title: Order of the Court of Justice (Second Chamber) of 28 June 2001 in Case C-352/99 P: Eridania SpA and Others v Council of the European Union and Others (Appeal — Common organisation of the market in the sugar sector — Pricing system — Regionalisation — Classification of Italy — 1995/96 marketing year — Appeals by sugar producers — Acts of direct and individual concern to them — Provision fixing the derived intervention price of white sugar for all the zones of Italy — Inadmissibility)

text:
C 289/6                 EN                      Official Journal of the European Communities                                        13.10.2001
Communities (OJ 1972 L 73, p. 196), of the new Declaration                 Abruzzo SpA, established in Bologna, Zuccherificio del Molise
by the Government of the United Kingdom of Great Britain                   SpA, established in Termoli, Italy, Società Fondiaria Industriale
and Northern Ireland on the definition of the term ‘nationals’             Romagnola SpA (SFIR), established in Cesena, Italy, represent-
(OJ 1983 C 23, p. 1), and of Declaration No 2 on nationality               ed by B. O’Connor, Solicitor, and I. Vigliotti, avvocato, —
of a Member State, annexed to the Final Act of the Treaty on               appeal against the order of the Court of First Instance of the
European Union (OJ 1992 C 191, p. 98) — the Court                          European Communities (First Chamber) of 8 July 1999 in Case
(First Chamber), composed of: M. Wathelet, President of the                T-158/95 Eridania and Others v Council [1999] ECR II-2219,
Chamber, P. Jann and L. Sevón (Rapporteur), Judges; P. Léger,             seeking to have that order set aside, the other parties to the
Advocate General; R. Grass, Registrar, has made an order on                proceedings being, Council of the European Union (Agents:
12 July 2001, the operative part of which is as follows:                   I. Diez Parra and J.P. Hix), Commission of the European
                                                                           Communities (Agent: F.P. Ruggeri Laderchi) and Ponteco
In order to determine whether a person is a national of the United         Zuccheri SpA, established in Pontelagoscuro, Italy — the Court
Kingdom of Great Britain and Northern Ireland for the purposes of          (Second Chamber), composed of V. Skouris, President of the
Community law, it is necessary to refer to the 1982 Declaration by         Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges;
the Government of the United Kingdom of Great Britain and                  J. Mischo, Advocate General; R. Grass, Registrar, has given a
Northern Ireland on the definition of the term ‘nationals’ which           judgment on 28 June 2001, in which it:
replaced the 1972 Declaration by the Government of the United
Kingdom of Great Britain and Northern Ireland on the definition of         1.    Dismisses the appeal;
the term ‘nationals’, annexed to the Final Act of the Treaty concerning
the Accession of the Kingdom of Denmark, Ireland and the United            2.    Orders Eridania SpA, Industria Saccarifera Italiana Agroindis-
Kingdom of Great Britain and Northern Ireland to the European                    triale SpA (ISI), Sadam Zuccerifici, a division of SECI
Communities.                                                                     — Societh Esercizi Commerciali Industriali SpA, Sadam
                                                                                Castigliognese SpA, Sadam Abruzzo SpA, Zuccherificio del
                                                                                Molise SpA and Società Fondiaria Industriale Romagnola SpA
(1) OJ C 246 of 28.8.1999.                                                       (SFIR) jointly to pay the costs;
                                                                           3.    Orders the Commission to bear its own costs.
                                                                           (1) OJ C 352, 4.12.1999.
           ORDER OF THE COURT OF JUSTICE
                        (Second Chamber)
                          of 28 June 2001                                              ORDER OF THE COURT OF JUSTICE
in Case C-351/99 P: Eridania SpA and Others v Council of                                           (Second Chamber)
              the European Union and Others (1)
                                                                                of 28 June 2001
(Appeal — Common organisation of the market in the sugar
sector — System of storage fees — Authorisation for the
                                                                           in Case C-352/99 P: Eridania SpA and Others v Council of
grant of national aid — Abolition — 1995/96 marketing
                                                                                the European Union and Others (1)
year — Appeals by sugar producers — Acts of direct and
individual concern to them — Provision fixing the amount
of reimbursement for compensation for storage costs —                      (Appeal — Common organisation of the market in the sugar
                           Inadmissibility)                                sector — Pricing system — Regionalisation — Classification
                                                                           of Italy — 1995/96 marketing year — Appeals by sugar
                                                                           producers — Acts of direct and individual concern to them
                          (2001/C 289/10)
                                                                           — Provision fixing the derived intervention price of white
                                                                                sugar for all the zones of Italy — Inadmissibility)
                    (Language of the case: Italian)
                                                                                (2001/C 289/11)
(Provisional translation; the definitive translation will be published
                    in the European Court Report)
                                                                                (Language of the case: Italian)
In Case C-351/99 P: Eridania SpA, formerly Eridania Zuccheri-
fici Nazionali SpA, established in Genoa, Italy, Industria                 (Provisional translation; the definitive translation will be published
Saccarifera Italiana Agroindistriale SpA (ISI), established in                                 in the European Court Report)
Padua, Italy, Sadam Zuccerifici, a division of SECI — Società
Esercizi Commerciali Industriali SpA, established in Bologna,              In Case C-351/99 P: Eridania SpA, formerly Eridania Zuccheri-
Italy, Sadam Castigliognese SpA, established in Bologna, Sadam             fici Nazionali SpA, established in Genoa, Italy, Industria
 ---pagebreak--- 13.10.2001              EN                      Official Journal of the European Communities                                            C 289/7
Saccarifera Italiana Agroindistriale SpA (ISI), established in             ruling in connection with an application for registration in the
Padua, Italy, Sadani Zuccerifici, a division of SECI — Società             commercial register made by HSB-Wohnbau GmbH, on the
Esercizi Commerciali Industriali SpA, established in Bologna,              interpretation of Articles 43 EC and 48 EC — the Court (Fifth
Italy, Sadam Castigliognese SpA, established in Bologna, Sadam             Chamber), composed of: A. La Pergola, President of the
Abruzzo SpA, established in Bologna, Zuccherificio del Molise              Chamber, M. Wathelet (Rapporteur), P. Jann, L. Sevón and
SpA, established in Termoli, Italy, Società Fondiaria Industriale          S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate
Romagnola SpA (SFIR), established in Cesena, Italy, represent-             General; R. Grass, Registrar, has made an order on 10 July
ed by B. O’Connor, Solicitor, and I. Vigliotti, avvocato, —                2001, in which it has ruled:
appeal against the order of the Court of First Instance of the
European Communities (First Chamber) of 8 July 1999 in Case
T-158/95 Eridania and Others v Council [1999] ECR II-2219,                 The Court of Justice of the European Communities clearly has no
seeking to have that order set aside, the other parties to the             jurisdiction to answer the questions put by the Amtsgericht Heidelberg
proceedings being, Council of the European Union (Agents:                  in its order of 3 March 2000.
I. Dı́ez Parra and J.P. Hix), Commission of the European
Communities (Agent: F.P. Ruggeri Laderchi) and Ponteco
Zuccheri SpA, established in Pontelagoscuro, Italy — the Court             (1) OJ C 149 of 27.5.2000.
(Second Chamber), composed of V. Skouris, President of the
Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges;
J. Mischo, Advocate General; R. Grass, Registrar, has given a
judgment on 28 June 2001, in which it:
1.    Dismisses the appeal;
2.    Orders Eridania SpA, Industria Saccarifera Italiana Agroindis-                            ORDER OF THE COURT
      triale SpA (ISI), Sadam Zuccerifici, a division of SECI
      — Società Esercizi Commerciali Industriali SpA, Sadam
      Castigliognese SpA, Sadam Abruzzo SpA, Zuccherificio del                                        (First Chamber)
      Molise SpA and Società Fondiaria Industriale Romagnola SpA
      (SFIR) jointly to pay the costs;
                                                                                of 12 July 2001
3.    Orders the Commission to bear its own costs.
                                                                           in Case C-102/00 (reference for a preliminary ruling from
( 1) OJ C 352, 4.12.1999.                                                  the Hoge Raad der Nederlanden): Welthgrove BV v
                                                                                Staatssecretaris van Financiën (1)
                                                                           (Article 104(3) of the Rules of Procedure — Article 4 of the
                                                                           Sixth VAT Directive — Economic activity — Involvement of
                                                                             a holding company in the management of its subsidiaries)
                    ORDER OF THE COURT
                                                                                (2001/C 289/13)
                          (Fifth Chamber)
                                                                                (Language of the case: Dutch)
                           of 10 July 2001
                                                                           (Provisional translation; the definitive translation will be published
in Case C-86/00 (reference for a preliminary ruling from                                       in the European Court Reports)
   the Amtsgericht Heidelberg): HSB-Wohnbau GmbH (1)
                                                                           In Case C-102/00: reference to the Court under Article 234
(Reference for a preliminary ruling — Entry in the commer-                 from the Hoge Raad der Nederlanden (Supreme Court of the
cial register of the transfer of a company’s registered office             Netherlands) (Netherlands) for a preliminary ruling in the
              — Lack of jurisdiction of the Court)                         proceedings pending before that court between Welthgrove
                                                                           BV and Staatssecretaris van Financiën — on the interpretation
                          (2001/C 289/12)                                  of Article 4, Article 11A(1)(a) and Article 13B(d)(5) of Sixth
                                                                           Council Directive 77/388/EEC of 17 May 1977 on the
                   (Language of the case: German)                          harmonisation of the laws of the Member States relating to
                                                                           turnover taxes — Common system of value added tax: uniform
                                                                           basis of assessment (OJ 1977 L 145, p. 1) — the Court
(Provisional translation; the definitive translation will be published     (First Chamber), composed of: M. Wathelet, President of the
                   in the European Court Reports)                          Chamber, P. Jann and L. Sevón (Rapporteur), Judges; C. Stix-
                                                                           Hackl, Advocate General; R. Grass, Registrar, has given an
In Case C-86/00: reference to the Court under Article 234 EC               order on 12 July 2001, the operative part of which is as
from the Amtsgericht Heidelberg (Germany), for a preliminary               follows:


