title: Case T-49/02: Action brought on 26 February 2002 by Brasserie Nationale against the Commission of the European Communities

text:
C 109/62                 EN                     Official Journal of the European Communities                                          4.5.2002
Finally, the applicants submit that the objectives of the Council          The applicant claims that the Commission has failed to comply
in the directives cited are not covered by Community law and               with the obligation to provide a statement of reasons as
are therefore a direct cause of the refusal to disclose the                prescribed by Article 253 of the EC Treaty, and with the
accounts, and that the causal link between the objectives of               guidelines for the calculation of fines. According to the
the directive and the damage caused and anticipated is thus                applicant, the Commission, in determining the actual econ-
clear.                                                                     omic power of the parties concerned, failed to define the
                                                                           relevant market. It maintains that the decision does not make
                                                                           it clear whether the relevant market is the private label market
(1) First Council Directive 68/151/EEC of 9 March 1968 on co-              or the beer market in general. Moreover, the Commission
    ordination of safeguards which, for the protection of the interests    over-estimated the economic power of the applicant in the
    of members and others, are required by Member States of                market for private label beer, if and in so far as it is that market
    companies within the meaning of the second paragraph of                which is to be regarded as the relevant market. The applicant
    Article 58 of the Treaty, with a view to making such safeguards        further argues that the Commission wrongly characterised the
    equivalent throughout the Community (OJ, English Special Edition
    1968(I), p. 41).
                                                                           role played by the applicant in the cartel in question as an
(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on           active role. According to the applicant, its role must be
    Article 54 (3) (g) of the Treaty on the annual accounts of certain     regarded as having been purely passive, or at least as less
    types of companies (OJ 1978 L 222, p. 11).                             active.
                                                                           Lastly, the applicant pleads infringement of the Notice on
                                                                           Cooperation and of the principle of equal treatment. According
                                                                           to the applicant, the Commission failed to take sufficient
                                                                           account of the significance of the applicant’s statements
                                                                           proving the infringement of the rules. The Commission
                                                                           consequently treated similar situations in a dissimilar way, by
Action brought on 27 February 2002 by Brouwerij                            not applying the same reduction in the fine where there was a
Haacht N.V. against the Commission of the European                         comparable level of cooperation. Moreover, the Commission
                             Communities                                   treated dissimilar situations in a similar way, by applying the
                                                                           same reduction in the fines imposed on the applicant and on
                            (Case T-48/02)                                 parties who cooperated less, or not at all, in the Commission’s
                                                                           investigation.
                          (2002/C 109/118)
                     (Language of the case: Dutch)
An action against the Commission of the European Communi-                  Action brought on 26 February 2002 by Brasserie Natio-
ties was brought before the Court of First Instance of the                 nale against the Commission of the European Communi-
European Communities on 27 February 2002 by Brouwerij                                                     ties
Haacht N.V., established at Boortmeerbeek (Belgium), rep-
resented by Yves van Gerven, Frédéric Louis and Hendrik                                             (Case T-49/02)
Viane, lawyers, with an address for service in Luxembourg.
                                                                                (2002/C 109/119)
The applicant claims that the Court should:
                                                                                (Language of the case: French)
—     annul Article 4 of the decision in issue, in so far as it
      concerns Brouwerij Haacht N.V. and, in so far as may be
      necessary, order that no fine be imposed on Brouwerij
      Haacht N.V. or substantially reduce the fine;                        An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
—     order the Commission to pay the costs in any event.                  European Communities on 26 February 2002 by Brasserie
                                                                           Nationale, established at Bascharage (Luxembourg), represent-
                                                                           ed by Alexandre Carnelutti and Jean-Louis Schiltz, lawyers,
                                                                           with an address for service in Luxembourg.
Pleas in law and main arguments
