José Antonio García Sánchez

      Questions referred

               1.

               Are Articles 34 and 35 of Law 1/2000 incompatible with Articles 6(1) and 7(2) of Directive [93/13/EEC (1)] and Articles 6(1)(d), 11 and 12 of Directive 2005/29/EC (2) inasmuch as they preclude any examination ex officio of possible unfair terms or unfair commercial practices in contracts concluded between lawyers and natural persons who are acting for purposes which are outside their trade, business or profession?

               2.

               Are Articles 34 and 35 of Law 1/2000 incompatible with Articles 6(1) and 7(2) of, and [point 1(q) of the Annex to], Directive [93/13/EEC] inasmuch as they preclude the production of evidence for the purpose of resolving the dispute in the administrative procedure for recovery of unpaid fees?

      (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

      (2)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).


title: Case C-682/15: Judgment of the Court (Grand Chamber) of 16 May 2017 (request for a preliminary ruling from the Cour administrative — Luxembourg) — Berlioz Investment Fund SA v Directeur de l’administration des contributions directes (Reference for a preliminary ruling — Directive 2011/16/EU — Administrative cooperation in the field of taxation — Article 1(1) — Article 5 — Request for information sent to a third party — Refusal to respond — Penalty — Concept of ‘foreseeable relevance’ of the information requested — Review by the requested authority — Review by a court — Scope — Charter of Fundamental Rights of the European Union — Article 51 — Implementation of EU law — Article 47 — Right to an effective judicial remedy — Access of the court and of the third party to the request for information sent by the requesting authority)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/8

         Judgment of the Court (Grand Chamber) of 16 May 2017 (request for a preliminary ruling from the Cour administrative — Luxembourg) — Berlioz Investment Fund SA v Directeur de l’administration des contributions directes
   (Case C-682/15) (1)

   ((Reference for a preliminary ruling - Directive 2011/16/EU - Administrative cooperation in the field of taxation - Article 1(1) - Article 5 - Request for information sent to a third party - Refusal to respond - Penalty - Concept of ‘foreseeable relevance’ of the information requested - Review by the requested authority - Review by a court - Scope - Charter of Fundamental Rights of the European Union - Article 51 - Implementation of EU law - Article 47 - Right to an effective judicial remedy - Access of the court and of the third party to the request for information sent by the requesting authority))
   (2017/C 239/10)
   Language of the case: French

      Referring court

   Cour administrative

      Parties to the main proceedings

      Applicant: Berlioz Investment Fund SA

      Defendant: Directeur de l’administration des contributions directes

      Operative part of the judgment

               1.

               Article 51(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a Member State implements EU law within the meaning of that provision, and that the Charter of Fundamental Rights of the European Union is therefore applicable, when that Member State makes provision in its legislation for a pecuniary penalty to be imposed on a person who may be the subject of administrative measures (a ‘relevant person’) who refuses to supply information in the context of an exchange between tax authorities based, in particular, on the provisions of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC.

               2.

               Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a relevant person on whom a pecuniary penalty has been imposed for failure to comply with an administrative decision directing that person to provide information (‘information order’) in the context of an exchange between national tax administrations pursuant to Directive 2011/16 is entitled to challenge the legality of that decision.

               3.

               Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that the ‘foreseeable relevance’ of the information requested by one Member State from another Member State is a condition which the request for information must satisfy in order for the requested Member State to be required to comply with that request, and thus a condition of the legality of the information order addressed by that Member State to a relevant person and of the penalty imposed on that person for failure to comply with that information order.

               4.

               Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that verification by the requested authority to which a request for information has been submitted by the requesting authority pursuant to that directive is not limited to the procedural regularity of that request but must enable the requested authority to satisfy itself that the information sought is not devoid of any foreseeable relevance having regard to the identity of the taxpayer concerned and that of any third party asked to provide the information, and to the requirements of the tax investigation concerned. Those provisions of Directive 2011/16 and Article 47 of the Charter must be interpreted as meaning that, in the context of an action brought by a relevant person against a penalty imposed on that person by the requested authority for non-compliance with an information order issued by that authority in response to a request for information sent by the requesting authority pursuant to Directive 2011/16, the national court not only has jurisdiction to vary the penalty imposed but also has jurisdiction to review the legality of that information order. As regards the condition of legality of that information order, which relates to the foreseeable relevance of the requested information, the courts’ review is limited to verification that the requested information manifestly has no such relevance.

               5.

               The second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, in the context of a judicial review by a court of the requested Member State, that court must have access to the request for information addressed to the requested Member State by the requesting Member State. The relevant person does not, however, have a right of access to the whole of that request for information, which is to remain a secret document in accordance with Article 16 of Directive 2011/16. In order for that person to be given a full hearing of his case in relation to the lack of any foreseeable relevance of the requested information, it is sufficient, in principle, that he be in possession of the information referred to in Article 20(2) of that directive.

      (1)  OJ C 78, 29.2.2016.


title: Case T-65/04: Actionbrought on 13 February 2004 by Gela Sviluppo S.C.p.A.(in liquidation) against the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/70

         Action brought on 13 February 2004 by Gela Sviluppo S.C.p.A. (in liquidation) against the Commission of the European Communities
   (Case T-65/04)
   (2004/C 106/141)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 February 2004 by Gela Sviluppo S.C.p.A. (in liquidation), represented by Patrizio Menchetti, lawyer.
   The applicant claims that the Court should:

               —

               annul the Commission decision in the communication of 16 December 2003, ref. 116515 Regio E2/JHR/rs D(2003) 621494, refusing the application for payment of the balance of the financing of the global grant for Gela Sviluppo;

               —

               cancel the Commission decision reducing the financing of the global grant for Gela Sviluppo, Sicily 94-99 ERDF 98.05.26.001;

               —

               annul the Commission decision writing off the sum of EUR 2 348 580.42 from the balance sheet;

               —

               annul the Commission decision in the debit note for the sum of EUR 85 806.66, for repayment of the surplus paid;

               —

               if Article 6.2 of the Guidelines for the financial closure of operational assistance (1994—1999) of the Structural Funds adopted by Decision (ESA) 1999/1316 of 9/9/1999 is considered part of a decision within the meaning of Article 249 EC, annul that decision;

               —

               establish the non-contractual liability of the Commission with respect to failure to pay the final balance of the financing of the global grant for Gela Sviluppo, Sicily 94/99 ERDF 98.05.26.001, and order the Commission to compensate for damage under Article 235 EC and Article 288 ECin the sum of EUR 2 348 580.42, plus interest, or to an extent considered fair;