title: Case T-117/04: Judgment of the Court of First Instance of 27 September 2006 — Werkgroep Commerciële Jachthavens Zuidelijke Randmeren and Others v Commission of the European Communities (State aid — Aid awarded by the Netherlands authorities to non-profit-making marinas — Action for annulment — Admissibility)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/43

         Judgment of the Court of First Instance of 27 September 2006 — Werkgroep Commerciële Jachthavens Zuidelijke Randmeren and Others v Commission of the European Communities
   (Case T-117/04) (1)

   (State aid - Aid awarded by the Netherlands authorities to non-profit-making marinas - Action for annulment - Admissibility)
   (2006/C 294/91)
   Language of the case: Dutch
   Parties

      Applicants: Vereniging Werkgroep Commerciële Jachthavens Zuidelijke Randmeren (Zeewolde, Netherlands); Jachthaven Zijl Zeewolde BV (Zeewolde); Maatschappij tot exploitatie van onroerende goederen Wolderwijd II BV (Zeewolde); Jachthaven Strand-Horst BV (Ermelo, Netherlands); Recreatiegebied Erkemederstrand vof (Zeewolde); Jachthaven- en Campingbedrijf Nieuwboer BV (Bunschoten-Spakenburg, Netherlands); Jachthaven Naarden BV (Naarden, Netherlands), (represented by: T. Ottervanger, A. Bijleveld and A. van den Oord, lawyers)

      Defendant: Commission of the European Communities (represented by: H. van Vliet, A. Bouquet and A. Nijenhuis, Agents)

      Intervener in support of the defendant: Kingdom of the Netherlands, represented by H. Sevenster and M. de Grave, Agents,
   Re:
   Application for annulment of Commission Decision 2004/114/EC of 29 October 2003 concerning aid measures implemented by the Netherlands in favour of non-profit harbours for recreational crafts (OJ 2004 L 34, p. 63).
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action as inadmissible.

               2.

               Orders the applicants to bear their own costs as well as those incurred by the Commission. The Kingdom of the Netherlands shall bear its own costs.

      (1)  OJ C 118, 30.4.2004.


title: Case C-15/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 22 January 2007 — 01081 Telecom AG v Bundesrepublik Deutschland

text:
               24.3.2007

               EN

               Official Journal of the European Union

               C 69/7

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 22 January 2007 — 01081 Telecom AG v Bundesrepublik Deutschland
   (Case C-15/07)
   (2007/C 69/13)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: 01081 Telecom AG

      Defendant: Bundesrepublik Deutschland
   Question referred
   Is it consistent with the first sentence of Article 27 of Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and Article 7 of Directive 2002/19/EC (2) of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) if, under national law, a statutory requirement formerly provided for in that law under which interconnection charges are to be calculated by reference to the cost of the efficient provision of services is to be maintained temporarily, even though there is no obligation to do so under Community law?

      (1)  OJ L 108, p. 33.

      (2)  OJ L 108, p. 7.


title: Case C-623/11: Judgment of the Court (First Chamber) of 17 January 2013 (request for a preliminary ruling from the Conseil d’État — France) — Société Geodis Calberson GE v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) (Agriculture — Food aid — Regulation (EC) No 111/1999 — Programme to supply agricultural products to the Russian Federation — Successful tenderer for a contract for the transport of beef — Conferring of jurisdiction — Arbitration clause)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/6

         Judgment of the Court (First Chamber) of 17 January 2013 (request for a preliminary ruling from the Conseil d’État — France) — Société Geodis Calberson GE v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)
   (Case C-623/11) (1)

   (Agriculture - Food aid - Regulation (EC) No 111/1999 - Programme to supply agricultural products to the Russian Federation - Successful tenderer for a contract for the transport of beef - Conferring of jurisdiction - Arbitration clause)
   2013/C 63/08
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Société Geodis Calberson GE

      Defendant: Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)

      Re:

   Request for a preliminary ruling — Conseil d’Etat — Interpretation of Article 16 of Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation (OJ 1999 L 14, p. 3) — Conferring of jurisdiction in a dispute between the successful tenderer for a contract for transporting beef and the national competent intervention agency concerning the payment procedure and compensation for damage suffered — Arbitration clause

      Operative part of the judgment

   Article 16 of Commission Regulation (EC) No 111/1999 of 18 January 1999 laying down general rules for the application of Council Regulation (EC) No 2802/98 on a programme to supply agricultural products to the Russian Federation, as amended by Commission Regulation (EC) No 1125/1999 of 28 May 1999, must be interpreted as conferring on the Court of Justice of the European Union jurisdiction to rule on disputes relating to the conditions under which the intervention agency designated to receive the tenders submitted during a tendering procedure for the free supply of agricultural products to the Russian Federation makes the payment owed to the successful tenderer and releases the supply security lodged by that tenderer in favour of that agency, in particular actions for compensation in respect of damage suffered as a result of misconduct by the intervention agency while carrying out those transactions..

      (1)  OJ C 39, 11.2.2012.


title: Case C-476/99: Reference for a preliminary ruling by the Centrale Raad van Beroep by decision of that court of 8 December 1999 in the case of H. Lommers against the Minister for Agriculture, Nature Management and Fisheries