                                                                           The applicant claims that the Court should:
The action is directed against the decision in so far as it
imposes a fine on the applicant in consequence of the private              —     annul Article 1 of the Commission’s decision of 5 Decem-
label cartel on the Belgian beer market.                                         ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-
 ---pagebreak--- 4.5.2002               EN                    Official Journal of the European Communities                                       C 109/63
      bourgeoises, in so far as it finds that the applicant has         —     The Commission committed an error of fact in taking the
      infringed Article 81(1) of the Treaty;                                  view that the purpose of the agreement was to prevent
                                                                              penetration of the market by foreign brewers and that it
                                                                              significantly affected competition.
—     in any event, annul Article 2 of the decision in so far as it
      imposes a fine on the applicant, alternatively, reduce that
      fine substantially;
                                                                        The applicant stresses that the agreement was concluded on
                                                                        account of an abnormal risk situation created by a situation
—     order the Commission to pay the costs.                            under national law in which fair competition was directly
                                                                        threatened. Consequently, limited cooperation between brew-
                                                                        ers, proportionate to the objective pursued, became the only
                                                                        way of ensuring that the ‘beer clauses’ were safeguarded.
Pleas in law and main arguments                                         As regards the amount of the fines, the applicant pleads
                                                                        infringement of Article 15(2) of Regulation No 17 and non-
                                                                        compliance with the obligation to provide a statement of
                                                                        reasons.
The present application is directed against the Commission’s
decision establishing the existence of a cartel set up by an
agreement signed on 8 October 1985 between five Luxem-
bourg breweries, including the applicant, with a view to
ensuring observance of exclusivity clauses, known as ‘beer
clauses’, which are characteristic of contracts concluded
between brewers and operators in the hotels/restaurants/cafés
(HORECA) sector, both in Luxembourg and throughout the
Community. The object of that agreement was allegedly to
enable the parties thereto to retain their respective customers         Action brought on 26 February 2002 by Brasserie Battin
in the Luxembourg HORECA sector and to prevent foreign                    against the Commission of the European Communities
brewers from penetrating that sector.
                                                                                (Case T-51/02)
In support of its claims, the applicant puts forward the
following pleas in law:                                                                         (2002/C 109/120)
—     The Commission committed an error of law by omitting,                                (Language of the case: French)
      and refusing to consider itself obliged, to take account of
      the economic context of which the agreement formed
      part when carrying out its assessment of all of the clauses
      examined by it, and thus of the purpose of the agreement
      in question.                                                      An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 26 February 2002 by Brasserie
—     The Commission committed an error in its analysis of              Battin, established at Esch sur Alzette (Luxembourg), represent-
      the scope of the said agreement, by finding that it applied       ed by Alexandre Carnelutti and Marie Santini, lawyers, with an
      in the absence of a supply contract or beer clause, and           address for service in Luxembourg.
      thus committed an error of assessment, inasmuch as it
      based its negative assessment of the agreement on that
      presumed scope.                                                   The applicant claims that the Court should:
—     The Commission committed an error of assessment in                —     annul Article 1 of the Commission’s decision of 5 Decem-
      characterising the agreement as an agreement by the                     ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-
      contracting parties to retain their respective customers.               bourgeoises, in so far as it finds that the applicant has
      In actual fact, its central and sole purpose was to                     infringed Article 81(1) of the Treaty;
      ensure observance of the contractual exclusivity agreed
      to between retailers and brewers. The agreement in                —     in any event, annul Article 2 of the decision in so far as it
      question was therefore intended solely to constitute a
                                                                              imposes a fine on the applicant, or alternatively reduce
      legitimate instrument of horizontal cooperation aimed at
                                                                              that fine substantially;
      guaranteeing compliance with a decisive element affecting
      the economy, development and fair competition in that
      sector.                                                           —     order the Commission to pay the costs.