               —

               establish the breach of contract and the contractual liability of the Commission in relation to the agreement signed on 13.09.1999 by Gela Sviluppo and the European Commission, recognised by the Region of Sicily, and amended on 31.05.2002, also recognised by the Region of Sicily, declare that the sum of EUR 85 806.66 is not payable by the Commission, order the Commission to perform its contractual obligations with regard to the payment of the sum of EUR 2 262 777.76 or to compensate for damage in the same amount, or to an extent considered fair;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   The action relates to the Commission decision not to pay the final balance of the financing of the global grant for Gela Sviluppo, Sicily 94—99 ERDF 98.05.26.001, and to demand the sum already paid of EUR 85 806 66.
   The applicant pleads:

               —

               the Commission did not give an adequate statement of reasons for the decisions reducing the financing, or for Decision (ESA) 1999/1316 of 9.9.1999;

               —

               the Commission was in breach of the principle of due process because it refused to take action in relation to the applicant's request to be heard, and of the principles of legitimate expectations, proportionality and legal certainty concerning that reduction, and finally of essential procedural requirements in relation to the presentation of Decision (ESA) 1999/1316 of 9/9/1999;

               —

               unlawfulness of the method of calculation used by the Commission for the closure of the final balance;

               —

               the non-contractual liability of the Commission by reason of infringement of the principle of legitimate expectations, good administrative practice and the rules governing the management of the financing of the structural funds;

               —

               the contractual liability of the Commission in relation to the agreement signed by the Commission, Gela Sviluppo and the Region of Sicily, in breach of Articles 1453,1175 and 1375 of the Italian Civil Code.


title: Joined Cases C-408/15 P and C-409/15 P: Judgment of the Court (Sixth Chamber) of 24 November 2016 — Ackermann Saatzucht GmbH & Co. KG and Others (C-408/15 P), ABZ Aardbeien Uit Zaad Holding BV and Others (C-409/15 P) v European Parliament, Council of the European Union (Appeal — Action for annulment — Fourth paragraph of Article 263 TFEU — Right to bring an action — Locus standi — Act of individual concern to natural or legal persons by reason of ‘certain attributes which are peculiar to them’ — Regulation (EU) No 511/2014 — Measures concerning compliance by users in the Union with the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation — Regulation (EC) No 2100/94 — Limitation of the effects of Community plant variety rights — Breeders’ exemption)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/10

         Judgment of the Court (Sixth Chamber) of 24 November 2016 — Ackermann Saatzucht GmbH & Co. KG and Others (C-408/15 P), ABZ Aardbeien Uit Zaad Holding BV and Others (C-409/15 P) v European Parliament, Council of the European Union
   (Joined Cases C-408/15 P and C-409/15 P) (1)

   ((Appeal - Action for annulment - Fourth paragraph of Article 263 TFEU - Right to bring an action - Locus standi - Act of individual concern to natural or legal persons by reason of ‘certain attributes which are peculiar to them’ - Regulation (EU) No 511/2014 - Measures concerning compliance by users in the Union with the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation - Regulation (EC) No 2100/94 - Limitation of the effects of Community plant variety rights - Breeders’ exemption))
   (2017/C 030/09)
   Language of the cases: English

      Parties

      Appellants: Ackermann Saatzucht GmbH & Co.KG, Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG, Deutsche Saatveredelung AG, Ernst Benary, Samenzucht GmbH, Freiherr Von Moreau Saatzucht GmbH, Hybro Saatzucht GmbH & Co. KG, Klemm + Sohn GmbH & Co. KG, KWS Saat AG, Norddeutsche Pflanzenzucht Hans-Georg Lembke KG, Nordsaat Saatzuchts GmbH, Peter Franck-Oberaspach, P. H. Petersen Saatzucht Lundsgaard GmbH, Saatzucht Streng — Engelen GmbH & Co. KG, Saka Pflanzenzucht GmbH & Co. KG, Strube Research GmbH & Co. KG, Gartenbau und Spezialkulturen Westhoff GbR, W. von Borries-Eckendorf GmbH & Co. KG (C-408/15 P), ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV (C-409/15 P) (represented by: P. de Jong, E. Bertolotto, K. Claeyé, P. Vlaemminck and B. Van Vooren, avocats)

      Other parties to the proceedings: European Parliament (represented by: L. Visaggio, J. Rodrigues and R. van de Westelaken, acting as Agents), Council of the European Union (represented by: M. Simm and M. Moore, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeals;

               2.

               Orders Ackermann Saatzucht GmbH & Co. KG, Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG, Deutsche Saatveredelung AG, Ernst Benary, Samenzucht GmbH, Freiherr Von Moreau Saatzucht GmbH, Hybro Saatzucht GmbH & Co. KG, Klemm + Sohn GmbH & Co. KG, KWS Saat AG, Norddeutsche Pflanzenzucht Hans-Georg Lembke KG, Nordsaat Saatzuchts GmbH, Peter Franck-Oberaspach, P.H. Petersen Saatzucht Lundsgaard GmbH, Saatzucht Streng — Engelen GmbH & Co. KG, Saka Pflanzenzucht GmbH & Co. KG, Strube Research GmbH & Co. KG, Gartenbau und Spezialkulturen Westhoff GbR, W. von Borries-Eckendorf GmbH & Co. KG, ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV to pay the costs.

      (1)  OJ C 328, 5.10.2015.


title: Case T-21/09: Order of the General Court of 29 November 2010 — Eurotel v OHIM — DVB Project (DVB)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/57

         Order of the General Court of 29 November 2010 — Eurotel v OHIM — DVB Project (DVB)
   (Case T-21/09) (1)

   ()
   2011/C 30/101
   Language of the case: French
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 69, 21.3.2009.


title: Case T-367/17: Action brought on 09 June 2017 — Linak v EUIPO — ChangZhou Kaidi Electrical (Shape of electrically operated lifting column)

text:
               31.7.2017

               EN

               Official Journal of the European Union

               C 249/45

         Action brought on 09 June 2017 — Linak v EUIPO — ChangZhou Kaidi Electrical (Shape of electrically operated lifting column)
   (Case T-367/17)
   (2017/C 249/61)
   Language in which the application was lodged: English

      Parties

      Applicant: Linak A/S (Nordborg, Denmark) (represented by: V. von Bomhard and J. Fuhrmann, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: ChangZhou Kaidi Electrical Co. Ltd (Changzhou, China)

      Details of the proceedings before EUIPO

      Proprietor of the design at issue: Applicant

      Design at issue: Community design ‘Electrically operated lifting column’ — Community design No 101 159-0001

      Contested decision: Decision of the Third Board of Appeal of EUIPO of 21 March 2017 in Case R 1411/2015-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO and the intervener to pay the costs of the Applicant.