text:
C 47/24                 EN                      Official Journal of the European Communities                                     19.2.2000
Action brought on 14 December 1999 by the Commission                       Reference for a preliminary ruling by the Centrale Raad
of the European Communities against the Kingdom of                         van Beroep by decision of that court of 8 December 1999
                                Spain                                      in the case of H. Lommers against the Minister for
                                                                                Agriculture, Nature Management and Fisheries
                         (Case C-474/99)
                                                                                (Case C-476/99)
                          (2000/C 47/39)
                                                                                (2000/C 47/40)
An action against the Kingdom of Spain was brought before
                                                                           Reference has been made to the Court of Justice of the
Court of Justice on 14 December 1999 by the Commission of
                                                                           European Communities by decision of the Centrale Raad van
the European Communities, represented by G. Valero Jordana,
                                                                           Beroep (Higher Social Security Court) of 8 December 1999,
of its Legal Service, acting as Agent, with an address for service
                                                                           received at the Court Registry on 16 December 1999, for a
in Luxembourg at the office of C. Gómez de la Cruz, Wagner
                                                                           preliminary ruling in the case of H. Lommers against the
Centre, Kirchberg.
                                                                           Minister for Agriculture, Nature Management and Fisheries on
                                                                           the following question:
The applicant claims that the Court of Justice should:
                                                                           Does Article 2(1) and (4) of Council Directive 76/207/EEC (1)
— Declare that, by failing to adopt the measures needed to                 of 9 February 1976 on the implementation of the principle of
     ensure the proper incorporation into national law of the              equal treatment for men and women as regards access to
     obligation deriving from Article 2(1) and (2) (together with          employment, vocational training and promotion, and working
     Annex II) of Directive 85/337/EEC (1), and by keeping force           conditions preclude rules of an employer under which subsi-
     legislation which, in breach of those provisions, does not            dised child-care places are available only to female employees
     enable an assessment of the environmental effects of                  save where in respect of a male employee an emergency
     certain types of project referred to in Annex II to the               situation arises as determined by his employer.
     abovementioned directive to be carried out in any part of
     the national territory, or, in the case of many other projects
     listed in the same annex, in a considerable area of national          (1) OJ 1976 L 39, p. 40.
     territory, the Kingdom of Spain has failed to fulfil its
     obligations under Directive 85/337/EEC;
— Order the Kingdom of Spain to pay the costs.
Pleas and principal arguments                                              Action brought on 21 December 1999 by the Commission
                                                                           of the European Communities against the Hellenic Repub-
Article 4(2) of Directive 85/337/EEC must be interpreted in                                                 lic
the light of Article 2(1). Those provisions require the Member
States to analyse, in each specific case, the characteristics of                                     (Case C-484/99)
every project covered by Annex II. That analysis makes it
possible to determine whether, by virtue of their nature, size                                        (2000/C 47/41)
or location, an assessment of their environmental effects
should be undertaken. The second subparagraph of Article 4(2)              An action against the Hellenic Republic was brought before
of the directive enables Member States to facilitate such                  the Court of Justice of the European Communities on
analyses by establishing criteria and/or thresholds. But in no             21 December 1999 by the Commission of the European
case is a Member State allowed, when transposing those                     Communities, represented by Maria Patakia, of its Legal
provisions or establishing those criteria and/or thresholds,               Service, and Manuel Desantes, a civil servant on secondment
exempt in advance from analyses of that kind entire classes of             to its Legal Service under the scheme for national experts, with
projects listed in Annex II. After examining the legislation               an address for service in Luxembourg at the office of Carlos
notified by the Spanish Government, the Commission has                     Gómez de la Cruz, of its Legal Service, Wagner Centre,
concluded that, for the whole of Spanish territory, the                    Kirchberg.
legislation in force, whether national or of the autonomous
communities, excludes, comprehensively and definitively, the
                                                                           The Commission claims that the Court should:
obligation to subject to an assessment of environmental effects
numerous classes of projects of the kind referred to in Annex
                                                                           — declare that, by not adopting and not communicating to
II to the directive.
                                                                                the Commission within the time-limit laid down the laws,
                                                                                regulations and administrative provisions necessary to
(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment              comply fully with Directive 96/9/EC of the European
    of the effects of certain public and private projects on the                Parliament and of the Council of 11 March 1996 (1),
    environment (OJ 1985 L 175, p. 40).                                         relating to harmonisation of national provisions governing
                                                                                the legal protection of databases, the Hellenic Republic has
                                                                                failed to fulfil its obligations under the Treaty and that
                                                                                directive;


title: Case F-111/11: Judgment of the Civil Service Tribunal (Third Chamber) of 21 March 2013 — van der Aat and Others v Commission (Civil service — Remuneration — Annual adjustment of the remuneration and pensions of officials and other servants — Articles 64, 65, and 65a of the Staff Regulations — Annex XI to the Staff Regulations — Regulation (EU) No 1239/2010 — Correction coefficients — Officials employed at Ispra)

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/32

         Judgment of the Civil Service Tribunal (Third Chamber) of 21 March 2013 — van der Aat and Others v Commission
   (Case F-111/11) (1)

   (Civil service - Remuneration - Annual adjustment of the remuneration and pensions of officials and other servants - Articles 64, 65, and 65a of the Staff Regulations - Annex XI to the Staff Regulations - Regulation (EU) No 1239/2010 - Correction coefficients - Officials employed at Ispra)
   2013/C 147/59
   Language of the case: French

      Parties

      Applicants: van der Aat and Others (Besozzo, Italy) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal, and D. Abreu Caldas, lawyers)

      Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

      Re:

   Application for the annulment of the applicants’ pay slips for the month of February 2011 and the pay slips for the following months applying the new correction coefficient for the town of Varese in accordance with Council Regulation (EU) No 1239/2010 of 20 December 2010.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Declares that the applicants must bear their own costs and orders them to pay the costs incurred by the European Commission;

               3.

               Declares that the Council of the European Union, intervener, must bear its own costs.

      (1)  OJ C 6, 7.1.2012, p.27.


title: Case C-255/04: Action brought on 14 June 2004 by the Commission of the European Communities against the French Republic

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/12

         Action brought on 14 June 2004 by the Commission of the European Communities against the French Republic
   (Case C-255/04)
   (2004/C 217/24)
   An action against the French Republic was brought before the Court of Justice of the European Communities on 14 June 2004 by the Commission of the European Communities, represented by E. Traversa and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Declare that

                           —

                           by making the grant of a licence to a performing artists' engagements agency, established in another Member State, subject to the criterion of the benefit of the agency's activity in the light of the needs for engagement of performers,

                           —

                           by imposing the presumption of employment on a performing artist who is recognised as a service provider and established in his Member State of origin where he usually provides similar services,

                     the French Republic has failed to fulfil its obligations under Articles 43 and 49 EC.

               —

               Order the French Republic to pay the costs.

         Pleas in law and main arguments:
   The regime for granting licences to service providers established in another Member State who do not possess a licence delivered under comparable conditions in their State of origin is a purely automatic application of the regime which applies to service providers established in France and takes no account of the evidence and guarantees already submitted in the country of origin. The French regime's requirement for a licence in those conditions goes beyond what is necessary to safeguard the interests of the performers concerned. Also, the criterion of the benefit of the agency's activity in the light of the needs for the engagement of performers gives the Ministre du travail (Minister for Employment) who is responsible for the grant or withdrawal of the licences, a wholly discretionary power to exclude a foreign service provider because of a sufficiency of French agencies holding a licence in France.
   The presumption of employment applied to a performing artist recognised as a service provider established in his Member State of origin where he usually provides similar services constitutes a restriction on the free movement of services since it is liable to prevent or impede the service provider's activities in another Member State where he lawfully provides similar services and goes beyond what is necessary to fulfil the objectives which underlie it. Furthermore, the presumption is very difficult to rebut and has consequences not only as regards the social security system but also as regards paid holidays and the supplementary retirement regime. Even if it applies without distinction to national artists and to those of other Member States, the presumption is a restriction which is liable to hinder or make less attractive the activities of performing artists established in a Member State where they lawfully provide similar services and which is disproportionate in relation to the objective pursued.


title: Case C-547/11: Action brought on 28 October 2011 — European Commission v Italian Republic

text:
               14.1.2012

               EN

               Official Journal of the European Union

               C 13/6

         Action brought on 28 October 2011 — European Commission v Italian Republic
   (Case C-547/11)
   2012/C 13/13
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: B. Stromsky and D. Grespan, Agents)

      Defendant: Italian Republic

      Form of order sought

   The Commission claims that the Court should:

               —

               declare that:

                           —

                           by failing to take, within the prescribed period, all the measures necessary to recover the State aid declared unlawful and incompatible with the internal market by Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, respectively implemented by France, Ireland and Italy (‘Decision 2006/323’), the Italian Republic has failed to fulfil its obligations under Articles 5 and 6 of that decision and under the Treaty on the Functioning of the European Union; and

                           —

                           by failing to take, within the prescribed period, all the measures necessary to recover the State aid declared unlawful and incompatible with the internal market by Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, implemented by France, Ireland and Italy respectively (‘Decision 2007/375’), the Italian Republic has failed to fulfil its obligations under Articles 4 and 6 of that decision and under the Treaty on the Functioning of the European Union;

               —

               order Italy to pay the costs.

