title: Case C-129/99: Action brought on 15 April 1999 by the Federal Republic of Germany against the Commission of the European Communities

text:
C 188/14              EN                   Official Journal of the European Communities                                       3.7.1999
2. order the Hellenic Republic to pay the costs.                      Reference for a preliminary ruling from the Oberster
                                                                      Gerichtshof (Supreme Court), Austria, by order of that
                                                                      court of 30 March 1999 in the case of Johann Kappel v
Pleas in law and main arguments                                                 Pensionsversicherungsanstalt der Arbeiter
The Member States are required by the binding character of                                     (Case C-128/99)
the third paragraph of Article 189 and of Article 5 of the EC
Treaty to adopt the measures needed to transpose directives
into national law before the expiry of the period laid down for                                (1999/C 188/32)
that purpose and to communicate those measures immediately
to the Commission. That period expired on 30 June 1996
                                                                      Reference has been made to the Court of Justice of the
without the Hellenic Republic having communicated to the
                                                                      European Communities by an order of the Oberster Gerichtsh-
Commission the provisions transposing the directive at issue
                                                                      of (Supreme Court), Austria, of 30 March 1999, which was
into national law.
                                                                      received at the Court Registry on 15 April 1999, for a
                                                                      preliminary ruling in the case of Johann Kappel v Pensionsver-
(1) OJ No L 365, 31.12.1994, p. 10.                                   sicherungsanstalt der Arbeiter, on the following questions:
                                                                      1. Is Article 7(1)(a) of Directive 79/7/EEC (1) to be interpreted
                                                                           as allowing Member States to determine different pension-
                                                                           able ages only for pension rights which are granted
                                                                           exclusively on the basis of the risk of old age, or is that
                                                                           derogation applicable also to pension rights which are
                                                                           granted only from a specified age but in addition are
Appeal brought on 15 April 1999 by the Kingdom of                          granted only on account of invalidity (reduced capacity for
Sweden against the judgment delivered on 28 January                        work)?
1999 by the Second Chamber of the Court of First
Instance of the European Communities in Case T-264/97
between D, supported by the Kingdom of Sweden, and                    2. Is Article 7(1)(a) and (2) of Directive 79/7/EEC to be
              the Council of the European Union                            interpreted as allowing a Member State to alter a previously
                                                                           existing identical provision on pensionable age (in this case
                                                                           completion of the 55th year for men and women) after the
                       (Case C-125/99 P)                                   end of the transposition period, in such a way that a
                                                                           different pensionable age for men and women (in this case
                        (1999/C 188/31)                                    completion of the 57th year for men and the 55th year for
                                                                           women) is now determined?
An appeal against the judgment delivered on 28 January 1999
by the Second Chamber of the Court of First Instance of
the European Communities in Case T-264/97 between D,                  (1) OJ 1979 L 6, p. 24.
supported by the Kingdom of Sweden, and the Council of the
European Union was brought before the Court of Justice of
the European Communities on 15 April 1999 by the Kingdom
of Sweden, represented by Lotty Nordling, Legal Adviser, with
an address for service in Luxembourg at the Swedish Embassy,
2 Rue Heinrich Heine.
The appellant claims that the Court should:                           Action brought on 15 April 1999 by the Federal Republic
                                                                      of Germany against the Commission of the European
— set aside the judgment of the Court of First Instance and                                     Communities
    declare void the decision of the Council refusing to grant
    the benefits claimed by D;
                                                                                (Case C-129/99)
— order the Council to reimburse the costs incurred by
    Sweden in the proceedings before the Court of Justice.
                                                                                (1999/C 188/33)
Pleas in law and main arguments                                       An action against the Commission of the European Communi-
                                                                      ties was brought before the Court of Justice of the European
Disregard of Article 1 of Annex VII to the Staff Regulations, in      Communities on 15 April 1999 by the Federal Republic of
that a meaning has been applied to the expressions ‘married’          Germany, represented by Wolf-Dieter Plessing and Claus-
and ‘spouse’ which does not take into account the family              Dieter Quassowski, Bundesministerium der Finanzen, Postfach
situation and civil status of officials under the national            13 08, D-53003 Bonn.
legislation applicable to them, and inasmuch as officials living
in a situation of registered partnership are not treated in the
                                                                      The applicant claims that the Court should:
same way as married officials.
                                                                      •    annul the Commission Decision of 3 February 1999 —
                                                                           C(99)209 final — on the clearance of the accounts
 ---pagebreak--- 3.7.1999                EN                    Official Journal of the European Communities                                            C 188/15
     presented by the Member States in respect of the expendi-           (2) Must the operations referred to in Article 4(3) of Direc-
     ture for 1995 of the Guarantee Section of the European                   tive 69/335/EEC be regarded as covered by the prohibition
     Agricultural Guidance and Guarantee Fund (1) in so far as                laid down in Article 10 of the same Community measure,
     Article 2 thereof requires a contribution from Germany of                in such a way as to preclude the collection, under the
     DM 833 895.82 on account of non-compliance with                          directive, not only of the tax on the raising of capital but
     payment deadlines, rather than charging it to the EAGGF;                 also of any other levy, of whatever kind, in particular one
                                                                              that is a charge rather than a tax?
•    order the Commission to pay the costs.
                                                                         (3) Must Articles 10 and 12(1)(e) of the same directive be
                                                                              interpreted as meaning that the fees payable for entry
Pleas in law and main arguments                                               (prescribed by law) on the National Register of Legal
                                                                              Persons of increases of capital may not vary according to
— Lack of legal basis for charging a contribution of                          the amount of such increases?
     DM 2 237 238.60 to Budget heading B01-2122-007
     rather than the contribution of DM 1 403 342.78 calcu-              (4) May such variables also be regarded as a function of the
     lated by the German authorities, which was the correct                   cost of the service provided?
     figure especially in view of a reserve remaining from 1994
     of DM 2 447 802.54. In clearing the accounts for 1995,
     the Commission did not apply, or did not correctly apply,           (5) Does that cost include the salary of officials, agents or
     the reserve regulations in its working paper VT/458/93 -                 other public employees, expenses incurred in respect of
     Rev.4 of 30 September 1994.                                              minor operations carried out free of charge, and a portion
                                                                              of overheads (rent of premises, data-processing and com-
                                                                              munications equipment, electricity, water and the like)
— Infringement of the principle of the protection of legitimate               attributable to registration operations?
     expectations: The Commission’s conduct is in contradic-
     tion to its own conduct in connection with the clearance
     of accounts for 1994, when it recognised an initially               (6) Is it permitted, having regard to the abovementioned
     disputed payment as having been paid on time. The unused                 articles of the said directive, to regard those variables
     residual reserve amount resulting therefrom cannot be left               deriving from increases of capital as a manifestation of
     out of account by the Commission in the clearance of                     standardised charges and, as such, authorised charges?
     accounts for 1995.
                                                                         (7) It is permitted, having regard to the same provisions of the
— Infringement of the duty to state reasons under Article 190                 directive, for any fee to be charged in excess of the cost of
     of the EC Treaty.                                                        the service? And if so, to what extent? If the excess were to
                                                                              be manifest and unreasonable, could the amount of the
                                                                              fees be reduced on an equitable basis?
(1) Decision 1999/187/EC, OJ No L 61, 10.3.1999, p. 37.
                                                                         (1) Council Directive 69/335/EEC of 17 July 1969 concerning
                                                                             indirect taxes on the raising of capital (OJ English Special Edition,
                                                                             1969(II) p. 412).
Reference for a preliminary ruling by the Supremo
Tribunal Administrativo, Second Chamber, by judgment
of that court of 17 March 1999, in the case of IGI-
Investimentos Imobiliários, SA, and Fazenda Pública, both
            being both appellants and respondents
                                                                         Reference for a preliminary ruling by the Bundessozial-
                         (Case C-134/99)                                 gericht by order of that court of 24 February 1999 in the
                                                                         case of Ursula Elsen against Bundesversicherungsanstalt
                                                                                für Angestellte
                         (1999/C 188/34)
Reference has been made to the Court of Justice of the                                             (Case C-135/99)
European Communities by an judgment of the Second Chamb-
er of the Supremo Tribunal Administrativo (Supreme Adminis-                                        (1999/C 188/35)
trative Court) of 17 March 1999, which was received at the
Court Registry on 19 April 1999, for a preliminary ruling in
the case of IGI-Investimentos Imobiliários, SA, and Fazenda             Reference has been made to the Court of Justice of the
Púiblica, on the following questions:                                   European Communities by order of the Bundessozialgericht
                                                                         (Federal Social Court) of 24 February 1999, received at the
(1) May Articles 10 and 12 of Council Directive 69/335/EEC (1)           Court Registry on 19 April 1999, for a preliminary ruling in
     be relied on by a private individual in dealings with the           the case of Ursula Elsen against Bundesversicherungsanstalt
     State, even if the latter has not transposed that directive         für Angestellte (Federal Insurance Office for Clerical Staff) on
     into national law?                                                  the following question:


