title: Case C-322/00: Action brought on 30 August 2000 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
25.11.2000           EN                     Official Journal of the European Communities                                       C 335/29
    —    The power newly conferred on the Commission to                —     Infringement of the duty to state reasons (Article 253
         draw up ‘guidance on the collection, verification                   EC): the recitals in the preamble give the misleading
         and presentation of adverse reaction reports ...’                   impression that the directive carries out no more than a
         [Article 29g(a)] is in particular of substantive signifi-           merely technical adaptation to international develop-
         cance for the scope of the duty of notification                     ments in pharmacovigilance and the related development
         [Article 29d(4)] and for the examination of pharma-                 of data-processing and therefore provide a false picture
         covigilance data with regard to suspension, with-                   as to the justification of the legal basis claimed by the
         drawal or variation of the authorisation for a                      Commission (Articles 29i and 37a of Directive
         medicinal product (Article 29h). The power of the                   75/319/EEC).
         Commission to adopt rules, the content of which is
         not yet even known, classifiable purely within the
         area of institutional law, clearly does not constitute
         a rule for adapting the directive to ‘scientific and
         technical progress’.
    —    Article 29d(2) and (3) of the new version will in
         future limit the duty of notification devolving on            Action brought on 30 August 2000 by the Commission
         the undertaking concerned to notification of the              of the European Communities against the Kingdom of the
         ‘competent authority of the Member State in whose                                        Netherlands
         territory the incident occurred’, and thus alters its
         substantive content. This amendment would be                                          (Case C-322/00)
         acceptable from a health-policy perspective if the
         data-processing network to be set up by the Agency
                                                                                (2000/C 335/52)
         under the new version of Article 29f could also
         guarantee the provision of equivalent information,
         in terms of time and quality, to the authorities              An action against the Kingdom of the Netherlands was brought
         of the other Member States; however, this data-               before the Court of Justice of the European Communities
         processing network is not yet in existence, and it is         on 30 August 2000 by the Commission of the European
         not envisaged that it will be set up before or shortly        Communities, represented by Gregorio Valero Jordana and
         after the period for transposition of the contested           Christopher Van Der Hauwaert, of its Legal Service, acting as
         directive has expired.                                        Agents, with an address for service in Luxembourg at the office
                                                                       of Carlos Gómez de la Cruz, of its Legal Service, Wagner
    —    Article 29d(4) of the new version alters the existing         Centre, Kirchberg.
         duty to notify suspected serious adverse reactions
         occurring in the territory of a non-member country,           The Commission of the European Communities claims that
         inasmuch as — at least according to the English-              the Court should:
         and French-language versions — such adverse reac-
         tions will in future be notifiable only if they are           1.    declare that, by failing to adopt the necessary laws,
         unexpected. This means that risks involved in the                   regulations and administrative measures referred to in
         use of medicinal products which must in principle                   Articles 4 and 5(4) and (5) and points 1, 2, 4 and 6 of
         be regarded as being known will no longer be                        part A of Annex II and points 1(2), 1(3) and 2 of Annex III
         covered, in particular the ‘known’ risk of viral                    to Council Directive 91/676/EEC of 12 December 1991
         transmission in the case of medicinal products                      concerning the protection of waters against pollution
         containing biological components. This amendment                    caused by nitrates from agricultural sources (1), the
         likewise does not constitute an adaptation to ‘scien-               Kingdom of the Netherlands has failed to fulfil its
         tific and technical progress’.                                      obligations under that directive;
    —    The option for the marketing authorisation holder             2.    order the Kingdom of the Netherlands to pay the costs.
         to negotiate notification periods, introduced by
         Article 29d(7) of the new version, constitutes a
         substantive amendment having nothing to do with               Pleas in law and main arguments
         adaptation to ‘scientific and technical progress’.
                                                                       —     Absence in the Netherlands action programme of any
    —    Article 29d of the new version defines the person                   provisions relating to the minimum capacity, as pre-
         having the duty to notify as being in future the                    scribed by the directive, of storage vessels for livestock
         ‘marketing authorisation holder’ rather than, as                    manure (Article 5(4)(a) in conjunction with point 1(2) of
         previously, ‘the person responsible for placing the                 Annex III to the directive);
         medicinal product on the market’. As a result, a duty
         to notify will no longer be imposed on potential              —     Absence in the Netherlands action programme of any
         licensees of the marketing authorisation holder or on               mandatory provisions concerning the limitation of the
         parallel importers, who, together with the original                 land application of fertilisers, taking into account the
         vendor of the medicinal product, are regarded in the                climatic conditions, rainfall and irrigation (Article 5(4)(a)
         Member State concerned as being the persons                         in conjunction with point 1(3)(b) of Annex III to the
         responsible for placing the product on the market.                  directive);
 ---pagebreak--- C 335/30               EN                   Official Journal of the European Communities                                    25.11.2000
—    Absence in the Netherlands action programme of pro-                    IKA’s Medical Committee of Appeal, is consistent with
     visions concerning the limitation of the land application              the provisions set out above of Articles 31 and 36
     of fertilisers based on a balance between (a) the foreseeable          of Regulation (EEC) No 1408/71 of the Council and
     nitrogen requirements of the crops and (b) the nitrogen                Articles 31 and 93 of Regulation (EEC) No 574/72 of the
     supply to the crops from the soil and from fertilisation               Council since, even if it were accepted that those pro-
     (Article 5(4)(a) in conjunction with point 1(3) of                     visions in principle confer on the Member States discre-
     Annex III to the directive);                                           tion — in respect of benefits including sickness benefits
                                                                            in kind to pensioners temporarily staying in the territory
—    Absence in the Netherlands action programme of                         of a Member State other than the one in which they reside,
     measures ensuring that the amount of livestock manure                  which benefits must be considered also to comprise the
     applied to the land each year does not exceed the amount               provision of hospital treatment — to enact provisions
     per hectare prescribed by the directive (Article 5(4)(a) in            establishing as an additional condition for the refund of
     conjunction with point 2 of Annex III to the directive);               the costs relating to the benefits the, albeit ex post facto,
                                                                            authorisation of those costs, it is in any event not entirely
—    Absence in the Netherlands action programme of                         clear and free from doubt whether they additionally allow
     measures relating to points which should have been                     the Member States to enact provisions establishing as a
     covered in the code of good agricultural practice                      necessary condition for the grant of such authorisation
     (Article 5(4)(b) in conjunction with Annex III to the                  that requirements be met similar to those laid down in
     directive and Article 4(1)(a) in conjunction with Annex II             the aforementioned provision of the IKA Regulations at
     to the directive);                                                     issue, that is to say requirements which are related to the
                                                                            immediate need for provision of hospital treatment;
—    Absence in the Netherlands action programme of any
     additional or reinforced measures relating to dry, sandy          (b) whether, on the basis that services comprising the
     soil (Article 5(5) of the directive).                                  provision of care within hospitals constitute services
                                                                            within the meaning of Article 60 of the EC Treaty, the
(1) OJ 1991 L 375, p. 1.                                                    aforementioned provision of the IKA Regulations, even if
                                                                            it were considered, to the extent referred to above, not to
                                                                            be contrary to the above provisions of the Council
                                                                            Regulations, is consistent to that extent with Articles 59
                                                                            and 60 of the EC Treaty;
                                                                       (c)  if Question (b) is answered in the negative, whether the
Reference for a preliminary ruling by the Diikitiko                         rule laid down by that provision of the IKA Regulations
Protodikio Thessalonikis (First Chamber, Three Judges)                      is justified on grounds of public health which are related
by judgment of that court of 31 January 2000 in the case                    to the provision of a balanced hospital service accessible
of Idrima Kinonikon Asfalision against Vasilios Ioannidis                   to everybody resident within Greece and therefore falls
                                                                            within the exceptions in Article 56 of the EC Treaty;
                         (Case C-326/00)
                                                                       (d) whether, on the basis that the entitlement to sickness
                                                                            benefits in kind and, by extension, the claim for refund
                         (2000/C 335/53)
                                                                            of the costs relating to them constitute ‘possessions’
                                                                            within the meaning of Article 1 of the Protocol to the
Reference has been made to the Court of Justice of the                      European Convention for the Protection of Human Rights
European Communities by judgment of the Diikitiko Protodi-                  and Fundamental Freedoms, signed in Paris on 20 March
kio Thessalonikis (Administrative Court of First Instance,                  1952, the aforementioned provision of the IKA Regu-
Thessaloniki) (First Chamber, Three Judges) of 31 January                   lations — even if it were considered that to the extent
2000, received at the Court Registry on 4 September 2000 for                referred to above it is not contrary to the aforementioned
a preliminary ruling in the case of the Idrima Kinonikon                    provisions of the Council Regulations and of the EC
Asfalision (Social Security Institution; ‘IKA’) against Vasilios            Treaty, or, that is to say on the contrary basis, that it is
Ioannidis on the following questions:                                       justified in accordance with the matters previously set
                                                                            out — is consistent to that extent with the first paragraph
(a)  whether Article 3a(4)(g) of the Hospital Care Regulations              of Article 1 of the Protocol; and
     of the IKA, in the version in force at the time of the
     defendant’s hospital treatment, to the extent that it laid
                                                                       (e)  if Question (d) is answered in the negative, whether the
     down as an additional requirement, before the IKA may
                                                                            rule laid down by the aforementioned provision of the
     in very exceptional cases — namely in cases where a
                                                                            IKA Regulations is justified on grounds of public interest
     particular illness of the pensioner of the IKA seeking
                                                                            which are connected with preservation of the financial
     their refund manifested itself suddenly while he was
                                                                            stability of the social security system and therefore falls
     temporarily staying abroad or he was transferred there
                                                                            within the exceptions in the second paragraph of Article 1
     urgently in order to avert a real risk to his life — refund
                                                                            of that Protocol.
     the costs of treatment which has already taken place in
     hospital abroad, that the director of the competent
     regional branch of the IKA must grant the related
     authorisation after an opinion has been given by the