      Pleas in law and main arguments

   The period for implementing Decision 2006/323 expired on 8 February 2006. The period for implementing Decision 2007/375 expired on 8 June 2007.
   To date, the Italian Republic has not yet undertaken the full recovery of the aid declared unlawful by the decisions in question or informed the Commission that recovery has taken place. Moreover, the legal difficulties relied on by Italy as justification for the delay in implementing those decisions are not such as to make recovery absolutely impossible in accordance with the case-law of the Court.
   The Commission complains next that, in breach of the obligation under the decisions in question to communicate information, Italy was late in informing it of the progress of the national procedures for implementing the decisions.


title: Case T-15/10: Action brought on 25 January 2010 — Noko Ngele v Commission

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/43

      Action brought on 25 January 2010 — Noko Ngele v Commission
      (Case T-15/10)
      (2010/C 161/68)
      Language of the case: French

         Parties

         Applicant: Mariyus Noko Ngele (Brussels, Belgium) (represented by: F. Sabakunzi, lawyer)

         Defendant: European Commission

         Form of order sought

                  —

                  declare that the CDE never replaced the CDI and that it does not exist in law or have legal personality in Belgium;

                  —

                  order the European Commission, and one of its Members and certain officers thereof, jointly and severally, to pay the amount of EUR 200 000 in respect of financial damage, in addition to statutory interest of 10 % per annum as from 1995 plus interest to be determined by the Court;

                  —

                  order the European Commission, and one of its Members and certain officers thereof, jointly and severally, to pay the amount of EUR 5 000 000 in respect of non-material and psychological damage, in addition to interest to be determined by the Court;

                  —

                  declare that the judgment to be delivered will be enforceable notwithstanding any possible appeal;

                  —

                  order the defendant to pay the costs and a procedural indemnity of EUR 30 000.

         Pleas in law and main arguments

      By the present action, the applicant claims damages for the loss allegedly suffered as a result of the impossibility of pursuing recovery of a debt owed to him by the ‘Centre pour le développement industriel (CDI)’ in consequence of the replacement of that organisation by a joint institution of the ACP (African, Caribbean and Pacific) Group of States and the European Union named ‘Centre pour le développement de l’entreprise (CDE)’.


title: Case T-4/08: Action brought on 3 January 2008 — EMSA v Portugal

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/21

         Action brought on 3 January 2008 — EMSA v Portugal
   (Case T-4/08)
   (2008/C 183/44)
   Language in which the application has been lodged: English
   Parties

      Applicant: European Maritime Safety Agency (EMSA) (represented by: Professor E. Pache, and J. Menze, Agent)

      Defendant: Republic of Portugal
   Form of order sought
   The European Maritime Safety Agency applies for a judgment of the Court of First Instance under Article 14, sentence 2, of the Seat Agreement establishing that:

               —

               The Portuguese Government is bound by the provisions of the Seat Agreement which is an instrument of public international law within the sphere of Community law and which cannot be modified or changed unilaterally by Portugal, including by means of national legislation;

               —

               according to the Seat Agreement, the Portuguese Government is obliged to secure that staff of the European Maritime Safety Agency and their family members have the right to import from their last country of residence or from the country of which they are nationals, free of duty and without prohibitions or restrictions, in respect of initial establishment, within five years of taking up their appointments with the Agency and in a maximum of two shipments, vehicles purchased under market conditions in the county in question and that the past and current application of this provision of the Seat Agreement by the relevant Portuguese authorities does not fulfil this obligation;
               in particular, that the Portuguese Government is obliged to register, following application, under a special series free of duty and without prohibitions or restrictions, vehicles of staff members of the Agency and their families purchased under market conditions in the country of previous residence or in the country of which they are nationals;

               —

               according to the Seat Agreement, the Portuguese Government is obliged to ensure that the staff of the European Maritime Safety Agency and their family members enjoy the privileges and immunities, exemptions and facilities granted by Portugal to members of a comparable category of the diplomatic corps in the Portuguese Republic, and that the past and current application of this provision of the Seat Agreement by the relevant Portuguese authorities does not fulfil this obligation;
               in particular, that the Portuguese Government is obliged to apply the rules and provisions in force until July 2007 concerning the registration and taxation of vehicles of staff of the diplomatic corps for staff of the European Maritime Safety Agency having taken up duty before that date, and their families;
               that the Portuguese Government is obliged to apply the rules and provisions in force until July 2007 concerning the registration and taxation of vehicles of staff of the diplomatic corps for all other cases;
               that the Portuguese Government is obliged to ensure that the staff of the European Maritime Safety Agency and their families are actually granted the privileges and immunities, exemptions and facilities granted by Portugal to members of a comparable category of diplomatic corps in the Portuguese Republic, and that the past and current practice of Portuguese authorities not to process application for registration of staff members of the European Maritime Safety Agency and their families is in contradiction to this obligation;

               —

               the provisions of the Seat Agreement shall not be interpreted and applied to the extent that staff of the European Maritime Safety Agency and their family members do not enjoy at least the rights of any EU national moving residence to Portugal with regard to the introduction of used vehicles into Portuguese territory;

               —

               a reasonable period of time for the processing of application of European Maritime Safety Agency and their family members for car registration in application of the Seat Agreement shall be considered no more than two months; and

               —

               order in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance that the Portuguese Republic pays the costs.

         Pleas in law and main arguments
   The European Maritime Safety Agency (‘the EMSA’ or ‘the Agency’) was established by Regulation (EC) No 1406/2002 (1) and has its seat in Lisbon. On 28 July 2004 the Protocol between the Government of the Portuguese Republic and the European Maritime Safety Agency (2) (‘the Seat Agreement’) was signed. The Seat Agreement covers the relations between the EMSA and Portugal as its host state and applies to the agency and its staff.
   The applicant submits that the Portuguese Government proposed, without prior request or suggestion of the EMSA, to enter into the said Seat Agreement providing for a range of privileges and immunities, exemptions and facilities for the Agency and its staff largely reflecting the provisions of the Protocol on the Privileges and Immunities of the European Communities (‘the Protocol’) but also providing additional facilities. It further claims that the text of the Seat Agreement proposed was similar to the text of the Seat Agreement concluded between Portugal and the European Monitoring Centre for Drugs and Drug Addiction (‘EMCDDA’) on 26 June 1996, in particular concerning vehicle registration.
   In September 2005 a working group between the Portuguese Government on the one hand and EMSA and EMCDDA on the other hand was created with a view to draft detailed administrative provisions necessary for the implementation of the two Seat Agreements or Protocols.
   The applicant claims that the Portuguese administration, by not processing applications for vehicle registrations submitted by EMSA staff violated its obligations resulting from the Seat Agreement clarifying the obligations resulting from the Protocol applicable to the EMSA according to Article 7 of Regulation (EC) No 1406/2002. Furthermore, the applicant claims that the Portuguese authorities did not apply the relevant Portuguese law in force with regard to EMSA staff and their family members whereas it did for EMCDDA and diplomatic missions. These actions resulted in severe impediments to the functioning of the EMSA, according to the applicant, as vehicles purchased under the legitimate expectation that the existing rules would be implemented remained unregistered. Also, vehicles brought form the place of prior residence or from the state of nationality of staff members remained with number plates of the member state of previous residence in spite of rules of that state as regards the obligation to de-register. In short, the applicant claims that the decision of the Portuguese authorities not to process vehicle registration requests created a series of serious legal and administrative difficulties for staff members who had no choice but operate a vehicle in disrespect to obligations relating to registration, insurance and technical inspection.
   With regard to the Court's jurisdiction, it is further submitted that Article 8(2) of Regulation (EC) No 1406/2002 provides that the Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency and that Article 14 of the Seat Agreement provides that disputes with effect on the application of this agreement shall be examined by an ad hoc group of four members. Disputes not resolved in this way shall be subject to the judgment of the Court of Justice of the European Communities.
   According to the applicant, the dispute resolution procedure provided for in Article 14 of the Seat Agreement was found to be unsuccessful and hence, the Court of Justice has jurisdiction in the current dispute regarding the interpretation of the Seat Agreement, pursuant to Article 238 EC providing that the Court of Justice shall have jurisdiction to give judgment to any arbitration clause contained in a contract concluded by or on behalf of the Community, to Article 5(1) of Regulation (EC) No 1406/2002 providing that the Agency shall be a body of the Community, and to Article 225 EC providing that the Court of Fist Instance shall have jurisdiction to hear and determine at first instance actions or proceedings referred to in Article 238 EC.
   Moreover, the applicant submits that it seeks confirmation by the Court that the Seat Agreement is an instrument of international law within the sphere of Community law that binds the Portuguese authorities and that cannot be unilaterally modified. It further applies for a judgment concluding that the processing of applications for motor vehicle registrations by its staff members is in contradiction to the provisions of the Protocol and that the Portuguese authorities are obliged to implement the relevant provisions of the Protocol within a reasonable period of time. Finally, it claims that the Seat Agreement shall not be interpreted in a way that the staff of the EMSA does not enjoy at least the rights, with regards to vehicle registration, of any EU national transferring its residence to Portugal.