title: Reference for a preliminary ruling by the Højesteret by order of 3 June 1997 in the case of Centros Limited v. Erhvervs- og Selskabsstyrelsen (Case C-212/97)

text:
No C 228/8              EN                 Official Journal of the European Communities                                      26 . 7 . 97
        establishment of the CIS, to rely on Article 235              Reference for a preliminary ruling from the Landessozial
         (quod non), nevertheless, the legal basis of the             gericht Niedersachsen by order of that court of 22 May
        provisions relating to mutual assistance on request           1997 in the case of Paula Gomez-Rivero v. Bundesanstalt
         and spontaneous assistance should have been                       fur Arbeit, joined party: Federal Republic of Germany
        Article 100a . In Case C-300/89, the Court of                                           ( Case C-211/97)
        Justice held that an act may not have a dual legal
                                                                                ( 97/C 228/ 16 )
         basis where one of those bases corresponds to the
        cooperation procedure ( Article 189b of the EC
        Treaty) and the other requires unanimity, inasmuch            Reference has been made to the Court of Justice of the
         as that would undermine the very purpose of the              European Communities by an order of the Landessozial
        cooperation procedure, thereby divesting it of its            gericht Niedersachsen (Higher Labour Court, Lower
         substance,                                                   Saxony ) of 22 May 1997, which was received at the Court
                                                                      Registry on 4 June 1997, for a preliminary ruling in the
     — the Regulation lays down the organizational
                                                                      case of Paula Gomez-Rivero v. Bundesanstalt fiir Arbeit,
        measures needed for the requisite cooperation
         between them and the Commission, with a view to
                                                                      joined party: Federal Republic of Germany, on the
                                                                      following questions:
         ensuring the functioning of the internal market,
     — no other specific legal basis exists in the Treaty;            ( a ) Does the option by a person employed by a consular
        this would appear to be confirmed by the fact that                   post under the first sentence of Article 16 ( 2 ) of
         the Council has had recourse to Article 235                         Regulation ( EEC ) No 1408/71 H to be subject to the
         thereof.                                                            legislation of the sending Member State of which he is
                                                                             a national also have effect for his spouse, not
(') OJ No L 82, 22 . 3 . 1997, p . 1 .                                       employed by the consular service, who is also a
                                                                             national of the sending Member State,
                                                                             or
                                                                             is the legislation of the sending Member State
Reference for a preliminary ruling by the Verwaltungsge
richt Köln by order of that court of 6 May 1997 in the                       applicable to the spouse only if she herself also opts to
                                                                             be subject to it ?
case of Haydar Akman against the Oberkreisdirektor des
Rheinisch-Bergischen-Kreises, Joined party: Vertreter des
    öffentlichen Interesses beim Verwaltungsgericht Köln              ( b ) If the option by the national who is in the consular
                                                                             service also has effect for his spouse, does the
                         ( Case C-210/97 )
                                                                             effectiveness of the option to be subject to the
                           ( 97/C 228/15 )                                   legislation of the sending Member State presuppose
                                                                             the consent or other cooperation of the spouse who is
Reference has been made to the Court of Justice of the                       also affected thereby ?
European Communities by order of the Verwaltungsge
richt Koln (Administrative Court, Cologne ) of 6 May                  (') OJ , English Special Edition 1971 ( II ), p. 416 .
1997, received at the Court Registry on 2 June 1997, for a
preliminary ruling in the case of Haydar Akman against
the Oberkreisdirektor des Rheinisch-Bergischen-Kreises
( Chief Administrative Officer of the administrative district
Rheinisch-Bergischer-Kreis ), Joined party: Vertreter des             Reference for a preliminary ruling by the Hojesteret by
offentlichen Interesses beim Verwaltungsgericht Koln                  order of 3 June 1997 in the case of Centros Limited v.
( Representative of the Public Interest before the                                       Erhvervs- og Selskabsstyrelsen
Administrative Court, Cologne ), on the following
question:                                                                                ( Case C-212/97)
                                                                                ( 97/C 228/ 17 )
For a child of a Turkish worker to have the right to
extension of his residence permit, which, according to the
                                                                      Reference has been made to the Court of Justice of the
judgment of the Court of Justice in Case C-355/93 Eroglu
                                                                      European Communities by order of 3 June 1997 from the
v. Land Baden-Wiirttemberg ('), arises from the second
                                                                      Hojesteret ( Danish Supreme Court), which was received at
paragraph of Article 7 of Decision No 1/80 of the
                                                                      the Court Registry on 5 June 1997, for a preliminary
EEC-Turkey Association Council on the development of
the Association, must the employed parent still be resident           ruling in the case of Centros Limited v. Erhvervs- og
                                                                      Selskabsstyrelsen ( Trade and Companies Board) on the
in Germany, or even still be in an employment
                                                                      following question:
relationship, at the time when the child has completed his
course of vocational training, or is that provision
sufficiently complied with if the Turkish parent was legally          Is it compatible with Article 52 of the EC Treaty, in
employed at an earlier time for at least three years ?                conjunction with Articles 58 and 56 thereof, to refuse
                                                                      registration of a subsidiary of a company which has its
O [ 1994] ECR 1-5113 .                                                registered office in another Member State and has been
                                                                      lawfully founded with company capital of £ 100
                                                                       ( approximately Dkr 1 000 ) and established under the
 ---pagebreak--- 26 . 7. 97              EN                  Official Journal of the European Communities                                  No C 228/9
legislation of that Member State, where the company does               — by not providing for limit values for emissions for the
not itself carry on any business but it is desired to set up                 discharge of certain substances by industrial plant not
the subsidiary in order to carry on the entire business in                   listed under heading A of Annex II to the Directive,
the country in which the subsidiary is established, and
where, instead of incorporating a company in the latter                — by not transposing Article 3 ( 5 ) of the Directive
Member State, that procedure must be regarded as having                      concerning the reference method of analysis to be used
been employed in order to avoid paying in company                            in determining the presence of the substances referred
capital of not less than Dkr 200 000 ( at present Dkr                        to in Article 2 ( a ),
125 000 )?
                                                                       — by not transposing point 5 of heading A of Annex I to
                                                                             the Directive on the monitoring procedure to be
                                                                              instituted to check whether the discharges of the
                                                                             substances referred to in Article 2 ( a ) comply with the
                                                                             emission standards,
Action brought on 4 June 1997 by the Commission of the
  European Communities against the Portuguese Republic                 — by not drawing up any specific programme to avoid or
                          ( Case C-213/97 )                                  eliminate pollution arising from the sources of
                            ( 97/C 228/18 )                                   significant discharges which are specifically mentioned
                                                                              in Annex II,
An action against the Portuguese Republic was brought                  the defendant did not bring national law into line with the
before the Court of Justice of the European Communities                Directive, so that its transposition must be considered to
on 4 June 1997 by the Commission of the European                       be erroneous and incomplete .
Communities, represented by Francisco de Sousa Fialho,
of its Legal Service, acting as Agent, with an address for             O OJNoL 181 , 4 . 7. 1986 , p. 16 .
service in Luxembourg at the office of Carlos Gomez de la              ( 2 ) OJ No L 158 , 25 . 6 . 1988 , p . 35 .
Cruz, Wagner Centre, Kirchberg.                                        ( 3 ) OJ No L 129, 18 . 5 . 1976 , p . 23 .
The applicant claims that the Court should :
— declare that, by failing to adopt all the laws,
      regulations or administrative provisions necessary to            Action brought on 4 June 1997 by the Commission of the
      comply fully and properly with Council Directive 86/                 European Communities against the Portuguese Republic
      280/EEC (') of 12 June 1986, as amended by Council                                           ( Case C-214/97)
      Directive 88/347/EEC (2 ) of 16 June 1988 , on limit
      values and quality objectives for discharges of certain                                        ( 97/C 228/19 )
      dangerous substances included in List I of the Annex
      to Directive 76/464/EEC (3 ), the Portuguese Republic            An action against the Portuguese Republic was brought
      has failed to fulfil its obligations under the third             before the Court of Justice of the European Communities
      paragraph of Article 189 of the EC Treaty and                    on 4 June 1997 by the Commission of the European
      Articles 7 and 2 of Directives 86/280/EEC and 88/347/            Communities, represented by Francisco de Sousa Fialho,
      EEC respectively,                                                of its Legal Service, acting as Agent, with an address for
                                                                       service in Luxembourg at the office of Carlos Gomez de la
— declare, in the alternative, that, by failing forthwith to           Cruz, Wagner Centre, Kirchberg.
      inform the       Commission      of such measures,      the
      Portuguese Republic failed to fulfil its obligations             The applicant claims that the Court should:
      under those provisions,
                                                                       — declare that, by failing to adopt and bring into force
— order the Portuguese Republic to pay the costs.                             within the prescribed period the laws, regulations or
                                                                              administrative provisions necessary to comply with
                                                                              Council Directive 75/440/EEC of 16 June 1975
 Pleas in law and main arguments adduced in support:
                                                                              concerning the quality required of surface water
                                                                              intended for the abstraction of drinking water in the
 The Commission finds that the Portuguese Republic has                        Member States ( ! ), inasmuch as it did not draw up a
 failed to fulfil its obligations inasmuch as :                               systematic plan of action including a timetable for the
                                                                              improvement of surface water, the Portuguese
 — by providing, by virtue of Article 44 ( 3 ) of Decree                      Republic has failed to fulfil its obligations under the
      Law No 74/90, that the competent authorities for the                    third paragraph of Article 189 of the EC Treaty and
      granting of authorizations may fix emission standards                   the provisions of Directive 75/440/EEC,
      which are less stringent than those set out under
      heading A of the Annexes to the Directive and by not             — declare, in the alternative, that, by failing forthwith to
      providing for any mandatory review of such                               inform the Commission of such measures, the
      authorizations ( infringement of Article 3 ( 3 ) of the                  Portuguese Republic failed to fulfil its obligations
      Directive ),                                                             under those provisions,


