title: Reference for a preliminary ruling by the Areios Pagos (Greece) by judgment of that court of 25 June 1996 in the criminal proceedings pending before that court against Alessandro Pozzoli and Donatella Calfa (Case C-348/96)

text:
No C 370/8            1 EN                      Official Journal of the European Communities                                            7 . 12 . 96
de Justicia de Madrid ( High Court of Justice, Madrid ),                      ruling in the criminal proceedings pending before that court
Sala de lo Contencioso-Administrativo, Seccion Primera                        against Alessandro Pozzoli and Donatella Calfa on the
( Division for Contentious Administrative Proceedings, First                  following questions:
Chamber), of 3 July 1996, which was received at the Court
Registry on 21 October 1996 , for a preliminary ruling in
the case of Soldred SA v. Administracion General del Estado
( General State Administration ) on the following questions :                 1 . Is a provision of national law compatible with the
                                                                                provisions of Community law referred to in the grounds
                                                                                of this order and, in particular, with the provisions of
                                                                                Articles 8 ( 1 ) and ( 2 ), 8a ( 1 ), 48 , 52 and 59 of the EC
1 . Properly construed, does Council Directive 69/335/EEC                         Treaty, the provisions of the relevant directives also
      of 17 July 1969 ( as subsequently amended by Directives                     referred to in the grounds hereof, or with other relevant
      73/79/EEC and 73/80/EEC of 9 April 1973 , 74/553/                           provisions of Community law concerning freedom of
      EEC of 7 November 1974 and 85/303/EEC of 10 June                            movement for persons and services, and with the
      1985 ), in particular Articles 4 ( 1 ) ( a ), 5 ( 1 ) ( a ), 5 ( 2 ), 7     Community law principle of equal treatment enshrined
      and 10 ( a ), mean that, if the legislation of a Member                     in Article 7 of the EC Treaty, where such provision of
      State provides for a tax on the formation of a public                       national law requires the national court, unless there
      limited liability company at the rate of 1% , calculable                    are good grounds, particularly of a family nature, for
      in all cases on the nominal value of the share capital,                     not doing so, to order the permanent exclusion of a
      even where that capital has not been paid up in full , a                    national of another Member State of the European
      tax of 0,5% may not then be levied on the contribution                       Community for reasons of public order and public
      of the part of the capital not previously paid up ?                         security, solely on the ground that the national of
                                                                                another Member State, whilst lawfully staying in the
                                                                                host state in order to receive tourist services, committed
                                                                                the offences of obtaining drugs for his own exclusive
                                                                                use and the use of drugs, and where such exclusion
2.    Is the limitation in Article 10 of Directive 69/335/EEC
                                                                                entails for the offender a legal bar on his returning to
      also applicable even though the second payment of tax                       the country — unless authorized after a three-year
      does not specifically relate to a capital contribution but                   period by the Minister of Justice in his discretion — in
      falls to be levied on the document recording that                            order to pursue the activities provided for by the
      contribution, where the recording thereof is a                               abovementioned provisions of Community law, and
      mandatory requirement under domestic company law                             where in the case of such an offence being committed
      and the rate of 0,5% specifically relates to the amount                      by a national of the host state the same punishment of
      of the contribution recorded in the document ?
                                                                                imprisonment is imposed, though not any other
                                                                                analogous penalty, such as a residence restriction ,
                                                                                which is imposed on a national of the host state only if
                                                                                a term of imprisonment for a more serious offence
 3 . Does the aforesaid Directive 69/335/EEC ( as amended )                        is imposed, such as for dealing, and is purely
      have direct effect, and does it affect, and possibly                         discretionary ?
      prevail over, the provisions of national law in the event
      that those provisions cannot be interpreted in a manner
      compatible with the Directive ?
                                                                              2 . Should exclusion by the host country under such a
                                                                                provision of national law ( as described in question 1
                                                                                above ) of the national of another Member State
                                                                                be deemed compatible with the abovementioned
                                                                                provisions of Community law where, in connection
                                                                                with exclusion, the court so ordering is left with no
                                                                                discretion, other than that relating to the important
                                                                                reasons, in particular of a family nature, in determining
                                                                                whether the offender's continued residence in the host
 Reference for a preliminary ruling by the Areios Pagos                            country might be justified, is such a measure to be
 ( Greece ) by judgment of that court of 25 June 1996 in the                       regarded as infringing the Community principle of
 criminal proceedings pending before that court against                            proportionality, that is to say as being disproportionate
             Alessandro Pozzoli and Donatella Calfa
                                                                                to the seriousness of the offences ( described above in
                          ( Case C-348/96 )                                        question 1 ) committed by that person, regard being had
                                                                                to the fact that under national law those offences are
                            ( 96/C 370/ 19 )                                       tried at first instance and are punishable as stated in the
                                                                                grounds of this order, or to the fact that the exclusion
                                                                                ordered by the national court is permanent, subject to
                                                                                authorization by the Minister of Justice in his discretion
                                                                                for the offender to return after a three-year period to
 Reference has been made to the Court of Justice of the                            the host country from which he was expelled ?
 European Communities by judgment of the Areios Pagos
  ( Supreme Court) ( Greece ) of 25 June 1996, received at the
 Court Registry on 21 October 1996 , for a preliminary


title: Case T-504/12: Judgment of the General Court of 12 November 2014  — Murnauer Markenvertrieb v OHIM (NOTFALL CREME) (Community trade mark — Application for Community figurative trade mark NOTFALL CREME — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Equal treatment)

text:
               22.12.2014

               EN

               Official Journal of the European Union

               C 462/22

         Judgment of the General Court of 12 November 2014 — Murnauer Markenvertrieb v OHIM (NOTFALL CREME)
   (Case T-504/12) (1)

   ((Community trade mark - Application for Community figurative trade mark NOTFALL CREME - Absolute grounds for refusal - Descriptive character - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 - Equal treatment))
   (2014/C 462/33)
   Language of the case: German

      Parties

      Applicant: Murnauer Markenvertrieb GmbH (Egelsbach, Germany) (represented by: F. Traub and H. Daniel, lawyers)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 September 2012 (Case R 271/2012-4) concerning an application for registration of the figurative sign NOTFALL CREME as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Murnauer Markenvertrieb GmbH to pay its own costs and those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs).

      (1)  OJ C 26, 26.1.2013.


title: Case C-221/05: Reference for a preliminary ruling from the the Supreme Court, Ireland, by order of that court of 11 May 2005 in Sam McCauley Chemists (Blackpool) Ltd and Mark Sadja v Pharmaceutical Society of Ireland, Minister for Health and Children, Ireland and the Attorney General

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/12

         Reference for a preliminary ruling from the the Supreme Court, Ireland, by order of that court of 11 May 2005 in Sam McCauley Chemists (Blackpool) Ltd and Mark Sadja v Pharmaceutical Society of Ireland, Minister for Health and Children, Ireland and the Attorney General
   (Case C-221/05)
   (2005/C 193/20)
   Language of the case: English
   Reference has been made to the Court of Justice of the European Communities by order of the the Supreme Court, Ireland, of 11 May 2005, received at the Court Registry on 19 May 2005, for a preliminary ruling in the proceedings between Sam McCauley Chemists (Blackpool) Ltd and Mark Sadja and Pharmaceutical Society of Ireland, Minister for Health and Children, Ireland and the Attorney General on the following question:
   Does Article 2 of Council Directive 85/433/EEC of 16 September 1985 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in pharmacy, including measures to facilitate the effective exercise of the right of establishment relating to certain activities in the field of pharmacy (1)

               (a)

               impose a single obligation limited to requiring a Member State to recognise the qualifications referred to in Article 2.1 of the Directive except with respect to the establishment of new pharmacies as defined in Article 2.2, or,

               (b)

               does it impose on a Member State a distinct obligation to recognise the qualifications referred to in Article 2.1 but, in addition, confer on Member States a discretion whether to extend such recognition to persons holding such qualifications with respect to the establishment of new pharmacies open to the public, as defined in Article 2.2?

