title: Case T-106/08 R: Order of the Court of First Instance of 18 April 2008 — CPEM v Commission (Application for interim measures — Application for suspension of operation — New application — New facts — Absence — Inadmissibility — Article 109 of the Rules of Procedure of the Court of First Instance)

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/32

         Order of the Court of First Instance of 18 April 2008 — CPEM v Commission
   (Case T-106/08 R) (1)

   (Application for interim measures - Application for suspension of operation - New application - New facts - Absence - Inadmissibility - Article 109 of the Rules of Procedure of the Court of First Instance)
   2009/C 220/66
   Language of the case: French

      Parties

      Applicant: Centre de promotion de l’emploi par la micro-entreprise (CPEM) (Marseilles, France) (represented by: C. Bonnefoi, lawyer)

      Defendant: Commission of the European Communities (represented by: L. Flynn and A. Steiblytė, acting as Agents)

      Re:

   Application for suspension of the operation of debit note No 3240912189 of 17 December 2007 relating to Commission Decision C(2007) 4645 of 4 October 2007, cancelling the assistance granted to CPEM by the European Social Fund (ESF) by Decision C(1999) 2645 of 17 August 1999

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.

      (1)  OJ C 107, 26.4.2008.


title: Case C-17/09: Action brought on 14 January 2009 — Commission of the European Communities v Federal Republic of Germany

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/26

         Action brought on 14 January 2009 — Commission of the European Communities v Federal Republic of Germany
   (Case C-17/09)
   (2009/C 69/48)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: B. Schima and C. Zadra, acting as Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               declare that, the Federal Republic of Germany has failed to fulfil its obligations under Article 8, in conjunction with Titles III to VI, of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (1), by reason of the fact that the city of Bonn and the Müllverwertungsanlage Bonn GmbH awarded a public service contract for the disposal of bio-waste and green waste without carrying out an award procedure including Europe-wide tendering;

               —

               order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments
   The subject-matter of the present action is a service contract for pecuniary interest for the disposal of bio-waste and green waste between the City of Bonn and the Müllverwertungsanlage Bonn GmbH (‘MVA GmbH’), on the one hand, and the private waste disposal undertaking EVB Entsorgung und Verwertung Bonn GmbH & Co. KG (‘EVB’) on the other hand. MVA GmbH is a municipal company, 93.46 % of the capital of which is held by Stadtwerke Bonn GmbH — a 100 % subsidiary of the City of Bonn — and 6.54 % of the capital of which is held directly by the City of Bonn. In that contract EVB undertakes, first, to procure, pre-sort and deliver household waste for disposal at the waste treatment plant, Bonn, and, secondly, to dispose of bio-waste and green waste from the urban area of Bonn in their compost plants for a price of DM 6 million per annum.
   Although the disposal contract in question is a public service contract within the meaning of Article 1(a) of Directive 92/50/EEC, it was concluded directly with EVB without the carrying-out of a formal award procedure and Europe-wide tendering. The contract also deals with the provision of refuse disposal services for the purposes of category No 16 of Annex I A to that directive and thus significantly exceeds the threshold value for the application of the directive.
   Contrary to the opinion of the Federal Government, what matters is not whether the contract covers services other than the composting services, which are provided by the City or MVA GmbH on EVB's behalf. The crucial factor is, rather, that the contract creates legally binding obligations on the part of EVB to the City in respect of the provision of composting services for pecuniary interest. Furthermore, it cannot be maintained that the composting services constitute a completely insignificant ancillary aspect of the contract because those services are one of the central aspects of the concept negotiated by the parties and constitute a significant economic part of the mutually agreed volume of services.
   In addition, the Commission cannot agree with the Federal Government's argument that the City of Bonn was entitled, on the basis of Article 11(3)(b) of Directive 92/50/EEC, to award the composting services by negotiated procedure without prior publication of a contract notice. According to the case-law of the Court that provision of the Directive must be interpreted strictly and the burden of proving the existence of the exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances. Since the Federal Government has not produced detailed evidence to prove that EVB had an exclusive right to provide the disputed composting services and what the legal basis for such a right is, it cannot be assumed that there are circumstances justifying the derogation in Article 11(3)(b) of Directive 92/50/EEC.

      (1)  OJ 1992 L 209, p. 1.


C 118/24              EN                Official Journal of the European Communities                                     21.4.2001
       Removal from the register of Case C-402/99 (1)                     Removal from the register of Case C-160/00 (1)
                        (2001/C 118/46)                                                    (2001/C 118/49)
By order of 27 September 2000 the President of the Court of        By order of 28 September 2000 the President of the Court of
Justice of the European Communities has ordered the removal        Justice of the European Communities has ordered the removal
from the register of Case C-402/99: Commission of the              from the register of Case C-160/00: Commission of the
European Communities v Kingdom of Belgium.                         European Communities v Ireland.
(1) OJ C 6 of 8.1.2000.                                            (1) OJ C 176 of 24.6.2000.
       Removal from the register of Case C-46/00 (1)                      Removal from the register of Case C-128/99 (1)
                        (2001/C 118/47)                                                    (2001/C 118/50)
By order of 28 September 2000 the President of the Court of        By order of 3 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal        Justice of the European Communities has ordered the removal
from the register of Case C-46/00: Commission of the               from the register of Case C-128/99: [reference for a preliminary
European Communities v Ireland.                                    ruling from the Oberster Gerichtshof (Austria)]: Johann Kappel
                                                                   v Pensionsversicherungsanstalt der Arbeiter.
(1) OJ C 102 of 8.4.2000.
                                                                   (1) OJ C 188 of 3.7.1999.
       Removal from the register of Case C-85/00 (1)                      Removal from the register of Case C-464/99 (1)
                        (2001/C 118/48)                                                    (2001/C 118/51)
By order of 28 September 2000 the President of the Court of        By order of 3 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal        Justice of the European Communities has ordered the removal
from the register of Case C-85/00: Commission of the               from the register of Case C-464/99: Commission of the
European Communities v Hellenic Republic.                          European Communities v Hellenic Republic.
(1) OJ C 135 of 13.5.2000.                                         (1) OJ C 47 of 19.2.2000.


title: Case C-285/04: Reference for a preliminary ruling by the Tribunale di Oristano by order of that court of 14 June 2004 in the case of Ignazio Medda against the Banco di Napoli SpA and the Regione Autonoma della Sardegna

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/17

         Reference for a preliminary ruling by the Tribunale di Oristano by order of that court of 14 June 2004 in the case of Ignazio Medda against the Banco di Napoli SpA and the Regione Autonoma della Sardegna
   (Case C-285/04)
   (2004/C 217/31)
   Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Oristano (Italy) of 14 June 2004, received at the Court Registry on 1 July 2004, for a preliminary ruling in the case of Ignazio Medda against the Banco di Napoli SpA and the Regione Autonoma della Sardegna on the validity of Commission Decision No 97/612/EC (1) having regard to the following defects:

               (a)

               lack of competence on the part of the Commission to adopt the contested decision in infringement of the combined provisions of Article 36 EC;

               (b)

               infringement of the provisions governing the procedure provided for under Article 88(1) EC;

               (c)

               infringement of the provisions governing the procedure provided for under Article 88(2) and (3) EC;

               (d)

               failure to state reasons for the decision in application of the combined provisions of Articles 253, 88(3) and 87(1) EC;

               (e)

               infringement and failure to comply with the ‘practice for aid to farms in difficulty’ and with the ‘Community guidelines on State aid for rescuing and restructuring firms in difficulty’;

               (f)

               breach of the principle of legitimate expectations.