               10.10.2013

               EN

               Official Journal of the European Union

               C 294/9

         Action brought on 3 July 2013 by the EFTA Surveillance Authority against Iceland
   (Case E-14/13)
   2013/C 294/09
   An action against Iceland was brought before the EFTA Court on 3 July 2013 by the EFTA Surveillance Authority, represented by Xavier Lewis, Gjermund Mathisen and Auður Ýr Steinarsdóttir, acting as Agents of the EFTA Surveillance Authority, 35 rue Belliard, 1040 Brussels, Belgium.
   The EFTA Surveillance Authority requests the EFTA Court to declare that:

               1.

               by maintaining in force a difference in treatment between domestic mergers and cross-border mergers as a result of the application of Article 51, paragraph 1 of Act No 90/2003 on Income Tax (lög nr. 90/2003 um tekjuskatt), Iceland has failed to fulfil its obligations arising from Articles 31 and 40 of the Agreement of the European Economic Area;

               2.

               Iceland shall bear the costs of these proceedings.

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

               —

               The present application by the EFTA Surveillance Authority addresses the failure by Iceland to fulfil its obligations as regards the freedom of establishment and the free movement of capital under Articles 31 and 40 of the Agreement on the European Economic Area (‘EEA Agreement’), by imposing an immediate tax on assets and shares of companies that merge cross-border with companies established in the other EEA States and on shareholders of such companies, whereas similar transactions within the Icelandic territory do not attract any immediate tax consequences.

               —

               The EFTA Surveillance Authority submits that this different treatment between domestic mergers and cross-border mergers is not justified and is, therefore, incompatible with Articles 31 and 40 of the EEA Agreement.


title: Case T-163/11: Action brought on 17 March 2011 — Cofra v OHIM — O2 (can do)

text:
               7.5.2011

               EN

               Official Journal of the European Union

               C 139/27

         Action brought on 17 March 2011 — Cofra v OHIM — O2 (can do)
   (Case T-163/11)
   2011/C 139/52
   Language in which the application was lodged: German

      Parties

      Applicant: Cofra Holding AG (Zug, Switzerland) (represented by: K.-U. Jonas and J. Bogatz, lawyers)

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

      Other party to the proceedings before the Board of Appeal: O2 Holdings Ltd (Slough, United Kingdom)

      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 10 January 2011 in Case R 246/2009-4;

               —

               Order the defendant and, if appropriate, the other party to the proceedings to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: O2 Holdings Ltd.

      Community trade mark concerned: Word mark ‘can do’ for goods and services in Classes 9, 16, 25, 35, 36, 38 and 43.

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

      Mark or sign cited in opposition: National figurative mark, including the word element ‘CANDA’, for goods in Class 25.

      Decision of the Opposition Division: Rejection of the opposition.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 15 and Article 42(2) of Regulation (EC) No 207/2009 (1) and of Rule 22 of Regulation (EC) No 2868/95, (2) in that the Board of Appeal applied criteria which are too narrow in assessing the proof of use sufficient to maintain the right and failed to have sufficient regard to the particular distribution situation in the applicant’s undertaking. Further, infringement of Article 76(2) of Regulation (EC) No 207/2009, in that the Board of Appeal wrongly failed to have regard to various documents submitted as proof of use sufficient to maintain the right in the opposing mark. Finally, infringement of Article 75(2) of Regulation (EC) No 207/2009, in that the Board of Appeal did not inform the applicant that it regarded the proof of use submitted as insufficient and did not provide the applicant with an opportunity of submitting further proof in oral proceedings.

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

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 2009 L 303, p. 1).


title: Case T-27/11: Action brought on 21 January 2011 — Rheinischer Sparkassen- und Giroverband v Commission

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/29

         Action brought on 21 January 2011 — Rheinischer Sparkassen- und Giroverband v Commission
   (Case T-27/11)
   2011/C 72/47
   Language of the case: German

      Parties

      Applicant: Rheinischer Sparkassen- und Giroverband (Düsseldorf, Germany) (represented by: A. Rosenfeld and I. Liebach, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               partially annul the Commission’s decision of 21 December 2010, C(2010) 9525 final, State aid, MC 8/2009 and C-43/2009 — Germany — WestLB, in so far as it rejected the application made by Germany on 28 October 2010 seeking to extend beyond 15 February 2011 the time-limit for the sale and disposal of the new operations of Westdeutsche Immobilienbank AG;