      (1)  OJ L 254, 24.09.1985, p. 37


title: Case C-349/03: Action brought on 7 August 2003 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

text:
C 239/6                   EN                          Official Journal of the European Union                                          4.10.2003
        —     by failing to issue a provisional prohibition of                The Applicant claims that the Court should:
              fishing from fishing vessels flying the Danish flag or
              registered in Denmark when the quota allocated was              1)     declare that by failing to implement Council Directive 77/
              to be deemed to have been exhausted, and by failing                    799/EEC (1) of 19 December 1977 concerning mutual
              to inform the Commission when the halt to fishing                      assistance by the competent authorities of the Member
              was introduced,                                                        States in the field of direct and indirect taxation, as
                                                                                amended, in the territory of Gibraltar, the United
        the Kingdom of Denmark has failed to fulfil its obligations                  Kingdom has failed to fulfil its obligations under the EC
        both under Article 5(2) of Regulation (EEC) No 170/                          Treaty;
        83 ( 1), and under Articles 1 and 11(1) and (2) of
        Regulation (EEC) No 2241/87 (2);
                                                                              2)     order the United Kingdom to pay the costs.
2.      order the Kingdom of Denmark to pay the costs.
                                                                              Pleas in law and main arguments
Pleas in law and main arguments
                                                                              Directive 77/799/EEC, as amended, was to be implemented by
Disregard of Article 5(2) of Council Regulation (EEC) No 170/                 the Member States not later than 1 January 1981 as regards
83 and of Articles 1 and 11(1) and (2) of Council Regulation
                                                                              value added tax (by virtue of Directive 79/1070/EEC ( 2)) and
(EEC) No 2241/87.
                                                                              1 January 1993 as regards excise duties (by virtue of Directive
                                                                              92/12/EEC (3)).
The Danish Government has acknowledged that for certain
stocks the quotas allocated for the year 1998 were substantially
exceeded. The monitoring carried out of fishery activities and                Contrary to the view taken by the United Kingdom, the
the measures taken concerning the management and control of                   Commission maintains that Directive 77/799/EEC, as
those activities were in the Commission’s opinion inadequate.                 amended, applies to Gibraltar and that by failing to implement
                                                                              the directive in this territory the United Kingdom has failed to
                                                                              fulfil its obligations under the EC Treaty.
The Danish authorities moreover in certain cases omitted to
bring criminal proceedings agains the persons responsible for
non-compliance with the rules on control and conservation.                    (1 ) OJ L 336, 27.12.1977, p. 15.
                                                                              (2 ) of 6 December 1979 amending Directive 77/799/EEC (OJ L 331,
                                                                                27.12.1979, p. 8).
( 1) Council Regulation (EEC) No 170/83 of 25 January 1983                    (3 ) of 25 February 1992 on the general arrangements for products
     establishing a Community system for the conservation and                      subject to excise duty and on the holding, movement and
     management of fishery resources, OJ L 24 of 27.1.1983, p. 1.                  monitoring of such products (OJ L 76, 23.03.1992, p. 1).
( 2) Council Regulation (EEC) No 2241/87 of 23 July 1987 estab-
     lishing certain control measures for fishing activities, OJ L 207 of
     29.7.1987, p. 1.
                                                                              Appeal brought on 21 August 2003 (facsimile received on
Action brought on 7 August 2003 by the Commission of                          16 August 2003) by El Corte Inglés, SA against the order
the European Communities against the United Kingdom                           delivered on 8 May 2003 in Case T-63/03 El Corte Inglés
               of Great Britain and Northern Ireland                          SA v OHIM, the other party to the proceedings before
                                                                                the Board of Appeal being: Calzaturificio Yvonne S.r.l.
                           (Case C-349/03)
                                                                                (Case C-361/03 P)
                           (2003/C 239/08)
                                                                                (2003/C 239/09)
An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice
of the European Communities on 7 August 2003 by the                           An appeal against the order delivered on 8 May 2003 in Case
Commission of the European Communities, represented by                        T-63/03 El Corte Inglés SA v OHIM, the other party to the
R. Lyal, acting as agent, with an address for service in                      proceedings before the Board of Appeal being: Calzaturificio
Luxembourg.                                                                   Yvonne S.r.l., was brought before the Court of Justice of the


title: Action brought on 24 March 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-122/97)