title: Order of the President of the Court of First Instance of 16 July 2002 in Case T-207/02 R: Nicoletta Falcone v Commission of the European Communities (Procedure for interim relief — Competition procedure — Interim measures — Urgency — None)

text:
C 261/16                EN                      Official Journal of the European Communities                                    26.10.2002
Article 86(2)(f) of the Staff Regulations for officials of the             Action brought on 29 June 2002 by José Lloris Maeso
European Communities — the President of the Court of First                     against Commission of the European Communities
Instance has made an order on 14 August 2002, in which he:
                                                                                (Case T-165/02)
1.    Dismisses the application for interim measures;
                                                                                (2002/C 261/31)
2.    Orders that costs are reserved.                                                         (Language of the case: Spanish)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 29 June 2002 by José Lloris Maeso,
                                                                           residing in Valencia (Spain), represented by Julián Bosch
                                                                           Abarca, lawyers.
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               The applicant claims that the Court should:
                             INSTANCE
                                                                           —     annul the decision of the selection board for competition
                                                                                COM/A/10/01 (Law) of 2 May 2002, and that he be
                          of 16 July 2002                                        admitted to the next stage of that competition.
in Case T-207/02 R: Nicoletta Falcone v Commission of                      Pleas in law and main arguments
                  the European Communities
                                                                           The applicant in the present case is challenging the decision of
(Procedure for interim relief — Competition procedure —                    the selection board for COM/A/10/01 (Law), notified by letter
            Interim measures — Urgency — None)                             dated 2 May 2002, awarding him in respect of one of the
                                                                           selection tests in that competition, specifically test (a), marks
                                                                           below the minimum required to be admitted to the remainder
                         (2002/C 261/30)                                   of the tests for that competition.
                                                                           In support of his claim, the applicant alleges error in the
                   (Language of the case: Italian)                         marking of the abovementioned test (a).
In Case T-207/02 R: Nicoletta Falcone, residing in Florence
(Italy), represented by M. Condinanzi, lawyer, against Com-
mission of the European Communities (Agents: J. Currall and                Action brought on 14 August 2002 by Sunrider Corpor-
A. Dal Ferro) — application for an interim measure requiring               ation against the Office for Harmonisation in the Internal
the Commission to invite the applicant to complete her                                                  Market
application for admission to the second set of tests in general
competition COM/A/10/01, in the field of law, fixed for
19 July 2002, from which she was excluded by decision of the                                        (Case T-242/02)
jury of 2 May 2002 informing her that she had not been
admitted to the written tests in the said competition — the                                         (2002/C 261/32)
President of the Court of First Instance has made an order on
16 July 2002, in which he:
                                                                                (Language of the case: Greek)
1.    Dismisses the application;
                                                                           An action against the Office for Harmonisation in the Internal
                                                                           Market was brought before the Court of First Instance of the
2.    Orders that costs are reserved.                                      European Communities on 14 August 2002 by Sunrider
                                                                           Corporation, whose registered office is in Torrance, California
                                                                           (USA), represented by Nikolaos Dontas and Maria Bra, Lawyers,
                                                                           with an address for service in Luxembourg.


title: Action brought on 2 December 1995 by Marie-Thérèse Danielsson, Pierre Largenteau and Edwin Haoa against the Commission of the European Communities (Case T-219/95)