               —

               in the alternative, partially annul the Commission’s decision of 21 December 2010, C(2010) 9525 final, State aid, MC 8/2009 and C-43/2009 — Germany — West LB, in so far the Commission thereby implicitly decided that Germany had lodged only one single application seeking to extend up to 15 February 2011 the time-limit for the sale and disposal of the new operations of Westdeutsche Immobilienbank AG and, accordingly, that no decision on a further extension beyond that date was required;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The applicant puts forward five pleas in law in support of its action.
   1.   First plea in law: breach of the obligation to give reasons under the second paragraph of Article 296 TFEU
   The applicant submits in this respect that the Commission has not explained why it combined two applications submitted by Germany for an extension of the time-limit into one single application.
   The Commission has also not explained why the conditions for an extension of the time-limit under Article 2(2) of Commission Decision C(2009) 3900 final, corrected on 12 May 2009, on State aid which Germany seeks to grant in favour of restructuring WestLB AG (C-43/2008 [N 390/2008] (‘the decision of 12 May 2009’), are not met.
   2.   Second plea in law: errors of assessment and appraisal
   The applicant submits in this connection that, in relation to the grant of an extension of the time-limit, the Commission based its discretionary decision on an incorrect finding of fact. In the applicant’s opinion, the contested decision wrongly presupposes that the extension of the time-limit was requested only up to 15 February 2011, or implicitly finds that it was no longer necessary to decide on a further application for a longer period.
   The applicant also argues that the Commission made no use of the option to extend the time-limit expressly provided for in Article 2(2) of the decision of 12 May 2009, notwithstanding the fact that the conditions for so doing were met. Instead, the Commission relied on an unwritten sui generis right of extension which has no legal basis and the specific conditions of which are utterly vague.
   3.   Third plea in law: infringement of the principle of proportionality
   In this respect the applicant contends, inter alia, that the Commission’s decision on the cessation of the new operations of Westdeutsche Immobilienbank AG after 15 February 2011 is disproportionate to the disadvantages resulting from such cessation.
   4.   Fourth plea in law: infringement of the principle of equal treatment
   In this context the applicant maintains that, in other cases linked to the financial crisis, in which financial institutions were granted much greater aid, the Commission granted significantly longer time-limits for the sale of holdings and also property financing companies.
   5.   Fifth plea in law: breach of Article 41 of the Charter of Fundamental Rights of the European Union and of the principle of sound administration
   In the context of the fifth plea in law, the applicant claims that the Commission does not have the right to interpret and take a decision on applications made by a Member State in a manner which is at variance with their express wording, meaning and purpose.


title: Case C-380/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 21 August 2008 — ENI SpA v Ministero Ambiente e Tutela del Territorio e del Mare and Others

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/15

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 21 August 2008 — ENI SpA v Ministero Ambiente e Tutela del Territorio e del Mare and Others
   (Case C-380/08)
   (2008/C 301/28)
   Language of the case: Italian
   Referring court
   Tribunale Amministrativo Regionale per la Sicilia
   Parties to the main proceedings

      Applicant: ENI SpA

      Defendants: Ministero Ambiente e Tutela del Territorio e del Mare and Others
   Questions referred

               1.

               Does the Community directive on compensation for environmental damage (Directive 2004/35/EC (1) of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to require, as ‘reasonable methods of remedying environmental damage’, works on the environmental matrices (here, consisting of the construction of a physical barrier for the groundwater along the entire seafront) different from and supplementary to those selected in advance following special preliminary discussions with the parties, already approved, implemented or in the course of being implemented?

               2.

               Does the Community directive on compensation for environmental damage (Directive 2004/35/EC of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to impose such requirements ex officio, that is, without having assessed the site-specific conditions and the implementation costs in respect of the reasonably foreseeable benefits, the possible or probable collateral damage and adverse effects on public health and safety, and the necessary time scales for implementation?

               3.

               Does the Community directive on compensation for environmental damage (Directive 2004/35/EC of 21 April 2004 and, in particular, Article 7 and Annex II thereto) preclude national legislation which allows the authorities to impose such requirements ex officio as conditions for an authorisation for the lawful use of the areas not directly affected by the decontamination in so far as they have already been decontaminated or in any event were not polluted, included within the limits of the Priolo site of national interest?

      (1)  OJ 2004 L 143, p. 56.


C 289/20              EN                 Official Journal of the European Communities                                 13.10.2001
       Removal from the register of Case C-132/00 (1)               ruling from the Oberster Gerichtshof (Austria)): Kraft Jacobs
                                                                    Suchard Österreich GmbH v Eduard Mitsche and Others.
                       (2001/C 289/44)
                                                                    (1) OJ C 302 of 21.10.2000.
By order of 10 July 2001 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-132/00: Commission of the European
Communities v Hellenic Republic.
(1) OJ C 176 of 24.6.2000.
                                                                           Removal from the register of Case C-382/00 (1)
                                                                                (2001/C 289/48)
                                                                    By order of 27 July 2001 the President of the Court of Justice
                                                                    of the European Communities has ordered the removal from
       Removal from the register of Case C-191/00 (1)               the register of Case C-382/00: (reference for a preliminary
                                                                    ruling from the Juzgado de lo Social No 1 de Pontevedra):
                                                                    Gardenia Abal Pombo v Instituto Nacional de la Seguridad
                       (2001/C 289/45)                              Social and Tesoreria General de la Seguridad Social.
By order of 8 June 2001 the President of the Court of Justice       (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-191/00: Commission of the European
Communities v Italian Republic.
(1) OJ C 211 of 22.7.2000.
                                                                           Removal from the register of Case C-397/00 (1)
                                                                                (2001/C 289/49)
                                                                    By order of 11 July 2001 the President of the Court of Justice
       Removal from the register of Case C-306/00 (1)               of the European Communities has ordered the removal from
                                                                    the register of Case C-397/00: Commission of the European
                       (2001/C 289/46)                              Communities v Hellenic Republic.
By order of 30 May 2001 the President of the Court of Justice       (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-306/00: Commission of the European
Communities v Kingdom of the Netherlands.
(1) OJ C 285 of 7.10.2000.
                                                                           Removal from the register of Case C-401/00 (1)
                                                                                (2001/C 289/50)
                                                                    By order of 13 June 2001 the President of the Court of Justice
       Removal from the register of Case C-314/00 (1)               of the European Communities has ordered the removal from
                                                                    the register of Case C-401/00: Commission of the European
                                                                    Communities v Grand Duchy of Luxembourg.
                       (2001/C 289/47)
By order of 12 June 2001 the President of the Court of Justice      (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-314/00: (reference for a preliminary


title: Case F-28/10: Action brought on 7 May 2010 — Mioni v Commission

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/58

         Action brought on 7 May 2010 — Mioni v Commission
   (Case F-28/10)
   2010/C 179/102
   Language of the case: French

      Parties

      Applicant: Gaëtan Barthélémy Maxence Mioni (Brussels, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision terminating the payment of the expatriation allowance previously granted to the applicant.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the decision adopted by the authority authorised to conclude contracts (AACC) on 18 June 2009, by which the payment of the expatriation allowance which had been previously granted to the applicant, under Article 4 of Annex VII to the Staff Regulations, was terminated, and the decision adopted by the AACC on 28 January 2010 by which the complaint brought by the applicant on 2 October 2009 was rejected;

               —

               Order the European Commission to pay the costs.


title: Case C-266/11: Order of the President of the Court of 24 November 2011 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Dansk Funktionærforbund, Serviceforbundet, acting on behalf of Frank Frandsen v Cimber Air A/S

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/25

         Order of the President of the Court of 24 November 2011 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Dansk Funktionærforbund, Serviceforbundet, acting on behalf of Frank Frandsen v Cimber Air A/S
   (Case C-266/11) (1)

   2012/C 73/46
   Language of the case: Danish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 311, 22.10.2011.


title: Case C-530/13: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 8 October 2013 — Leopold Schmitzer v Bundesministerin für Inneres

text:
               18.1.2014

               EN

               Official Journal of the European Union

               C 15/3

         Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 8 October 2013 — Leopold Schmitzer v Bundesministerin für Inneres
   (Case C-530/13)
   2014/C 15/04
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Appellant: Leopold Schmitzer

      Respondent authority: Bundesministerin für Inneres

      Questions referred

               1.