text:
31 . 5 . 97          I EN                  Official Journal of the European Communities                                No C 166/7
Appeals Board ) of 12 March 1997, which was received at               of Justice, the latter must nevertheless begin
the Court Registry on 20 March 1997, for a preliminary                implementation of the judgment without delay and
ruling in the proceedings brought by Laura Pitkaranta,                conclude it as soon as possible .
represented by her legal guardian Anne Pitkaranta , on the
following questions :                                                 The application for determination of a penalty payment is
                                                                      based on Article 171 ( 2 ) of the EC Treaty. The
1 . ( Question 1 is the same as Question 1 in Case C- 9/              Commission justifies the amount of the penalty by
     97 H )                                                           reference to its calculation method set out in Official
                                                                      Journal No C 242 of 21 . 8 . 1996, p. 6 . In evaluating the
2 . Is it contrary, with respect in particular to a minor             severity of the infringement, it proceeds on the basis that
     who regularly lives with her guardian in the Helsinki            only a single provision in a single Bundesland does not yet
     region about 70 kilometres by road from the                      comply with Council Directive 79/409/EEC ( 2 ), and that
     operational centre of the farm and who cannot herself            the infringement is essentially procedural , since there are
     carry on agriculture on the farm and whose guardian              no known cases of environmental damage arising from
     does not do so either on her own account, to the                 application of the rules currently in force in the Saarland
     prohibition of discrimination, the principle of                  ( Coefficient 1 /20 ). The Commission regards the period of
     proportionality or other principles to be observed in            treaty infringement as very considerable ( Coefficient 2/3 ).
     Community law to exclude her from the compensation               Concerning the deterrent effect of the penalty applied for,
     in question ?                                                    the Commission uses a calculation formula notified to the
                                                                      Member States, whereby reference is made to the relative
o OJ No C 74 , 8 . 3 . 1997, p . 15 .                                 position of each Member State in relation to its gross
                                                                      domestic product and its weighted voting strength in the
                                                                      Council under Article 148 ( 2 ) of the EC Treaty.
                                                                      o [ 1990] ECR 1-2721 .
                                                                      ( 2 ) OJ No L 103 , 1979 , p . 1 .
Action brought on 24 March 1997 by the Commission of
the European Communities against the Federal Republic
                            of Germany
                        ( Case C-121 /97 )
                          ( 97/C 166/ 11 )
                                                                      Action brought on 24 March 1997 by the Commission of
                                                                      the European Communities against the Federal Republic
An action against the Federal Republic of Germany was
                                                                                of Germany
brought before the Court of Justice of the European
Communities on 24 March 1997 by the Commission of                                               ( Case C-122/97 )
the European Communities, represented by Gotz zur                                                 ( 97/C 166/ 12 )
Hausen, Legal Adviser to the Commission, with an
address for service in Luxembourg at the offices of Carlos
Gomez de la Cruz, a member of the Commission's Legal                  An action against the Federal Republic of Germany was
Service, Wagner Centre, Kirchberg.                                    brought before the Court of Justice of the European
                                                                      Communities on 24 March 1997 by the Commission of
The applicant claims that the Court should :                          the European Communities, represented by Gotz zur
                                                                      Hausen, Legal Adviser to the Commission, with an
— declare the Federal Republic of Germany in breach of                address for service in Luxembourg at the offices of Carlos
     its obligations under Article 171 of the EC Treaty for           Gomez de la Cruz, a member of the Commission's Legal
     failing to bring the Hunting Law of the Saarland into            Service, Wagner Centre, Kirchberg.
     line with the judgment of the Court of Justice in Case
     C-288/88 Commission v. Germany ('),                              The applicant claims that the Court should :
— order the Federal Republic of Germany to pay the
                                                                      — declare the Federal Republic of Germany in breach of
     Commission a penalty of ECU 26 400 (to Account
     H 1 KEG 'EC Own Resources', Bundeskasse Bonn ) for
                                                                             its obligations under Article 171 of the EC Treaty for
                                                                             failing to comply with the judgment of the Court of
     each day of non-compliance with the obligations in
                                                                             Justice in Case C-58/89 Commission v. Germany ( 1 ),
     the first indent above, as from the date judgment is
     delivered,
                                                                      — order the Federal Republic of Germany to pay the
— order the Federal Republic of Germany to pay the                           Commission a penalty of ECU 158 400 ( to Account
     costs .                                                                 H 1 KEG ' EC Own Resources ', Bundeskasse Bonn ) for
                                                                             each day of non-compliance with the obligations in
Pleas in law and main arguments adduced in support:                          the first indent above , as from the date judgment is
                                                                             delivered,
Whilst Article 171 ( 1 ) of the EC Treaty does not lay down
a specific time-limit for the Member State concerned to               — order the Federal Republic of Germany to pay the
fulfil its obligations arising under a judgment of the Court                 costs .
 ---pagebreak--- No C 166/8             EN                    Official Journal of the European Communities                                        31 . 5 . 97
Pleas in law and main arguments adduced in support:                     ( b ) Do national rules exempting a public economic entity
                                                                              from complying with the general rules laid down by
Whilst Article 171 ( 1 ) of the EC Treaty does not lay down                   ordinary private-law provisions for all the other
a specific time-limit for the Member State concerned to                       operators in the sector in respect of fixed-term
fulfil its obligations arising under a judgment of the                        contracts of employment constitute an aid within the
Court of Justice, the latter must nevertheless begin                          meaning of Article 92 of the EEC Treaty ?
implementation of the judgment without delay and
conclude it as soon as possible .
The Federal Republic of Germany has failed to take
binding measures to transpose Article 3 ( 1 ) of Directive              Reference for a preliminary ruling from the Vaasan
75/440/EEC (2 ). It has also not yet drawn up a systematic              Hovioikeus by order of that court of 21 March 1997 in
plan of action under Article 4 ( 2 ) of the Directive, nor, in          the     case    of Markku Läärä and Others            v.   District
the Bundesländer, drawn up improvement plans for all                                         Prosecutor and Finnish State
watercourses . Finally, it has failed to comply with its                                           (Case C-124/97)
obligations to provide information under Article 8 of
Council Directive 79/869/EEC ( 3 ) of 9 October 1979 .                                              ( 97/C 166/14 )
The application for determination of a penalty payment                  Reference has been made to the Court of Justice of the
is based on Article 171 ( 2 ) of the EC Treaty. The                     European Communities by an order of the Vaasan
Commission justifies the amount of the penalty by                       Hovioikeus (Vaasa Court of Appeal ) of 21 March 1997,
reference to its calculation method set out in Official                 which was received at the Court Registry on 25 March
Journal No C 242 of 21 . 8 . 1996 , p. 6 . It assesses the              1997, for a preliminary ruling in the case of Markku
Treaty infringement as severe ( Coefficient 8/20 ) and                  Läärä , Cotswold Microsystems Limited and Oy
regards its duration as very considerable ( Coefficient 2/3 ).          Transatlantic        Software   Limited v.   District Prosecutor
Concerning the deterrent effect of the penalty applied for,             (Jyväskylä Prosecutor's Office ) and Finnish State,
the Commission uses a calculation formula notified to the               represented by the Provincial Governments of Keski-Suomi
Member States, whereby reference is made to the relative                und Uusimaa, on the following questions :
position of each Member State in relation to its gross
domestic product and its weighted voting strength in the                 1 . Is the judgment of the Court of Justice of 24 March
Council under Article 148 ( 2 ) of the EC Treaty.                             1994 in Case C-275/92 Her Majesty's Customs and
                                                                              Excise v. Gerhart Schindler and Jörg Schindler (^ to be
(') [ 1991 ] ECR 1-4983 .                                                     interpreted in such a way that it may be regarded as
( 2 ) OJ No L 194 , 1975 , p . 26 .                                           equivalent to the present case ( compare the judgment
( 3 ) OJ No L 271 , 1979 , p . 44 .                                           of the Court of Justice of 6 October 1982 in Case 283/
                                                                              81 Sri CILFIT and Lanificio di Gavardo SpA v.
                                                                              Ministry of Health ( 2 ) and that the provisions of the
                                                                              EC Treaty should therefore be interpreted in the
                                                                              present case in the same way as in the aforesaid case ?
Reference for a preliminary ruling by the Pretura                             In case the answer to the first question is wholly or
Circondariale di Padova by order of that court of                             partly negative, the Hovioikeus submits the following
17 December 1996 in the case of Tommaso Nalon against                         additional questions .
                        Ente Poste Italiane
                          ( Case C-123/97 )                             2 . Do the rules of the EC Treaty on the free movement of
                            ( 97/C 166/ 13 )                                  goods and services (Articles 30, 59 and 60 ) apply also
                                                                              to gaming machines like those in question here ?
Reference has been made to the Court of Justice of the                   3 . If the answer to the second question is affirmative,
European Communities by order of the Pretura Circonda
riale di Padova (Padua District Magistrate's Court ) of                       ( a ) do Articles 30 , 59 or 60 or any other article
 17 December 1996 , which was received at the Court                                 preclude Finland from restricting operation of the
Registry on 24 March 1997, for a preliminary ruling in                              gaming machines in question by granting the
the case of Tommaso Nalon against Ente Poste Italiane on                            sole right to the Raha-automaattiyhdistys ( Slot
the following questions concerning the interpretation of                            Machine Association ), irrespective of whether the
Articles 92 and 93 of the Treaty:                                                   restriction affects domestic and foreign organizers
                                                                                of gaming in the same way, and
 ( a ) May the questions concerning the compatibility of the                  ( b ) do there exist for that restriction any justifications
       national law with the Community provisions at issue                          as referred to in Articles 36 or 56 or any other
       be raised and determined in proceedings which have                           article of the EC Treaty, on the grounds put
       not been initiated by undertakings having interests                          forward in the Arpajaislaki ( Law on Lotteries ) or
       protected by the Community rules designed to                                 its preparatory work or any other grounds, and in
       safeguard competition ?                                                      considering that question may it be relevant how


title: Case C-112/09 P: Appeal brought on 24 March 2009 by Sociedad General de Autores y Editores (SGAE) against the judgment delivered on 13 January 2009 by the Court of First Instance (Seventh Chamber) in Case T-456/08 Sociedad General de Autores y Editores (SGAE) v Commission of the European Communities

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/19

         Appeal brought on 24 March 2009 by Sociedad General de Autores y Editores (SGAE) against the judgment delivered on 13 January 2009 by the Court of First Instance (Seventh Chamber) in Case T-456/08 Sociedad General de Autores y Editores (SGAE) v Commission of the European Communities
   (Case C-112/09 P)
   2010/C 63/30
   Language of the case: Spanish

      Parties

      Appellant: Sociedad General de Autores y Editores (SGAE) (represented by: R. Allendesalazar Corcho and R. Vallina Hoset, abogados)

      Other party to the proceedings: European Commission
   By order of 14 January 2010 the Court of Justice (Eighth Chamber) dismissed the appeal.


title: Case T-46/05: Judgment of the Court of First Instance of 30 January 2008 — Commission v Environmental Management Consultants (Arbitration clause — Reimbursement of amounts paid — Default interest — Default procedure)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/34

         Judgment of the Court of First Instance of 30 January 2008 — Commission v Environmental Management Consultants
   (Case T-46/05) (1)

   (Arbitration clause - Reimbursement of amounts paid - Default interest - Default procedure)
   (2008/C 64/54)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: D. Triantafyllou, Agent, and N. Korogiannakis, lawyer)

      Defendant: Environmental Management Consultants (Nicosia, Cyprus)
   Re:
   Action brought by the Commission pursuant to Article 238 EC seeking to obtain reimbursement in the sum of EUR 31 965,28 which it paid in the context of the performance of contract IC18-CT98-0273, plus statutory interest
   Operative part of the judgment
   The Court of First Instance hereby:

               1.

               Orders Environmental Management Consultants Ltd to repay to the Commission of the European Communities the amount of EUR 31 965,28, plus interest:

                           —

                           at the rate of 9,26 % per annum from 1 to 31 August 2001;

                           —

                           at the rate of 8,62 % per annum from 1 September to 31 December 2001;

                           —

                           at the rate of 10,57 % per annum from 1 January to 30 June 2002;

                           —

                           at the rate of 10,47 % per annum from 1 July to 31 December 2002;

                           —

                           at the rate of 9,97 % per annum from 1 January to 30 June 2003;

                           —

                           at the rate of 9,22 % per annum from 1 July to 31 December 2003;

                           —

                           at the rate of 9,14 % per annum from 1 January to 30 June 2004;

                           —

                           at the rate of 9,13 % per annum from 1 July to 31 December 2004;

                           —

                           at the rate of 9,21 % per annum from 1 January to 31 January 2005;

                           —

                           at the statutory rate, calculated in accordance with Article 288 of the Bürgerliches Gesetzbuch (German Civil Code) without that rate exceeding 9,21 % from 1 February 2005 until the discharge of the debt.

               2.

               Orders Environmental Management Consultants to pay the costs.