text:
No C 77/ 12             EN                 Official Journal of the European Communities                                   16 . 3 . 96
Pleas in law and main arguments:                                            — the audi alteram partem principle,
                                                                            — the obligation to give reasons.
The applicant company owns a fish farm at Rosolina, in the
Province of Rovigo, on the coast of the Upper Adriatic . In           ( b ) Contravention of the rules governing application of the
1990 it obtained aid of Lit 1 103 646 181 from the                          EC Treaty, namely infringement of Article 44 of
Commission under reorganization of its fish-rearing                         Council Regulation ( EEC ) No 4028/86 and Article 7 of
installations . Corresponding aid of Lit 827 734 635 was to                 Commission Regulation ( EEC ) No 1116/88 : the
have been paid by Italy .                                                   contested act constitutes a decision surreptitiously
                                                                            reducing the agreed aid, without due compliance with
                                                                            the procedure for suspending, reducing or
                                                                            discontinuing aid, laid down by Article 44 of
When the work was finished, on 23 December 1993 , the                       Regulation ( EEC ) No 4028/86 , and without prior
applicant applied to the competent Italian Ministry and to                  fulfilment of the corresponding requirements which are
the Commission for a certificate that the project had been                  binding on the Commission pursuant to Article 7 of the
finally carried out. The Italian Ministry arranged, by note of              implementing Regulation ( EEC ) No 1116/88 .
8 February 1994, for the prior on-site technical inspection
by the Ufficio del Genio Civile ( Civil Engineer's
Department ), which is required under Italian law. Following          (c ) Misuse of powers: the Commission has made use of its
the inspection, that Department reported both to the                        'consultative' power in order to bring about a wholly
applicant and to the Ministry, stating that the work in                     different result, namely the effective reduction of the
                                                                            aid .
question differed in some respects from the project. On
1 February 1995 the Ministry's inspectors inspected the
work finally carried out, within their sphere of competence,
and issued the relevant certificate on 25 May 1995 . In that          If the contested act is annulled, as requested, it will be a
certificate, inter alia they repeat the findings of the Civil         simple matter to find that the institution which adopted that
                                                                      act has caused the applicant, as the beneficiary of the aid,
Engineer's Department and give details of further disparities
with respect to the project. Consequently, according to the           damage for which compensation is payable under
Ministry, the total reckonable expenditure for the purposes           Articles 178 and 215 of the EC Treaty, corresponding to the
of calculation of the aid was no longer Lit 2 627 729 000, as         considerable reduction of the aid granted, both the amount
fixed by the Commission's initial decision on the project,            payable by the European Union and that payable by Italy.
but Lit 1 907 350 101 , a reduction of Lit 720 378 899 . The          Application is made for compensation in an amount not less
applicant submitted written observations challenging the              than the compensatory or default interest on the contested
Ministerial Inspectors ' report, claiming that it was                 sum to reflect the heavy financial burden imposed on the
                                                                      applicant.
unfounded and requesting a review. On 14 November 1995
the Ministry informed the applicant that its request for a
review had been refused, the most significant factor in this
context being that the Ministerial communication expressly
states that it is in full conformity with an opinion expressed
by the Commission by note of 27 October 1995 . The present
application is against that act of the Commission since,
although adopted in the form of a different measure, it is in
fact a decision which directly adversely affects the                  Action brought on 2 December 1995 by Marie-Therese
applicant's interests, in that its twofold effect is to reduce the    Danielsson, Pierre Largenteau and Edwin Haoa against the
aid from the Community and that from the Member                                Commission of the European Communities
State .                                                                                ( Case T-2 19/95 )
                                                                                ( 96/C 77/30 )
The following pleas in law are put forward in support of the                          (Language of the case: English)
application:
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of First
( a ) Infringement of essential procedural requirements : the         Instance of the European Communities on 2 December
      contested act neither satisfies nor complies with the            1995 by Marie-Therese Danielsson, Pierre Largenteau and
      procedural requirements laid down by Community law              Edwin Haoa, all residents of Tahiti ( French Polynesia ),
      in order to protect the substantive interests of                represented by Phon van den Biesen, of Van den Biesen
      individuals subject to it, namely:                              Prakken Bohler, Amsterdam, and Denis Waelbroek, of
                                                                      Liedekerke Wolters Waelbroek & Kilpatrick, Brussels,
      — the principle of collegiality applying to the                 assisted by Dr Gerrit Betlem, Nederlands Instituut voor
          Commission 's actions ,                                     Sociaal en Economisch Recht, Utrecht, and by Sven
                                                                      Deimann, Johann W. Goethe Universitat Frankfurt am
                                                                      Main; with an address for service in Luxembourg at the
      — the Community principle of legal certainty,                   office of Dei Greng, 31 , Grand-rue .
 ---pagebreak--- 16 . 3 . 96        [ EN 1                Official Journal of the European Communities                                  No C 77/ 13
The applicants claim that the Court should :                        Action brought on 13 December 1995 by Société Fotini
                                                                    Chiou against the Commission of the European
— annul the European Commission's Decision of                                                 Communities
    23 October 1995 regarding French nuclear tests,                                        ( Case T-225/95 )
                                                                                ( 96/C 77/31 )
— order the Commission to pay the costs of these
     proceedings .
                                                                                (Language of the case: French)
Pleas in law and main arguments:
The applicants, three citizens and residents of Tahiti ( French
Polynesia ), challenge the decision of the Commission of            An action against the Commission of the European
23 October 1995 , granting its assent under Article 34 ( 2 ) of     Communities was brought before the Court of First
the EAEC Treaty in relation to the French nuclear tests on          Instance of the European Communities on 13 December
the Pacific atoll of Mururoa . Alternatively, the present           1995 by Fotini Chiou, residing in Brussels, represented by
application should be considered as being brought against           Lucas Vogel, of the Brussels Bar, with an address for service
the decision by which the Commission refused to consider            in Luxembourg at the Chambers of Christian Kremer, 8-10
                                                                    Rue Mathias Hardt .
that Article 34 was applicable to the French nuclear
tests .
They submit that the defendant institution has, through this        The applicant claims that the Court should :
decision and the way in which it was reached, violated its
obligations under Community law, specifically under the
Euratom Treaty and Council Directive 88/835/Euratom . It            — annul the decision rejecting her complaint against the
is stressed on this point that the Commission should have                Commission's decision of 18 November 1994 ,
applied a purposive intepretation of the notion of
'particularly dangerous experiment' ( Article 34 ), which at a
minimum, in the light of the preamble of the EC Treaty,             — as far as is necessary, annul the decision of the
should have focused on the prevention of health and safety               Commission of 1 8 November excluding her from the list
hazards, rather than merely providing an interpretation                  of successful candidates in the internal competition
which restricts itself to 'a perceptible risk of significant             for movement of officials from Category C to
exposure of workers and the general public to ionizing                   Category B,
radiation '. On the basis of this purposive interpretation the
Commission should have conducted a much more extensive
                                                                    — order the defendant to pay the costs .
and thorough research into the possible health and safety
hazards involved .
Moreover, in applying Article 34 of the EAEC Treaty the             Pleas in law and main arguments:
Commission must take into account all three of the basic
principles contained in Article 6 of the Directive; i.e. the
justification of every activity resulting in an exposure to         In support of her action, the applicant submits pleas in law
ionizing radiation by the advantages that it produces, the 'as      and arguments similar to those put forward in Case
                                                                    T- 15 9/95 .
low as reasonably achievable' principle and the necessity of
specific dose-limits . However, the Commission has, without
any motivation, restricted itself to the third aspect alone .       She too bases her application on a manifest error of
                                                                    assessment, pointing out, first, that she holds several
The Commission has also ignored relevant rules of                   university qualifications and since 1992 has been
international law, including the 1982 United Nations                performing duties which are well beyond those of
Convention on the Law of the Sea , the 1985 Asean                   Category C and, secondly, that her performance in the oral
Agreement on the Conservation of Nature and Natural                 test deserved a mark higher than the minimum required . In
Resources, the 1992 Convention on Biological Diversity.             addition, the applicant claims that the person who was
                                                                    chairman of the selection board did not possess the
                                                                    necessary independence to assess her aptitude , since that
Finally, it is further submitted that the European                  person was also the chairman of the selection board in a
Commission has violated fundamental rights of the                   previous competetion, the result of which forms the subject
applicants including, but not limited to, the right to life as      of an action brought by the applicant before the Court of
guaranteed in Article 2 of the European Convention on               First Instance; in that respect, she pleads infringement of
 Human Rights and Article 6 of the International Covenant           Article 14 of the Staff Regulations of officials and also of the
on Civil and Political Rights, and also the right to privacy         rules governing the activities of selection boards .
 and family life as guaranteed in Article 8 of the European
 Convention on Human Rights .


title: Case T-192/02: Action brought on 21 June 2002 by G.D. Searle LLC against the Office for Harmonisation in the Internal Market