               Does it constitute — for the moment notwithstanding Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of Council Directive 2000/78/EC (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘the directive’) — (direct) unequal treatment on grounds of age for the purposes of Article 21 of the Charter and Article 2(1) and (2)(a) of the directive if, upon the introduction of a non-discriminatory system of salary advancement for new civil servants, an old civil servant who suffered discrimination under the former legal situation (as a result of the ineligibility, for advancement purposes, of periods completed before the age of 18) may make a request to opt in to the new system and thereby obtain an advancement reference date calculated on a non-discriminatory basis, but the effect of granting such a request under national law is that, because of the slower advancement provided for in the new system, his remuneration status (and thus ultimately the salary payable to him) does not improve, despite the improvement of the advancement reference date, to such an extent that he acquires the same remuneration status as an old civil servant afforded favourable treatment in a discriminatory manner under the former legal situation (who is not required to demonstrate comparable periods before, but after the age of 18, which were already credited to him under the former legal situation) who does not feel compelled to opt in to the new system?

               2.

               If so, may a civil servant — in the absence of a justification in accordance with Article 52(1) of the Charter and Article 6 of the directive (see in particular Question 3 below) — rely on the direct applicability of Article 21 of the Charter and Article 2 of the directive in proceedings to determine remuneration status even if he has previously obtained an improvement of the advancement reference date in the new system by making a request to that effect?

               3.

               If Question 1 is answered in the affirmative, is a distinction, which continues to be maintained upon the introduction of a non-discriminatory system for new civil servants, in respect of the remuneration status of old civil servants who are afforded favourable treatment and who do not opt in, on the one hand, and old civil servants who still suffer discrimination despite opting in, on the other, justified in accordance with Article 52(1) of the Charter and Article 6 of the directive, as a transitional phenomenon, on grounds of procedural economy, or protection of established advantages or legitimate expectations even where

                           (a)

                           the national legislature is not, in regulating the advancement system, required to obtain the approval of parties to the collective bargaining agreement and is obliged merely to act within the fundamental limits of the principle of protection of legitimate expectations, which does not necessitate the full protection of established advantages in the form of the complete retention of the earlier system for old civil servants who are afforded favourable treatment and who do not opt in;

                           (b)

                           the national legislature would also have been free, in this connection, to establish equality among old civil servants by crediting periods before the age of 18 whilst retaining the earlier rules on advancement for old civil servants who previously suffered discrimination;

                           (c)

                           the associated administrative burden would be considerable on account of the large number of requests to be expected but, as far as its expenditure is concerned, does not come anywhere near the total amount of earnings lost and to be lost in future by the civil servants who suffer discrimination in comparison with the civil servants who are afforded favourable treatment;

                           (d)

                           the transitional periods with the continued existence of unequal treatment between old civil servants last many decades and will also affect the vast majority of all civil servants for a very long time (as a result of the general ‘freeze on recruitment’ of new civil servants in a public-law employment relationship);

                           (e)

                           there was a retroactive introduction of the system that impaired, to the detriment of the civil servant, the legal situation which had to be implemented, having regard to the primacy of EU law, at least between 1 January 2004 and 30 August 2010 and was more favourable to the civil servant, which the civil servant had requested be applied to his case even before the amending law was adopted?

                     If Questions 1 or 2 are answered in the negative or Question 3 is answered in the affirmative:

               4.

                           (a)

                           Does legislation which provides for a longer advancement period for periods of employment at the beginning of the career and thus makes advancement to the next salary grade more difficult constitute indirect unequal treatment on grounds of age?

                           (b)

                           If so, is it appropriate and necessary in the light of the small amount of professional experience at the beginning of the career?

                     If Question 3 is answered in the affirmative:

               5.

                           (a)

                           Does legislation which credits the full value of ‘other periods’ for up to three years, and half the value of such periods for up to a further three years, even where they are not for the purposes of either school education or gaining professional experience, constitute discrimination on grounds of age?

                           (b)

                           If so, is it justified in order to avoid a deterioration in the remuneration status of civil servants (who clearly also include new civil servants) who do not have suitable eligible periods before the age of 18 even though eligibility also covers other periods after the age of 18?

               6.

               If Question 4(a) is answered in the affirmative and Question 4(b) is answered in the negative and, at the same time, Question 3 is answered in the affirmative or Question 5(a) is answered in the affirmative and Question 5(b) in the negative:
               Do the discriminatory characteristics of the new rules which then exist mean that the unequal treatment of old civil servants is no longer justified as a transitional phenomenon?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case C-625/11 P: Judgment of the Court (Fourth Chamber) of 26 September 2013 — Polyelectrolyte Producers Group GEIE (PPG), SNF SAS v European Chemicals Agency (ECHA), Kingdom of the Netherlands, European Commission (Appeal — European Chemicals Agency (ECHA) — Registration, evaluation and authorisation of chemical substances — Regulation (EC) No 1907/2006 (REACH Regulation) — Articles 57 and 59 — Substances subject to authorisation — Identification of acrylamide as a substance of very high concern — Inclusion on the candidate list of substances — Publication — Time-limit for instituting proceedings — Article 102(1) of the Rules of Procedure of the General Court — Date from which that time limit must be calculated in the case of an action brought against a decision published only on the internet — Legal certainty — Effective judicial protection)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/16

         Judgment of the Court (Fourth Chamber) of 26 September 2013 — Polyelectrolyte Producers Group GEIE (PPG), SNF SAS v European Chemicals Agency (ECHA), Kingdom of the Netherlands, European Commission
   (Case C-625/11 P) (1)

   (Appeal - European Chemicals Agency (ECHA) - Registration, evaluation and authorisation of chemical substances - Regulation (EC) No 1907/2006 (REACH Regulation) - Articles 57 and 59 - Substances subject to authorisation - Identification of acrylamide as a substance of very high concern - Inclusion on the candidate list of substances - Publication - Time-limit for instituting proceedings - Article 102(1) of the Rules of Procedure of the General Court - Date from which that time limit must be calculated in the case of an action brought against a decision published only on the internet - Legal certainty - Effective judicial protection)
   2013/C 344/26
   Language of the case: English

      Parties

      Appellants: Polyelectrolyte Producers Group GEIE (PPG), SNF SAS (represented by: R. Cana and K. Van Maldegem, avocats)

      Other parties to the proceedings: European Chemicals Agency (ECHA) (represented by: M. Heikkilä and W. Broere, acting as Agents, assisted by J. Stuyck, advocaat), Kingdom of the Netherlands (represented by: C. Wissels and B. Koopman, acting as Agents), European Commission (represented by: P. Oliver and E. Manhaeve, acting as Agents)

      Re:

   Appeal brought against the order of the General Court (Seventh Chamber) of 21 September 2011 in Case T-268/10 PPG and SNF v ECHA, dismissing as inadmissible an action for annulment of the Decision of the European Chemicals Agency (ECHA) of 30 March 2010, identifying acrylamide (EC No 201-173-7) (CAS No 79 06 1) as a substance fulfilling the criteria referred to in Article 57 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006, concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1), and including acrylamide in the list of substances identified with a view to future inclusion in Annex XIV to that regulation (list of substances subject to authorisation), in accordance with Article 59 thereof — Period allowed for commencing proceedings — Point from which time starts to run — Act published only on the internet

      Operative part of the judgment

   The Court:

               1.

               Sets aside the order of the General Court of the European Union of 21 September 2011 in Case T-268/10 PPG and SNF v ECHA;

               2.

               Refers the present case back to the General Court of the European Union;

               3.

               Reserves the costs.

      (1)  OJ C 25, 28.1.2012.


title: Case C-360/13: Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 27 June 2013 — Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/28

         Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 27 June 2013 — Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others
   (Case C-360/13)
   2013/C 260/50
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Applicant: Public Relations Consultants Association Ltd

      Defendant: The Newspaper Licensing Agency Ltd and others

      Questions referred

   In circumstances where:

               (i)

               an end-user views a web-page without downloading, printing or otherwise setting out to make a copy of it;

               (ii)

               copies of that web-page are automatically made on screen and in the internet ‘cache’ on the end-user’s hard disk;

               (iii)

               the creation of those copies is indispensable to the technical processes involved in correct and efficient internet browsing;

               (iv)

               the screen copy remains on screen until the end-user moves away from the relevant web-page, when it is automatically deleted by the normal operation of the computer;

               (v)

               the cached copy remains in the cache until it is overwritten by other material as the end-user views further web-pages, when it is automatically deleted by the normal operation of the computer; and

               (vi)

               the copies are retained for no longer than the ordinary processes associated with internet use referred to at (iv) and (v) above continue;

         Are such copies (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process within the meaning of Article 5(1) of Directive 2001/29/EC (1)?