      (1)  OJ L 248 of 11.9.1997, p. 27.


title: Case T-479/15: Action brought on 20 August 2015 — Lotte v OHIM — Kuchenmeister (KOALA LAND)

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/38

         Action brought on 20 August 2015 — Lotte v OHIM — Kuchenmeister (KOALA LAND)
   (Case T-479/15)
   (2015/C 337/43)
   Language in which the application was lodged: German

      Parties

      Applicant: Lotte Co. Ltd (Tokyo, Japan) (represented by: M. Knitter and S. Schicker, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Kuchenmeister GmbH (Soest, Germany)

      Details of the proceedings before OHIM

      Applicant: Applicant

      Trade mark at issue: Community word mark ‘KOALA LAND’ — Application for registration No 10 766 723

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 4 June 2015 in Case R 815/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision, notified to the applicant on 23 June 2015, concerning the application for registration of Community trademark No 10 766 723 ‘KOALA LAND’;

               —

               order OHIM to pay the costs of the present proceedings.

      Pleas in law

               —

               Infringement of Article 42(2) and (3) of Regulation No 207/2009;

               —

               Infringement of Article 15(1)(a) of Regulation No 207/2009;

               —

               Infringement of Rule 22(3) of Regulation No 2868/95;

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-258/11: Reference for a preliminary ruling from Supreme Court (Ireland) made on 26 May 2011 — Peter Sweetman, Ireland, Attorney General, Minister for the Environment, Heritage and Local Government v An Bord Pleanala

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/15

         Reference for a preliminary ruling from Supreme Court (Ireland) made on 26 May 2011 — Peter Sweetman, Ireland, Attorney General, Minister for the Environment, Heritage and Local Government v An Bord Pleanala
   (Case C-258/11)
   2011/C 226/29
   Language of the case: English

      Referring court

   Supreme Court

      Parties to the main proceedings

      Applicants: Peter Sweetman, Ireland, Attorney General, Minister for the Environment, Heritage and Local Government

      Defendant: An Bord Pleanala

      Questions referred

               1.

               What are the criteria in law to be applied by a competent authority to an assessment of the likelihood of a plan or project the subject of Article 6(3) of the Habitats Directive (1), having ‘an adverse effect on the integrity of the site’?

               2.

               Does the application of the precautionary principle have as its consequence that such a plan or project cannot be authorised if it would result in the permanent non-renewable loss of the whole or any part of the habitat in question?

               3.

               What is the relationship, if any, between Article 6(4) and the making of the decision under Article 6(3) that the plan or project will not adversely affect the integrity of the site?

      (1)  Council Directive 92/43/EEC of 21 May 1992. OJ L 206, p. 7


title: Case T-451/15: Action brought on 5 August 2015 — AlzChem v Commission

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/45

         Action brought on 5 August 2015 — AlzChem v Commission
   (Case T-451/15)
   (2015/C 320/63)
   Language of the case: English

      Parties

      Applicant: AlzChem AG (Trostberg, Germany) (represented by: A. Borsos, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application admissible and well founded;

               —

               annul the decision Ares (2015) 2176662 of the European Commission of 26 May 2015, taken pursuant to Article 4 of the Implementing Rules to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, in response to application No GESTDEM 2015/1640; and

               —

               order the Commission to pay the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an error in law and a manifest error of assessment regarding the application of a general presumption in reaction to the exception for the protection of the purpose of EU investigations. The applicant puts forward the following errors:

                           —

                           the Commission’s error in law regarding the application of the general exceptions;

                           —

                           the Commission’s error in law regarding the protection of the purpose of investigations;

                           —

                           the Commission’s error in law and manifest error of assessment regarding the assessment of the overriding public interest of ensuring an effective judicial review (Article 47 of the Charter of Fundamental Rights of the European Union); and

                           —

                           the Commission’s error in law regarding the application of the fundamental right of access to documents (Article 42 of the Charter of Fundamental Rights of the European Union).

               2.

               Second plea in law, alleging an error in law and a manifest error of assessment regarding the application of the exception for the protection of commercial interests.

               3.

               Third plea in law, alleging a failure to state reasons regarding the refusal of access to a non-confidential version or an on-site access to the documents.


title: Case T-481/09: Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (maxi BRICO CENTER) (Community trade mark — Opposition proceedings — Application for Community figurative mark maxi BRICO CENTER — Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/27

         Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (maxi BRICO CENTER)
   (Case T-481/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark maxi BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 232/48
   Language of the case: Italian

      Parties

      Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and G. Mannucci, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1046/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 September 2009 (Case R 1046/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

               2.

               Dismisses the remainder of the action;

               3.

               Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

      (1)  OJ C 24, 30.1.2010.


title: Order of the Court of First Instance of 30 November 2000 in Case T-175/00: Anthony Goldstein v Commission of the European Communities (Action for failure to act — Articles 81 and 82 EC — No need to adjudicate — Article 86 EC — Admissibility)

text:
C 108/22                 EN                        Official Journal of the European Communities                                      7.4.2001
      ORDER OF THE COURT OF FIRST INSTANCE                                    9 January 2001 by Matratzen Concord Aktiengesellschaft,
                                                                              Cologne (Germany), represented by Wolf-W. Wodrich,
                       of 30 November 2000                                    Rechtsanwalt.
in Case T-175/00: Anthony Goldstein v Commission of
                  the European Communities (1)                                The other party to the proceedings before the Board of Appeal
                                                                              was Hukla Germany S.A., Castellbisbal (Spain).
(Action for failure to act — Articles 81 and 82 EC — No
    need to adjudicate — Article 86 EC — Admissibility)
                                                                              The applicant claims that the Court should:
                           (2001/C 108/41)
                    (Language of the case: English)                           —     annul the decision adopted on 31 October 2000 by the
                                                                                defendant (Second Board of Appeal) in joined appeals
In Case T-175/00: Anthony Goldstein, residing at Harrow,                            Nos R 728/1999-2 and R 792/1999-2;
Middlesex (United Kingdom), represented by R.St John Mur-
phy, Solicitor, 3 King’s Bench Walk, Inner Temple, London
(United Kingdom), against Commission of the European                          —     reject the opposition entered on 21 April 1998 by the
Communities (Agent: R. Lyal) — application for a declaration                        opposing party (Case No B 32500);
that the Commission has failed to act by not taking a decision
on a complaint (IV/34.824 — Goldstein/GMC) against certain
anticompetitive practices, lodged by the applicant under                      —     order the defendant to register the Community trade
Article 3(2) of Council Regulation No 17 of 6 February 1962,                        mark (pictorial mark) ‘MATRATZEN Markt CONCORD’
First Regulation implementing Articles 85 and 86 of the Treaty                      (trade mark application No 395 632 of 10 October
(OJ, English Special Edition 1959-1962, p. 87) — the Court of                       1996) in the Register of Community trade marks;
First Instance (First Chamber), composed of: B. Vesterdorf,
President, M. Vilaras and N.J. Forwood, Judges; H. Jung,
Registrar, has given an order on 30 November 2000, in which                   —     order the opposing party to pay all the costs and expenses
it:                                                                                of the proceedings before the Opposition Division and
                                                                                the Board of Appeal and of the present court proceedings.
1.    There is no need to adjudicate on the claim for a declaration of
      failure to act in so far as it relates to the Commission’s failure
      to act in connection with Articles 81 and 82 EC.
2.    In so far as it is directed against the Commission’s failure to         Pleas in law and main arguments
      act in connection with Article 86 EC, the application is
      inadmissible.
                                                                              Applicant for the Com-       Matratzen     Concord     Aktienge-
3.    The parties shall bear their own costs.                                 munity mark:                 sellschaft
(1) OJ C 285 of 7.10.00.                                                      Trade mark applied for:      The pictorial mark ‘MATRATZEN
                                                                                Markt CONCORD’ — trade mark
                                                                                application No 395 632 for goods
                                                                                in Classes 10, 20 and 24
                                                                              Proprietor of an oppos-      Hukla Germany S.A., Castellbis-
Action brought on 9 January 2001 by Matratzen Concord                         ing mark or of an oppos-     bal, Spain
Aktiengesellschaft against the Office for Harmonisation                       ing sign:
     in the Internal Market (Trade Marks and Designs)
                                                                              Opposing mark or sign:       The Spanish registered mark
                             (Case T-6/01)                                                                 ‘MATRATZEN’ for goods in Class
                                                                                20
                           (2001/C 108/42)
                                                                              Decision of the Oppo-        Rejection of the application in
(Language of the case: to be determined in accordance with Article            sition Division:             respect of goods in Classes 20 and
131(2) of the Rules of Procedure — Language in which the                                                   24. Continuation of the appli-
                    application is drafted: German)                                                        cation procedure in respect of
                                                                                goods in Class 10
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the                       Decision of the Board of     Appeal of the opposing party
Court of First Instance of the European Communities on                        Appeal:                      upheld