text:
C 202/36              EN                      Official Journal of the European Communities                                      24.8.2002
—     convert the period between 8 and 31 July 2000 into sick            Decision of the Exam-         refusal of the application
      leave;                                                             iner:
—     order the defendant to pay the costs.                              Decision of the Board of      rejection of the appeal
                                                                         Appeal:
Pleas in law and main arguments                                          Grounds of claim:             Violation of article 7(1) (b) of
                                                                                Regulation 40/94 (1). The appli-
                                                                                cant claims the mark is distinctive.
When the applicant submitted a medical certificate attesting
that she was unable to work for one month, she pointed out
to the Commission that she wished to use that certificate to             (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
justify one week’s sick leave and asked that the remainder be                Community trade mark (OJ L 11, p. 1).
regarded as annual leave. The applicant subsequently asked
that the whole of the period be regarded as annual leave and
not set against her annual leave allowance.
In support of her application, the applicant alleges infringe-
ment of Article 59 of the Staff Regulations, erroneous assess-
ment of the facts, misuse of powers, failure to provide reasons          Action brought on 24 June 2002 by Michel Van Beek
and breach of the rights of the defence as well as breach of the             against Commission of the European Communities
principles of sound administration and of the duty to have
regard to the welfare of officials.
                                                                                (Case T-199/02)
                                                                                (2002/C 202/60)
                                                                                (Language of the case: French)
Action brought on 21 June 2002 by G.D. Searle LLC
against the Office for Harmonisation in the Internal
                             Market                                      An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                        (Case T-192/02)                                  European Communities on 24 June 2002 by Michel Van Beek,
                                                                         residing in Brussels, represented by Albert Coolen, Jean-Noël
                        (2002/C 202/59)                                  Louis and Etienne Marchal, lawyers.
                  (Language of the case: English)                        The applicant claims that the Court should:
                                                                         —     annul the decision of the Commission not to promote
An action against the Office for Harmonisation in the Internal                 him to Grade A 4 in the 2001 promotions procedure;
Market was brought before the Court of First Instance of the
European Communities on 21 June 2002 by G.D. Searle LLC,                 —     order the defendant to pay the costs.
represented by Graham Farrington, Solicitor,
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the decision of the defendant’s Third Board of
      Appeal of 10 April 2002;                                           The applicant in the present action, an official in Grade A 5,
                                                                         challenges the appointing authority’s refusal to promote him
—     order the defendant to remit the application to its                to Grade A 4 in the 2001 promotions procedure.
      Examination Division for re-examination of Community
      Trade Mark number 1299833.
                                                                         In support of his arguments, the applicant alleges:
Pleas in law and main arguments                                          —     breach of the duty to state reasons;
                                                                         —     infringement of Article 45 of the Staff Regulations and
The Community trade           The figurative mark with trade                   breach of the principle of equal treatment, of the principle
mark concerned:               mark        application      number              that officials should have reasonable career prospects
                              1299833.                                         and of the principles of good management and sound
                                                                               administration.
Goods and services:           Certain goods classified in class 5:
                              pharmaceuticals in the nature of
                              anti-inflammatory analgesics.


title: Case C-33/16: Judgment of the Court (Eighth Chamber) of 4 May 2017 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by A Oy (Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Article 148(d) — Exemption — Supply of services to meet the direct needs of vessels used for navigation on the high seas — Loading and unloading of cargo by a subcontractor on behalf of an intermediary)

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/12

         Judgment of the Court (Eighth Chamber) of 4 May 2017 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by A Oy
   (Case C-33/16) (1)

   ((Reference for a preliminary ruling - Taxation - Value added tax - Directive 2006/112/EC - Article 148(d) - Exemption - Supply of services to meet the direct needs of vessels used for navigation on the high seas - Loading and unloading of cargo by a subcontractor on behalf of an intermediary))
   (2017/C 213/13)
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

   A Oy

      Intervening party: Veronsaajien oikeudenvalvontayksikkö

      Operative part of the judgment

               1.

               Article 148(d) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that loading and unloading of cargo are services supplied for the direct needs of the cargo of the vessels referred to in Article 148(a) thereof.

               2.

               Article 148(d) of Directive 2006/112 must be interpreted as meaning that, first, not only supplies of services concerning loading or unloading cargo onto or from a vessel covered by Article 148(a) of that directive which take place at the end of the commercial chain of such a service may be exempt, but also supplies of services made at an earlier stage, such as services supplied by a subcontractor to an economic operator which then re-invoices them to a freight forwarder or transporter and, second, services for loading and unloading of cargo supplied to the holders of that cargo, such as the exporter or importer may also be exempt.

      (1)  OJ C 111, 29.3.2016.


title: Judgment of the Court (Sixth Chamber) of 28 November 2002 in Case C-259/01: Commission of the European Communities v French Republic (Failure by a Member State to fulfil its obligations — Directive 98/30/EC — Failure to transpose within the prescribed period)

text:
25.1.2003               EN                       Official Journal of the European Communities                                             C 19/7
                 JUDGMENT OF THE COURT                                                         JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                               (Sixth Chamber)
                       of 28 November 2002                                                            of 5 December 2002
in Case C-259/01: Commission of the European Communi-                       in Case C-324/01: Commission of the European Communi-
                                                                                ties v Kingdom of Belgium ( 1)
                     ties v French Republic ( 1)
                                                                            (Failure by a Member State to fulfil its obligations —
(Failure by a Member State to fulfil its obligations —                      Conservation of natural habitats — Wild fauna and flora —
Directive 98/30/EC — Failure to transpose within the                                                Incomplete transposition)
                          prescribed period)
                                                                                (2003/C 19/13)
                           (2003/C 19/12)
                                                                                (Language of the case: French)
                    (Language of the case: French)
                                                                            (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                            in the European Court Reports)
                   in the European Court Reports)
                                                                            In Case C-324/01, Commission of the European Communities
In Case C-259/01, Commission of the European Communities                    (Agents: R. B. Wainwrighte and J. Adda) v Kingdom of Belgium
(Agent: R. Tricot) v French Republic (Agents: G. de Bergues                 (Agent: C. Pochet): Application for a declaration that, by failing
and A. Bréville-Viéville): Application for a declaration that, by           to take all the measures necessary to ensure the full and proper
failing to adopt the laws, regulations and administrative                   transposition of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 14, 15,
provisions necessary to comply with Directive 98/30/EC of                   16(1), 22(b) and (c) and 23(2) of Council Directive 92/43/EEC
the European Parliament and of the Council of 22 June 1998                  of 21 May 1992 on the conservation of natural habitats and
concerning common rules for the internal market in natural                  of wild fauna and flora (OJ 1992 L 206, p. 7), in conjunction
gas (OJ 1998 L 204, p. 1), or, in any event, by not notifying               with Annexes II, IV, V and VI thereto, the Kingdom of Belgium
the Commission thereof, the French Republic has failed to                   has failed to fulfil its obligations under the Directive and the
fulfil its obligations under that directive and, in particular,             third paragraph of Article 249 EC, the Court (Sixth Chamber),
under Article 29 thereof, the Court (Sixth Chamber), composed               composed of: J.-P. Puissochet, President of the Chamber,
of: R. Schintgen (Rapporteur), President of the Second Chamb-               C. Gulmann (Rapporteur), F. Macken, N. Colneric and
er, acting for the President of the Sixth Chamber, C. Gulmann,              J.N. Cunha Rodrigues, Judges; P. Léger, Advocate General;
V. Skouris, F. Macken and N. Colneric, Judges; C. Stix-Hackl,               R. Grass, Registrar, has given a judgment on 5 December
Advocate General; R. Grass, Registrar, has given a judgment                 2002, in which it:
on 28 November 2002, in which it:
                                                                            1.    Declares that by failing to adopt all the laws, regulations and
                                                                                administrative measures necessary to ensure the full and proper
1.    Declares that, by failing to adopt the laws, regulations and
                                                                                transposition of Articles 1, 4(5), 5(4), 6, 7, 12, 13, 14, 15,
      administrative provisions necessary to comply with Directive
                                                                                16(1), 22(b) and (c) and 23(2) of Council Directive 92/43/
      98/30/EC of the European Parliament and of the Council of
                                                                                EEC of 21 May 1992 on the conservation of natural habitats
      22 June 1998 concerning common rules for the internal market
                                                                                and of wild fauna and flora, in conjunction with Annexes II,
      in natural gas, the French Republic has failed to fulfil its
                                                                                IV, V and VI thereto, the Kingdom of Belgium has failed to
      obligations under Article 29 thereof;
                                                                                fulfil its obligations under the Directive;
2.    Orders the French Republic to pay the costs.                          2.    Orders the Kingdom of Belgium to pay the costs.
( 1) OJ C 227 of 11.8.2001.                                                 (1 ) OJ C 289 of 13.10.2001.


title: Case T-257/08: Judgment of the Court of First Instance of 9 July 2009 — Biotronik v OHIM (BioMonitor) (Community trade mark — Application for Community word mark BioMonitor — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/37

         Judgment of the Court of First Instance of 9 July 2009 — Biotronik v OHIM (BioMonitor)
   (Case T-257/08) (1)

   (Community trade mark - Application for Community word mark BioMonitor - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))
   2009/C 205/68
   Language of the case: German

      Parties

      Applicant: Biotronik GmbH & Co. KG (Berlin, Germany) (represented initially by U. Sander and R. Böhm, and subsequently by R. Böhm, lawyers)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 April 2008 (Case R 466/2007-4) concerning an application for registration of the word sign BioMonitor as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Biotronik GmbH & Co. KG to pay the costs.