      Plea in law

               —

               Infringement of Article 6 of Regulation No 6/2002.


title: Case C-319/11: Reference for a preliminary ruling from the Förvaltningsrätten i Falun (Sweden) lodged on 27 June 2011 — Widex A/S v Skatteverket

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/29

         Reference for a preliminary ruling from the Förvaltningsrätten i Falun (Sweden) lodged on 27 June 2011 — Widex A/S v Skatteverket
   (Case C-319/11)
   2011/C 269/55
   Language of the case: Swedish

      Referring court

   Förvaltningsrätten i Falun

      Parties to the main proceedings

      Applicant: Widex A/S

      Defendant: Skatteverket

      Questions referred

               1.

               How is the expression ‘fixed establishment from which business transactions are effected’ to be interpreted in an assessment on the basis of the relevant provisions of European Union law? (1)

               2.

               Is a taxable person who has the seat of his economic activity in another Member State and whose activity consists inter alia of the manufacture and sale of hearing aids to be regarded, by virtue of carrying out research in audiology from a research division in Sweden, as having had a fixed establishment in Sweden from which business transactions have been effected where that person has acquired goods and services that were received and used at the research division in question in Sweden?

      (1)  Articles 170 and 171 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), Articles 1 and 2 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes –Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11).


title: Case C-295/05: Reference for a preliminary ruling from the Tribunal Supremo, Sala de lo Contencioso-Administrativo, by order of that court of 1 April 2005 in Asociación Nacional de Empresas Forestales v Transformación Agraria S.A (TRAGSA) and Administración del Estado

text:
               15.10.2005

               EN

               Official Journal of the European Union

               C 257/2

         Reference for a preliminary ruling from the Tribunal Supremo, Sala de lo Contencioso-Administrativo, by order of that court of 1 April 2005 in Asociación Nacional de Empresas Forestales v Transformación Agraria S.A (TRAGSA) and Administración del Estado
   (Case C-295/05)
   (2005/C 257/04)
   Language of the case: Spanish
   Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Supremo, Sala de lo Contencioso-Administrativo, (Supreme Court, Chamber for contentious administrative proceedings) of 1 April 2005, received at the Court Registry on 21 July 2005, for a preliminary ruling in the proceedings between Asociación Nacional de Empresas Forestales (National Association of Forestry Companies) and Transformación Agraria S.A (TRAGSA) and Administración del Estado on the following questions:

               1.

               Does Article 86(1) of the Treaty [establishing the European Community] permit a Member State to grant ex lege to a public undertaking a legal regime which allows it to execute public works without being subject to the general rules on the award of public contracts by tender, where there are no special circumstances of urgency or public interest, both below and above the financial threshold laid down by the European Directives in this regard?

               2.

               Is such a legal regime compatible with the provisions of Council Directives 93/36/EEC (1) and 93/37/EEC of 14 June 1993, (2) European Parliament and Council Directive 97/52/EC of 13 October 1997 (3) and Commission Directive 2001/78[/EC] (4) amending the three previous directives — legislation recently recast in European Parliament and Council Directive 2004/18/EC of 31 March 2004? (5)

               3.

               Are the statements contained in the judgment of the Court of Justice of the European [Communities] (6) of 8 May 2003 in Case C-349/97 Spain v Commission applicable in any event to TRAGSA and its subsidiaries, in the light of the rest of the case-law of the European Court regarding public procurement and in view of the fact that the Administration entrusts to TRAGSA a large number of works which are not subject to the rules governing free competition, and that this situation might cause considerable distortion of the relevant market?

      (1)  Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ L 199, p. 1).

      (2)  Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ L 199, p. 54).

      (3)  European Parliament and Council Directive 97/52/EC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively (OJ L 328, p. 1).

      (4)  Commission Directive 2001/78/EC of 13 September 2001 amending Annex IV to Council Directive 93/36/EEC, Annexes IV, V and VI to Council Directive 93/37/EEC, Annexes III and IV to Council Directive 92/50/EEC, as amended by Directive 97/52/EC, and Annexes XII to XV, XVII and XVIII to Council Directive 93/38/EEC, as amended by Directive 98/4/EC (Directive on the use of standard forms in the publication of public contract notices) (OJ L 285, p. 1).

      (5)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

      (6)  [2003] ECR I–3851.


title: Case T-399/08: Judgment of the Court of First Instance of 19 November 2009 — Clearwire Corporation v OHIM (CLEARWIFI) (Community trade mark — International registration designating the European Community — Word mark CLEARWIFI — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/26

         Judgment of the Court of First Instance of 19 November 2009 — Clearwire Corporation v OHIM (CLEARWIFI)
   (Case T-399/08) (1)

   (Community trade mark - International registration designating the European Community - Word mark CLEARWIFI - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))
   2010/C 11/50
   Language of the case: English

      Parties

      Applicant: Clearwire Corporation (Kirkland, Washington (United States)) (represented by: G. Konrad, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 30 June 2008 (R 706/2008-1) concerning the international registration, designating the European Community, of the sign CLEARWIFI.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Clearwire Corp. to pay the costs.

      (1)  OJ C 301, 22.11.2008.


title: Case T-735/14: Action brought on 24 October 2014 — Gazprom Neft v Council

text:
               15.12.2014

               EN

               Official Journal of the European Union

               C 448/35

         Action brought on 24 October 2014 — Gazprom Neft v Council
   (Case T-735/14)
   (2014/C 448/44)
   Language of the case: English

      Parties

      Applicant: Gazprom Neft OAO (Saint Petersburg, Russia) (represented by: L. Van den Hende and S. Cogman, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Article 4 of Council Decision 2014/512/CFSP of 31 July 2014;

               —

               annul Article 3 and paragraphs 3 and 4 of Article 4 of Council Regulation (EU) No 833/2014 of 31 July 2014; and

               —

               order the Council to pay the costs of the Applicant in the present proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging a breach of Article 296 TFEU.

                           —

                           The Applicant claims that contested CFSP Decision and the contested Regulation do not provide sufficient reasoning and therefore breach Article 296 TFEU.

               2.

               Second plea in law, alleging an inappropriate legal basis for the contested provisions.

                           —

                           The Applicant claims that Article 215 TFEU is an inappropriate legal basis for the contested provisions of the contested Regulation since there are insufficient links between the Applicant and (i) the Russian Government and (ii) the apparent objective that the sanctions seek to achieve. These principles should also govern the use of Article 29 TEU as a legal basis for restrictive measures against third countries.

               3.

               Third plea in law, alleging a breach of the principle of proportionality and of and fundamental rights.