title: Case C-283/05: Judgment of the Court (First Chamber) of 14 December 2006 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS) (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Regulation (EC) No 44/2001 — Recognition and enforcement — Article 34(2) — Judgment given in default of appearance — Ground for refusal — Meaning of the requirement that it must be possible for a defendant in default of appearance to commence proceedings to challenge the judgment — Failure to serve the judgment)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/12

         Judgment of the Court (First Chamber) of 14 December 2006 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS)
   (Case C-283/05) (1)

   (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Regulation (EC) No 44/2001 - Recognition and enforcement - Article 34(2) - Judgment given in default of appearance - Ground for refusal - Meaning of the requirement that it must be ‘possible’ for a defendant in default of appearance to commence proceedings to challenge the judgment - Failure to serve the judgment)
   (2006/C 331/19)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: ASML Netherlands BV

      Defendant: Semiconductor Industry Services GmbH (SEMIS)
   Re:
   Reference for a preliminary ruling — Oberster Gerichtshof (Austria) — Interpretation of Article 34(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Recognition of a default judgment — Possibility of challenge of the decision by the defaulting defendant — No duly effected service or notification
   Operative part of the judgment
   Article 34(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.

      (1)  OJ C 229, 17.9.2005.


title: Action brought on 13 January 1997 by Industrie des Poudres Sphériques (IPS) against the Commission of the European Communities (Case T-5/97)

text:
 No C 74/24            EN                 Official Journal of the European Communities                                      8 . 3 . 97
 Action brought on 13 January 1997 by Industrie des                  as the defendant took the view that Pechiney had
 Poudres Spheriques (IPS ) against the Commission of                 attempted to improve the quality of its calcium with a
                   the European Communities                          view to supplying the applicant. The applicant stresses the
                         ( Case T-5/97 )                             fact that the statements made on several occasions by
                                                                     Pechiney, in numerous exchanges of correspondence with
                           ( 97/C 74/49 )                            the applicant, concerning the production of the calcium
                                                                     which it was awaiting, were never followed by the
                 (Language of the case: French)                      slightest explanation as to the reasons why that calcium
                                                                     was never ready. Moreover, according to the applicant,
 An action against the Commission of the European                    Pechiney has failed to provide any details whatever
 Communities was brought before the Court of First                   concerning the arrangements which it was allegedly
 Instance of the European Communities on 13 January                  making in order to improve the quality of its calcium.
 1997 by Industrie des Poudres Spheriques ( IPS ), having its        Consequently, the Commission merely undertook a
 seat at Annemasse ( France ), represented by Chantal                superficial appraisal of the various items of
 Momege, of the Paris Bar, with an adress for service in             correspondence sent by Pechiney to the applicant, without
 Luxembourg at the Chambers of Aloyse May, 31 Grand                 embarking on any serious assessment of the documents in
 Rue .                                                               the case .
 The applicant claims that the Court should:                         In addition to pleading the erroneous appraisal concerning
                                                                     the existence of abusive practices, the applicant claims
— annul the Commission 's decision of 7 November 1996                that the Commission's analysis is based on a number of
     rejecting its complaint in Case IV/35151/E-1 ,                  errors of assessment, in that the defendant:
— order the Council to pay all the costs.                           — considers that the applicant's process calls for
                                                                          particular specifications which differ from those of
                                                                          other calcium metal processors,
Pleas in law and main arguments adduced in support:
                                                                    — states that no producer has specified the oxygen
The applicant, a small company specializing in the                       content of its calcium,
production of granulated radioactive metals, needs, in
order to meet its production requirements, to obtain                — disregarded the fact that the difficulty in arriving at a
supplies of calcium metal. Since commencing production                   reliable method of analysing the calcium is attributable
in 1982, it has approached Pechiney, the sole Community                  to unwillingness on the part of Pechiney, and
producer, with a view to procuring from the latter all the
supplies of the product which it requires. However, its
                                                                    — took the view that the applicant could obtain
endeavours have been wholly fruitless. The applicant
                                                                         deliveries from western suppliers or from other third
states, by way of explanation for Pechiney's conduct, that               countries .
the latter has developed a process in competition with that
of the applicant and that the two companies have become
competitors as regards the derivative product known as
split calcium. According to the applicant, one of the
delaying tactics employed by Pechiney has been to use the
anti-dumping instrument solely in order to exclude
supplies from outside the Community.                                Action brought on 15 January 1997 by Comafrica SpA
                                                                    and Dole Fresh Fruit Europe Ltd & Co. against the
                                                                              Commission of the European Communities
The present action is directed against the rejection by the
Commission of the complaint lodged by the applicant                                          ( Case T-6/97 )
with a view to bringing to an end Pechiney's infringement                                     ( 97/C 74/50 )
of Article 86 of the EC Treaty in the calcium metal
market.                                                                              (Language of the case: English)
In support of its claims, the applicant maintains, first of         An action against the Commission of the European
all, that there has been an infringement of Articles 190            Communities was brought before the Court of First
and 86 of the Treaty, as well as a manifest error of                Instance of the European Communities on 15 January
assessment, in that the Commission disregarded the link             1997 by Comafrica SpA and Dole Fresh Fruit Europe Ltd
between Pechiney's delaying tactics and the use of the              & Co ., represented by Bernard O'Connor, with an address
anti-dumping instrument. By acting in that way, the                 for service in Luxembourg at the offices of Arsene
defendant failed to verify the extent to which Pechiney             Kronshagen, Rue Marie Adelaide 22.
abused its dominant position by resorting to the anti
dumping procedure in conjunction with its exclusion                 The applicants claim that the Court should:
practics .
                                                                    — declare void, pursuant to Articles 173 and 174 of the
Second, the applicant also complains that the defendant                  EC Treaty, Regulation ( EC ) No 2035/96 in so far as it
has committed a manifest error of assessment, as well as                 affects the applicants, or alternatively, declare the said
an infringement of Article 86 of the EC Treaty, inasmuch                 regulation void erga omnes,


title: Judgment of the Court (Second Chamber) of 9 September 2004 in Case C-304/01: Kingdom of Spain v Commission of the European Communities (Common fisheries policy — Regulation (EC) No 1162/2001 — Recovery of the stock of hake — Control of the activities of fishing vessels — Choice of legal basis — Principle of non-discrimination — Obligation to give reasons)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 9 September 2004
   in Case C-304/01: Kingdom of Spain v Commission of the European Communities (1)

   (Common fisheries policy - Regulation (EC) No 1162/2001 - Recovery of the stock of hake - Control of the activities of fishing vessels - Choice of legal basis - Principle of non-discrimination - Obligation to give reasons)
   (2004/C 262/01)
   Language of the case: Spanish
   In Case C-304/01: Kingdom of Spain (Agent: N. Díaz Abad) v Commission of the European Communities (Agents: T. van Rijn and S. Pardo Quintillán) — application for annulment under Article 230 EC, lodged at the Court on 2 August 2001 — the Court (Second Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber; C. Gulmann, J.-P. Puissochet, J.N. Cunha Rodrigues and N. Colneric, Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Registrar, Principal Administrator, gave a judgment on 9 September 2004, in which it:

               1.