      (1)  OJ C 223, 30.8.2008.


title: Case T-241/07: Order of the Court of First Instance of 27 October 2008 — Buzzi Unichem v Commission (Action for annulment — Directive 2003/87/EC — System of exchange of greenhouse gas emissions allowances — National plan for the allocation of emission allowances for Italy for the period from 2008 to 2012 — Commission Decision not to raise objections on certain conditions — Not individually concerned — Inadmissibility)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/30

         Order of the Court of First Instance of 27 October 2008 — Buzzi Unichem v Commission
   (Case T-241/07) (1)

   (Action for annulment - Directive 2003/87/EC - System of exchange of greenhouse gas emissions allowances - National plan for the allocation of emission allowances for Italy for the period from 2008 to 2012 - Commission Decision not to raise objections on certain conditions - Not individually concerned - Inadmissibility)
   (2009/C 6/61)
   Language of the case: Italian
   Parties

      Applicant: Buzzi Unichem SpA (Casale Monferrato, Italy) (represented by: C. Vivani, M. Vellano and G. Osch, lawyers)

      Defendant: Commission of the European Communities (represented by: U. Wölker and D. Recchia, acting as Agents)
   Re:
   Annulment of the Commission Decision of 15 May 2007 concerning the national plan for the allocation of greenhouse gas emission allowances notified by Italy for the period from 2008 to 2012, in accordance with Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), inasmuch as the Commission makes its decision not to raise objections with regard to that national allocation plan conditional on withdrawal of the authorisation for installation operators to retain part of the allowances allocated in the event of ‘closure due to a production rationalisation process’.
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Buzzi Unichem SpA shall bear its own costs and shall pay those incurred by the Commission.

      (1)  OJ C 211, 8.9.2007.


title: Case T -67/06: Action brought on  20 February 2006  — Elini N.V. v OHIM

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/27

         Action brought on 20 February 2006 — Elini N.V. v OHIM
   (Case T -67/06)
   (2006/C 96/45)
   Language in which the application was lodged: Dutch
   Parties

      Applicant: Elini N.V. (Antwerp, Belgium) (represented by: F. Cornette and S. Tilsley, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Other party to the proceedings before the Board of Appeal of OHIM: Rolex. S.A (Geneva, Switzerland)
   Form of order sought
   The applicant claims that the Court should:

               —

               review and annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 December 2005 (Case R-725/2004-4);

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments
   Applicant for a Community trade mark: Elini N.V.

      Community trade mark concerned: the figurative mark ‘Elini’ for goods in class 14 (jewellery; watches; watch straps, watch glasses, watch chains and precious stones)
   Proprietor of the mark or sign cited in the opposition proceedings: Rolex S.A.

      Mark or sign cited in opposition: the figurative mark ‘Cellini’ for goods in class 14 (registration number 1 456 102)
   Decision of the Opposition Division: rejection of the opposition

      Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the application for a Community trade mark

      Pleas in law: breach of Article 8(1)(b) of Regulation No 40/94.


title: Judgment of the Court of First Instance of 21 November 2000 in Case T-214/99: Manuel Tomás Carrasco Benítez v Commission of the European Communities (Officials — Recruitment — Access to internal competitions — Competition notice — Condition relating to length of service — Professional experience of the candidate)

text:
24.3.2001              EN                      Official Journal of the European Communities                                       C 95/11
2.    dismisses as inadmissible the application in Case T-85/99;              JUDGMENT OF THE COURT OF FIRST INSTANCE
3.    orders the Parliament to bear its own costs, and to pay those of                          of 21 November 2000
      Mr Ripa di Meana and Mr Orlando, in Cases T-83/99 and
      T-84/99;                                                            in Case T-214/99: Manuel Tomás Carrasco Benı́tez v
                                                                                Commission of the European Communities (1)
4.    orders Mr Parigi to bear his own costs, as well as to pay those
      of the Parliament, in Case T-85/99.                                 (Officials — Recruitment — Access to internal competitions
                                                                          — Competition notice — Condition relating to length of
                                                                               service — Professional experience of the candidate)
(1) OJ No C 160 of 5/6/99.
                                                                                (2001/C 95/20)
                                                                                (Language of the case: French)
                                                                          In Case T-214/99: Manuel Tomás Carrasco Benı́tez, an official
                                                                          of the Commission of the European Communities, residing in
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               London, represented by J.-N. Louis, G. Parmentier and V. Peere,
                                                                          of the Brussels Bar, with an address for service in Luxembourg
                                                                          at Société de gestion fiduciaire SARL, 13 Avenue du Bois,
                      of 26 September 2000                                against Commission of the European Communities (Agents:
                                                                          J. Currall and D. Waelbroeck) — application for the annulment
                                                                          of the decision of the internal selection boards for competitions
in Case T-138/99: Luc Verheyden v Commission of the
                                                                          COM/T/R/ADM/A/98, COM/R/5179/98, COM/R/5182/98,
                    European Communities (1)
                                                                          COM/R/5183/98, COM/R/5188/98 and COM/R/5190/98 not
                                                                          to admit him to those competitions — the Court of First
(Officials — Prior administrative complaint — Time-limits                 Instance (Third Chamber), composed of K. Lenaerts, President,
— New fact — Promotion — Comparative examination on                       J. Azizi and M. Jaeger, Judges; J. Palacio González, Adminis-
                             the merits)                                  trator, for the Registrar, gave a judgment on 21 November
                                                                          2000, in which it:
                          (2001/C 95/19)                                  1.    dismisses the application;
                                                                          2.    orders each of the parties to bear its own costs.
                    (Language of the case: French)
                                                                          (1) OJ No C 333 of 20/11/99.
In Case T-138/99: Luc Verheyden, an official of the Com-
mission of the European Communities, residing in Angera
(Italy), represented by E. Boigelot, of the Brussels Bar, with an
address for service in Luxembourg at the Chambers of
L. Schiltz, 2 Rue du Fort Rheinsheim, against Commission of
the European Communities (Agents: C. Berardis-Kayser and
F. Clotuche-Duvieusart) — application for the annulment of                    JUDGMENT OF THE COURT OF FIRST INSTANCE
the decision not to promote the applicant to Grade A4 with
retroactive effect from 10 October 1989 and of the decision                                     of 12 December 2000
not to promote the applicant in the 1998 promotion exercise,
and for compensation for the non-pecuniary damage which                   in Case T-11/00: Michel Hautem v European Investment
he claims to have suffered — the Court of First Instance                                                 Bank (1)
(Fifth Chamber), composed of: R. Garcı́a-Valdecasas, President,
P. Lindh and J.D. Cooke, Judges; G. Herzig, Administrator, for            (Officials — Removal from post — Failure to comply with a
the Registrar, has given a judgment on 26 October 2000, the               judgment annulling a decision — Article 233 EC — Non-
operative part of which is as follows:                                    contractual liability of the Community — Non-material
                                                                                damage — Compensation)
1.    The application is dismissed;
                                                                                (2001/C 95/21)
2.    Each party shall bear its own costs.
                                                                                (Language of the case: French)
(1) OJ C 226 of 7.8.99.
                                                                          In Case T-11/00: Michel Hautem, a servant of the European
                                                                          Investment Bank, residing in Schouweiler (Luxembourg), rep-
                                                                          resented by M. Karp and J. Choucroun, of the Luxembourg