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


title: Case T-352/08: Order of the General Court of 12 July 2013 — Pannon Hőerőmű v Commission

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/51

         Order of the General Court of 12 July 2013 — Pannon Hőerőmű v Commission
   (Case T-352/08) (1)

   2013/C 260/91
   Language of the case: Hungarian
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 285, 8.11.2008.


title: Case C-224/07: Judgment of the Court (Sixth Chamber) of 8 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2004/49/EC — Safety on the Community's railways — Incomplete transposition)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/23

         Judgment of the Court (Sixth Chamber) of 8 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-224/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2004/49/EC - Safety on the Community's railways - Incomplete transposition)
   (2007/C 315/40)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: N. Yerrell and P. Dejmek, Agents)

      Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (OJ 2004 L 164, p. 44 and corrigendum OJ 2004 L 220, p. 16)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to bring into force all the laws, regulations and administrative provisions necessary to comply with Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

               2.

               Orders the Grand Duchy of Luxembourg to pay the costs.

      (1)  OJ C 155, 7.7.2007.


title: Case C-299/12: Judgment of the Court (Ninth Chamber) of 18 July 2013 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Green Swan Pharmaceuticals CR, a.s. v Státní zemědělská a potravinářská inspekce, ústřední inspektorát (Consumer protection — Regulation (EC) No 1924/2006 — Nutrition and health claims made on foods — Article 2(2)(6) — ‘Reduction of disease risk claim’ — Article 28(2) — Products bearing trade marks or brand names — Transitional measures)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/17

         Judgment of the Court (Ninth Chamber) of 18 July 2013 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Green Swan Pharmaceuticals CR, a.s. v Státní zemědělská a potravinářská inspekce, ústřední inspektorát
   (Case C-299/12) (1)

   (Consumer protection - Regulation (EC) No 1924/2006 - Nutrition and health claims made on foods - Article 2(2)(6) - ‘Reduction of disease risk claim’ - Article 28(2) - Products bearing trade marks or brand names - Transitional measures)
   2013/C 260/29
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: Green Swan Pharmaceuticals CR, a.s.

      Defendant: Státní zemědělská a potravinářská inspekce, ústřední inspektorát

      Re:

   Request for a preliminary ruling — Nejvyšší správní soud — Intrepretation of Article 1(3), Article 2(2)(6) and Article 28(2) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9) — ‘Reduction of disease risk claim’ — Claim on the packaging of a product, stating that ‘the preparation also contains calcium and Vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures’

      Operative part of the judgment

               1.

               Article 2(2)(6) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, must be interpreted as meaning that, in order to be considered a ‘reduction of disease risk claim’ within the meaning of that provision, a health claim need not necessarily expressly state that the consumption of a category of food, a food or one of its constituents ‘significantly’ reduces a risk factor in the development of a human disease.

               2.

               Article 28(2) of Regulation No 1924/2006, as amended by Regulation No 116/2010, must be interpreted as meaning that a commercial communication appearing on the packaging of a food may constitute a trade mark or brand name, within the meaning of that provision, provided that it is protected, as a mark or as a name, by the applicable legislation. It is for the national court to ascertain, having regard to all the legal and factual considerations of the case before it, whether that communication is indeed a trade mark or brand name thus protected.

               3.

               Article 28(2) of Regulation No 1924/2006, as amended by Regulation No 116/2010, must be interpreted as referring only to foods bearing a trade mark or brand name which must be considered a nutrition or health claim within the meaning of that regulation and which, in that form, existed before 1 January 2005.

      (1)  OJ C 273, 8.9.2012.


title: Case C-289/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) v Bundesrepublik Deutschland, Third party: Deutsche Post AG

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/7

         Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) v Bundesrepublik Deutschland, Third party: Deutsche Post AG
   (Case C-289/06)
   (2006/C 261/13)
   Language of the case: German
   Referring court
   Verwaltungsgericht Köln
   Parties to the main proceedings

      Applicant: Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG)

      Defendant: Bundesrepublik Deutschland

      Third party: Deutsche Post AG
   Question referred
   Is Article 47(2), in conjunction with Article 95 EC, the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC, in the version as amended by Directive 2002/39/EC of the European Parliament and of the Council (1), to be interpreted as meaning that, where a universal service provider applies special tariffs for business customers who give postal items to the sorting office pre-sorted for the postal network, that universal service provider is obliged to apply those special tariffs also to undertakings which collect postal items from the sender and give them pre-sorted for the postal network at the same access point and on the same terms and conditions as business customers, without the universal service provider being permitted to refuse to do so, having regard to its obligation to provide a universal service?

      (1)  OJ 2002 L 176, p. 21.


title: Case C-13/07: Action brought on 18 January 2007 — Commission of the European Communities v Council of the European Union

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/22

         Action brought on 18 January 2007 — Commission of the European Communities v Council of the European Union
   (Case C-13/07)
   (2007/C 56/40)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: P.J. Kuijper and M. Huttunen, Agents)

      Defendant: Council of the European Union
   The applicant claims that the Court should:

               —

               annul the decision of the Council and the Member States establishing the Community's and the Member States' position within the General Council of the World Trade Organization on the accession of the Socialist Republic of Viet Nam to the World Trade Organization (COM/2005/0659 final-ACC 2006/0215);

               —

               declare that the effects of the annulled decision are definitive;

               —

               order Council of the European Union to pay the costs.

         Pleas in law and main arguments
   The proposal submitted by the Commission was based on article 133, paragraphs 1 and 5 of the EC Treaty in conjunction with the second subparagraph of article 300(2) thereof. The Council added article 133(6) to the legal basis and consequently a formally separate decision of the Representatives of the Governments of Member States meeting within the Council was adopted. Thus, the Council and the Member States adopted ‘jointly’ the position of the Community and its Member States as foreseen by the last sentence of article 133(6), second subparagraph.
   The Commission's choice of the legal basis was decided according to the parameters established by the case-law of the Court of Justice of the European Communities, which are the aim and the content of the act. In particular, it was based on the appreciation that the content of the act falls within article 133(1) and (5), which establishes an exclusive competence, and that consequently recourse to article 133(6) was not necessary. The Commission believes that the decision should be annulled as far as this aspect of its legal basis is concerned.


               30.4.2004

               EN

               Official Journal of the European Union

               C 118/35

         Removal from the register of Case C- 392/03 (1)

   (2004/C 118/72)
   By order of 19 March 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-392/03: Commission of the European Communities v Italian Republic.

      (1)  OJ C 264 of 1.11.2003.


title: Case T-563/15: Judgment of the General Court of 13 September 2016 — Paglieri Sell System v EUIPO (APOTEKE) (European Union trade mark — Application for figurative mark APOTEKE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/41

         Judgment of the General Court of 13 September 2016 — Paglieri Sell System v EUIPO (APOTEKE)
   (Case T-563/15) (1)

   ((European Union trade mark - Application for figurative mark APOTEKE - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009))
   (2016/C 392/53)
   Language of the case: Italian

      Parties

      Applicant: Paglieri Sell System SpA (Pozzolo Formigaro, Italy) (represented by: P. Pozzi and F. Braga, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: K. Doherty and L, Rampini, acting as Agents)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 July 2015 (Case R 2428/2014-5) concerning an application for registration of the figurative sign APOTEKE as a European Union trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Paglieri Sell Systems SpA to pay the costs.