               Dismisses the action;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 289, 13.10.2001.


title: Case C-418/14: Judgment of the Court (Ninth Chamber) of 2 June 2016 (request for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu -Poland) — ROZ-ŚWIT Zakład Produkcyjno-Handlowo-Usługowy Henryk Ciurko, Adam Pawłowski spółka jawna v Dyrektor Izby Celnej we Wrocławiu (Reference for a preliminary ruling — Excise duties — Directive 2003/96/EC — Differentiated rates of excise duty for motor fuels and heating fuels — Condition for the application of the rate for heating fuels — Submission of a monthly list of statements that the products purchased are for heating purposes — Application of the rate of excise duty laid down for motor fuels where that list is not submitted — Principle of proportionality)

text:
               8.8.2016

               EN

               Official Journal of the European Union

               C 287/7

         Judgment of the Court (Ninth Chamber) of 2 June 2016 (request for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu -Poland) — ROZ-ŚWIT Zakład Produkcyjno-Handlowo-Usługowy Henryk Ciurko, Adam Pawłowski spółka jawna v Dyrektor Izby Celnej we Wrocławiu
   (Case C-418/14) (1)

   ((Reference for a preliminary ruling - Excise duties - Directive 2003/96/EC - Differentiated rates of excise duty for motor fuels and heating fuels - Condition for the application of the rate for heating fuels - Submission of a monthly list of statements that the products purchased are for heating purposes - Application of the rate of excise duty laid down for motor fuels where that list is not submitted - Principle of proportionality))
   (2016/C 287/08)
   Language of the case: Polish

      Referring court

   Wojewódzki Sąd Administracyjny we Wrocławiu

      Parties to the main proceedings

      Applicant: ROZ-ŚWIT Zakład Produkcyjno-Handlowo-Usługowy Henryk Ciurko, Adam Pawłowski spółka jawna

      Defendant: Dyrektor Izby Celnej we Wrocławiu

      Operative part of the judgment

   Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/75/EC of 29 April 2004, and the principle of proportionality must be interpreted as:

               —

               not precluding national legislation under which sellers of heating fuel are required to submit, within a prescribed time limit, a monthly list of statements from purchasers that the products purchased are for heating purposes, and

               —

               precluding national legislation under which, if a list of statements from purchasers is not submitted within a prescribed time limit, the excise duty applicable for motor fuels is applied to the heating fuel sold, even though it has been found that the intended use of that product for heating purposes is not in doubt.

      (1)  OJ C 462, 22.12.2014.


title: Case C-435/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Mauro Barletta (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/5

         Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Mauro Barletta
   (Case C-435/14) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))
   (2016/C 270/06)
   Language of the case: Italian

      Referring court

   Tribunale di Bari

      Criminal proceedings against

   Mauro Barletta

      Operative part of the order

               1.

               Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

               2.

               Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

      (1)  OJ C 448, 15.12.2014.


title: Case C-76/12: Action brought on 13 February 2012 — European Commission v French Republic

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/16

         Action brought on 13 February 2012 — European Commission v French Republic
   (Case C-76/12)
   2012/C 133/29
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: W. Roels and C. Soulay, Agents)

      Defendant: French Republic

      Form of order sought

               —

               declare that, by maintaining in force a tax regime which exempts from tax dividends paid by a French company to investment funds established in France, whereas the same dividends distributed to investment funds established in another Member State of the European Union or of the European Economic Area are subject to a withholding tax, the French Republic has failed to fulfil its obligations under Article 63 of the Treaty on the Functioning of the European Union and Article 40 of the Agreement on the European Economic Area;

               —

               order the French Republic to pay the costs.

      Pleas in law and main arguments

   By its action, the Commission challenges the difference in the tax treatment of dividends paid by French companies to undertakings for collective investment in transferable securities (UCITS) depending on whether those UCITS are resident or non-resident in France. One of the elements of the tax regime applied to UCITS resident in France is the fact that the latter are not subject to tax in respect of dividends distributed to them by French companies. By contrast, pursuant to Article 119a (2) of the French General Tax Code (Code général des impôts), a withholding tax is applied to dividends distributed by French companies to non-resident UCITS. The Commission takes the view that the differing tax treatment applied to resident and to non-resident UCITS, although they are in an objectively comparable situation irrespective of their State of residence, constitutes an obstacle to the free movement of capital, and that that obstacle is not justified by the effectiveness of fiscal supervision or by the need to safeguard a balanced apportionment of the power to tax.
   The Commission notes that, according to settled case-law as set out in particular in the judgments in Case C-540/07 Commission v Italy [2009] ECR I-10983 and Case C-284/09 Commission v Germany [2011], the Court has held that Member States which subject dividends distributed to companies established in other Member States to a tax regime which is less favourable than that applied to dividends distributed to resident companies, without that difference in treatment being justified by objectively different situations or by overriding reasons in the general interest, have failed to fulfil their obligations in respect of the free movement of capital.


title: Case C-264/11 P: Judgment of the Court (Third Chamber) of 19 July 2012 — Kaimer GmbH & Co. Holding KG, Sanha Kaimer GmbH & Co. KG, Sanha Italia Srl v European Commission (Appeal — Competition — Cartel — Penalty — Copper and copper alloy fittings sector — Probative value of statements made in the context of the leniency policy)

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/14

         Judgment of the Court (Third Chamber) of 19 July 2012 — Kaimer GmbH & Co. Holding KG, Sanha Kaimer GmbH & Co. KG, Sanha Italia Srl v European Commission
   (Case C-264/11 P) (1)

   (Appeal - Competition - Cartel - Penalty - Copper and copper alloy fittings sector - Probative value of statements made in the context of the leniency policy)
   2012/C 295/22
   Language of the case: German

      Parties

      Appellants: Kaimer GmbH & Co. Holding KG, Sanha Kaimer GmbH & Co. KG, Sanha Italia Srl (represented by: J. Brück, Rechtsanwalt)

      Other party to the proceedings: European Commission (represented by: V. Bottka and R. Sauer, Agents)

      Re:

   Appeal brought against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-379/06 Kaimer and Others v Commission by which the General Court dismissed in part the appellants’ action for annulment of Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement concerning a cartel in the copper and copper alloy fittings sector or, in the alternative, for a reduction in the fine imposed on the appellants — Distortion of the evidence — Error of assessment regarding the probative value of statements made in the context of the leniency policy — Infringement of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Kaimer GmbH & Co. Holding KG, Sanha Kaimer GmbH & Co. KG and Sanha Italia Srl to pay the costs.