title: Case C-333/99: Action brought on 9 September 1999 by the Commission of the European Communities against the French Republic

text:
20.11.1999            EN                   Official Journal of the European Communities                                       C 333/17
Reference for a preliminary ruling by the Landesgericht                  — by failing to determine the appropriate detailed rules
Korneuburg by order of 20 August 1999 in the case of                          for the utilization of the quotas allocated to them for
FILA Sport S.p.A. v New Times International Transport                         the fishing years 1988 and 1990,
                        Service Co. Ltd
                                                                         — by failing to ensure compliance with the Community
                       (Case C-327/99)
                                                                              rules on the conservation of species through sufficient
                                                                              monitoring of fishing activities, appropriate inspection
                       (1999/C 333/36)                                        of the fishing fleet and of catches landed and recordal
                                                                              of catches for both the 1988 and 1990 fishing years,
Reference has been made to the Court of Justice of the
European Communities by order of 20 August 1999 from
                                                                         — by not provisionally prohibiting fishing by vessels
the Landesgericht Korneuburg (Regional Court, Korneuburg)
                                                                              flying the French flag or registered in France when the
(Republic of Austria), which was received at the Court Registry
                                                                              catches taken had been deemed to have exhausted the
on 31 August 1999, for a preliminary ruling in the case of
                                                                              corresponding quota and by prohibiting fishing on a
FILA Sport S.p.A. v New Times International Transport Service
                                                                              contingent basis even though the quota had been
Co. Ltd on the following question:
                                                                              exceeded by far, in both the 1988 and 1990 fishing
                                                                              years,
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying
down measures to prohibit the release for free circulation,              — by failing to take criminal or administrative proceed-
export, re-export or entry for a suspensive procedure of                      ings against any skipper or other persons responsible
counterfeit and pirated goods (Official Journal of the European               for fishing after the prohibition thereof, as regards the
Communities No L 341 of 30.12.1994) also applicable to                        1988 and 1990 fishing years,
situations in which goods of the type specified therein are, in
the course of transit between two States not belonging to
the European Community, temporarily detained by customs               2. Order the French Republic to pay the costs.
authorities in a Member State on the basis of that regulation,
at the request of a holder of rights who claims that his rights
have been infringed and whose undertaking has its registered
office in a Member State of the European Community?
                                                                      Contentions and principal arguments adduced in support
                                                                      — Infringement of Article 5(2) of Regulation No 170/83 in
                                                                         conjunction with Article 1(1) of Regulation No 2241/87
                                                                         (lack of control measures): the French authorities explain
                                                                         that with effect from 1988 they established new procedures
                                                                         for statistical processing. They themselves recognise that
Action brought on 9 September 1999 by the Commission                     those procedures have not yielded all the expected results.
of the European Communities against the French Republic                  The order issued — belatedly — by the French Minister for
                                                                         Fisheries on 24 August 1998 cannot in any event be
                       (Case C-333/99)                                   regarded as an adequate measure.
                       (1999/C 333/37)                                — Infringement of Article 11(2) of Regulation No 2241/87
                                                                         (belated order to cease fishing): every Member State, must,
An action against the French Republic was brought before the             under Article 11(2), on the basis of the information
Court of Justice on 9 September 1999 by the Commission of                available as to catches taken, determine the date on which
the European Communities, represented by Thomas Van Rijn,                it is envisaged that the quota will be exhausted and in due
Legal Adviser, and Bernard Mongin, of its Legal Service, acting          time adopt the appropriate measures to enable fishing to
as Agents, with an address for service in Luxembourg at the              be prohibited as from that date. However, during the 1998
office of Carlos Gómez de la Cruz, also of its Legal Service,           fishing year the prohibition measure was adopted on each
Wagner Centre, Kirchberg.                                                occasion after the quota had been exhausted. As regards
                                                                         the 1990 fishing year, in none of the six cases of
                                                                         overfishing established had any measure been adopted
The Commission of the European Communities claims that                   to stop fishing. The explanations given by the French
the Court of Justice should:                                             Government (inadequacy of statistical facilities, difficulty
                                                                         of managing small quotas exploited by a diffuse fleet) are
1. Declare that the French Republic has failed to fulfil                 unacceptable.
    its obligations under (i) Article 5(2) of Regulation (EEC)
    No 170/83(1) of 25 January 1983 in conjunction with
    Article 1(1) of Regulation (EEC) No 2241/87, (ii) Art-            — Infringement of Article 1(1) of Regulation No 2241/87
    icle 11(2) of Regulation (EEC) No 2241/87 (2) and (iii) Art-         (no criminal or administrative penalties imposed): the
    icle 5(2) of Regulation (EEC) 170/83 of 25 January 1983              appropriate monitoring or inspections would have inter
    in conjunction with Article 1(2) of Regulation (EEC)                 alia enabled the French authorities to adopt prohibiting
    No 2241/87:                                                          measures at the time prescribed by the Community
 ---pagebreak--- C 333/18                EN                       Official Journal of the European Communities                                     20.11.1999
     legislation and to prosecute any offenders, both for 1988              The applicant claims that the Court should:
     and 1990. The authorities did not institute any proceedings
     against those who continued to fish after the prohibition
     was imposed, even though that measure was particularly                 (a) annul the following decisions adopted on 1 July 1999 by
     belated.                                                                   the Commission of the European Communities:
(1) OJ L 24 of 27.1.1983, p. 1.                                                 — Decision 1999/503/EC (notified under document
(2) OJ L 207 of 29.7.1987, p. 1.                                                     number C(1999) 1771) (1), inasmuch as it establishes a
                                                                                population ceiling of 7 402 000 inhabitants for Italy
                                                                                under Objective 2 of the Structural Funds for the
                                                                                period 2000 to 2006;
                                                                                — Decision 1999/504/EC (notified under document
                                                                                number C(1999) 1772) (2), inasmuch as it fixes at
Reference for a preliminary ruling by the Commissione                                2 145 million euro (at 1999 prices) the indicative
Tributaria di Primo Grado di Trento, Sezione No 6 by                                 allocation for Italy of the commitment appropriations
order of that court of 13 May 1999 in the case of Tumedei                            for Objective 2 of the Structural Funds for the pe-
SpA against Centro di Servizio delle Imposte Dirette e                               riod 2000 to 2006;
                        Indirette di Trento
                          (Case C-336/99)                                   (b) order the defendant to pay the costs.
                          (1999/C 333/38)
                                                                            Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tribu-
taria di Primo Grado di Trento, Sezione No 6 (Tax Court of                  1. Decision 1999/503/EC does not indicate the method used
First Instance, Trento, Sixth Chamber) of 13 May 1999,                          by the Commission to determine the population ceiling. It
received at the Court Registry on 10 September 1999, for a                      is not possible, therefore, to ascertain the logical/legal
preliminary ruling in the case of Tumedei SpA v Centro di                       process which prompted the Commission to determine, in
Servizio delle Imposte Dirette e Indirette di Trento on the                     relation to Italy, the population ceiling of
following question:                                                             7 402 000 inhabitants, or to check that, when determining
                                                                                the population ceilings, the Commission took into account
Is it compatible with Community law, and in particular with                     the matters laid down in Article 4(2)(a), (b) and (c) of
Directive 69/335/EEC (1), to tax over a period of years at the                  Council Regulation No 1260/99 (3).
rate of 0,75% per annum pursuant to Decree-Law
No 394/1992 of 30 September 1992 that part of the net assets                    The alleged total failure to provide reasons renders
consisting solely of a company’s capital disclosed annually by                  Decision 1999/503 null and void, at least as regards the
the balance sheet which has already borne the initial tax on                    contested part thereof, which concerns the determination
contributions of 1%?                                                            of the population ceiling for Italy.
(1) OJ, English Special Edition 1969 (II), p. 412.
                                                                            2. In the alternative, it must be concluded that the criterion
                                                                                which the Commission claims to have adopted in order to
                                                                                determine, in relation to Italy, the population ceiling of
                                                                                7 402 000 inhabitants is unlawful, in that it is ultra vires
                                                                                and based on misuse of powers, erroneous assumptions
                                                                                and distortion of the facts.
Action brought on 17 September 1999 by the Italian
Republic against the Commission of the European Com-                        3. As a result of the unlawful determination in
                              munities                                          Decision 1999/503 of the population ceiling for Italy,
                                                                                Decision 1999/504/EC is also unlawful in so far as the
                                                                                latter decision fixes the indicative allocation for Italy in the
                          (Case C-344/99)                                       sum of 2 145 million euro.
                          (1999/C 333/39)
An action against the Commission of the European Communi-                   (1) OJ L 194 of 27.7.1999, p. 58.
ties was brought before the Court of Justice of the European                (2) OJ L 194 of 27.7.1999, p. 60.
Communities on 17 September 1999 by the Italian Republic,                   (3) OJ L 161 of 26.6.1999, p. 1.
represented by Umberto Leanza, acting as Agent, assisted by
Ivo M. Braguglia, Avvocato dello Stato, with an address
for service in Luxembourg at the Italian Embassy, 5 Rue
Marie-Adélaïde.