                           —

                           The Applicant claims that the contested provisions are inconsistent with the principle of proportionality and fundamental rights. The contested provisions are a disproportionate interference with Applicant's freedom to conduct a business and the Applicant's right to property since they are not appropriate to achieve their objectives (and therefore are also not necessary) and, in any event, impose burdens that very significantly outweigh any possible benefits.


title: Case C-45/00: Reference for a preliminary ruling by the Supremo Tribunal Administrativo (Second Chamber) by judgment of that court of 26 May 1999 in the case of Sonae Turismo, SGPS, SA, against Fazenda Pública

text:
C 122/12                EN                      Official Journal of the European Communities                                           29.4.2000
Question 2                                                                 (1) May Article 10 of Council Directive 69/335/EEC (1) be
                                                                                relied on by a private individual in dealings with the State,
Does it have any bearing on the answer to Question 1 that it                    even if the latter has not transposed that directive into
can be assumed that the transferring company took out the                       national law?
loan in question with a view to reducing the net value of the
assets and liabilities to be transferred to the receiving company,
inasmuch as the loan proceeds are to remain in the transferring            (2) Must the operations referred to in Article 4(3) of Directive
company while the debt liability is transferred to the receiving                69/335/EEC be regarded as covered by the prohibition laid
company?                                                                        down in Article 10 of the same Community measure, in
                                                                                such a way as to preclude the collection, under the
                                                                                directive, not only of the tax on the raising of capital but
Question 3                                                                      also of any other levy, of whatever kind, in particular one
                                                                                that is a charge rather than a tax?
Does it have any bearing on the answer to Question 1 and/or
Question 2 that it can be assumed that the loan in question
was taken out with a view to making it possible for previous               (3) Must Articles 10 and 12(1)(e) of the same directive be
associates, as a step in a generation change within the                         interpreted as meaning that the fees payable for recordal in
undertaking, to finance the subscription of shares in the                       a (legally binding) commercial register public of resolutions
receiving company?                                                              increasing capital or amending statutes may not vary
                                                                                according to the amount of the increase and the amount
                                                                                of the capital, respectively?
Question 4
Must the provisions of the merger taxation directive, in                   (4) May such variations in the amount of the fee be regarded
particular Article 2(i) thereof, be understood as meaning that                  as depending, directly or indirectly, on the cost of the
it is contrary to those provisions for a condition to be imposed,               service provided?
before an arrangement can be treated as being covered by the
asset-transfer provisions of the directive, under which the
transferring company, the principal shareholders in person or
any other third party may not provide security for the benefit             (5) Does that cost include the salary of officials, agents or
of the receiving company, on the ground that it is indicated                    other public employees, expenses incurred in respect of
that the future cash requirements of the receiving company                      minor operations carried out free of charge, and a portion
are to be financed by working credit from a financial institution               of overheads (rent of premises, data-processing and com-
which wishes to obtain a lien on the shares of the receiving                    munications equipment, electricity, water and the like)
company?                                                                        attributable to registration operations?
(1) of 23 July 1990 on the common system of taxation applicable to
     mergers, divisions, transfers of assets and exchanges of shares       (6) Is it permitted, having regard to the abovementioned
     concerning companies of different Member States.                           articles of the said directive, to regard those variables
                                                                                deriving from increases of capital as a manifestation of
                                                                                standardised charges and, as such, authorised charges?
                                                                           (7) Is it permitted, having regard to the same provisions of the
                                                                                directive, for any fee to be charged in excess of the cost of
                                                                                the service? And if so, to what extent? If the excess were to
Reference for a preliminary ruling by the Supremo                               be manifest and unreasonable, could the amount of the
Tribunal Administrativo (Second Chamber) by judgment                            fees be reduced on an equitable basis?
of that court of 26 May 1999 in the case of Sonae Turismo,
               SGPS, SA, against Fazenda Pública
                           (Case C-45/00)
                                                                           (1) Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                               indirect taxes on the raising of capital (OJ English Special Edition,
                          (2000/C 122/19)
                                                                               1969(II) p. 412).
Reference has been made to the Court of Justice of the
European Communities by judgment of the Supremo Tribunal
Administrativo (Supreme Administrative Court) of 26 May
1999, which was received at the Court Registry on 14 February
2000, for a preliminary ruling in the case of Sonae Turismo,
SGPS, SA, against Fazenda Pública on the following questions:


title: Case T-437/15: Order of the General Court of 11 March 2016 — Eden Green Vivai Piante di Verdesca Giuseppe and Others v Commission (Action for annulment — Agriculture — Protective measures against pests of plants — Measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa — Regulatory act entailing implementing measures — Lack of individual concern — Inadmissibility)

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/45

         Order of the General Court of 11 March 2016 — Eden Green Vivai Piante di Verdesca Giuseppe and Others v Commission
   (Case T-437/15) (1)

   ((Action for annulment - Agriculture - Protective measures against pests of plants - Measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa - Regulatory act entailing implementing measures - Lack of individual concern - Inadmissibility))
   (2016/C 156/61)
   Language of the case: Italian

      Parties

      Applicants: Eden Green Vivai Piante di Verdesca Giuseppe (Copertino, Italy) and the 38 other applicants whose names are included in the Annex to the order (represented by: G. Manelli, lawyer)

      Defendant: European Commission (represented by: D. Bianchi and I. Galindo Martín, acting as Agents)

      Re:

   Action for annulment of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ 15 L 125, p. 3), and, in particular, Articles 6 and 9 thereof, read in conjunction with Annex I to that decision.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Eden Green Vivai Piante di Verdesca Giuseppe and the 38 other applicants whose names are included in the Annex are ordered to pay the costs, including those relating to the interlocutory proceedings.

      (1)  OJ C 328, 5.10.2015.


title: Case T-215/14: Order of the General Court of 30 November 2015 — Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo v Commission (Action for annulment — Replacement of the contested act during proceedings — Amendment of the form of order sought — Parallel action against the new decision — No need to adjudicate)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/53

         Order of the General Court of 30 November 2015 — Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo v Commission
   (Case T-215/14) (1)

   ((Action for annulment - Replacement of the contested act during proceedings - Amendment of the form of order sought - Parallel action against the new decision - No need to adjudicate))
   (2016/C 038/69)
   Language of the case: Polish

      Parties

      Applicants: Gmina Miasto Gdynia (Gdynia, Poland) (represented by: T. Koncewicz and K. Gruszecka-Spychała, lawyers) and Port Lotniczy Gdynia Kosakowo sp. Z o.o. (Gdynia) (represented initially by T. Koncewicz and K. Gruszecka-Spychała, and subsequently by P. Rosiak, lawyers)

      Defendant: European Commission (represented by: D. Grespan, S. Noë and A. Stobiecka-Kuik, acting as Agents)

      Intervener in support of the applicants: Republic of Poland (represented by: B. Majczyna, acting as Agent)

      Re:

   Initially, an application for the annulment of Commission Decision 2014/883/EU of 11 February 2014 on the measure SA.35388 (13/C) (ex 13/NN and ex 12/N) — Poland — Setting up the Gdynia-Kosakowo Airport (OJ 2014 L 357, p. 51), and, subsequently, an application for the annulment of Commission Decision (EU) 2015/1586 of 26 February 2015 on the measure SA.35388 (13/C) (ex 13/NN and ex 12/N) — Poland — Setting up the Gdynia-Kosakowo airport (OJ 2015 L 250, p. 165) replacing Decision 2014/883.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               The European Commission shall bear its own costs and shall pay the costs incurred by Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo sp. Z o.o. as regards the main proceedings.