      (1)  OJ C 108, 6.5.2006.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 11 July 1996 in Case C-25/95 (reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof): Siegfried Otte v. Federal Republic of Germany (Social security for migrant workers - Community rules - Matters covered - Benefit paid to workers in the coal industry who have passed a specified age-limit and have been laid off as a result of closure of the undertaking employing them or rationalization measures (adaptation allowance) - Benefit paid by way of subsidy - Method of calculating benefits - Taking into account of a pension paid under the legislation of another Member State - Conditions and limits)

text:
9 . 11 . 96            EN                  Official Journal of the European Communities                                No C 336/ 11
               JUDGMENT OF THE COURT                                      the packaging is not indirectly affected, for example, by
                        of 11 July 1996                                   the fact that the external or inner packaging of the
                                                                          repackaged product or new user instructions or
in Case C-232/94 ( reference for a preliminary ruling by                  information omits certain important information or
the Oberlandesgericht Koln ): MPA Pharma GmbH v.                          gives inaccurate information,
               Rhône-Poulenc Pharma GmbH (M
(Repackaging oftrade-markedproducts — Article 36 ofthe                — the new packaging clearly states who repackaged the
                           EC Treaty)                                     product and the name of the manufacturer in print such
                         ( 96/C 336/ 19 )                                 that a person with normal eyesight, exercising a normal
                                                                          degree of attentiveness, would be in a position to
                (Language of the case: German)                            understand; however, it is not necessary to indicate that
                                                                          the repackaging was carried out without the
                                                                          authorization of the trade-mark owner,
(Provisional translation; the definitive translation will be
          published in the European Court Reports)                    — the presentation ofthe repackaged product is not such as
                                                                          to be liable to damage the reputation of the trade mark
In Case C-232/94 , reference to the Court pursuant to                     and of its owner; thus, the packaging must not be
Article 177 of the EC Treaty by the Oberlandesgericht Koln                defective, of poor quality, or untidy; and
( Higher Regional Court, Cologne, Germany ) for a
preliminary ruling in the proceedings pending before that             — the importer gives notice to the trade-mark owner before
court between MPA Pharma GmbH and Rhone-Poulenc                           the repackaged product is put on sale, and, on demand,
Pharma GmbH on the interpretation of Article 36 of the EC                 supplies him with a specimen of the repackaged
Treaty in relation to trade marks, the Court, composed of:                product.
G. C. Rodriguez Iglesias, President, C. N. Kakouris, J. -P.
Puissochet and G. Hirsch ( Presidents of Chambers ), G. F.            (') OJ No C 275 , 1 . 10 . 1994 .
Mancini , J. C. Moitinho de Almeida , C. Gulmann
( Rapporteur ), P. Jann and H. Ragnemalm, Judges;
Advocate-General : F. G. Jacobs, for the Registrar: H. von
Holstein, Deputy Registrar, L. Hewlett, Administrator, has
given a judgment on 11 July 1996 in which it rules :
                                                                                JUDGMENT OF THE COURT
Article 36 of the EC Treaty must be interpreted as meaning                                    ( Fifth Chamber)
that a trade-mark owner may rely on hi$ rights as owner to
prevent an importer from marketing a pharmaceutical                                           of 11 July 1996
product which was put on the market in another Member                 in Case C-25/95 ( reference for a preliminary ruling from the
State by the owner or with his consent, where that importer           Hessischer Verwaltungsgerichtshof): Siegfried Otte v.
has repackaged the product and reaffixed the trade mark                               Federal Republic of Germany
thereto, unless:
                                                                      (Social security for migrant workers — Community rules —
— it is established that reliance on trade mark rights by the         Matters covered — Benefit paid to workers in the coal
    owner in order to oppose the marketing of repackaged              industry who have passed a specified age-limit and have
    products under that trade mark would contribute to the            been laid off as a result of closure of the undertaking
    artificial partitioning of the markets between Member             employing them or rationalization measures (adaptation
    States; such is the case, in particular, where the owner          allowance) — Benefit paid by way ofsubsidy — Method of
    has put an identical pharmaceutical product on the                calculating benefits — Taking into account of a pension
    market in several Member States in various forms of              paid under the legislation of another Member State —
    packaging, and the repackaging carried out by the                                     Conditions and limits)
    importer is necessary in order to market the product in                                     ( 96/C 336/20 )
    the Member State of importation, and also carried out in
    such conditions that the original condition of the                               (Language of the case: German)
    product cannot be affected by it; that requirement does
    not, however, imply that it must be established that the
    trade-mark owner deliberately sought to partition the             (Provisional translation; the definitive translation will be
    markets between Member States,                                            published in the European Court Reports)
— it is shown that the repackaging cannot affect the                  In Case C-25/95 : reference to the Court pursuant to
    original condition of the product inside the packaging;           Article 177 of the EC Treaty from the Hessischer
    such is the case, in particular, where the importer has           Verwaltungsgerichtshof ( Germany ) for a preliminary ruling
    merely carried out operations involving no risk of the            in the proceedings pending before that court between
    product being affected, such as, for example, the                 Siegfried Otte and Federal Republic of Germany — on the
    removal of blister packs from their original external             interpretation of Articles 4(1 ) and ( 2 ), 12 ( 2 ) and 46 of
    packaging and their insertion into new external                   Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on
    packaging, or the addition to the packaging of new user           the application of social security schemes to employed
    instructions or information; it is for the national court to      persons, to self-employed persons and to members of their
    verify that the original condition of the product inside          families moving within the Community, as amended and
 ---pagebreak--- No C 336/ 12            EN                 Official Journal of the European Communities                                       9 . 11 . 96
updated by Council Regulation ( EEC ) No 2001 /83 of 2 June           Murray, P. Jann and M. Wathelet, Judges; Advocate
1983 ( 2 ), and Article 7 of Council Regulation ( EEC )               General : N. Fennelly; L. Hewlett, Administrator, acting as
No 574/72 of 21 March 1972 laying down the procedure for              Registrar, gave a judgment on 11 July 1996 , the operative
implementing Regulation ( EEC ) No 1408/71 , as amended               part of which is as follows :
and updated by Regulation ( EEC ) No 2001 /83 ( 3 ) — the
Court ( Fifth Chamber ), composed of D. A. O. Edward ,                1 . Article 4 (1 ) or (2) of Council Directive 79/409/EEC of
President of the Chamber, J. -P. Puissochet, J. C. Moitinho                  2 April 1979 on the conservation of wild birds is to be
de Almeida ( Rapporteur ), C. Gulmann and P. Jann , Judges,                  interpreted as meaning that a Member State is not
Advocate-General : D. Ruiz-Jarabo Colomer, Registrar: H.                     authorized to take account of the economic
von Holstein, Deputy Registrar, gave a judgment on 11 July                   requirements mentioned in Article 2 thereof when
1996 , the operative part of which is as follows :                           designating a Special Protection Area and defining its
                                                                             boundaries.
Article 4 ( I ) and (2) of Council Regulation (EEC)
No 1408/71 of 14 June 1971 on the application of social               2 . Article 4 (1 ) or (2) of Directive 79/409/EEC is to be
security schemes to employed persons, to self-employed                       interpreted as meaning that a Member State may not,
persons and to members of their families moving within the                   when designating a Special Protection Area and defining
Community, as amended and updated by Council                                 is boundaries, take account ofeconomic requirements as
Regulation (EEC) No 2001 /83 of 2 june 1983 , must be                        constituting a general interest superior to that
interpreted as not applying to benefits which, like those                    represented by the ecological objective of that
provided for by the 1971 and 1988 guidelines on the                          directive.
granting of the adaptation allowance to employees in the
coal-mining industry, are granted by a Member State in the            3 . Article 4 (1 ) or (2) of Directive 79/409/EEC is to be
form of non-compulsory subsidies to workers from the time                    interpreted as meaning that a Member State may not,
at which they are laid off to the time at which they attain                  when designating a Special Protection Area and defining
retirement age.                                                              its boundaries, take account of economic requirements
                                                                             which may constitute imperative reasons of overriding
(') OJ No C 87, 8 . 4.1995 .                                                 public interest of the kind referred to in Article 6 (4) of
( 2 ) OJ No L 230, 1983 , p . 6 .                                            Directive 92/43/EEC of 21 May 1992 on the
(■') OJ No L 230, 1983 , p . 86 .                                            conservation of the natural habitats of wild fauna and
                                                                             flora.
                                                                      (') OJ No C 101 , 22 . 4 . 1995 .
                                                                      ( 2 ) OJ No L 103 , 1979 , p . 1 .
                  JUDGMENT OF THE COURT
                          of 11 July 1996
in Case C-44/95 ( reference for a preliminary ruling from the
House of Lords ): Regina v. Secretary of State for the                                  JUDGMENT OF THE COURT
Environment ex parte : Royal Society for the Protection of                                       ( Fifth Chamber)
       Birds supported by Port of Sheerness Limited ( J )
                                                                                of 11 July 1996
 (Directive 79/409/EEC on the conservation of wild birds —
Directive 92/43/EEC on the conservation of the natural                in Case C-303/95 : Commission of the European Commu
habitats of wild fauna and flora — Delimitation of Special                                 nities v. Italian Republic (')
Protection Areas — Discretion enjoyed by the Member                        (Failure to fulfil obligations — Directive 91/157/EEC)
States — Economic and social considerations — Lappel                                               ( 96/C 336/22 )
                                Bank)
                           ( 96/C 336/21 )                                               (Language of the case: Italian)
                   (Language of the case: English)                    (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
In Case C-44/95 : reference to the Court pursuant to
Article 177 of the EC Treaty by the House of Lords for a              In Case C-303/95 : Commission of the European
preliminary ruling in the proceedings pending before that             Communities ( Agents: Laura Pignataro and Maria
court in the case of Regina v. Secretary of State for the             Kontou-Durande ) v. Italian Republic ( Agents : Umberto
Environment, ex parte: Royal Society for the Protection of            Leanza , assisted by Oscar Fiumara ) — application for a
 Birds supported by Port of Sheerness Limited, on the                 declaration by the Court that, by not adopting the laws,
 interpretation of Articles 2 and 4 of Council Directive              regulations and administrative provisions necessary to
 79/409/EEC of 2 April 1979 on the conservation of wild               comply with Council Directive 91 / 157/EEC of 18 March
 birds ( 2 ), the Court composed of: G. C. Rodriguez Iglesias,         1991 on batteries and accumulators containing certain
President, D. A. O. Edward, J. -P. Puissochet, G. Hirsch              dangerous substances ( 2 ), or at least by failing to inform the
 ( Presidents of Chambers ), G. F. Mancini, J. C. Moitinho de         Commission of those provisions, the Italian Republic has
Almeida , P. J. G. Kaptevn, C. Gulmann ( Rapporteur ), J. L.          failed to fulfil its obligations under that Directive — the