      (1)  Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ 2002 L 208, p. 1).

      (2)  Published in the Portuguese Official Journal No 224 of 22 September 2004, p. 6073, available on the EMSA's website http://www.emsa.europa.eu/Docs/legis/protocol%20pt%20government%20and%20emsa.pdf


title: Action brought on 28 February 1995 by Aker SA against the Commission of the European Communities (Case T-70/95)

text:
3 . 6 . 95              EN                  Official Journal of the European Communities                                No C 137/27
The applicant argues that the Community principle of                         6 . Inadequate structure of the oral hearing.
freedom of movement is thereby infringed .
                                                                             7. Reliance on self-incriminating evidence .
She also argues that that provision of the Staff Regulations
infringes the principle of equal treatment.                                  8.  Reformulation of the Commission 's case and
In the applicant's opinion, it is for the Community                              termination of proceedings against certain German
institutions to close the gap in the relevant provisions of the                  and Spanish companies .
Staff Regulations in the fulfilment of their duty of care
towards the citizen .                                                   II . Manifest errors of reasoning and interference
                                                                             The applicant expounds that the decision is based on
                                                                             the consideration that there exists a ' single and
                                                                             continuous agreement' in the west European cement
                                                                             industry. This theory, that the applicant contests, has
Action brought on 28 February 1995 by Aker SA against the                    led the Commission into errors of appreciation and
          Commission of the European Communities                             interpretation in relation to the applicant,
                          ( Case T-70/95 )                                   concerning:
                            ( 95/C 137/64 )
                                                                             1 . its supposed participation in the Cembureau
                 (Language of the case: English)                                 Agreement; and
                                                                             2 . its supposed participation in the European Task
An action against the Commission of the European                                 Force .
Communities was brought before the Court of First
Instance of the European Communities on 28 February
1995 by Aker SA represented by Mr Nicholas Forwood and                       The applicant submits that there is no basis for any
Mr John Cook with an address for service in Luxembourg at                    finding that it was guilty of behaviour capable of
the chambers of Arendt & Medernach, Boite Postale 39,                        constituting an intentional breach of Article 85 ( 1 ) of
L-2010 Luxembourg.                                                           the EC Treaty.
The applicant claims that the Court should :                           III . Lack of jurisdiction and discrimination
— annul wholly or alternatively in part the decision of the                  1 . The applicant maintains that, given that it is an
     Commission of 30 November 1994 in so far as it relates
                                                                                undertaking established outside the European
     to the applicant,                                                           Community, the Commission was obliged to state
                                                                                clearly in the statement of objections and in the
— cancel or, alternatively, reduce the fine imposed by                           decision the basis on which it asserted jurisdiction
     Article 9 , and
                                                                                over it. The Commission's failure to explain its
                                                                                position on this matter constitutes a breach of the
— award the costs of the application to the applicant.                           right to be heard and of Article 190 of the EC
                                                                                Treaty.
Pleas in law and main arguments adduced in support:
                                                                             2 . The applicant further submits that the Commission
The grounds, on the basis of which the legality of the                           did not respect its obligation to exercise its
contested decision is challenged, can be summarized as                           jurisdiction in a uniform and non-discriminatory
follows .                                                                        manner as between all the non-EC undertakings
                                                                                involved in the procedures .
  I. Infringements of essential procedural requirements
                                                                       IV .  Fines
       1.  Failure   to      disclose  the  full  statement     of
           objections .
                                                                             1 . The applicant emphasizes that the Commission has
       2 . Failure to translate supporting documents into the                    not established that its conduct can be regarded as
           language of the case .                                                intentional or negligent, within the meaning of
                                                                                Article 15 ( 2 ) of Regulation 17/62 .
       3 . Inaccurate quotation from documents .
                                                                             2 . The applicant submits that the Commission has
       4 . Failure to give the applicant access to the entirety of               failed to explain the individual basis of the fine
           the Commission 's file and to other relevant files .                  against it.
       5 . Failure to disclose the responses of other addressees
           of the statement of objections .


title: Case C-385/09: Reference for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Republic of Lithuania) lodged on 29 September 2009 — Nidera Handelscompagnie B.V. v Valstybinės mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/17

         Reference for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Republic of Lithuania) lodged on 29 September 2009 — Nidera Handelscompagnie B.V. v Valstybinės mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos
   (Case C-385/09)
   2009/C 312/28
   Language of the case: Lithuanian

      Referring court

   Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės

      Parties to the main proceedings

      Applicant: Nidera Handelscompagnie B.V.

      Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

      Questions referred

               1.

               Is legislation under which the right to deduct VAT is given only to VAT payers — that is to say, only to taxable persons registered as VAT payers in a Member State (in this case, in Lithuania) according to the established procedures — in accordance with the provisions of Directive 2006/112/EC governing the right to deduct VAT?

               2.

               If the answer to the first question is in the affirmative, is it in accordance with the general principles of the right to deduct VAT that are laid down in Directive 2006/112/EC if such legislation provides that a VAT payer has the right to deduct input and/or import VAT in respect of goods and/or services acquired before the date of his registration as a VAT payer only if those goods will be used for an activity of that VAT payer that is subject to VAT, that is to say, input and/or import VAT in respect of goods and services acquired before the date of his registration as a VAT payer may not be deducted if those goods have already been used for that activity?


title: Case C-308/07 P: Appeal brought on 5 July 2007 by Koldo Gorostiaga Atxalandabaso against the order of the Court of First Instance (Second Chamber) delivered on 24 April 2007 in Case T-132/06, Gorostiaga Atxalandabaso v European Parliament

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/23

         Appeal brought on 5 July 2007 by Koldo Gorostiaga Atxalandabaso against the order of the Court of First Instance (Second Chamber) delivered on 24 April 2007 in Case T-132/06, Gorostiaga Atxalandabaso v European Parliament
   (Case C-308/07 P)
   (2007/C 211/43)
   Language of the case: French
   Parties

      Appellant: Koldo Gorostiaga Atxalandabaso (represented by: D. Rouget, lawyer)

      Other party to the proceedings: European Parliament
   Form of order sought

               —

               declare this appeal to be well-founded and, consequently, annul the order of the Court of First Instance of 24 April 2007;

               —

               give a definitive ruling on the proceedings and annul the decision of the Secretary General of the European Parliament of 22 March 2006, ordering the reimbursement by the appellant of a sum of EUR 118 360,18 and proceeding to make a deduction from various parliamentary allowances owed to the appellant by the Parliament;

               —

               order the defendant to pay its own costs and those incurred by the appellant.