               3.

               Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo shall bear their own costs and shall pay the costs incurred by the Commission as regards the proceedings for interim relief.

               4.

               The Republic of Poland shall bear its own costs.

      (1)  OJ C 175, 10.6.2014.


title: Case T-197/13: Action brought on 1 April 2013 — M.E.M. v OHIM (MONACO)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/51

         Action brought on 1 April 2013 — M.E.M. v OHIM (MONACO)
   (Case T-197/13)
   2013/C 156/93
   Language of the case: French

      Parties

      Applicant: MARQUES DE L’ÉTAT DE MONACO (M.E.M.) (Monaco, Monaco) (represented by: S. Arnaud, lawyer)

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

      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 29 January 2013 in Case R 113/2012-4;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: International registration designating the European Union of the word mark ‘MONACO’ for goods and services in Classes 9, 12, 14, 16, 18, 25, 28, 35, 38, 39, 41 and 43 — International registration designating the European Union No 1 069 254

      Decision of the Examiner: Partial refusal of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law:

               —

               First plea, alleging infringement of Articles 5, 7(1)(b) and (c) and 7(2) of Regulation No 207/2009

               —

               Second plea, alleging infringement of the law in the interpretation of distinctiveness

               —

               Third plea, alleging a manifest error in the assessment of distinctiveness

               —

               Fourth plea, alleging a failure to state reasons, insufficient reasoning or contradictory reasons for the refusal of registration for the goods in Class 9

               —

               Fifth plea, alleging the infringement of Article 75 of Regulation No 207/2009 and of Article 296 of the Treaty on the Functioning of the European Union and of Article 6 of the European Convention on Human Rights on the ground of insufficient reasoning


title: Case C-494/15: Request for a preliminary ruling from the Nejvyšší soud České republiky (Czech Republic) lodged on 21 September 2015 — Tommy Hilfiger Licensing LLC and Others v DELTA CENTER a.s.

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/17

         Request for a preliminary ruling from the Nejvyšší soud České republiky (Czech Republic) lodged on 21 September 2015 — Tommy Hilfiger Licensing LLC and Others v DELTA CENTER a.s.
   (Case C-494/15)
   (2015/C 414/20)
   Language of the case: Czech

      Referring court

   Nejvyšší soud České republiky

      Parties to the main proceedings

      Applicants: Tommy Hilfiger Licensing LLC, Urban Trends Trading B.V., RADO Uhren AG, Facton Kft., Lacoste S.A., Burberry Limited

      Defendant: DELTA CENTER a.s.

      Questions referred

               1)

               Is a person with a lease of premises in a market, who provides stalls and pitches on which stalls may be placed to individual market-traders for their use, an intermediary whose services are used by a third party to infringe an intellectual property right within the meaning of Article 11 of Directive 2004/48/EC (1) of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights?

               2)

               Is it possible to impose on a person with a lease of premises in a market, who provides stalls and pitches on which stalls may be placed to individual market-traders for their use, measures, as provided for in Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, under the same conditions as those formulated by the Court of Justice in its judgment of 12 July 2011 in Case C-324/09 L’Oréal and Others v eBay and Others with regard to the imposition of measures on the operators of an online marketplace?

      (1)  OJ L 157, 30.4.2004, p. 45.


title: Case C-304/06 P: Judgment of the Court (First Chamber) of 8 May 2008 — Eurohypo AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(b) — Word mark EUROHYPO — Absolute ground for refusal of registration — Trade mark devoid of any distinctive character)

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/4

         Judgment of the Court (First Chamber) of 8 May 2008 — Eurohypo AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-304/06 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 7(1)(b) - Word mark EUROHYPO - Absolute ground for refusal of registration - Trade mark devoid of any distinctive character)
   (2008/C 158/05)
   Language of the case: German
   Parties

      Appellant: Eurohypo AG (represented by: C. Rohnke and M. Kloth, Rechtsanwälte)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider and J. Weberndörfer, Agents)
   Re:
   Appeal against the judgment of the Court of First Instance (Third Chamber) of 3 May 2006 in Case T-439/04 Eurohypo AG v OHIM in which the Court of First Instance dismissed the action for annulment of the decision refusing to register the word mark EUROHYPO for services in Class 36 — Distinctive character of a mark which consists exclusively of signs or indications which may serve, in trade, to designate the characteristics of a service
   Operative part of the judgment
   The Court:

               1.

               Sets aside the judgment of the Court of First Instance of the European Communities of 3 May 2006 in Case T-439/04 Eurohypo v OHIM (EUROHYPO), inasmuch as the Court of First Instance of the European Communities held that the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) did not infringe Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 3288/94 of 22 December 1994, by refusing, in its decision of 6 August 2004 (Case R 829/2002-4), to register the term EUROHYPO as a Community trade mark for services in Class 36 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, corresponding to the following description: ‘financial affairs; monetary affairs; real estate affairs; provision of financial services; financing …’;

               2.

               Dismisses the action against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 August 2004 (Case R 829/2002-4);

               3.

               Orders Eurohypo AG to pay the costs of the proceedings at both instances.

      (1)  OJ C 224, 16.9.2006.


title: Case C-375/11: Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 15 July 2011 — Belgacom SA, Mobistar SA, KPN Group Belgium SA (formerly ‘Base’ ) v Etat belge

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/13

         Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 15 July 2011 — Belgacom SA, Mobistar SA, KPN Group Belgium SA (formerly ‘Base’) v Etat belge
   (Case C-375/11)
   2011/C 282/25
   Language of the case: French

      Referring court

   Cour constitutionnelle

      Parties to the main proceedings

      Applicants: Belgacom SA, Mobistar SA, KPN Group Belgium SA (formerly ‘Base’)

      Defendant: Etat belge

      Questions referred

               1.