title: Case C-665/15: Judgment of the Court (Ninth Chamber) of 22 March 2017 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Transport — Driving licences — EU driving licence network — Use of and connection to the EU network)

text:
               29.5.2017

               EN

               Official Journal of the European Union

               C 168/14

         Judgment of the Court (Ninth Chamber) of 22 March 2017 — European Commission v Portuguese Republic
   (Case C-665/15) (1)

   ((Failure of a Member State to fulfil obligations - Transport - Driving licences - EU driving licence network - Use of and connection to the EU network))
   (2017/C 168/16)
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: J. Hottiaux, M. Farrajota and P. Guerra e Andrade, acting as Agents)

      Defendant: Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo and C. Guerra Santos, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Rules that, by not having put in place the connection to the EU driving licence network, the Portuguese Republic has failed to fulfil its obligations under Article 7(5)(d) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences;

               2.

               Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 59, 15.2.2016.


title: Case T-9/16: Action brought on 11 January 2016 — Skechers USA France v OHIM — IM Production (Shoes)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/53

         Action brought on 11 January 2016 — Skechers USA France v OHIM — IM Production (Shoes)
   (Case T-9/16)
   (2016/C 098/68)
   Language in which the application was lodged: French

      Parties

      Applicant: Skechers USA France (Paris, France) (represented by: J. Horn, lawyer)

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

      Other party to the proceedings before the Board of Appeal: IM Production SAS (Paris)

      Details of the proceedings before OHIM

      Proprietor of the design at issue: Other party to the proceedings before the Board of Appeal

      Design at issue: Community design 1 221 584-0023

      Contested decision: Decision of the Third Board of Appeal of OHIM of 23 September 2015 in Case R 2429/2013-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

      Pleas in law

               —

               Infringement of the rights of the defence and the principles of due process;

               —

               Infringement of Articles 4, 5, 6 and of Article 25(1)(b) of Regulation No 6/2002.


title: Case F-82/08: Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Clarke and Others v OHIM (Staff case — Temporary staff — Article 8 CEOS — Clause terminating a contract if the agent is not included on the reserve list of a competition — OHIM/AD/02/07 and OHIM/AST/02/07 open competitions — Act adversely affecting an official — Principle of performance of contracts in good faith — Duty of care — Principle of sound administration — Language requirements — EPSO not competent — Directive 1999/70/EC — Fixed-term work)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/49

         Judgment of the Civil Service Tribunal (Second Chamber) of 14 April 2011 — Clarke and Others v OHIM
   (Case F-82/08) (1)

   (Staff case - Temporary staff - Article 8 CEOS - Clause terminating a contract if the agent is not included on the reserve list of a competition - OHIM/AD/02/07 and OHIM/AST/02/07 open competitions - Act adversely affecting an official - Principle of performance of contracts in good faith - Duty of care - Principle of sound administration - Language requirements - EPSO not competent - Directive 1999/70/EC - Fixed-term work)
   2011/C 252/103
   Language of the case: German

      Parties

      Applicants: Nicola Clarke and Others (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, agent, and D. Waelbroeck, lawyer)

      Re:

   Application for, first, a declaration of the invalidity of the clauses in the applicants’ contracts which make provision for automatic termination of their contracts in the event that they are not included on the reserve list drawn up following the first open competition for their function group and, second, for a declaration that the open competitions OHIM/AD/02/07 and OHIM/AST/02/07 have no effect on the contracts of the applicants or for the annulment of those competitions. Further, application for damages for non-material damage caused to the applicants.

      Operative part of the judgment

   The Tribunal:

               1.

               annuls the decision of the Director of the Human Resources Department of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 December 2007, and the OHIM decision of 7 March 2008, in so far as the latter decision rejected the respective applications by Mmes Clarke, Papathanasiou and Periañez-González that the termination clause in their temporary staff contracts not be applied in relation to the OHIM/AD/02/07 and OHIM/AST/02/07 competitions;

               2.

               orders OHIM to pay to each of the applicants the sum of EUR 2 000 in damages;

               3.

               dismisses the action as to the remainder;

               4.

               orders OHIM to bear its own costs and to pay those of the applicants.

      (1)  OJ C 19, 24.1.2009, p. 38.


title: Action brought on 23 October 1998 by Una Film 'City Revue' GmbH against the European Parliament and Council of the European Union (Case T-175/98) (1999/C 1/32)