         Pleas in law and main arguments
   The appellant makes six pleas in support of his appeal.
   In his first plea, the appellant challenges the use of Article 111 of the Rules of Procedure of the Court of First Instance, which he claims denies him the right to a fair trial since he has neither been given prior opportunity to express his views before the Court of First Instance nor been able to reply to the Parliament's arguments.
   In his second plea, the appellant submits that the principle of impartiality has been infringed since the same judges ruled on the substance of the two successive actions which he brought in Cases T-146/04 and T-132/06 — which gave rise, respectively, to the judgment of 22 December 2005 and to the order of 24 April 2007. That principle demands that a judge cannot hear and determine, even at the same level of jurisdiction, a case based on facts which are identical, or sufficiently connected, to those of a case on which he has ruled previously.
   In his third plea, the appellant claims that the Court incorrectly interpreted the scope of the judgment of 22 December 2005. Since the decision taken by the Secretary General of the Parliament on 24 February 2004 had been annulled as ultra vires, the appellant in fact had no reason to lodge an appeal against that judgment before the Court of Justice, since the effect of the finding of ultra vires by the Court of First Instance was that the flawed decision did not exist.
   In his fourth plea, the appellant challenges the Court's automatic refusal to take into account the arguments which he had put forward to obtain the annulment of the decision of the Secretary General of the Parliament of 22 March 2006. He submits that that last decision is in fact a new decision, separate from the decision of 24 February 2004, and the Court therefore had a duty to examine all the pleas, of substance and procedure, which he had put forward to challenge it.
   In his fifth plea, the appellant criticises the Court for having refused to consider the plea alleging force majeure, even though no such plea had been raised in the action brought against the decision of 24 February 2004.
   Lastly, in his sixth plea the appellant criticises the Court for having misinterpreted the principle of sound administration by refusing, inter alia, any reference to the Code of Good Administrative Behaviour adopted by the Parliament on 6 September 2001.


title: Case T-135/12: Action brought on 2 March 2012 — France v Commission

text:
               16.6.2012

               EN

               Official Journal of the European Union

               C 174/24

         Action brought on 2 March 2012 — France v Commission
   (Case T-135/12)
   2012/C 174/41
   Language of the case: French

      Parties

      Applicant: French Republic (represented by: E. Belliard, G. de Bergues, J. Gstalter and J. Rossi, Agents)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision in its entirety;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   By its application, the applicant seeks the annulment of Commission Decision C(2011) 9403 final of 20 December 2011 declaring compatible with the internal market, under certain conditions, the aid implemented by the French Republic in favour of France Télécom concerning the reform of the method of financing the pensions of public-service employees working for France Télécom (State aid No C 25/2008 (ex NN 23/2008)).
   In support of the action, the applicant relies on three pleas in law.

               1.

               First plea in law, divided in two parts, alleging breach of Article 107(1) TFEU in that the Commission considered that the reform of the method of financing the pensions of public-service employees working for France Télécom amounted to State aid. The applicant submits that:

                           —

                           the Commission was wrong to take the view that the reduction in the contribution to be paid to the State by France Télécom does not free the latter from the structural disadvantage suffered by it following the entry into force of the 1990 Law and that the measure confers an advantage on that company;

                           —

                           in the alternative, the Commission was wrong to take the view that France Télécom benefited from an advantage as from 1996 despite the payment of an exceptional flat-rate contribution by that company.

               2.

               Second plea in law, alleging, in the alternative, breach of Article 107(3)(c) TFEU in that the Commission made the compatibility of the measure in question conditional upon the requirement laid down in Article 2 of the contested decision being satisfied. The second plea is divided into two parts.

                           —

                           By the first part of the plea, the applicant submits that the Commission infringed Article 107(3)(c) TFEU when it took the view that the competitively fair rate had not been attained in the present case because non-common risks had not been taken into account in calculating the contribution paid by France Télécom following the entry into force of the 1996 Law.

                           —

                           By the second part of the plea, the applicant submits, in the alternative, that the Commission infringed Article 107(3)(c) TFEU when it refused to assess the inadequacy of the competitively fair rate in the light of the payment of an exceptional flat-rate contribution by France Télécom and when it concluded that that company had not been placed in a completely equivalent position to that of its competitors until 2043.

               3.

               Third plea in law, alleging a manifest error of assessment in that the Commission refused to accept a rate of 7 % as the discount rate for the exceptional flat-rate contribution.


title: Case T-360/06: Judgment of the General Court of 27 September 2012 — Heijmans v Commission (Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/18

         Judgment of the General Court of 27 September 2012 — Heijmans v Commission
   (Case T-360/06) (1)

   (Competition - Agreements, decisions and concerted practices - Netherlands market in road pavement bitumen - Decision finding an infringement of Article 81 EC - Imputability of the unlawful conduct)
   2012/C 355/35
   Language of the case: Dutch

      Parties

      Applicant: Heijmans NV (Rosmalen, Netherlands) (represented: initially by M. Smeets and A. Van den Oord, and subsequently by M. Smeets, lawyers)

      Defendant: European Commission (represented: initially by A. Bouquet and A. Nijenhuis, Agents, assisted initially by F. Wijckmans, F. Tuytschaever and L. Gyselen, and subsequently by A. Bouquet, A. Nijenhuis and F. Ronkes Agerbeek, Agents, assisted by F. Wijckmans and F. Tuytschaever, lawyers)

      Re:

   Application, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Heijmans NV to pay the costs.

      (1)  OJ C 20, 27.1.2007.


title: Case C-491/15 P: Appeal brought on 18 September 2015 by Rainer Typke against the judgment of the General Court (Third Chamber) delivered on 2 July 2015 in Case T-214/13: Rainer Typke v European Commission

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/2

         Appeal brought on 18 September 2015 by Rainer Typke against the judgment of the General Court (Third Chamber) delivered on 2 July 2015 in Case T-214/13: Rainer Typke v European Commission
   (Case C-491/15 P)
   (2016/C 027/03)
   Language of the case: English

      Parties

      Appellant: Rainer Typke (represented by: C. Cortese, avocate)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside points 2 and 3 of the operative part of the General Court judgment of 2 July 2015 in the case T-214/13, Typke v. European Commission;

               —

               Annul the decision adopted by the Secretary-General of the European Commission in procedure Gestdem 2012/3258

               —

               Condemn the Commission to pay the appellant's costs in both first and second instance judicial proceedings.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on a single plea in law, articulated in two main branches.
   First, the General Court erred in interpreting Regulation 1049/2001 (1), and in particular its articles 3 a) and 4, paragraph 6, because it assumed that the application of the relevant articles to normalized relational databases requires a distinction between partial access to documents stored in a relational database, and bare access to information contained in it. The latter would not be covered by the Regulation’s provisions on access, as it would allegedly amount to the creation of a new document. In particular, the General Court erred in concluding essentially that Regulation 1049/2001 would exclude from its scope of application a request for access to a normalized relational database requiring the formulation of an SQL search query not previously used by the requested Institution ‘on a more or less regular basis for the database at issue’and‘pre-programmed’, as this would allegedly not involve a search to be carried using the search tools available for the database in question, and would therefore imply the creation of a new document.
   Second, the General Court erred in stating that the applicant’s request did not refer to an existing document, and in any case was not included in the field of application of Regulation 1049/2001, based on the following false assumptions:

               —

               it would not be possible for the requested Institution to answer positively to the application for access, as existing documents would be unsuitable to match the request (first instance judgement, paragraph 73) or as access to them was allegedly not requested by the applicant (first instance judgement, paragraph 67)

               —

               the applicant’s request would be framed according to a classification not supported by the relevant database, in particular because of the data processing operations they would require (first instance judgement, paragraphs 58, 66, 68; 62, 63)

               —

               it would imply the creation of a new document containing information in a new format and according to selection criteria specified by the applicant (first instance judgement, paragraphs 61, 67)

         In making all the statements criticized in the present paragraph, moreover, the General Court distorted the clear sense of evidence lodged and available before it. The same is true for the statement made by the General Court that a presumption of legality would apply in the present case as to the statement of the requested Institution that documents to which access was requested did not exist (first instance judgement, paragraph 66).

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

      OJ L 145, p. 43.


title: Case C-409/12: Judgment of the Court (Third Chamber) of 6 March 2014 (request for a preliminary ruling from the Oberster Patent- und Markensenat (Austria)) — Backaldrin Österreich The Kornspitz Company GmbH v Pfahnl Backmittel GmbH (Trade marks — Directive 2008/95/EC — Article 12(2)(a) — Revocation — Trade mark which, in consequence of acts or inactivity of the proprietor, has become the common name in the trade for a product or service in respect of which it is registered — Perception of the word sign ‘KORNSPITZ’ by sellers, on the one hand, and by end users, on the other — Loss of distinctive character from the point of view of end users only)

text:
               28.4.2014

               EN

               Official Journal of the European Union

               C 129/3

         Judgment of the Court (Third Chamber) of 6 March 2014 (request for a preliminary ruling from the Oberster Patent- und Markensenat (Austria)) — Backaldrin Österreich The Kornspitz Company GmbH v Pfahnl Backmittel GmbH
   (Case C-409/12) (1)

   ((Trade marks - Directive 2008/95/EC - Article 12(2)(a) - Revocation - Trade mark which, in consequence of acts or inactivity of the proprietor, has become the common name in the trade for a product or service in respect of which it is registered - Perception of the word sign ‘KORNSPITZ’ by sellers, on the one hand, and by end users, on the other - Loss of distinctive character from the point of view of end users only))
   2014/C 129/03
   Language of the case: German

      Referring court

   Oberster Patent- und Markensenat

      Parties to the main proceedings

      Applicant: Backaldrin Österreich The Kornspitz Company GmbH

      Defendant: Pfahnl Backmittel GmbH

      Re:

   Request for a preliminary ruling — Oberster Patent- und Markensenat — Interpretation of Article 12(2)(a) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25) — Grounds for revocation — Registered word mark which has become the common name for the product concerned for consumers on account of the absence of information given by intermediaries as to the existence of the mark — No alternative names to describe the product concerned — Inactivity of the proprietor of the mark.