               Do Articles 3, 12 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (1), as they currently apply, permit Member States to charge operators holding individual rights to use mobile phone frequencies for a period of fifteen years, in the context of authorisations to install and operate on their territory mobile phone networks issued under the scheme instituted under the former legal framework, a one-off fee for the renewal of their individual rights to use frequencies the amount of which, relating to the number of frequencies and months to which the rights of use relate, is calculated on the basis of the former one-off grant fee that was associated with the issue of the aforementioned authorisations, when that one-off fee is additional to both an annual charge for making frequencies available (intended first and foremost to cover the costs of making frequencies available while at the same time also partially reflecting the value of frequencies, the purpose of the one-off fee and the annual charge being to encourage optimal use of the frequencies) and a charge covering the cost of managing the authorisation?

               2.

               Do Articles 3, 12 and 13 of the same Authorisation Directive permit the Member States to charge operators hoping to acquire new rights to use mobile phone frequencies a one-off fee the amount of which is determined at auction on the assignment of frequencies, in order to reflect the value of frequencies, when that one-off fee is additional to both an annual charge for making frequencies available (intended first and foremost to cover the costs of making frequencies available while at the same time also partially reflecting the value of frequencies, the purpose of the one-off fee and the annual charge being to encourage optimal use of the frequencies) and an annual charge for the management of authorisations to install and operate mobile phone networks issued under the scheme instituted under the former legal framework?

               3.

               Does Article 14(2) of the same Authorisation Directive permit the Member States to charge mobile phone operators, in respect of the renewal of their individual rights to use mobile phone radiofrequencies, to which certain of them were already entitled, before the beginning of the renewal period, a one-off fee relating to the renewal of the rights to use frequencies they enjoyed before the renewal period, intended to encourage optimal use of the frequencies by way of reflecting their value, when that one-off fee is additional to both an annual charge for making frequencies available (intended first and foremost to cover the costs of making frequencies available while at the same time also partially reflecting the value of frequencies, the purpose of the one-off fee and the annual charge being to encourage optimal use of the frequencies) and an annual charge for the management of authorisations to install and operate mobile phone networks issued under the scheme instituted under the former legal framework?

               4.

               Does Article 14(1) of the same Authorisation Directive permit the Member States to add, as a condition of acquiring and renewing rights to use frequencies, a one-off fee that is determined at auction, without limit, when that one-off fee is additional to both an annual charge for making frequencies available (intended first and foremost to cover the costs of making frequencies available while at the same time also partially reflecting the value of frequencies, the purpose of the one-off fee and the annual charge being to encourage optimal use of the frequencies) and an annual charge for the management of authorisations to install and operate mobile phone networks issued under the scheme instituted under the former legal framework?

      (1)  OJ 2002 L 108, p. 21


title: Case C-424/14: Order of the Court (Seventh Chamber) of 30 September 2015 (request for a preliminary ruling from the Szekszárdi Közigazgatási és Munkaügyi Bíróság — Hungary) — Jácint Gábor Balogh v Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Articles 213 and 214 — Commencement of an activity not stated — Exemption scheme for small businesses — Penalty)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/13

         Order of the Court (Seventh Chamber) of 30 September 2015 (request for a preliminary ruling from the Szekszárdi Közigazgatási és Munkaügyi Bíróság — Hungary) — Jácint Gábor Balogh v Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága
   (Case C-424/14) (1)

   ((Reference for a preliminary ruling - VAT - Directive 2006/112/EC - Articles 213 and 214 - Commencement of an activity not stated - Exemption scheme for small businesses - Penalty))
   (2016/C 038/17)
   Language of the case: Hungarian

      Referring court

   Szekszárdi Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicant: Jácint Gábor Balogh

      Defendant: Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága

      Operative part of the order

               1.

               Article 213(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding national legislation requiring a taxable person to state when an economic activity commences where the proceeds of that activity do not exceed the threshold of the exemption scheme for small enterprises and the taxable person does not intend to carry out a taxable activity.

               2.

               EU law must be interpreted as not precluding an administrative fine from penalising the failure by a taxable person to comply with his obligation to state when an economic activity commences where the proceeds of that activity do not exceed the threshold of the exemption scheme for small thresholds. It is for the referring court to assess whether, in the case in the main proceedings, the penalty imposed is in conformity with the principle of proportionality.

      (1)  OJ C 439, 8.12.2014.


title: Case F-85/12: Action brought on 3 August 2012 — ZZ v Commission

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/35

         Action brought on 3 August 2012 — ZZ v Commission
   (Case F-85/12)
   2012/C 295/63
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, E. Marchal and S. Orlandi, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision to calculate accredited pension rights acquired before entry into service on the basis of the new General Implementing Provisions.

      Form of order sought

               —

               Annul the decision of 27 January 2012 to accredit the pension rights acquired by the applicant before his entry into service at the Commission pursuant to Article 11(2) of Annex VIII to the Staff Regulations;

               —

               to the extent necessary, annul the decision rejecting the applicant’s complaint of 2 May 2012 against the decision determining the accreditation in the European Union pension scheme of the applicant’s pension rights acquired before his entry into service;

               —

               order the Commission to pay the costs.


title: Case C-154/05: Reference for a preliminary ruling from the Rechtbank (District Court) Amsterdam by order of that court of 4 April 2005 in J.J. Kersbergen-Lap and D. Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/3

         Reference for a preliminary ruling from the Rechtbank (District Court) Amsterdam by order of that court of 4 April 2005 in J.J. Kersbergen-Lap and D. Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen
   (Case C-154/05)
   (2005/C 155/06)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by order of the Rechtbank (District Court) Amsterdam (Netherlands) of 4 April 2005, received at the Court Registry on 6 April 2005, for a preliminary ruling in the proceedings between J.J. Kersbergen-Lap and D. Dams-Schipper and Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen on the following question:
   ‘Must a benefit under the Wajong, listed in Annex IIa to Regulation No 1408/71 (1), be deemed to be a special non-contributory benefit, as referred to in Article 4(2)a of Regulation No 1408/71 with the result that only the coordinating provision introduced by Article 10a of Regulation No 1408/71 must be applied to persons such as the plaintiffs in the main proceedings and the Wajong benefit cannot therefore be paid to a person residing outside the Netherlands?’