      (1)  OJ C 371, 9.11.2015.


title: Case C-431/04: Judgment of the Court (Second Chamber) of  4 May 2006  (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Massachusetts Institute of Technology (Patent law — Medicinal products — Regulation (EEC) No 1768/92 — Supplementary protection certificate for medicinal products — Concept of  combination of active ingredients )

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/8

         Judgment of the Court (Second Chamber) of 4 May 2006 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Massachusetts Institute of Technology
   (Case C-431/04) (1)

   (Patent law - Medicinal products - Regulation (EEC) No 1768/92 - Supplementary protection certificate for medicinal products - Concept of ‘combination of active ingredients’)
   (2006/C 165/14)
   Language of the case: German
   Referring court
   Bundesgerichtshof (Germany)
   Parties to the main proceedings

      Applicant: Massachusetts Institute of Technology
   Re:
   Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 1(b) of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (OJ 1992 L 182, p. 1) — Concept of ‘combination of active ingredients of a medicinal product’ — Medicinal product composed of an active ingredient and an excipient, which constitutes a necessary form of administration of the active ingredient in order to avoid toxic effect
   Operative part of the judgment
   Article 1(b) of Council Regulation No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, in the version resulting from the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted so as not to include in the concept of ‘combination of active ingredients of a medicinal product’ a combination of two substances, only one of which has therapeutic effects of its own for a specific indication, the other rendering possible a pharmaceutical form of the medicinal product which is necessary for the therapeutic efficacy of the first substance for that indication.

      (1)  OJ C 300, 4.12.2004.


title: Case C-137/09: Judgment of the Court (Second Chamber) of 16 December 2010 (reference for a preliminary ruling from the Raad van State (Netherlands)) — Marc Michel Josemans v Burgemeester van Maastricht (Freedom to provide services — Free movement of goods — Principle of non-discrimination — Measure adopted by a local public authority which restricts access to coffee-shops to Netherlands residents — Marketing of ‘soft’ drugs — Marketing of non-alcoholic beverages and of food — Objective of combating drug tourism and the accompanying public nuisance — Public order — Protection of public health — Coherence — Proportionality)

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/6

         Judgment of the Court (Second Chamber) of 16 December 2010 (reference for a preliminary ruling from the Raad van State (Netherlands)) — Marc Michel Josemans v Burgemeester van Maastricht
   (Case C-137/09) (1)

   (Freedom to provide services - Free movement of goods - Principle of non-discrimination - Measure adopted by a local public authority which restricts access to coffee-shops to Netherlands residents - Marketing of ‘soft’ drugs - Marketing of non-alcoholic beverages and of food - Objective of combating drug tourism and the accompanying public nuisance - Public order - Protection of public health - Coherence - Proportionality)
   2011/C 55/09
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: Marc Michel Josemans

      Defendant: Burgemeester van Maastricht

      Re:

   Reference for a preliminary ruling — Raad van State — Interpretation of Articles 12 EC, 18 EC, 29 EC and 49 EC — Drug tourism — General municipal regulation prohibiting the admission of non-residents to coffee-shops selling narcotic drugs — Public order — Different treatment

      Operative part of the judgment

               1.

               In the course of marketing narcotic drugs which are not distributed through channels strictly controlled by the competent authorities with a view to use for medical or scientific purposes, a coffee-shop proprietor may not rely on Articles 12 EC, 18 EC, 29 EC or 49 EC to object to municipal rules, such as those at issue in the main proceedings, which prohibit the admission of persons who are non-resident in the Netherlands to such establishments. As regards the activity of marketing non-alcoholic beverages and food in those establishments, Article 49 EC et seq. may be relied on by such a proprietor.

               2.

               Article 49 EC must be interpreted as meaning that rules such as those at issue in the main proceedings constitute a restriction on the freedom to provide services laid down by the EC Treaty. That restriction is, however, justified by the objective of combating drug tourism and the accompanying public nuisance.

      (1)  OJ C 141, 20.06.2009.


title: Case T-506/09: Order of the General Court of 6 September 2010 — Carlyle v OHIM — MRP Consult (THE CARLYLE)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/66

      Order of the General Court of 6 September 2010 — Carlyle v OHIM — MRP Consult (THE CARLYLE)
      (Case T-506/09) (1)

      ()
      (2010/C 288/122)
      Language of the case: English
      The President of the Sixth Chamber has ordered that the case be removed from the register.

         (1)  OJ C 51, 27.2.2010.


title: Case C-379/15: Request for a preliminary ruling from the Conseil d’État (France) lodged on 16 July 2015 — Association France Nature Environnement v Premier ministre, Ministre de l’écologie, du développement durable et de l’énergie

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/5

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 16 July 2015 — Association France Nature Environnement v Premier ministre, Ministre de l’écologie, du développement durable et de l’énergie
   (Case C-379/15)
   (2015/C 337/06)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Association France Nature Environnement

      Defendants: Premier ministre, Ministre de l’écologie, du développement durable et de l’énergie

      Questions referred

               1)

               Should a national court, exercising its general jurisdiction under EU law, in all cases request a preliminary ruling from the Court of Justice of the European Union so that it can determine whether provisions held by the national court to be contrary to EU law should be maintained temporarily in force?

               2)

               If the answer to that first question is in the affirmative, is the decision that may be made by the Conseil d’État to maintain, until 1 January 2016, the effects of the provisions of the Article 1 of the Decree of 2 May 2012 concerning the assessment of certain plans and documents having an impact on the environment, which it holds to be illegal, justified in particular by an overriding consideration linked to the protection of the environment?


title: Case T-118/05: Action brought on 7 March 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/35

         Action brought on 7 March 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-118/05)
   (2005/C 115/62)
   Language of the case: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 7 March 2005 by Reckitt Benckiser N.V., established in Hoofddorp (The Netherlands), represented by G.S.P. Vos, lawyer.
   The applicant claims that the Court should:

               —

               annul the contested decision of the Second Board of Appeal of OHIM;

               —

               allow the registration of the Community trade mark application number 2 897 338;

               —

               order OHIM to pay the costs in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

         Pleas in law and main arguments

               Community trade mark concerned:

               The three dimensional mark of a rectangular capsule with a black and white wave around a white circle for goods in classes 1 and 3 (Chemical products for industrial purposes; water softeners; bleaching preparations and other substances for laundry use and dish washing; ...) — application No 2 897 338

               Decision of the examiner:

               Rejection of the trade mark application

               Decision of the Board of Appeal:

               Dismissal of the appeal

               Pleas in law:

               Wrongful application of Article 7(1)(c) of Council Regulation No 40/94, Violation of Article 7(1)(b) and infringement of the duty to state sufficient reasons


               10.10.2013

               EN

               Official Journal of the European Union

               C 294/10

         Action brought on 3 July 2013 by the EFTA Surveillance Authority against the Kingdom of Norway
   (Case E-13/13)
   2013/C 294/10
   An action against the Kingdom of Norway was brought before the EFTA Court on 3 July 2013 by the EFTA Surveillance Authority, represented by Xavier Lewis and Catherine Howdle, acting as Agents of the EFTA Surveillance Authority, 35 Rue Belliard, 1040 Brussels, Belgium.
   The EFTA Surveillance Authority requests the EFTA Court to declare that:

               1.

               the Kingdom of Norway, by failing to implement correctly into its national legislation Article 37(1) of the Act referred to at point 23b of Annex IX to the Agreement on the European Economic Area (i.e. Directive 2005/60/EC on the prevention of the use of financial system for the purpose of money laundering and terrorist financing), as adapted to the EEA Agreement by Protocol 1 thereto, has failed to fulfil its obligations arising under that Act and under Article 7 of the EEA Agreement;

               2.

               the Kingdom of Norway bears the costs of these proceedings.

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

               —

               The application addresses the failure by the Kingdom of Norway to implement correctly the Act referred to at point 23b of Annex IX to the Agreement on the European Economic Area, as adapted to the EEA Agreement by Protocol 1 thereto.

               —

               The EFTA Surveillance Authority submits that Norwegian law has not ensured the effective monitoring of the activities of certain persons who fall within the ratione personae scope of the Directive. It also submits that Norway has taken no action to remedy the shortcomings in its national law.