title: Case T-199/13: Action brought on 8 April 2013 — DTM Ricambi v OHIM — Star (STAR)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/51

         Action brought on 8 April 2013 — DTM Ricambi v OHIM — Star (STAR)
   (Case T-199/13)
   2013/C 156/94
   Language in which the application was lodged: Italian

      Parties

      Applicant: DTM Ricambi Srl (Bologna, Italy) (represented by: V. Catelli, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Star SpA (Lodi, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of 24 January 2013 in Case R 124/2012-1 and grant registration of the Community mark ‘STAR’, filed with No 5878038, in Classes 7, 9 and 12;

               —

               order Star to bear its own costs and to pay those of the applicant, including those relating to the proceedings before the Opposition Division and the Board of Appeal of OHIM.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Figurative mark containing the word element ‘STAR’ for goods in Classes 7, 9 and 12

      Proprietor of the mark or sign cited in the opposition proceedings: Star

      Mark or sign cited in opposition: Community figurative mark containing the word element ‘STAR’ for goods in Class 39, national and international figurative marks containing the word elements ‘STAR LODI’ for goods and services in Classes 12, 38, 39 and 42

      Decision of the Opposition Division: Opposition upheld

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               —

               No likelihood of confusion

               —

               Dilution of the earlier mark


title: Judgment of the Court of 1 June 1999 in Case C-126/97 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Eco Swiss China Time Ltd v Benetton International NV (Competition - Application by an arbitration tribunal, of its own motion, of Article 81 EC (ex Article 85) - Power of national courts to annul arbitration awards)

text:
17.7.1999                EN                      Official Journal of the European Communities                                            C 204/17
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                of 1 June 1999
                            of 1 June 1999
                                                                            in Case C-302/97 (reference for a preliminary ruling from
                                                                            the Landesgericht für Zivilrechtssachen Wien): Klaus
in Case C-126/97 (reference for a preliminary ruling from                                    Konle v Republic of Austria (1)
the Hoge Raad der Nederlanden): Eco Swiss China Time
               Ltd v Benetton International NV (1)
                                                                            (Freedom of establishment — Free movement of capital —
                                                                            Articles 52 of the EC Treaty (now, after amendment, Article
(Competition — Application by an arbitration tribunal, of                   43 EC) and 56 EC (ex Article 73b) — Authorisation
its own motion, of Article 81 EC (ex Article 85) — Power of                 procedure for the acquisition of immovable property —
          national courts to annul arbitration awards)                      Article 70 of the Act concerning the conditions of accession
                                                                            of the Republic of Austria — Secondary residences —
                                                                                Liability for breach of Community law)
                           (1999/C 204/32)
                                                                                (1999/C 204/33)
                     (Language of the case: Dutch)                                             (Language of the case: German)
                                                                            (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                          in the European Court Reports)
                    in the European Court Reports)
                                                                            In Case C-302/97: reference to the Court under Article 234
                                                                            EC (ex Article 177) from the Landesgericht für Zivilrechtssach-
In Case C-126/97: reference to the Court under Article 234                  en Wien (Regional Civil Court), Vienna, for a preliminary
EC (ex Article 177) by the Hoge Raad der Nederlanden                        ruling in the proceedings pending before that court between
(Netherlands) for a preliminary ruling in the proceedings                   Klaus Konle and Republic of Austria — on the interpretation
before that court between Eco Swiss China Time Ltd and                      of Articles 10 EC (ex Article 5), 6 of the EC Treaty (now, after
Benetton International NV on the interpretation of Article 81               amendment, Article 12 EC), 52, 54, 56 and 57 of the EC
EC (ex Article 85) — the Court, composed of G.C. Rodrı́guez                 Treaty (now, after amendment, Articles 43 EC, 44 EC, 46 EC
Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet, G. Hirsch            and 47 EC), 53 of the EC Treaty (repealed by the Treaty of
and P. Jann (Presidents of Chambers), G.F. Mancini, J.C. Moitin-            Amsterdam), 45 EC and 48 EC (ex Articles 55 and 58), 56 EC
ho de Almeida (Rapporteur), C. Gulmann, J.L. Murray,                        to 60 EC (ex Articles 73b to 73d, 73f and 73g), 73e and 73h
D.A.O. Edward, H. Ragnemalm, L. Sevón and M. Wathelet,                     of the EC Treaty (repealed by the Treaty of Amsterdam), and
Judges; A. Saggio, Advocate General; H. von Holstein, Deputy                Article 70 of the Act concerning the conditions of accession
Registrar, has given a judgment on 1 June 1999, in which it                 of the Republic of Austria, the Republic of Finland and the
has ruled:                                                                  Kingdom of Sweden and the adjustments to the Treaties on
                                                                            which the European Union is founded (OJ 1994 C 241, p. 21,
                                                                            and OJ 1995 L 1, p. 1) — the Court, composed of: G.C. Rodrı́-
1. A national court to which application is made for annulment of           guez Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet (Rap-
     an arbitration award must grant that application if it considers       porteur), G. Hirsch and P. Jann (Presidents of Chambers),
     that the award in question is in fact contrary to Article 81 EC        G.F. Mancini, J.C. Moitinho de Almeida, C. Gulmann, J.L. Mur-
     (ex Article 85), where its domestic rules of procedure require it to   ray, D.A.O. Edward, H. Ragnemalm, L. Sevón and M. Wathelet,
     grant an application for annulment founded on failure to observe       Judges; A. La Pergola, Advocate General; H.A. Rühl, Principal
     national rules of public policy.                                       Administrator, for the Registrar, has given a judgment on
                                                                            1 June 1999, in which it has ruled:
2. Community law does not require a national court to refrain from
     applying domestic rules of procedure according to which an             1. Article 56 EC (ex Article 73b) and Article 70 of the Act
     interim arbitration award which is in the nature of a final award          concerning the conditions of accession of the Republic of Austria,
     and in respect of which no application for annulment has been              the Republic of Finland and the Kingdom of Sweden and the
     made within the prescribed time-limit acquires the force of res            adjustments to the Treaties on which the European Union is
     judicata and may no longer be called in question by a subsequent           founded:
     arbitration award, even if this is necessary in order to examine,
     in proceedings for annulment of a subsequent arbitration award,            — do not preclude a scheme for acquiring land such as that
     whether an agreement which the interim award held to be valid                   introduced by the Tiroler Grundverkehrsgesetz 1993, unless
     in law is nevertheless void under Article 81 EC (ex Article 85).                that Law was deemed not to form part of the domestic legal
                                                                                system of the Republic of Austria on 1 January 1995;
                                                                                — preclude a scheme such as that introduced by the Tiroler
(1) OJ C 166 of 31.5.1997.                                                           Grundverkehrsgesetz 1996;
                                                                            2. It is in principle for the national courts to assess whether a breach
                                                                                of Community law is sufficiently serious for a Member State to
                                                                                incur non-contractual liability vis-à-vis an individual;