      (1)  Council Regulation (EEC) No 1247/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving within the Community (OJ L 136, 19/05/1992 p. 1)


title: Case T-93/15: Action brought on 20 February 2015 — Navitar v OHIM — Elukuva (NaviTar)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/35

         Action brought on 20 February 2015 — Navitar v OHIM — Elukuva (NaviTar)
   (Case T-93/15)
   (2015/C 127/48)
   Language in which the application was lodged: English

      Parties

      Applicant: Navitar, Inc. (Rochester, United States) (represented by: J. Mattes, lawyer)

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

      Other party to the proceedings before the Board of Appeal: MTÜ Elukuva (Tallinn, Estonia)

      Details of the proceedings before OHIM

      Applicant: Applicant

      Trade mark at issue: Community word mark ‘NaviTar’ — Application for registration No 11 147 246

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 5 December 2014 in Case R 401/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs, including those incurred by the applicant before the Board of Appeal;

               —

               order MTÜ Elukuva to pay the costs, including those incurred by the applicant before the Board of Appeal, in case MTÜ Elukuva should become an intervening party in this case.

      Plea(s) in law

               —

               Infringement of Article 41(1) in conjunction with Article 8(1)(b) of Regulation No 207/2009.


title: Case C-553/09 P: Appeal brought on 23 December 2009 by BCS SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 28 October 2009 in Case T-137/08: BCS SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/26

         Appeal brought on 23 December 2009 by BCS SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 28 October 2009 in Case T-137/08: BCS SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-553/09 P)
   2010/C 51/42
   Language of the case: English

      Parties

      Appellant: BCS SpA (represented by: M. Franzosi, V. Jandoli, F. Santonocito, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Deere & Company

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the contested decisions;

               —

               declare the nullity of CTM ‘289;

               —

               order the counterpart to pay the costs.

      Pleas in law and main arguments

   The appellant submits that the contested judgment is vitiated by following errors in law:

               I.

               the Court of First Instance wrongfully interpreted Article 7 (1) (b) and 7 (3) CTMR (1), by claiming that the acquisition of distinctive character in a sign does not depend on its past and present exclusive use (moreover, said use has not been proven; rather, in the same decision, it is held to be denied in some countries);

               II.

               the CFI wrongfully applied the criteria set forth in the Community case-law for ascertaining the acquisition of distinctiveness, in violation of Article 7 (3) CTMR.

         Under I. the lack of exclusive use in other parts of the Community is proven by the statements made by third-parties in Denmark and Ireland. Indeed the lack of a univocal association between the green and yellow color combination and Deere is incompatible with the acknowledgement of distinctiveness acquired by the sign in these countries.
   Under II. BCS challenge the legal criteria applied by the CFI in relation to the evidence of secondary meaning, because they clash with the principles set forth in the longstanding case law of the Court of Justice. Indeed, the duration of use of the Deere trade mark, the market shares and the volume of sales cannot be regarded as elements sufficient — when taken individually — to prove the acquired secondary meaning. And in particular they cannot compensate for the lack of an opinion poll (or a contradictory result from third party declarations), as these are evidentiary parameters of a different nature.
   There the CFI erred in disregarding the direct proof of the absence of a distinctive character of CTM ‘289 in Ireland and Denmark.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, p. 1), replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version)
   OJ L 78, p. 1


title: Case T-283/17: Action brought on 15 May 2017 — SH v Commission

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/35

         Action brought on 15 May 2017 — SH v Commission
   (Case T-283/17)
   (2017/C 231/44)
   Language of the case: French

      Parties

      Applicant: SH (represented by: N. de Montigny, lawyer)

      Defendant: European Commission

      Form of order sought

   Declare the application admissible and well-founded,
   In consequence:

               —

               Hold that the third subparagraph of Article 2(2) of Annex VII to the Staff Regulations is unlawful;

               —

               Annul the decision of 13 July 2016 of the Office for the Administration and Payment of Individual Entitlements (‘the PMO’) and insofar as necessary, the decision expressly rejecting the claim of 3 February 2017;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, a plea of illegality raised against the decision of 13 July 2016, since it is based on the application of the third subparagraph of Article 2(2) of Annex VII to the Staff Regulations which infringes the prohibition on discrimination on grounds of nationality and/or birth, the principle of equal treatment, the right to education, the protection of children’s interests, the principle of proportionality and of legitimacy of any derogation from the rights enshrined in the Charter.

               2.

               Second plea in law, alleging an error of law and infringement of the principle of sound administration, in that the decision of 13 July 2016 is based on an unlawful provision of the Staff Regulations.


title: Case C-117/15: Judgment of the Court (Grand Chamber) of 31 May 2016 (request for a preliminary ruling from the Landgericht Köln — Germany) — Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA) (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Article 3(1) — Directive 2006/115/EC — Article 8(2) — Concept of ‘communication to the public’ — Installation of television sets by the operator of a rehabilitation centre making it possible for patients to watch television programmes)

text:
               8.8.2016

               EN

               Official Journal of the European Union

               C 287/10

         Judgment of the Court (Grand Chamber) of 31 May 2016 (request for a preliminary ruling from the Landgericht Köln — Germany) — Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA)
   (Case C-117/15) (1)

   ((Reference for a preliminary ruling - Intellectual property - Copyright and related rights - Directive 2001/29/EC - Article 3(1) - Directive 2006/115/EC - Article 8(2) - Concept of ‘communication to the public’ - Installation of television sets by the operator of a rehabilitation centre making it possible for patients to watch television programmes))
   (2016/C 287/13)
   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 eV (GEMA)

      Intervening parties: Gesellschaft zur Verwertung von Leistungsschutzrechten mbH (GVL)

      Operative part of the judgment

   In a case such as that in the main proceedings, in which it is alleged that the broadcast of television programmes by means of television sets that the operator of a rehabilitation centre has installed in its premises affects the copyright and related rights of a large number of interested parties, in particular, composers, songwriters and music publishers, but also performers, phonogramme producers and authors of literary works and their publishers, it must be determined whether such a situation constitutes a ‘communication to the public’, within the meaning of both Article 3(1) of 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 and Article 8(2) of 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 and in accordance with the same interpretive criteria. Furthermore, those two provisions must be interpreted as meaning that such a broadcast constitutes an act of ‘communication to the public’.