               —

               The EFTA Surveillance Authority submits that the present situation in Norway amounts to a continuing breach of Norway’s obligations to implement into national law Directive 2005/60/EC, as incorporated into the Annexes to the EEA Agreement.


title: Case T-218/00: Action brought on 23 August 2000 by Cooperativa Mare Azzurro scrl and Others against Commission of the European Communities

text:
C 302/32               EN                     Official Journal of the European Communities                                     21.10.2000
—     Error in the reasoning;                                            Action brought on 23 August 2000 by Cooperativa Mare
                                                                         Azzurro scrl and Others against Commission of the
—     The Commission unlawfully concluded that, notwith-                                    European Communities
      standing a marked upward trend, the market in question
      is in decline;
                                                                                (Case T-218/00)
—     The decision is vitiated in so far as it uses a mean annual
      rate for the entire manufacturing industry equivalent
      to 5,78%;                                                                                (2000/C 302/75)
—     The Commission failed to notify the applicant of the
      principal facts underlying its decision in regard to the use
      of the coefficient of 0,75.                                                          (Language of the case: Italian)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 23 August 2000 by Cooperativa
                                                                         Mare Azzurro scrl and Others, represented by Giuseppe
                                                                         Boscolo, of the Venice Bar.
Action brought on 21 August 2000 by Antena 3 de
Televisión, S.A. against the Commission of the European                 The applicants claim that the Court should:
                          Communities
                                                                         —     annul wholly or, in the alternative, in part the contested
                         (Case T-216/00)                                       decision and/or in any event declare the contested
                                                                               decision to be of no effect in respect of the applicants
                         (2000/C 302/74)                                       and furthermore order the defendant to pay the costs.
                   (Language of the case: Spanish)
                                                                         Pleas in law and main arguments
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               The applicants in the present case, cooperatives which provide
European Communities on 21 August 2000 by Antena 3 de                    services to several hundred small fishing undertakings
Televisión, established in Madrid, represented by Fernando              operating from Venice and Chioggia, challenge the contested
Pombo Garcı́a, Emiliano Garayar Gutiérrez and Rosario Alonso             decision of 25 November 1999 on aid to firms in Venice and
Pérez-Villanueva, lawyers.                                               Chioggia by way of relief from social security contributions
                                                                         under Laws Nos 30/1997 and 206/1995 (1).
The applicant claims that the Court should:
—     annul Commission Decision 2000/400/EC of 10 May                    That decision declares certain aid received by those undertak-
      2000 (‘Eurovision’); and                                           ings to be incompatible with the common market.
—     order the Commission to pay all the costs incurred by
      Antena 3 de Televisión, S.A. in the present proceedings.          In support of their application, the applicants claim that:
                                                                         —     The Commission did not find that the aid in question
Pleas in law and main arguments                                                constitutes an arrangement for a three-year period and
                                                                               is thus not recoverable under Article 15 of Council
The pleas in law and main arguments are the same as those                      Regulation (EC) No 659/1999 of 22 March 1999 laying
put forward in Case T-185/00 Métropole Télévision M 6 (1).                     down detailed rules for the application of Article 93 of
                                                                               the EC Treaty (2).
(1) Not yet published.
                                                                         —     The contested decision fails to take into account the
                                                                               situation concerning rents and occupancy in Chioggia’s
                                                                               old town, inasmuch as it does not apply the derogation
                                                                               provided for in Article 87(3)(a) of the Treaty.
 ---pagebreak--- 21.10.2000             EN                     Official Journal of the European Communities                                      C 302/33
—     Excluding the fishing industry from the de minimis rule,           Action brought on 30 August 2000 by Porto di Venezia
      applicable in cases of State aid, amounts to failure to              scrl against Commission of the European Communities
      observe the principle of equal treatment as between the
      various sectors, at least where, as in the present case, the
      aid relates to social contributions charged by the State for                                 (Case T-228/00)
      the operation of services and not to investment costs
      freely incurred by the undertaking.
                                                                                (2000/C 302/77)
—     The modest scale of the applicant undertakings, their
      local nature and the damage which could be caused by
      repayment of the aid render unsustainable an argument
      claiming that the relief has an impact on trade between                                (Language of the case: Italian)
      Member States.
—     Article 87(3)(d) of the Treaty has been infringed inasmuch         An action against the Commission of the European Communi-
      as Chioggia and the Lagoon of Venice have special                  ties was brought before the Court of First Instance of the
      cultural links with fishing that cannot be ignored.                European Communities on 30 August 2000 by Porto di
                                                                         Venezia scrl, represented by Francesco Munari, of the Genoa
                                                                         Bar.
(1) OJ 2000 L 150, p. 50.
(2) OJ 1999 L 83, p. 1.
                                                                         The applicant claims that the Court should:
                                                                         —     annul the Commission decision of 25 November 1999
                                                                               on aid to firms in Venice and Chioggia by way of
                                                                               relief from social security contributions under Laws
                                                                               Nos 30/1997 and 206/1995 in so far as it excludes from
Action brought on 28 August 2000 by Andrea Gaul                                Article 4 undertakings, such as the applicant, which find
  against the Commission of the European Communities                           themselves in circumstances identical to those of the
                                                                               undertakings mentioned in the aforementioned article,
                         (Case T-225/00)                                       and order the Commission to adopt any appropriate
                                                                               measure to comply with the judgment of this Court;
                         (2000/C 302/76)
                                                                         —     make any other order as the Court may see fit in order to
                                                                               ensure compliance with the judgment, as well as an order
                   (Language of the case: German)
                                                                               requiring the Commission to pay the costs incurred by
                                                                               the applicant.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 August 2000 by Andrea Gaul,
of Olching (Federal Republic of Germany), represented by                 Pleas in law and main arguments
Christian Boetzkes, Rechtsanwalt, Hamburg (Federal Republic
of Germany).
                                                                         The decision being contested in this action is the same as
The applicant claims that the Court should annul, pursuant to            that in Case T-218/00 Cooperativa Mareazzurro and Others
Article 231 EC, the decision of the Commission of the                    v Commission and T-221/00 Casino Municipale di Venezia
European Communities of 29 May 2000 not to include the                   v Commission (1).
applicant’s name in the list of suitable candidates following the
conclusion of the procedure in open competition
COM/A/12/98, field 01 (law).                                             In support of its application, the applicant, an undertaking
                                                                         entrusted by the public authorities with running the berthing
                                                                         facilities at the port of Venice, makes the following claims:
Pleas in law and main arguments
                                                                         —     Infringement of Articles 87 and 88 EC and of Article 7(2)
The applicant took part in the European Commission’s open
                                                                               of Council Regulation (EC) No 659/1999 of 22 March
competition COM/A/12/98 in the field of law and was not
                                                                               1999 laying down detailed rules for the application of
awarded the necessary marks in order for her name to be
                                                                               Article 93 of the EC Treaty (2).
included in the list of suitable candidates. By her claim, she
asserts that the marks awarded cannot be justified. On the
contrary, she proved to a sufficient standard in the tests that          —     Misuse of powers inasmuch as a manifest error has been
she possessed the requisite knowledge and abilities.                           committed and treating it differently cannot be justified.
                                                                         —     Failure to state reasons.


title: Judgment of the Court (Third Chamber) of 16 June 2005 in Case C-456/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 98/44/EC — Legal protection of biotechnological inventions — Admissibility — Failure to transpose — Articles 3(1), 5(2), 6(2) and 8 to 12)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/14

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 16 June 2005
   in Case C-456/03: Commission of the European Communities v Italian Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 98/44/EC - Legal protection of biotechnological inventions - Admissibility - Failure to transpose - Articles 3(1), 5(2), 6(2) and 8 to 12)
   (2005/C 217/26)
   Language of the case: Italian
   In Case C-456/03, Commission of the European Communities (Agent: K. Banks) v Italian Republic (Agent: I.M. Braguglia, assisted by P. Gentili, avvocato dello Stato) — action under Article 226 EC for failure to fulfil obligations, brought on 27 October 2003 — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.P. Puissochet, S. von Bahr, U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 16 June 2005, in which it:

               1.

               Declares that, by having failed to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3(1), 5(2), 6(2) and 8 to 12 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Italian Republic has failed to fulfil its obligations under Article 15 of that directive;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Italian Republic to bear all the costs.

      (1)  OJ C 7 of 10.1.2004.