      (1)  OJ C 269, 10.9.2011.


title: Case C-80/02: Reference for a preliminary ruling by the Athens Appeal Court by order of that Court of 31 January 2002 in the case of the Greek State against Loukas Vlachos

text:
C 144/14              EN                   Official Journal of the European Communities                                     15.6.2002
(Supreme Court) (Republic of Austria) of 29 January 2002,             The preliminary questions are identical to those in Case C-78/
received at the Court Registry on 4 March 2002, for a                 02.
preliminary ruling in the case of Herbert Karner Industrieauk-
tionen GmbH against Troostwijk GesmbH on the following
question:
Is Article 28 EC to be interpreted as precluding national
legislation which, irrespective of the truthfulness of infor-
mation, prohibits any reference therein to the fact that the
goods come from assets in a bankruptcy, where, in public
announcements or notifications intended for a large circle of
persons, the notice given states that the goods offered for sale      Reference for a preliminary ruling by the Oberster
are from assets in a bankruptcy although the goods in question        Gerichtshof (Republic of Austria) by order of that Court
no longer form part of the assets in the bankruptcy?                  of 31 January 2002 in the case of Eurokeramik Gesell-
                                                                      schaft mbh & Co KG against Gemeinnützige Salzburger
                                                                                Wohnbaugesellschaft mbH
                                                                                (Case C-81/02)
                                                                                (2002/C 144/23)
Reference for a preliminary ruling by the Athens Appeal
Court by order of that Court of 31 January 2002 in the
       case of the Greek State against Katina Petrova
                        (Case C-79/02)                                Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Oberster Gerichtshof
                                                                      (Republic of Austria) of 31 January 2002, received at the Court
                       (2002/C 144/21)                                Registry on 11 March 2002, for a preliminary ruling in the
                                                                      case of Eurokeramik Gesellschaft mbh & Co KG against
                                                                      Gemeinnützige Salzburger Wohnbaugesellschaft mbH on the
                                                                      following questions:
Reference has been made to the Court of Justice of the
European Communities by order of the Athens Appeal Court
                                                                      1.   Does a social housing association established as a limited
(Greece) of 31 January 2002, received at the Court Registry on
                                                                           liability company of which there are two shareholders,
11 March 2002, for a preliminary ruling in the case of the
                                                                           each a regional or local authority, in carrying out the
Greek State against Katina Petrova on the following questions:
                                                                           objects laid down in its statutes which consist in the
                                                                           provision of social housing, meet needs in the general
The preliminary questions are identical to those in Case C-78/             interest not having an industrial or commercial character,
02.                                                                        and is the association therefore to be regarded as a body
                                                                           governed by public law for the purposes of Article 1(b)
                                                                           of Council Directive 93/37/EEC (1) of 14 June 1993
                                                                           concerning the coordination of procedures for the award
                                                                           of public works contracts, where it carries out its activities
                                                                           with a limited intention to make a profit and is subject to
                                                                           both competition generally and competition specifically
                                                                           from other social housing associations, but at the same
Reference for a preliminary ruling by the Athens Appeal                    time is supported by public funds and is subject to special
Court by order of that Court of 31 January 2002 in the                     State controls?
       case of the Greek State against Loukas Vlachos
                                                                      2.   Is a national procurement law which permits contracting
                        (Case C-80/02)                                     authorities to exclude tenderers, without giving any
                                                                           reasons, from procurement procedures in respect of
                                                                           works contracts below the Community law threshold
                       (2002/C 144/22)                                     and within a minimal amount of up to, for example,
                                                                           EUR 10 000, compatible with Community law?
Reference has been made to the Court of Justice of the
European Communities by order of the Athens Appeal Court              (1) OJ L 199 1993, p. 54.
(Greece) of 31 January 2002, received at the Court Registry on
11 March 2002, for a preliminary ruling in the case of the
Greek State against Loukas Vlachos on the following questions:


title: Case C-390/07: Judgment of the Court (Third Chamber) of 10 December 2009 — European Commission v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Environment — Directive 91/271/EEC — Urban waste water treatment — Article 3(1) and (2), Article 5(1) to (3) and (5) and Annexes I and II — Initial failure to identify sensitive areas — Concept of eutrophication — Criteria — Burden of proof — Relevant date when considering the evidence — Implementation of collection obligations — Implementation of more stringent treatment of discharges into sensitive areas)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/4

         Judgment of the Court (Third Chamber) of 10 December 2009 — European Commission v United Kingdom of Great Britain and Northern Ireland
   (Case C-390/07) (1)

   (Failure of a Member State to fulfil obligations - Environment - Directive 91/271/EEC - Urban waste water treatment - Article 3(1) and (2), Article 5(1) to (3) and (5) and Annexes I and II - Initial failure to identify sensitive areas - Concept of ‘eutrophication’ - Criteria - Burden of proof - Relevant date when considering the evidence - Implementation of collection obligations - Implementation of more stringent treatment of discharges into sensitive areas)
   2010/C 24/05
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: S. Pardo Quintillán, X. Lewis and H. van Vliet, Agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Gibbs and V. Jackson, Agents, D. Anderson QC and S. Ford, Barrister)

      Intervener in support of the defendant: Portuguese Republic (represented by: L. Inez Fernandes and M.J. Lois, Agents)

      Re:

   Failure of a Member State to fulfil obligations — Articles 3(1) and (2) and 5(1) to (3) and (5) of, and Annex II to, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40) — Failure to identify certain areas as sensitive areas with respect to eutrophication and to subject urban waste water from agglomerations with a population equivalent of more than 10 000 to more stringent treatment where it is discharged into sensitive areas or areas which should have been identified as sensitive.

      Operative part of the judgment

   The Court:

               1.

               Declares that, by having failed to subject discharges of urban waste water from Craigavon (Ballynacor and Bullay’s Hill treatment plants) and Magherafelt to more stringent treatment, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the European Commission to pay the costs of the United Kingdom of Great Britain and Northern Ireland;

               4.

               Orders the Portuguese Republic to bear its own costs.

      (1)  OJ C 283, 24.11.2007.


title: Order of the Court of First Instance of 30 April 2003 in Case T-154/02: Villiger Söhne GmbH v Council of the European Union (Action for annulment — Article 3(1) and first indent of Article 4(2) of Directive 2002/10/EC — Structure and rate of excise duty applied on manufactured tobacco — Manifestly inadmissible)