      Operative part of the judgment

               1.

               Article 12(2)(a) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in a case such as that at issue in the main proceedings, a trade mark is liable to revocation in respect of a product for which it is registered if, in consequence of acts or inactivity of the proprietor, that trade mark has become the common name for that product from the point of view solely of end users of the product.

               2.

               Article 12(2)(a) of Directive 2008/95 must be interpreted as meaning that it may be classified as ‘inactivity’ within the meaning of that provision if the proprietor of a trade mark does not encourage sellers to make more use of that mark in marketing a product in respect of which the mark is registered.

               3.

               Article 12(2)(a) of Directive 2008/95 must be interpreted as meaning that the revocation of a trade mark does not presuppose that it must be ascertained whether there are other names for a product for which that trade mark has become the common name in the trade.

      (1)  OJ C 399, 22.12.2012.


title: Case T-166/09 P: Appeal brought on 27 April 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal of 18 February 2009 in Case F-70/07, Marcuccio v Commission

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/56

         Appeal brought on 27 April 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal of 18 February 2009 in Case F-70/07, Marcuccio v Commission
   (Case T-166/09 P)
   2009/C 141/114
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought by the appellant

   The appellant claims that the Court of First Instance should:

               —

               set aside in its entirety, without any exception whatsoever, the order of the Civil Service Tribunal (First Chamber) of 18 February 2009 in Case F-70/07;

               —

               declare that the action brought before the Civil Service Tribunal in respect of which the order under appeal was made was perfectly admissible in its entirety, without any exception whatsoever;

               —

               in so far as may be necessary, declare that the Civil Service Tribunal erred in law by categorising certain forms of order sought in the application as an application for payment of the costs (see paragraph 16 of the order under appeal);

               —

               in so far as may be necessary, declare that the Civil Service Tribunal had jurisdiction, as a court of first instance, to rule on every aspect, without exception, of the forms of order sought by the appellant in the proceedings in Case F-70/07;

         and

               —

               uphold, in their entirety, without any exception whatsoever, the forms of order sought, which, for all legal intents and purposes, are to be deemed to be reproduced in the present application;

               —

               order the Commission to reimburse the appellant all costs, fees and other expenses incurred by the latter in connection with the proceedings before the Civil Service Tribunal, together with the costs incurred by the appellant in the present appeal proceedings;

         or, in the lesser alternative:

               —

               refer the case back to the Civil Service Tribunal for a decision on the merits, to be taken by that Tribunal sitting in a different formation.

      Pleas in law and main arguments

   In support of his claims, the appellant alleges:

               —

               unlawfulness of the part reference to the Court of First Instance of the case under appeal, inter alia through the misinterpretation and misapplication of Article 90 of the Regulations and Rules applicable to officials and other servants of the European Communities (‘the Staff Regulations’), and total failure to state reasons;

               —

               breach, misinterpretation and misapplication of the principle of the court with jurisdiction under the law and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’);

               —

               unlawfulness of the dismissal, on grounds of inadmissibility, of the forms of order other than those in respect of which the Civil Service Tribunal declared that it lacked jurisdiction to make a ruling, inter alia through the misinterpretation and misinterpretation of Article 90 of the Staff Regulations and of the concept of claims for compensation which are ancillary to an action for the annulment of a decision by a Community institution, and total failure to state reasons and distortion of the evidence;

               —

               procedural errors capable of seriously compromising the interests of the appellant, through failure to comply with the obligation to discount the content of the document referred to in paragraph 11 of the order under appeal in so far as that document had been submitted out of time, and through the request that the parties produce extraordinary documents and the subsequent inclusion of those documents in the case-file for the proceedings at first instance, in that this was capable of seriously compromising the interests of the appellant;

               —

               breach of the rules governing due process; infringement of Article 6 of the European Convention on Human Rights, and Article 47 of the Charter.


title: Case T-27/14: Action brought on 10 January 2014 — Czech Republic v Commission

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/22

         Action brought on 10 January 2014 — Czech Republic v Commission
   (Case T-27/14)
   2014/C 85/38
   Language of the case: Czech

      Parties

      Applicant: Czech Republic (represented by: M. Smolek, J. Vláčil and T. Müller, Agents)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the European Commission’s call C(2013)7221 final of 4 November 2013 for the withdrawal of the decision of the Ministerstvo průmyslu a obchodu České republiky (Czech Ministry of Trade and Industry), which grants a derogation to the gas storage facilities in Dambořice from the national legislation implementing the provisions of Directive 2003/55/EC (1) on the rules for the access of third parties and

               —

               Order the European Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Article 266(1) TFEU

                           —

                           In this connection, the applicant submits that the Commission, by the adoption of the contested decision, proceeded in a manner directly contrary to the judgment in Case T-465/11 Globula v Commission [2013] ECR.

               2.

               Second plea in law, alleging infringement of Article 22(4) of Directive 2003/55/EC

                           —

                           In this plea, the applicant submits that the Commission adopted the contested decision after the expiry of the time-limit set in Article 22(4) of Directive 2003/55/EC.

      (1)  Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).


title: Case C-95/09: Order of the President of the Court of 1 July 2010 — European Commission v Ireland

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/37

         Order of the President of the Court of 1 July 2010 — European Commission v Ireland
   (Case C-95/09) (1)

   ()
   2010/C 346/65
   Language of the case: English
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 113, 16.5.2009.


title: Case C-276/05: Judgment of the Court (Second Chamber) of 22 December 2008 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — The Wellcome Foundation Ltd v Paranova Pharmazeutika Handels GmbH (Trade marks — Pharmaceutical products — Repackaging — Parallel imports — Substantial change in appearance of the packaging — Obligation of prior notice)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/2

         Judgment of the Court (Second Chamber) of 22 December 2008 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — The Wellcome Foundation Ltd v Paranova Pharmazeutika Handels GmbH
   (Case C-276/05) (1)

   (Trade marks - Pharmaceutical products - Repackaging - Parallel imports - Substantial change in appearance of the packaging - Obligation of prior notice)
   (2009/C 44/02)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: The Wellcome Foundation Ltd

      Defendant: Paranova Pharmazeutika Handels GmbH
   Re:
   Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 7 of Directive 89/104/EEC: First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Repackaging of a pharmaceutical product imported in parallel — Substantial change in the appearance of the packaging — Extent of the obligation of prior notification
   Operative part of the judgment

               1.

               Article 7(2) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, is to be interpreted as meaning that, where it is established that repackaging of the pharmaceutical product is necessary for further marketing in the Member State of importation, the presentation of the packaging should be assessed only against the condition that it should not be such as to be liable to damage the reputation of the trade mark or that of its proprietor.

               2.

               Article 7(2) of Directive 89/104, as amended by the Agreement on the European Economic Area of 2 May 1992, is to be interpreted as meaning that it is for the parallel importer to furnish to the proprietor of the trade mark the information which is necessary and sufficient to enable the latter to determine whether the repackaging of the product under that trade mark is necessary in order to market it in the Member State of importation.

      (1)  OJ C 217, 3.9.2005.


title: Case C-318/11: Reference for a preliminary ruling from the Förvaltningsrätten i Falun (Sweden) lodged on 27 June 2011 — Daimler AG v Skatteverket

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/29

         Reference for a preliminary ruling from the Förvaltningsrätten i Falun (Sweden) lodged on 27 June 2011 — Daimler AG v Skatteverket
   (Case C-318/11)
   2011/C 269/54
   Language of the case: Swedish

      Referring court

   Förvaltningsrätten i Falun

      Parties to the main proceedings

      Applicant: Daimler AG

      Defendant: Skatteverket

      Questions referred

               1.