      (1)  OJ C 198, 15.6.2015.


title: Case C-394/00: Action brought on 25 October 2000 by the Commission of the European Communities against Ireland

text:
9.12.2000              EN                    Official Journal of the European Communities                                         C 355/17
Action brought on 25 October 2000 by the Commission                     The Commission claims that the Court should:
        of the European Communities against Ireland
                                                                        1.    declare that, by failing to adopt the laws, regulations
                         (Case C-394/00)                                      and administrative provisions needed to comply with
                                                                              Commission Directive 98/68/EC (1) of 10 September
                        (2000/C 355/33)                                       1998 laying down the standard document referred to in
                                                                              Article 9(1) of Council Directive 95/53/EC and certain
                                                                              rules for checks at the introduction into the Community
An action against Ireland was brought before the Court of                     of feedingstuffs from third countries, the Hellenic Repub-
Justice of the European Communities on 25 October 2000 by                     lic has failed to fulfil its obligations under the Treaty and
the Commission of the European Communities, represented                       that directive;
by Mr Götz zur Hausen, Legal Adviser, acting as agent, with
an address for service at the office of Carlos Gómez de la Cruz,
                                                                        2.    order the Hellenic Republic to pay the costs.
a member of the Legal Service of the Commission, Wagner
Centre, Kirchberg, Luxembourg.
The Applicant claims that the Court should:                             Pleas in law and main arguments
—     declare that by failing to adopt the laws, regulations            In accordance with the third paragraph of Article 249 of the
      or administrative provisions necessary to comply with             Treaty establishing the European Community, directives are
      Council Directive 96/82/EC of 9 December 1996 on the              binding, as to the result to be achieved, upon each Member
      control of major accident hazards involving dangerous             State to which they are addressed.
      substances (1), or in any event by failing to inform the
      Commission of those measures, Ireland has failed to fulfil
      its obligations under that Directive.                             Under the first paragraph of Article 10 of the Treaty, Member
                                                                        States are to take all appropriate measures, whether general or
—     order Ireland to pay the costs.                                   particular, to ensure fulfilment of the obligations arising out
                                                                        of the Treaty or resulting from action taken by the institutions
                                                                        of the Community.
Pleas in law and main arguments
                                                                        It is not disputed by the Hellenic Republic that it must adopt
Article 249 EC (ex Article 189 of the EC Treaty) under which            measures to comply with the abovementioned directive.
a directive shall be binding as to the result to be achieved,
upon each Member State, carries by implication an obligation
on the Member States to observe the period for compliance               The Commission records that until now the Hellenic Republic
laid down in the directive. That period expired on 3 February           has not adopted the appropriate measures to incorporate that
1999 without Ireland having enacted the provisions necessary            directive fully into Greek law.
to comply with the directive referred to in the conclusions of
the Commission.
                                                                        (1) OJ L 261, 24.9.1998, p. 32.
(1) OJ L 10, 14.1.1997, p. 13.
Action brought on 26 October 2000 by the Commission                     Action brought on 6 November 2000 by the Commission
of the European Communities against the Hellenic Repub-                 of the European Communities against the French Republic
                                lic
                                                                                (Case C-403/00)
                         (Case C-397/00)
                        (2000/C 355/34)                                                           (2000/C 355/35)
An action against the Hellenic Republic was brought before              An action against the French Republic was brought before the
the Court of Justice of the European Communities on 26 Octo-            Court of Justice of the European Communities on 6 November
ber 2000 by the Commission of the European Communities,                 2000 by the Commission of the European Communities,
represented by Maria Kondou-Durande, of its Legal Service,              represented by G. Berscheid, Legal Adviser, and A. Bordes, of
with an address for service in Luxembourg at the office of              its Legal Service, acting as Agents, with an address for service
Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,          in Luxembourg at the office of Carlos Gómez de la Cruz, of its
Kirchberg.                                                              Legal Service, Wagner Centre, Kirchberg.


title: Joined Cases C-400/09 and C-207/10: Judgment of the Court (First Chamber) of 28 July 2011 (references for a preliminary ruling from the Højesteret — Denmark) — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10) v Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme (Trade marks — Directive 89/104/EEC — Article 7(2) — Pharmaceutical products — Parallel imports — Repackaging of the product bearing the trade mark — New packaging indicating as the repackager the holder of the marketing authorisation on whose instructions the product was repackaged — Physical repackaging carried out by a separate undertaking)

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/2

         Judgment of the Court (First Chamber) of 28 July 2011 (references for a preliminary ruling from the Højesteret — Denmark) — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10) v Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme
   (Joined Cases C-400/09 and C-207/10) (1)

   (Trade marks - Directive 89/104/EEC - Article 7(2) - Pharmaceutical products - Parallel imports - Repackaging of the product bearing the trade mark - New packaging indicating as the repackager the holder of the marketing authorisation on whose instructions the product was repackaged - Physical repackaging carried out by a separate undertaking)
   2011/C 298/03
   Language of the case: Danish

      Referring court

   Højesteret

      Parties to the main proceedings

      Applicants: Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10)

      Defendants: Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme

      Re:

   References for a preliminary ruling — Højesteret — Interpretation of the Court’s judgments in Case C-232/94 MPA Pharma and in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others, and of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Repackaging of a medicinal product which was the subject of parallel importation — Parallel importer which is the holder of the marketing authorisation for an imported medicinal product and which indicates itself, on the new packaging, as being the repackager, notwithstanding the fact that the purchase and repackaging of the medicinal product were in fact carried out by a separate company

      Operative part of the judgment

   Article 7(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as not allowing the proprietor of a trade mark relating to a pharmaceutical product which is the subject of parallel imports to oppose the further marketing of that product in repackaged form on the sole ground that the new packaging indicates as the repackager not the undertaking which, on instructions, actually repackaged the product and holds an authorisation to do so, but the undertaking which holds the marketing authorisation for the product, on whose instructions the repackaging was carried out, and which assumes liability for the repackaging.

      (1)  OJ C 312, 19.12.2009.

      OJ C 179, 3.7.2010.


title: Case T-381/05: Action brought on  10 October 2005  — Di Bucci v Commission

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/24

         Action brought on 10 October 2005 — Di Bucci v Commission
   (Case T-381/05)
   (2006/C 10/48)
   Language of the case: French
   Parties

      Applicant: Vittorio Di Bucci (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the formal proposal of the Director General of the Legal Service to award him only four Directorate-General priority points for the 2004 promotion exercise, which was confirmed and made definitive by the Director General's decision rejecting his internal appeal;

               —

               annul the decision of the Director General of Personnel and Administration not to award him any ‘Promotion Committee for work done in the interests of the institution’ special priority points (‘PPCPs’) for the 2004 promotion exercise;

               —

               annul the decisions of the Director General of Personnel and Administration to award him a total of 20 points for the 2004 promotion exercise and a total of 40 points for the purpose of promotion to Grade A4 during that exercise; the list of officials granted PPCPs; the merit list of Grade A5 officials for the 2004 promotion exercise after Promotion Committees; the list of officials promoted to Grade A4 in the 2004 promotion exercise and, in any event, the decision not to enter his name in those lists;

               —

               annul, so far as may be necessary, the decision rejecting his complaint;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his action, the applicant advances pleas similar to those advanced in Case T-311/04 (1).

      (1)  OJ C 262, 23.10.2004, p. 44