title: JUDGMENT OF THE COURT (Fifth Chamber) of 20 February 1997 in Case C-166/95 P: Commission of the European Communities v. Frédéric Daffix (Officials - Removal from post - Statement of reasons)

text:
No C 108/6              EN                  Official Journal of the European Communities                                      5 . 4 . 97
               JUDGMENT OF THE COURT                                                 JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                      (Fifth Chamber)
                       of 20 February 1997                                                  of 20 February 1997
in Case C- 1 66/95 P: Commission of the European
                                                                       in Case C-260/95 (reference for a preliminary ruling from
              Communities v. Frédéric Daffix (')
                                                                       the High Court of Justice ( Queen's Bench Division )):
  (Officials — Removal from post — Statement of reasons)                  Commissioners of Customs and Excise v. DFDS A/S (')
                            ( 97/C 108/09 )                            (Sixth VAT Directive — Special scheme for travel agents
                                                                                — Place of taxation of supply of services)
                                                                                ( 97/C 108/ 10 )
                 (Language of the case: French)
                                                                                (Language of the case: English)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
In Case C-l 66/95 P: Commission of the European                          (Provisional translation; the definitive translation will be
Communities (Agents: Dimitrios Gouloussis, assisted by                          published in the European Court Reports)
Benoit Cambier) — appeal against the judgment of the
Court of First Instance (Third Chamber) of 28 March
1995 in Case T-12/94 Daffix v. Commission [ 1995] ECR
SC 11-233, seeking to have that judgment set aside — the               In Case C-260/95 : reference to the Court under Article 177
other party to the proceedings being Frederic Daffix, an               of the EC Treaty from the High Court of Justice ( Queen's
official of the Commission of the European Communities,                Bench Division ) for a preliminary ruling in the
residing in Brussels, represented by Georges Vandersanden              proceedings pending before that court between
and Laure Levi, of the Brussels Bar, with an address for               Commissioners of Customs and Excise and DFDS A/S —
service in Luxembourg at the office of Fiduciaire Myson                on the interpretation of Article 26 of the Sixth Council
Sari, 1 Rue Glesener — the Court (Fifth Chamber),                      Directive ( 77/388/EEC) of 17 May 1977 on the
composed of: J. C. Moitinho de Almeida, President of the               harmonization of the laws of the Member States relating
Chamber,      L.   Sevón, D.        A.  O.  Edward, P. Jann            to turnover taxes — Common system of value added tax:
(Rapporteur) and M. Wathelet, Judges; A. La Pergola,                   uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977,
Advocate- General; D. Louterman-Hubeau, Principal                      p. 1 ) — the Court ( Fifth Chamber ), composed of: J. C.
Administrator, for the Registrar, has given a judgment on              Moitinho de Almeida, President of the Chamber, L. Sevón,
20 February 1997, in which it:                                         D. A. O. Edward, J. -P. Puissochet ( Rapporteur ) and M.
                                                                       Wathelet, Judges; A. La Pergola, Advocate-General; L.
                                                                       Hewlett, Administrator, for the Registrar, has given a
1 . quashes the judgment of the Court of First Instance of             judgment on 20 February 1997, in which it has ruled:
     28 March 1995 in Case T-12/94 Daffix v. Commission
     inasmuch as it, first, annulled the Commission 's
     decision of 18 March 1 993 removing Mr Daffix from
     his post, on the ground that the statement of reasons             Article 26 (2) of the Sixth Council Directive (77/388/EEC)
     was inadequate and, secondly, ordered the                         of 17 May 1977, on the harmonization of the laws of the
     Commission to pay the costs;                                      Member States relating to turnover taxes — Common
                                                                       system of value added tax: uniform basis of assessment, is
                                                                       to be interpreted as meaning that, where a tour operator
                                                                       established in one Member State provides services to
2. refers the case back to the Court of First Instance so              travellers through the intermediary of a company
     that it may give judgment on the other pleas relied               operating as an agent in another Member State, VAT is
     upon by the applicant at first instance, which are set            payable on those services in the latter State if that
     out in paragraph 29 of the contested judgment;                    company, which acts as a mere auxiliary organ of the tour
                                                                       operator, has the human and technical resources
                                                                       characteristic of a fixed establishment.
3.   reserves the costs .
                                                                        O OJ No C 248 , 23 . 9 . 1995 .
 (») OJ No C 208 , 12 . 8 . 1995 .


title: Judgment of the Court (Sixth Chamber) of 12 October 2000 in Case C-3/99 (reference for a preliminary ruling from the Tribunal de Commerce de Bruxelles): Cidrerie Ruwet SA v Cidre Stassen SA and HP Bulmer Ltd (Free movement of goods — Directive 75/106/EEC — Partial harmonisation — Prepackaged liquids —Making-up by volume — Cider — Prohibition by a Member State of nominal volumes not mentioned by the directive)

text:
C 335/22                 EN                     Official Journal of the European Communities                                        25.11.2000
1.    Annuls Directive 98/43/EC of the European Parliament and             Council Directive 75/106/EEC of 19 December 1974 on the
      of the Council of 6 July 1998 on the approximation of the            approximation of the laws of the Member States relating to the
      laws, regulations and administrative provisions of the Member        making-up by volume of certain pre-packaged liquids, amended by
      States relating to the advertising and sponsorship of tobacco        Council Directive 79/1005/EEC of 23 November 1979, Council
      products;                                                            Directive 85/10/EEC of 18 December 1984, Council Directive
                                                                           88/316/EEC of 7 June 1988 and Council Directive 89/676/EEC
2.    Orders the European Parliament and the Council of the                of 21 December 1989, must be construed as not allowing Member
      European Union to pay the costs, and the French Republic, the        States to prohibit, by means of legislation such as the Belgian Royal
      Republic of Finland, the United Kingdom of Great Britain             Decree of 16 February 1982 relating to the ranges of nominal
      and Northern Ireland and the Commission of the European              quantities and nominal volumes of contents authorised for certain
      Communities to bear their own costs.                                 prepackaged products, the marketing of any prepackage having a
                                                                           nominal volume which is not mentioned in Annex III, column I, to
(1) OJ C 378 of 5.12.1998.                                                 that directive.
                                                                           Article 30 of the EC Treaty (now, after amendment, Article 28 EC)
                                                                           must be construed as precluding a Member State from prohibiting
                                                                           the marketing of a prepackage having a nominal volume not included
                                                                           in the Community range, which is lawfully manufactured and
                                                                           marketed in another Member State, unless such a prohibition is
                 JUDGMENT OF THE COURT                                     designed to meet an overriding requirement relating to consumer
                                                                           protection, applies without distinction to national and imported
                          (Sixth Chamber)                                  products alike, is necessary in order to meet the requirement in
                                                                           question and is proportionate to the objective pursued, and that
                        of 12 October 2000                                 objective cannot be achieved by measures which are less restrictive of
                                                                           intra-Community trade.
in Case C-3/99 (reference for a preliminary ruling from
the Tribunal de Commerce de Bruxelles): Cidrerie Ruwet                     (1) OJ C 71 of 13.3.1999.
        SA v Cidre Stassen SA and HP Bulmer Ltd (1)
(Free movement of goods — Directive 75/106/EEC — Partial
harmonisation — Prepackaged liquids —Making-up by
volume — Cider — Prohibition by a Member State of
       nominal volumes not mentioned by the directive)
                           (2000/C 335/40)                                                      ORDER OF THE COURT
                                                                                of 28 June 2000
                     (Language of the case: French)
                                                                           in Case C-116/00 (reference for a preliminary ruling from
(Provisional translation; the definitive translation will be published     the Cour d’Appel, Paris): criminal proceedings against
                    in the European Court Reports)                                                Claude Laguillaumie (1)
In Case C-3/99: reference to the Court under Article 177 of                             (Preliminary rulings — Inadmissibility)
the EC Treaty (now Article 234 EC) from the Tribunal de
Commerce (Commercial Court), Brussels for a preliminary
ruling in the proceedings pending before that court between                                           (2000/C 335/41)
Cidrerie Ruwet SA and Cidre Stassen SA, HP Bulmer Ltd — on
the interpretation of Article 30 of the EC Treaty (now,
after amendment, Article 28 EC), and on the validity and                                        (Language of the case: French)
interpretation of Council Directive 75/106/EEC of 19 Decem-
ber 1974 on the approximation of the laws of the Member
States relating to the making-up by volume of certain prepack-             (Provisional translation; the definitive translation will be published
aged liquids (OJ 1975 L 42, p. 1), amended by Council                                          in the European Court Reports)
Directive 79/1005/EEC of 23 November 1979 (OJ 1979
L 308, p. 25), Council Directive 85/10/EEC of 18 December                  In Case C-116/00: reference to the Court under Article 234 EC
1984 (OJ 1985 L 4, p. 20), Council Directive 88/316/EEC of                 from the Cour d’appel (Court of Appeal), Paris, for a prelimi-
7 June 1988 (OJ 1988 L 143, p. 26) and Council Directive                   nary ruling in the criminal proceedings pending before that
89/676/EEC of 21 December 1989 (OJ 1989 L 398, p. 18)                      court against Claude Laguillaumie — on the interpretation of
— the Court (Sixth Chamber), composed of: C. Gulmann                       Articles 30 and 36 (now Articles 28 and 30 EC), Articles 85
(Rapporteur), President of the Chamber, J.-P. Puissochet and               and 86 (now Articles 81 and 82 EC) of the EC Treaty, Council
R. Schintgen, Judges, N. Fennelly, Advocate General; D. Louter-            Directive 83/189/EEC of 28 March 1983 laying down a
man-Hubeau, Principal Administrator, for the Registrar, has                procedure for the provision of information in the field of
given a judgment on 12 October 2000, in which it has ruled:                technical standards and regulations (OJ L 109, p. 8), Council