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

               2.

               Is a taxable person who has the seat of his economic activity in another Member State and whose activity principally consists of the manufacture and sale of cars, who has carried out winter testing of car models at installations in Sweden, to be regarded as having had a fixed establishment in Sweden from which business transactions have been effected where that person has acquired goods and services that were received and used at testing installations in Sweden without having his own staff permanently stationed in Sweden and where the testing activity is necessary to the performance of the person’s economic activity in another Member State?

               3.

               Does it affect the answer to question 2 if the taxable person has a wholly-owned Swedish subsidiary, the purpose of which is almost exclusively to supply the person with various services for that testing activity?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1), Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ L 331, 27.12.1979, p. 11), Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ L 44, 20.2.2008, p. 23).


title: Case C-24/05 P: Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/9

         Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02
         August Storck KG
       v
         Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-24/05 P)
   (2005/C 69/20)
   Language of the case: German
   An appeal against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 26 January 2005 (fax: 24 January 2005) by August Storck KG, represented by Ilse Rohr, Heidi Wrage-Molkenthin and Tim Reher, Rechtsanwälte, CMS Hasche Sigle, Stadthausbrücke 1-3, D-20355 Hamburg.
   The appellant claims that the Court should:

               1.

               set aside the judgment of the Court of First Instance (Fourth Chamber) of 10 November 2004 in Case T-396/02; (1)

               2.

               grant the forms of order sought at first instance and give final judgment on the dispute or, in the alternative, remit the case to the Court of First Instance;

               3.

               order OHIM to pay the costs of the proceedings.

         Pleas on appeal and main arguments:
   1.   Breach of Article 7(1)(b) of Regulation No 40/94
   The Court of First Instance erred in law by requiring that the mark applied for must differ substantially from other comparable marks in the relevant product market. The distinctive character of the mark should instead be examined on its own merits, without reference to any similar marks on the market.
   The mark applied for possesses inherent distinctiveness. The fact that consumers recognise the mark as a sweet does not prevent it from simultaneously having the function of an indication of trade origin. The colour three-dimensional mark serves as a signal and a recognition factor, especially in cases where the consumer is confronted with a very large choice, as in the confectionery market.
   2.   Breach of the first sentence of Article 74(1) of Regulation No 40/94
   Contrary to the view of the Court of First Instance, the Office should have examined and explained which similar or identical marks exist on the market – as it claims – if it seeks thereby to justify its refusal to register the mark. The Office may not base its decision on facts which have not been proved and which it merely presumes. If the Office considers it necessary – which the appellant does not – to measure the distinctiveness of the mark against other sweet designs available on the market, it must examine that market situation.
   Likewise, the Court of First Instance may not itself rule on facts which have not been examined.
   3.   Breach of Article 73 of Regulation No 40/94
   In order to justify its finding that the mark applied for is devoid of distinctiveness, the Office relies on similar sweet designs which it claims exist on the market. The appellant has had no opportunity to express a view on those sweet designs allegedly existing on the market, since they have not been produced by the Office.
   The appellant's right to a fair hearing has thereby been infringed.
   4.   Breach of Article 7(3) of Regulation No 40/94
   The objection of the Court of First Instance that the proof of use adduced does not demonstrate the exact use of the mark applied for, since that mark is accompanied by other marks, should be dismissed. By its nature, the three-dimensional mark appears along with other marks. The mark cannot be held to be devoid of distinctive character on the basis of that fact alone.
   The dual function of a colour three-dimensional mark consisting of the shape of the product itself does not mean that it is not used as a mark even if, at the same time, it provides information about the design of the product.
   In the context of proof of use, account is to be taken of all contact that the consumer has with the mark. The extent to which the consumer encounters the mark before or at the time of making his decision to purchase is not the sole determinant of proof of use. When the mark is noticed at a later point, in particular at the time when the product is consumed, this also contributes to its recognition.

      (1)  OJ C 19, 22.1.2005.


title: Case C-265/06: Action brought on 16 June 2006 — Commission of the European Communities v Portuguese Republic

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/15

         Action brought on 16 June 2006 — Commission of the European Communities v Portuguese Republic
   (Case C-265/06)
   (2006/C 212/27)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: A.Caeiros, Agent)

      Defendant: Portuguese Republic
   Form of order sought

               —

               Declare that by prohibiting pursuant to Article 2(1) of Decree-Law no 40/2003 of 11 March 2003 the affixing of coloured film on windows of motor vehicles the Portuguese Republic has failed to fulfil its obligations under Articles 28 and 30 EC and Articles 11 and 13 of the EEA Agreement, as that prohibition hinders the marketing in Portugal of coloured film lawfully manufactured and/or marketed in another Member State or in a State signatory to the EEA Agreement;

               —

               Order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   The prohibition laid down in Article 2(1) of Decree-Law no 40/2003 of 11 March 2003 constitutes a measure having equivalent effect to a quantitative restriction on imports, contrary to Article 28 EC and Article 11 of the EEA Agreement, as it hinders in practice the marketing in Portugal of coloured film lawfully manufactured and /or marketed in another Member State or in a State signatory to the EEA Agreement. It is also not justified under Article 30 EC and Article 13 of the EEA Agreement.


title: Case C-430/12: Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 21 September 2012 — Elena Luca v Casa de Asigurări de Sănătate Bacău

text:
               22.12.2012

               EN

               Official Journal of the European Union

               C 399/10

         Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 21 September 2012 — Elena Luca v Casa de Asigurări de Sănătate Bacău
   (Case C-430/12)
   2012/C 399/16
   Language of the case: Romanian

      Referring court

   Curtea de Apel Bacău

      Parties to the main proceedings

      Applicant: Elena Luca

      Defendant: Casa de Asigurări de Sănătate Bacău

      Questions referred

               1.

               Do Article 56 [TFEU] (formerly Article 49 of the EC Treaty) and Article 22 of Regulation No 1408/71 (1) preclude national legislation, such as Articles 40(1)(b), 45 and 46 of Decree 592/2008, under which an employed or self-employed person, or a member of that person’s family, is not entitled to full reimbursement of expenses incurred in respect of medical treatment abroad unless he has obtained prior authorisation for those purposes?

               2.

               Does partial payment for medical treatment carried out within the Community, calculated in accordance with the rates of the insuring Member State — in the present case, in accordance with Article 7a of Decree 122/2007 (now repealed by Decree 729/2009) — constitute a restriction for the purposes of Article 56 [TFEU] (formerly Article 49 of the EC Treaty)?

               3.

               If Question 2 is answered in the affirmative, what is the threshold for the reimbursement of expenses incurred by insured persons, in the event of a discrepancy in amount between the payments provided for under the legislation of the Member State of residence and the cost of the services provided for under the legislation of the Member State in which the treatment was carried out?

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (English Special Edition, Series I, 1971(II), pp. 416 to 463).


title: Case T-136/14: Action brought on 24 February 2014 — Tilda Riceland Private v OHIM — Siam Grains (BASMALI LONG GRAIN RICE RIZ LONG DE LUXE)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/55

         Action brought on 24 February 2014 — Tilda Riceland Private v OHIM — Siam Grains (BASMALI LONG GRAIN RICE RIZ LONG DE LUXE)
   (Case T-136/14)
   2014/C 135/71
   Language in which the application was lodged: English

      Parties

      Applicant: Tilda Riceland Private Ltd (Gurgaon, India) (represented by: S. Malynicz, Barrister, N. Urwin and D. Sills, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: Siam Grains Co. Ltd (Bangkok, Thailand)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 December 2013 given in Case R 1086/2012-4;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

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

      Community trade mark concerned: The figurative mark in black and white containing the verbal elements ‘BASMALI LONG GRAIN RICE RIZ LONG DE LUXE’ for goods in Class 30 — Community trade mark application No 3 520 641

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

      Mark or sign cited in opposition: The earlier non-registered trade mark and the earlier sign ‘used in the course of trade designating a class of goods’‘BASMATI’ used in the United Kingdom in relation to ‘rice’

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

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(4) CTMR.