text:
C 184/36               EN                           Official Journal of the European Union                                          2.8.2003
Directive 2000/60/EC (OJ 2001 L 331, p. 1), the Court of First                     ORDER OF THE COURT OF FIRST INSTANCE
Instance (Third Chamber), composed of: K. Lenaerts, President,
J. Azizi and M. Jaeger, Judges; H. Jung, Registrar, has made an                                       of 23 April 2003
order on 6 May 2003, the operative part of which is as follows:
                                                                            in Case T-73/03: Bernard Zaoui and Others v Commission
1.    The application is dismissed as inadmissible.                                        of the European Communities (1)
2.    The applicant shall bear its own costs and pay the costs              (Non-contractual liability of the Community — Application
      incurred by the Parliament and the Council.                                                   manifestly unfounded)
3.    The Commission shall bear its own costs.
                                                                                (2003/C 184/82)
(1) OJ C 144 of 15.06.2002.                                                                      (Language of the case: French)
                                                                            In Case T-73/03, Bernard Zaoui, residing in Combs La Ville
                                                                            (France), Lucien Zaoui, residing in Netanya (Israel) and Deborah
                                                                            Zaoui, residing in Ramat Gan (Israel), represented by
                                                                            J.A. Buchinger, lawyer, with an address for service in Luxem-
       ORDER OF THE COURT OF FIRST INSTANCE                                 bourg, against the Commission of the European Communities
                                                                            — application for compensation for damage allegedly suffered
                                                                            by the applicants following an attack carried out in Netanya
                         of 30 April 2003                                   (Israel) on 27 March 2002 — the Court of First Instance (First
                                                                            Chamber), composed of B. Vesterdorf, President, H. Legal and
                                                                            M.E. Martins Ribero, Judges; H. Jung, Registrar, made an order
in Case T-154/02: Villiger Söhne GmbH v Council of the
                                                                            on 23 April 2003, the operative part of which is as follows:
                        European Union (1)
                                                                            1)    The application is rejected.
(Action for annulment — Article 3(1) and first indent of
Article 4(2) of Directive 2002/10/EC — Structure and rate
of excise duty applied on manufactured tobacco — Manifestly                 2)    The applicants are ordered to pay the costs.
                            inadmissible)
                                                                            (1) OJ 2003 C 124.
                          (2003/C 184/81)
                   (Language of the case: German)
In Case T-154/02: Villiger Söhne GmbH, established in Wald-                 Action brought on 10 April 2003 by Greenpeace Limited
shut-Tiengen (Germany), represented by B. Wägenbaur, lawyer,                and Nexgen Group Limited (trading as ECOTRICITY)
against Council of the European Union (Agents: F. Gijón and                    against the Commission of the European Communities
M. Simm) — application for annulment of Article 3(1) of
Council Directive 2002/10/EC of 12 February 2002 amending
Directives 92/79/EEC, 92/80/EEC and 95/59/EC as regards the                                            (Case T-121/03)
structure and rates of excise duty applied on manufactured
tobacco (OJ 2002 L 46, p. 26) and, in the alternative, of the                                          (2003/C 184/83)
first indent of Article 4(2) of that directive — the Court of
First Instance (Third Chamber), composed of K. Lenaerts, Presi-
dent of the Chamber, J. Azizi and M. Jaeger, Judges; H. Jung,                                   (Language of the case: English)
Registrar, made an order on 30 April 2003, the operative part
of which is as follows:
                                                                            An action against the Commission of the European Commu-
1.    The application is dismissed as inadmissible.                         nities was brought before the Court of First Instance of the
                                                                            European Communities on 10 April 2003 by Greenpeace
                                                                            Limited, London, United Kingdom, and Nexgen Group Limited
2.    The applicant is ordered to pay the costs.
                                                                            (trading as ECOTRICITY), Gloucestershire, United Kingdom,
                                                                            represented by P. Lasok QC, Mr J. Turner and Ms R. Haynes,
3.    There is no need to adjudicate on the applications for leave to       Barristers.
      intervene.
                                                                            The applicant claims that the Court should:
(1) OJ C 191 10.8.02.
                                                                            —     annul the Contested Decision and order the Commission
                                                                                to pay the Applicants costs.


title: Case C-419/13: Judgment of the Court (Fourth Chamber) of 22 January 2015 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Art & Allposters International BV v Stichting Pictoright (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Article 4 — Distribution right — Exhaustion rule — Concept of ‘object’ — Transfer of the image of a protected work from a paper poster to a painter’s canvas — Replacement of the medium — Impact on exhaustion)

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/6

      Judgment of the Court (Fourth Chamber) of 22 January 2015 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Art & Allposters International BV v Stichting Pictoright
      (Case C-419/13) (1)

      ((Reference for a preliminary ruling - Intellectual property - Copyright and related rights - Directive 2001/29/EC - Article 4 - Distribution right - Exhaustion rule - Concept of ‘object’ - Transfer of the image of a protected work from a paper poster to a painter’s canvas - Replacement of the medium - Impact on exhaustion))
      (2015/C 107/07)
      Language of the case: Dutch

         Referring court

      Hoge Raad der Nederlanden

         Parties to the main proceedings

         Applicant: Art & Allposters International BV

         Defendant: Stichting Pictoright

         Operative part of the judgment

      Article 4(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the rule of exhaustion of the distribution right set out in Article 4(2) of Directive 2001/29 does not apply in a situation where a reproduction of a protected work, after having been marketed in the European Union with the copyright holder’s consent, has undergone an alteration of its medium, such as the transfer of that reproduction from a paper poster onto a canvas, and is placed on the market again in its new form.

         (1)  OJ C 325, 9.11.2013.


title: Case T-182/09: Action brought on 4 May 2009 — Budapesti Erőmű v Commission

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/52

         Action brought on 4 May 2009 — Budapesti Erőmű v Commission
   (Case T-182/09)
   2009/C 180/97
   Language of the case: English

      Parties

      Applicant: Budapesti Erőmű Rt. (Budapest, Republic of Hungary) (represented by: M. Powell, Solicitor, C. Arhold, K. Struckmann and A. Hegyi, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               to annul the decision of the European Commission of 4 June 2008 in State Aid Case C 41/05, as far as the PPAs concluded by the applicant are concerned;

               —

               to award the applicant the costs of the present action;

               —

               to take such other or further action as justice may require.

      Pleas in law and main arguments

   The applicant seeks the annulment of Commission Decision C (2008) 2223 final, of 4 June 2008, declaring incompatible with the common market the aid granted by the Hungarian authorities to certain electricity generating producers in the form of long-term power purchase agreements (“PPAs”) of electricity concluded between the transmission operator Magyar Villamos Müvek Rt. (“MVM”), owned by the Hungarian State, and these producers at a date prior to accession of the Republic of Hungary to the European Union [State aid C 41/2005 (ex NN 49/2005) — Hungarian “Stranded Costs”]. The applicant is identified in the contested decision as a beneficiary of the alleged State aid and the decision orders Hungary to recover the aid, including interest, from the applicant.
   On the basis of its first plea, the applicant submits that the Commission has erroneously taken the view that the relevant period of assessment was the time of Hungary’s accession to the EU. Instead, the Commission should have assessed whether the applicant’s PPAs contain any State aid in light of the factual and legal circumstances at the time when they were concluded. The applicant further claims that the Commission infringed Article 87(1) EC and made a manifest error of assessment by concluding that the PPAs grant an economic advantage. In addition, the applicant contends that the Commission misapplied the Treaty of accession of Hungary and Article 1(b)(v) of Council Regulation No 659/1999 (1) (“The Procedural Regulation”).
   Moreover, the applicant claims that, contrary to the Commission’s view, there was no distortion of competition and that Annex IV to the accession Treaty does not list conclusively the aid measures that can be deemed existing aid, but stipulates only an exception to the principle that all pre-accession aid measures are per se existing aid. In addition, the applicant contends that Articles 87(3) EC with respect to possible exemption as State aid for cogeneration, 86(2) EC, 88(1) and (3), as well as Article 14 of the Procedural Regulation, with respect to the recovery of existing individual aid, have been infringed.
   On the basis of its second plea, the applicant claims that the Commission lacked competence to assess the PPAs in question as they were concluded before Hungary’s accession to the EU.
   On the basis of its third plea, the applicant claims that the Commission infringed essential procedural requirements such as the right to be heard and the obligation to undertake a diligent and impartial investigation. Moreover, the applicant contends that the Commission has infringed essential procedural requirements by carrying out a common assessment of the PPAs without assessing the essential terms of each PPA individually. According to the applicant, in order to be able to assess whether the PPAs contain State Aid, the Commission must assess whether they confer an economic advantage on generators and in order to do so, an individual assessment of each PPA is absolutely essential. Further, it is submitted that the approach carried out by the Commission was inadequate for a proper assessment of whether a significant number of individual measures constitute State aid. If the PPAs could be considered as existing aid schemes, the Commission would have had to follow the appropriate measures procedure as laid down in Article 88(1) EC and Article 18 of the Procedural Regulation.
   On the basis of its fourth plea, the applicant submits that the contested decision infringes the obligation to state reasons, enshrined in Article 253 EC.
   Finally, on the basis of its fifth plea, the applicant claims that the Commission misused its powers under State aid rules by adopting a negative decision under the procedure laid down in Article 88(2) EC, calling for the termination of the PPAs without even establishing their economic advantage.