title: Case T-682/14: Action brought on 19 September 2014 — Mylan Laboratories and Mylan v Commission

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/32

         Action brought on 19 September 2014 — Mylan Laboratories and Mylan v Commission
   (Case T-682/14)
   (2014/C 431/55)
   Language of the case: English

      Parties

      Applicants: Mylan Laboratories Ltd (Hyderabad, India); and Mylan, Inc. (Canonsburg, United States) (represented by: S. Kon, C. Firth and C. Humpe, Solicitors)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Articles 2, 7 and 8 of Commission decision C(2014) 4955 final of 9 July 2014 in Case AT.39612 Perindopril (Servier) insofar as they pertain to the applicants; or

               —

               in the alternative annul Article 7 of Commission decision C(2014) 4955 final of 9 July 2014 in Case AT.39612 Perindopril (Servier) insofar as it imposes a fine on the applicants; or

               —

               in the further alternative reduce the fine imposed on the applicants pursuant to Article 7 of Commission decision C(2014) 4955 final of 9 July 2014 in Case AT.39612 Perindopril (Servier); or

               —

               in the final alternative annul Articles 2, 7 and 8 of Commission decision C(2014) 4955 final of 9 July 2014 in Case AT.39612 Perindopril (Servier) insofar as they pertain to Mylan Inc.;

               —

               order the Commission to pay the applicants’ costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on eight pleas in law.

               1.

               First plea in law, alleging that the contested decision contains errors of facts and manifest errors of assessment in its analysis of the relevant factual, legal and economic context in which the patent settlement agreement between Mylan Laboratories (formerly known as Matrix Laboratories) and Servier was entered into.

               2.

               Second plea in law, alleging that the contested decision is flawed as a matter of law and fact in finding that Matrix was a potential competitor to Servier.

               3.

               Third plea in law, alleging that the contested decision does not establish to the requisite legal standard that the patent settlement agreement had the object of restricting competition contrary to Article 101 TFEU.

               4.

               Fourth plea in law, alleging that the contested decision does not establish to the requisite legal standard that the patent settlement agreement had the effect of restricting competition contrary to Article 101 TFEU.

               5.

               Fifth plea in law, alleging in the alternative that the Commission has infringed Article 23 of Regulation No 1/2003 (1) as well as the principles of proportionality, nullum crimen nulla poena sine lege and legal certainty in imposing a fine on the applicants.

               6.

               Sixth plea in law, alleging in the further alternative that the Commission has imposed a fine which is manifestly disproportionate to the gravity of the alleged infringement.

               7.

               Seventh plea in law, alleging that the Commission has infringed Mylan Inc.’s procedural rights of defence by reformulating, without issuing a supplementary Statement of Objections, the basis upon which liability is attributed to Mylan Inc. in the contested decision in a manner that differs from the basis upon which such liability had been imposed on a preliminary basis in the Statement of Objections.

               8.

               Eighth plea in law, alleging that the Commission has (i) breached the principle of personal responsibility and presumption of innocence in holding Mylan Inc. liable for the alleged infringement of Matrix; and (ii) committed manifest errors of assessment in finding that Mylan Inc. exercised decisive influence over the conduct of Matrix during the relevant period.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 TFEU and 102 TFEU (OJ 2003 L 1, p. 1).


title: Reference for a preliminary ruling by the President of the Arrondissementsrechtbank, The Hague, by order of 4 November 1997 in the case of Emesa Sugar (Free Zone) NV and 1. Kingdom of the Netherlands, 2. The Netherlands State, 3. The Netherlands Antilles and 4. Aruba (Case C-380/97)