text:
4.1.1999             EN                Official Journal of the European Communities                                      C 1/15
              ORDER OF THE PRESIDENT                              Ð order the Office to accord a filing date to Community
          OF THE COURT OF FIRST INSTANCE                               trade mark application No 000200006, submitted on
                                                                       19 April 1996;
                     of 23 October 1998
in Case T-100/98 R: Anthony Goldstein v. Commission of
                 the European Communities                         Ð order the Office to pay all the costs.
  (Interlocutory proceedings Ð Admissibility Ð Urgency)
                        (1999/C 1/30)                             Pleas in law and main arguments adduced in support:
               (Language of the case: English)                    Trade mark           Baby Dry' Ð
                                                                  concerned:           Application No 000200006.
                                                                  Product of           diapers for babies
In Case T-100/98 R: Anthony Goldstein, residing in                service:
Harrow, Middlesex, England, represented by Raymond St             Decision             refusal of registration by the examiner
John Murphy, Solicitor, Merriman White, 3 King's Bench            contested before
Walk, Inner Temple, London, against Commission of the             the Board of
European Communities (Agent: Richard Lyal) Ð                      Appeal:
application for interim measures in the context of an
                                                                  Pleas in law         Ð infringement of      Article 7(1)(b) of
action seeking compensation for the damage which the
                                                                  relied on:               Regulation (EC)   No 40/94
applicant claims to have suffered as a result of the
                                                                                Ð infringement of      Article 7(1)(c) of
publication, under the Commission's responsibility, of a
                                                                                Regulation (EC)   No 40/94
fact sheet concerning the recognition of diplomas and
qualifications for general and specialist medical                 Alternatively:       Ð infringement of Articles 7(3) and
practitioners Ð the President of the Court of First                                        62 of Regulation (EC) No 40/94
Instance made an order on 23 October 1998, the
operative part of which is as follows:
1. The application for interim measures is dismissed.
2. Costs are reserved.
                                                                  Action brought on 23 October 1998 by Una Film City
                                                                  Revue' GmbH against the European Parliament and
                                                                                Council of the European Union
                                                                                (Case T-175/98)
                                                                                (1999/C 1/32)
Action brought on 6 October 1998 by The Procter &
Gamble Company against the Office for Harmonisation in
                                                                                (Language of the case: German)
                the Internal Market (OHIM)
                       (Case T-163/98)
                                                                  An action against the European Parliament and the
                        (1999/C 1/31)
                                                                  Council of the European Union was brought before the
                                                                  Court of First Instance of the European Communities on
               (Language of the case: French)                     23 October 1998 by Una Film City Revue' GmbH of
                                                                  Vienna, Austria, represented by Dr Rainer Borgelt, of the
                                                                  Düsseldorf Bar, and Professor Dr Manfred Dauses, of
An action against the Office for Harmonisation in the             Bamberg, Germany, with an address for service in
Internal Market (OHIM) was brought before the Court of            Luxembourg at the Chambers of Reding & Felten, 2 Rue
First Instance on 6 October 1998 by The Procter &                 J. P. Brasseur, Luxembourg.
Gamble Company, established in Cincinnati, Ohio (United
States of America), represented by Thierry van Innis, of
the Brussels Bar, with an address for service in                  The applicant claims that the Court should:
Luxembourg at the Chambers of Katia Manhaeve, 56Ð58
Rue Charles Martel.
                                                                  Ð Declare Directive 98/43/EC of the European
                                                                       Parliament and of the Council of 6 July 1998 on the
The applicant claims that the Court of First Instance                  approximation of the laws, regulations and
should:                                                                administrative provisions of the Member States
                                                                       relating to the advertising and sponsorship of tobacco
                                                                       products (OJ 213, 30.7.1998, p. 9, enclosed as
Ð annul the Board of Appeal's decision of 31 July 1998;                Annex K3) to be null and void,
 ---pagebreak--- C 1/16                EN                  Official Journal of the European Communities                                     4.1.1999
     in the alternative declare Article 3 of that directive to       in the Community legal order such as for example the
     be null and void in so far as the ban it lays down              right to property and the right to freedom of expression.
     includes advertising whose effects do not extend
     beyond the territory of the Member State in question,
                                                                     Finally, it is alleged that the duty to state reasons provided
                                                                     for in Article 190 of the EC Treaty has been infringed
     further in the alternative declare Article 3 of that            since, first, no or insufficient grounds were given for
     directive to be null and void in so far as it bans the          regulating essential aspects and, secondly, non of the
     use, in advertising for non-tobacco products, of brand          necessary details as to the principles of subsidiarity and
     names, trade marks and emblems used for tobacco                 proportionality were provided, neither were the real
     products;                                                       reasons for issuing the directive ascertainable.
Ð Order the defendant to pay the costs of the action.
Pleas in law and main arguments adduced in support:
                                                                     Action brought on 31 October 1998 by Georgsmarienhütte
The applicant is a distributor of cinema advertising,                Holding GmbH against the Commission of the European
exclusively in Austrian cinemas. It is the market leader in                                    Communities
Austria in the distribution of cinema advertisements for
tobacco products. Its only client for tobacco-related                                        (Case T-181/98)
advertising is Austria Tabak. Since it is also Austria
                                                                                (1999/C 1/33)
Tabak's only contractor for tobacco-related products, the
applicant is the sole coordinator for the distribution of all
cinema advertisements for tobacco products in Austria.
                                                                                (Language of the case: German)
The applicant considers that it will be particularly hard hit
by the economic consequences of the ban on tobacco                   An action against the Commission of the European
advertising because of its position in the market since not          Communities was brought before the Court of First
only will cinema advertisement income for tobacco-related            Instance of the European Communities on 31 October
products dry up immediately but indirect advertising' (as           1998 by Georgsmarienhütte Holding GmbH, whose
it is referred to in the directive) will also be affected, and       registered office is in Georgsmarienhütte (Germany),
these two areas of advertising represent a large part of the         represented by Walter Klosterfelde, Thomas Jestaedt and
applicant's turnover.                                                Martin Sura, Rechtsanwälte, Brussels, with an address for
                                                                     service in Luxembourg at the Chambers of Arendt and
                                                                     Medernach, 8Ð10 Rue Mathias Hardt.
The legal arguments relied on by the applicant are as
follows:
                                                                     The applicant claims that the Court should:
The directive which, according to its preamble, is based
on Articles 57(2), 66 and 100A of the EC Treaty has no
legal basis in Community law. The principle of limited               1. annul Commission Decision K(1998) 2556 of 29 July
specific authority has thus been infringed. Nor can the                  1998, concerning aids paid by the Land Niedersachsen
disputed directive be based on either Article 129 or                     to Georgsmarienhütte GmbH;
Article 235 of the EC Treaty. Even if Articles 57(2), 66
and 100A of the EC Treaty are to be considered as
appropriate and sufficient legal bases for the disputed              2. order the Commission to pay the costs.
directive, it was none the less adopted in breach of the
principle of subsidiarity established in the second
paragraph of Article 3B of the EC Treaty. In any event,
                                                                     Pleas in law and main arguments adduced in support:
the directive infringes the principle of proportionality
established in the third paragraph of Article 3B of the EC
Treaty.
                                                                     The applicant, a medium-sized steel undertaking, belonged
                                                                     to the Klöckner steel group until the beginning of 1993,
The applicant further alleges infringement of the freedom            and was established following a management buy-out as
of movement of goods and services within the internal                part of composition proceedings opened in respect of that
market and in particular incompatibility with Articles 30            group. At that time, the applicant still owned a number of
et seq. and 59 et seq. of the EC Treaty.                             pieces of land that were not necessary for its business and
                                                                     were therefore to be sold. One piece of land (known as
                                                                     Westerkamp') had previously been used for many years
In addition, the applicant is of the opinion that the                by undertakings of the Klöckner steel group as a dumping
disputed directive infringes certain basic rights protected          ground for blast furnace wastes and converter steel dusts.


title: Case C-166/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija — Latvia) — Criminal proceedings against Aleksandrs Ranks, Jurijs Vasiļevičs (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 91/250/EEC — Article 4(a) and (c) — Article 5(1) and (2) — Directive 2009/24/EC — Article 4(1) and (2) — Article 5(1) and (2) — Legal protection of computer programs — Resale of ‘used’ licensed copies of computer programs on non-original material media — Exhaustion of the distribution right — Exclusive right of reproduction)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/3

         Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija — Latvia) — Criminal proceedings against Aleksandrs Ranks, Jurijs Vasiļevičs
   (Case C-166/15) (1)

   ((Reference for a preliminary ruling - Intellectual property - Copyright and related rights - Directive 91/250/EEC - Article 4(a) and (c) - Article 5(1) and (2) - Directive 2009/24/EC - Article 4(1) and (2) - Article 5(1) and (2) - Legal protection of computer programs - Resale of ‘used’ licensed copies of computer programs on non-original material media - Exhaustion of the distribution right - Exclusive right of reproduction))
   (2016/C 462/04)
   Language of the case: Latvian

      Referring court

   Rīgas apgabaltiesas Krimināllietu tiesu kolēģija

      Parties in the main proceedings

   Aleksandrs Ranks, Jurijs Vasiļevičs

      The other parties to the proceedings: Finanšu un ekonomisko noziegumu izmeklēšanas prokoratūra, Microsoft Corp.

      Operative part of the judgment

   Article 4(a) and (c) and Article 5(1) and (2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder.

      (1)  OJ C 205, 22.6.2015.