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


title: Case F-26/11: Action brought on 8 March 2011 — ZZ v Council

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/21

         Action brought on 8 March 2011 — ZZ v Council
   (Case F-26/11)
   2011/C 179/35
   Language of the case: French

      Parties

      Applicant: ZZ (Brussels, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision not to include the applicant in the list of those promoted to grade AD 13 in the 2010 promotion exercise, and an order that the defendant pay to the applicant a sum in compensation for the non-material damage suffered.

      Form of order sought

               —

               Annul the decision of the appointing authority not to include the applicant in the list of those promoted to grade AD 13 in the 2010 promotion exercise, as that decision was made known in the Staff Note No 80/10 of 26 April 2010 and the Staff Note No 81/10 of 26 May 2010;

               —

               annul, as necessary, the decision of the appointing authority rejecting the applicant’s complaint;

               —

               annul, as necessary, the decision to promote AD 12 officials promoted to grade AD 13 in the 2010 promotion exercise (Staff Note No 80/10 of 26 April 2010 and the Staff Note No 81/10 of 26 May 2010);

               —

               order the defendant to pay to the applicant the sum of EUR 150 000 in compensation for non-material damage suffered;

               —

               order the Council of the European Union to pay the costs.


title: Case F-122/05: Action brought on  21 December 2005  — Economidis v Commission

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/53

         Action brought on 21 December 2005 — Economidis v Commission
   (Case F-122/05)
   (2006/C 60/98)
   Language of the case: French
   Parties

      Applicant: Ioannis Economidis (Woluwé-St-Etienne, Belgium) (represented by: S. Orlandi, A. Coolen, J-N Louis, E. Marchal, lawyers)

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

               —

               annul the Commission's decision appointing Mr S. Hogan to the post of Head of Unit ‘Biotechnology and applied genomics’;

               —

               annul the decision rejecting the applicant's candidature for that post;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, an official of the Commission, contests the appointing authority's rejection of his candidature for the post as Head of Unit ‘Biotechnology and applied genomics’ (vacancy notice COM/R/7012/04).
   In support of the form of order sought, he relies on the unlawfulness of the recruitment procedure, breach of Articles 29(1) and 31 of the Staff Regulations, breach of the obligation to state reasons and a manifest error of assessment.
   He claims, specifically, that:

               —

               by failing to fix the grade at which the post would be filled, the appointing authority did not inform candidates as precisely as possible of the nature of the conditions required to occupy the vacant post in order to put them in a position to determine whether it was appropriate to apply for it;

               —

               the reasons provided by the Commission are irrelevant, in so far as they do not permit the applicant to examine the merits of the decision or the Community judicature to exercise its power of review;

               —

               the contested decisions are vitiated by a manifest error of assessment in that the candidate chosen does not have all the general and special qualifications required, unlike the applicant, whose professional experience demonstrates his high abilities, notably in management.


title: Case T-224/10: Judgment of the General Court of 12 October 2011 — Association belge des consommateurs test-achats v Commission (Competition — Concentrations — Belgian energy market — Decision declaring a merger to be compatible with the common market — Commitments given during the initial phase of the investigation — Decision refusing the partial referral of the merger investigation to the national authorities — Action for annulment — Consumer association — Interest in bringing proceedings — Failure to initiate the in-depth review procedure — Procedural rights — Inadmissibility)

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/30

         Judgment of the General Court of 12 October 2011 — Association belge des consommateurs test-achats v Commission
   (Case T-224/10) (1)

   (Competition - Concentrations - Belgian energy market - Decision declaring a merger to be compatible with the common market - Commitments given during the initial phase of the investigation - Decision refusing the partial referral of the merger investigation to the national authorities - Action for annulment - Consumer association - Interest in bringing proceedings - Failure to initiate the in-depth review procedure - Procedural rights - Inadmissibility)
   2011/C 347/48
   Language of the case: English

      Parties

      Applicant: Association belge des consommateurs test-achats ASBL (Brussels, Belgium) (represented by: A. Fratini and F. Filpo, lawyers)

      Defendant: European Commission (represented by: N. Khan, A. Antoniadis and R. Sauer, Agents)

      Intervener in support of the defendant: Électricité de France (EDF), (Paris, France), (represented initially by C. Lazarus, A. Amsellem and A. Fontanille, and subsequently by C. Lazarus and A. Creus Carreras, lawyers)

      Re:

   APPLICATION for annulment of Commission Decisions C(2009) 9059 and C(2009) 8954 of 12 November 2009, the former declaring a merger to be compatible with the common market (Case COMP/M.5549 — EDF/Segebel) under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), and the latter rejecting a request from the Belgian competition authorities for partial referral of the case in accordance with Article 9 of that regulation.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders the Association belge des consommateurs test-achats ASBL to bear its own costs and to pay those incurred by the European Commission;

               3.

               Orders Électricité de France (EDF) to bear its own costs.

      (1)  OJ C 209, 31.7.2010.


4.5.2002              EN               Official Journal of the European Communities                                   C 109/39
      Removal from the register of Case C-105/98 P (1)                   Removal from the register of Case C-295/99 (1)
                       (2002/C 109/66)                                                   (2002/C 109/69)
By order of 27 November 2001 the President of the Court of        By order of 12 October 2001 the President of the Court of
Justice of the European Communities ordered the removal           Justice of the European Communities ordered the removal
from the register of Case C-105/98 P: Günther Bühring v           from the register of Case C-295/99: Kingdom of Belgium v
Council of the European Union and Commission of the               Commission of the European Communities.
European Communities
                                                                  (1) OJ C 299 of 16.10.1999.
(1) OJ C 209 of 4.7.1998.
                                                                         Removal from the register of Case C-461/99 (1)
       Removal from the register of Case C-24/99 (1)
                                                                                (2002/C 109/70)
                       (2002/C 109/67)
                                                                  By order of 1 February 2002 the President of the Court of
By order of 18 February 2002 the President of the Court of        Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal           from the register of Case C-461/99: Commission of the
from the register of Case C-24/99: Commission of the              European Communities v Ireland.
European Communities v Federal Republic of Germany.
                                                                  (1) OJ C 47 of 19.2.2000.
(1) OJ C 86 of 27.3.1999.
                                                                         Removal from the register of Case C-77/00 (1)
       Removal from the register of Case C-140/99 (1)
                                                                                (2002/C 109/71)
                       (2002/C 109/68)
                                                                  By order of 6 December 2001 the President of the Court of
                                                                  Justice of the European Communities ordered the removal
By order of 6 December 2001 the President of the Court of         from the register of Case C-77/00 (Referral for a preliminary
Justice of the European Communities ordered the removal           ruling by the Arbeitsgericht Wiesbaden (Germany)): Urlaubs
from the register of Case C-140/99: Commission of the             — und Lohnausgleichskasse der Bauwirtschaft v Viscondense
European Communities v French Republic.                           Construçoes, Lda.
(1) OJ C 174 of 19.6.1999.                                        (1) OJ C 135 of 13.5.2000.


title: Case F-7/16: Action brought on 4 February 2016 — ZZ v Commission

text:
               25.4.2016

               EN

               Official Journal of the European Union

               C 145/38

         Action brought on 4 February 2016 — ZZ v Commission
   (Case F-7/16)
   (2016/C 145/47)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: C. Mourato, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the Commission’s decision reducing the amount of the compensation paid to the applicant, who was employed under a Belgian law contract of indeterminate duration, and providing for the recovery of the amounts overpaid.