text:
C 387/ 12                 EN                   Official Journal of the European Communities                                  20 . 12 . 97
Reference for a preliminary ruling by the So- og                          Reference for a preliminary ruling by the President of the
Handelsret by order of that court of 31 October 1997 in                   Arrondissementsrechtbank, The Hague, by order of
         the case of Upjohn SA, Danmark v. Paranova A/S                   4 November 1997 in the case of Emesa Sugar ( Free
                            Case C-3 79/97                                Zone ) NV and 1 . Kingdom of the Netherlands, 2 . The
                                                                          Netherlands State, 3 . The Netherlands Antilles and
                             ( 97/C 387/19 )                                                           4 . Aruba
                                                                                Case C-380/97 )
Reference has been made to the Court of Justice of the                                              ( 97/C 387/20 )
European Communities by order of the So- og Handelsret
( Maritime and Commercial Court ) of 31 October 1997,
which was received at the Court Registry on 6 November
1997, for a preliminary ruling in the case of Upjohn SA,                  Reference has been made to the Court of Justice of the
Danmark v. Paranova A/S on the following questions:                       European Communities by interlocutory judgment of the
                                                                          President of the Arrondissementsrechtbank, The Hague, of
                                                                          4 November 1997, received at the Court Registry on
1 . Do Article 7 of Council Directive 89/104/EEC (') of                   6 November 1997, for a preliminary ruling in the case of
        21 December 1988 to approximate the laws of the                   Emesa Sugar ( Free Zone ) NV and 1 . Kingdom of the
        Member States relating to trade marks and/or                      Netherlands, 2 . The Netherlands State , 3 . The
        Articles 30 and 36 of the EC Treaty preclude the                  Netherlands Antilles and 4 . Aruba on the following
        proprietor of a trade mark from relying on its right              questions:
        under    national  trade-mark     law   as  the   basis  for
        opposing a third party's purchasing a pharmaceutical
        product in a Member State, repackaging it in that
        third party's own packaging, to which it affixes trade            1 . Is it compatible with the EC Treaty, in particular
                                                                              Part IV thereof, for provisions such as those referred
        mark X belonging to the trade-mark proprietor, and
                                                                              to in the second paragraph of Article 136 of the
        marketing the product in another Member State, in
        the case where the pharmaceutical product in question
                                                                              Treaty to include quantitative restrictions on imports
                                                                              or measures having equivalent effect ?
        is marketed by the trade-mark proprietor or with its
        consent in the Member State of purchase under trade
        mark Y and an identical pharmaceutical product is
        marketed by the trade-mark proprietor or with its                 2 . Is the answer to that question different
        consent in the abovementioned second Member State
        under trade mark X ?
                                                                              a.   if those restrictions or measures are in the form of
                                                                                tariff quotas or limitations to the provisions
2 . Does it have any bearing on the reply to Question 1                            relating to origin or a combination of the two; or
        whether the trade-mark proprietor's use of different
        trade marks in the country in which the importer
        purchases the product and in that in which the                        b . if the provisions in question comprise safeguard
        importer sells the product is attributable to subjective                   measures or not ?
        circumstances particular to the trade-mark proprietor ?
        If the answer is yes, is the importer required to adduce
        evidence that the use of different trade marks is or was
        intended artificially to partition the markets ( reference        3 . Does it follow from the EC Treaty, in particular
        is made in this connection to the Court's judgment of                 Part IV thereof, that for the purposes of the second
        10    October   1978       in Case   3/78   Centrafarm    v.          paragraph of Article 136, the experience acquired —
        American Home Products Corporation ( 2 ))?                            in the form of measures favourable to the OCT —
                                                                              may not subsequently be reviewed or annulled to the
                                                                              detriment of the OCT ?
3 . Does it have any bearing on the reply to question 1
        whether the trade-mark proprietor's use of different
        trade marks in the country in which the importer
        purchases the product and in that in which the                        If that is indeed the case, can individuals then rely on
        importer sells the product is attributable to objective               it in proceedings before the national court ?
        circumstances outwith the control of the trade-mark
        proprietor, including, in particular, requirements of
        national health authorities or the trade-mark rights of           4 . To what extent-must the 1991 OCT Decision ( 91 /482/
        third parties ?                                                       EEC, OJ L 263 , 19 . 9 . 1991 , p. 1 ; corrigendum in OJ
                                                                              L 15 , 23 . 1 . 1993 , p. 33 ) be deemed to apply without
(') OJ L 40 , 11 . 2 . 1989 , p . 1 .                                         amendment during the 10 year period referred to in
( 2 ) [ 1978 ] ECR 1823 .                                                     Article 240 ( 1 ) thereof, given that the Council did not
                                                                              amend that decision before the expiry of the first
                                                                              ( period of) 5 years referred to in Article 240 ( 3 )
                                                                              thereof ?
 ---pagebreak--- 20 . 12 . 97              EN                   Official Journal of the European Communities                                           C 387/ 13
5 . Does the national court ( sitting in interlocutory                    8 . Is the answer to Question 7 different according to
     proceedings ) have jurisdiction, in circumstances such                     whether or not the content of the proposed decision is
     as those described in Joined Cases C-143/88 and C-92/                      consistent with higher rules of Community law ?
     89 Zuckerfabrik Siiderdithmarschen and Others and
     subsequent cases, to make an interim order requiring a
     Member State not to participate ( either actively or
     passively ) in the decision-making process within the
     Council of Ministers in the context of the second
     paragraph of Article 136 ?                                           Reference for a preliminary ruling from the Tribunal de
                                                                          Premiere Instance, Nivelles ( 9th Chamber), by judgment of
6 . On the assumption that assessment of the                              that court of 3 November 1997 in the case of Belgocodex
     circumstances referred to in Question 5 is a matter for                                         SA v. Belgian State
     the Court of Justice, rather than the national court,                                            ( Case C-381 /97 )
     are the circumstances described in the judgment of                                                 ( 97/C 387/21 )
     17 October 1997 — page 7, first full paragraph, ('On
     the basis of various factors . . .') up to and including             Reference has been made to the Court of Justice of the
     the second full paragraph on page 8 ( ending '. . .                  European Communities by a judgment of the Tribunal de
     excessively detrimental to the interests of the                      Premiere Instance ( Court of First Instance ), Nivelles ( 9th
     Community') — also in the light of the further                       Chamber), of 3 November 1997, which was received at
     reasoning in that judgment and in the judgment of                    the Court Registry on 7 November 1997, for a
     6 October 1997, such as to justify the injunction                    preliminary ruling in the case of Belgocodex SA v. Belgian
     referred to in Question 5 ?                                          State on the following questions :
7 . Does Article 5 of the EC Treaty — and more                            Does Article 2 of the First Council Directive 67/227/EEC
     specifically the principle of Community cooperation                  of 11 April 1967 (') on the harmonisation of legislation of
     with      other    Member       States  contained   therein —        Member States concerning turnover taxes, which
     preclude such an injunction by the court concerning                  establishes the principle of a common system of value
     the future participation of that Member State in the                  added tax, prevent a Member State — in this case Belgium
      decision-making process in that context, if                         — which has availed itself of the possibility provided for
                                                                           by Article 13 ( C ) of the Sixth Council Directive 77/388/
      (a ) the Member State voted in favour of the Council                 EEC of 17 May 1977 (2 ) on the harmonization of
            proposal at issue, notwithstanding that it was                 legislation of Member States concerning turnover taxes —
            aware that interlocutory proceedings were in                   Common system of value added tax: uniform basis of
            progress at the time concerning its voting                     assessment, and has thus given its taxpayers the right to
            intentions in the European Council of ' Ministers              opt for taxation of certain lettings of immovable property,
            and                                                            from abolishing that right of option and thus
                                                                           reintroducing the exemption to its full extent in
      ( b ) those ( initial ) interlocutory proceedings culminated         subsequent legislation ?
            in such an injunction a few hours after the
            Member       State    had    voted  in  favour   of  the       (') OJ , English Special Edition 1967, p . 14 ; EE 09 FI, p . 3 .
            proposal ?                                                     (2 ) OJ L 145 , 13 . 6 . 1977, p . 1 ; EE 09 FI, p . 54 .


28.8.1999             EN                     Official Journal of the European Communities                                   C 246/45
In the applicant’s view, Directive 92/12/EEC is contrary to:                   Removal from the register of Case T-538/93 (1)
— the Community principle of the rule of law, inasmuch as
    it contains contradictory and unclear rules;                                               (1999/C 246/90)
— the Treaty objectives in the establishment of the internal
    market under Article 14 EC (ex Article 7a);                                           (Language of the case: English)
— the prohibition under Article 25 EC (ex Article 12) of
    customs duties and charges having equivalent effect;                By order of 30 March 1999 the President of the Fourth
                                                                        Chamber, Extended Composition of the Court of First Instance
— the prohibitions under Article 28 EC (ex Article 30) and              of the European Communities has ordered the removal from
    Article 29 EC (ex Article 34);                                      the register of Case T-538/93: Joh Harris v Council of the
                                                                        European Union and Commission of the European Communi-
— Article 93 EC (ex Article 99), authorising harmonisation              ties.
    of indirect taxation;
— the principle of proportionality, inasmuch as it is not
                                                                        (1) OJ C 319 of 26.11.1993.
    suited to the internal market;
— the principle of protection of legitimate expectations;
— a series of fundamental rights and freedoms, such as
    freedom to exercise a profession, right of ownership, and
    commercial and economic freedom.
                                                                               Removal from the register of Case T-548/93 (1)
                                                                                (1999/C 246/91)
       Removal from the register of Case T-278/93 (1)
                        (1999/C 246/88)                                                   (Language of the case: English)
                  (Language of the case: English)                       By order of 1 March 1999 the President of the First Chamber,
                                                                        Extended Composition of the Court of First Instance of the
By order of 10 March 1999 the President of the Fourth                   European Communities has ordered the removal from the
Chamber, Extended Composition of the Court of First Instance            register of Case T-548/93: Ladbroke Racing Ltd v Council of
of the European Communities has ordered the removal from                the European Communities.
the register of Case T-278/93: David Alwyn Jones and
Mary Bridget Jones v Council of the European Union and
Commission of the European Communities.                                 (1) OJ C 319 of 26.11.1993.
(1) OJ C 165 of 2.7.1992.
Partial removal from the register of Joined Cases                              Removal from the register of Case T-72/95 (1)
            T-294/934, T-392/93 and T-413/93 (1)
                                                                                (1999/C 246/92)
                        (1999/C 246/89)
                  (Language of the case: English)                                         (Language of the case: English)
By order of 30 March 1999 the President of the Fourth
Chamber, Extended Composition of the Court of First Instance            By order of 17 May 1999 the President of the Fifth Chamber
of the European Communities has ordered the removal from                of the Court of First Instance of the European Communities
the register of Cases T-294/93: Sean Coughlan v Council                 has ordered the removal from the register of Case T-72/95:
of the European Union and Commission of the European                    Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. v
Communities and T-413/93: Patrick Heffernan v Council of                Commission of the European Communities.
the European Communities.
                                                                        (1) OJ C 268 of 14.10.1995.
(1) OJ C 158 of 10.6.1993 and C 197 of 21.7.1993.