      Form of order sought

               —

               Principally, annul the Commission’s note of 9 April 2015 (PMO) sent to the applicant and the salary statements subsequently applying it and, if necessary, the note of 12 December 2014 and the salary statements subsequently drawn up, as regards the recalculation of her monthly compensation, and more exactly:

                           —

                           Note of 9 April 2015 of the European Commission (Office for the Administration and Payment of Individual Entitlements, PMO/1 — Remuneration and management of individual rights to emoluments) to the applicant;

                           —

                           The applicant’s salary statements 04/2015 to 06/2015 and subsequent salary statements which include a deduction of EUR 208,30 (Code DPN — Remboursement dett) and subsequent salary statements;

                           —

                           Preliminary note of 12 December 2014 of the European Commission (Office for the Administration and Payment of Individual Entitlements, PMO/1 — Remuneration and management of individual rights to emoluments) to the applicant;

                           —

                           The applicant’s salary statements 12/2014 to 03/2015.

               —

               In the alternative, annul the notes and salary statements in so far as they make deductions applied retroactively from the remuneration received by the applicant until 9 April 2015;

               —

               In any event, order the defendant to pay the costs.


title: Case T-157/04: Action brought on 22 April 2004 by Joël De Bry against Commission of the European Communities

text:
               26.6.2004

               EN

               Official Journal of the European Union

               C 168/12

         Action brought on 22 April 2004 by Joël De Bry against Commission of the European Communities
   (Case T-157/04)
   (2004/C 168/22)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 April 2004 by Joël De Bry, residing in Woluwe-St-Lambert (Belgium), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Annul the decision establishing his career development report covering the period 1 July to 31 December 2002;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his action, the applicant states first of all that he was assessed by an assessor of the same grade as himself who was competing with the applicant for promotion. In the applicant's submission, that fact gives rise to a conflict of interests on the part of his assessor. The assessor did not inform the appointing authority of the position, contrary to Article 14 of the Staff Regulations.
   The applicant then claims that there is an inconsistency between the assessments in the contested report and the marks awarded to him. He also claims that there has been a breach of the obligation to state reasons and of the rights of the defence in connection with a comment made by the validator concerning the applicant's alleged failure to observe normal working hours.


title: Case T-237/11: Action brought on 4 May 2011 — Lidl Stiftung v OHIM — Lactimilk (BELLRAM)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/25

         Action brought on 4 May 2011 — Lidl Stiftung v OHIM — Lactimilk (BELLRAM)
   (Case T-237/11)
   2011/C 204/46
   Language in which the application was lodged: English

      Parties

      Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: T. Träger, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Lactimilk, SA (Madrid, Spain)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2011 in case R 1154/2009-4; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘BELLRAM’, for goods in class 29 — Community trade mark application No 5074281

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

      Mark or sign cited in opposition: Spanish trade mark registration No 2414439 of the figurative mark ‘RAM’, for goods in class 29; Spanish trade mark registration No 98550 of the figurative mark ‘Ram’, for goods in class 29; Spanish trade mark registration No 151890 of the word mark ‘RAM’, for goods in class 29

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: The applicant advances five pleas in law in support of its application.
   On the basis of its first plea, the applicant claims that the contested decision infringes Articles 63(2), 75 and 76 of Council Regulation (EC) No 207/2009 (hereinafter ‘CTMR’) and breaches its right to be heard, as the Board of Appeal did not invite the parties to comment on its intent to replace the relevant opposing registration.
   By its second plea, the applicant considers that the contested decision infringes Article 41 of CTMR in conjunction with Rule 15(2)(f) of the Implementing Regulation, as the board of Appeal took into account goods that were not properly identified in the notice of opposition and within the deadline for filing the opposition.
   By its third plea, the applicant states that the contested decision infringes Articles 42(2), 42(3) and 15 CTMR, as the Board of Appeal did not properly assess the scope of the registered goods against the evidence of use submitted.
   By its fourth plea, the applicant claims that the contested decision infringes Articles 76 CTMR in conjunction with Rule 50(1), and Rule 19(1) and (3) of the Implementing Regulation, as the Board of Appeal falsely took into account an enhanced distinctiveness of the earlier mark.
   Finally, on the basis of its fifth plea, the applicant considers that the contested decision infringes Article 8(1)(b) of CTMR, as the Board of Appeal falsely assumed a high similarity between the goods. With respect to the similarity between the signs the Board of Appeal failed to assume that the signs are dissimilar or remotely similar owing to the uniform character of ‘BELLRAM’ in the Spanish language. The signs ‘BELLRAM’ and ‘RAM’ are not confusable because the goods are remotely similar and the signs dissimilar or remotely similar.


title: Case T-374/08: Judgment of the General Court of 12 July 2011 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT) (Community trade mark — Opposition proceedings — Application for the Community figurative mark TOP CRAFT — Earlier national figurative marks Krafft — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Genuine use of the earlier marks — Article 43(2) of Regulation No 40/94 (now Article 42(2) of Regulation 207/2009) and Rule 22 of Regulation (EC) No 2868/95)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/32

         Judgment of the General Court of 12 July 2011 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT)
   (Case T-374/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark TOP CRAFT - Earlier national figurative marks Krafft - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Genuine use of the earlier marks - Article 43(2) of Regulation No 40/94 (now Article 42(2) of Regulation 207/2009) and Rule 22 of Regulation (EC) No 2868/95)
   2011/C 252/74
   Language of the case: German

      Parties

      Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: R. Pethke, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Illinois Tools Works, Inc. (Glenview, United States)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 25 June 2008 (Case No R 952/2007-2), relating to opposition proceedings between Illinois Tools Works, Inc. and Aldi Einkauf GmbH & Co. OHG

      Operative part of the judgment

   The Court:

               1.

               annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 June 2008 (Case No R 952/2007-2), relating to opposition proceedings between Illinois Tools Works, Inc. and Aldi Einkauf GmbH & Co. OHG);

               2.

               orders OHIM to pay the costs.

      (1)  OJ C 313, 6.12.2008.


title: Case F-78/13: Action brought on 23 August 2013 — ZZ v EEAS

text:
               5.10.2013

               EN

               Official Journal of the European Union

               C 291/7

         Action brought on 23 August 2013 — ZZ v EEAS
   (Case F-78/13)
   2013/C 291/09
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: J.-N. Louis, A. Coolen and É. Marchal, lawyers)

      Defendant: European External Action Service (EEAS)

      Subject-matter and description of the proceedings

   Application for annulment of the decision to transfer the applicant from the EEAS office in Burundi to its headquarters in Brussels.

      Form of order sought

               —

               annul the decision of 15 July 2013 of the High Representative of the European Union to transfer the applicant, in the interests of the service, with immediate effect to a position in the MDR.C in Brussels;

               —

               declare that the EEAS committed a series of breaches of its administrative duties by adopting the contested decision, breaches which render the European Union liable;

               —

               declare that the contested decision causes the applicant and his spouse serious damage;

               —

               take formal notice of the action;

               —

               order the EEAS to pay the costs.