title: Case F-142/06: Action brought on 28 December 2006 — Bligny v Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/40

         Action brought on 28 December 2006 — Bligny v Commission
   (Case F-142/06)
   (2007/C 20/62)
   Language of the case: French
   Parties

      Applicant: Francesco Bligny (Tassin-la-Demi-Lune, France) (represented by: P. Lebel-Nourissat, avocat)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision of the selection board for competition EPSO/AD/06/05 of 7 December 2006 and that of 23 November 2006, refusing to admit the applicant to the competition and therefore to correct his written test;

               —

               find that the application form published on 15 May 2006 on the EPSO internet site for use by candidates of the competition was improper;

               —

               order the defendant to pay to the applicant the sum of EUR 5 000 in compensation for his loss;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, after passing the pre-selection tests for the above-mentioned competition, was not admitted to the next stage since, contrary to what was indicated in the notice of competition published in the Official Journal (1), he had failed to include with his application form any document proving his citizenship.
   In support of his action, the applicant pleads breach of the principle of protection of legitimate expectations, of the principle of sound administration and of the duty to have regard for the welfare of officials. He submits in particular that, concerning citizenship, the model application form to be downloaded from the EPSO internet site merely required an honour declaration and warned candidates that, on request, they would have to provide documentary evidence.

      (1)  OJ C 178 A of 27.7.2005, p. 3.


title: Case T-509/09: Action brought on 18 December 2009 — Portugal v Commission

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/26

         Action brought on 18 December 2009 — Portugal v Commission
   (Case T-509/09)
   2010/C 80/47
   Language of the case: Portuguese

      Parties

      Applicant: Portuguese Republic (Lisbon, Portugal) (represented by: L. Inez Fernandes, A. Trindade Mimoso and A. Miranda Boavida, acting as Agents)

      Defendant: European Commission

      Form of order sought

               1.

               Annulment of the European Commission’s decision of 14 October 2009, notified to the Portuguese Government by letter No 11656, refusing to reimburse the amount of the contribution originally approved for the purchase of two Ocean Patrol Vessels (OPV) for surveillance of fishing activities, in the sum of EUR 11 025 000;

               2.

               an order that the defendant should adopt a favourable decision with regard to the requests for reimbursement made by the Portuguese Government in connection with European Commission Decision 2002/978/EC of 10 December 2002;

               3.

               an order that the European Commission should pay the costs.

      Pleas in law and main arguments

               (a)

               Error as regards the legal requirements, given that the Portuguese State has complied in full with all the rules in the sphere of public procurement;

               (b)

               error as to the facts;

               (c)

               breach of the obligation to state reasons: the contested decision does not contain any grounds whatsoever, however slight, justifying the decision adopted. Inasmuch as it is contrary to and profoundly affects duly consolidated legal situations in a Member State, so causing the latter serious damage, such a decision ought, more than any other, to contain solid and persuasive reasoning, of which there is absolutely none in this case.


title: Case T-280/07: Action brought on 18 July 2007 — Sepracor v OHIM — Laboratorios Ern (LEVENIA)

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/14

         Action brought on 18 July 2007 — Sepracor v OHIM — Laboratorios Ern (LEVENIA)
   (Case T-280/07)
   (2007/C 235/26)
   Language in which the application was lodged: English
   Parties

      Applicant: Sepracor, Inc. (Malborough, United States) (represented by: E. De Gryse, E. Cornu, D. Moreau, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Laboratorios Ern, SA (Barcelona, Spain)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office of Harmonisation in the Internal Market of 18 April 2007 in Case R 155/2006-1;

               —

               order the Office to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: Sepracor, Inc.

      Community trade mark concerned: The Community word mark ‘LEVENIA’ for goods in class 5 — application No 2 563 799

      Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Ern, SA

      Mark or sign cited: The national word mark ‘LEVELINA’ for goods in classes 1 and 5

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

      Decision of the Board of Appeal: Upheld the appeal

      Pleas in law: The applicant claims that the contested decision infringes Article 43 CTMR and Rule 22 CTMIR since the justification of the First Board of Appeal, which held that the non-use of the national trademark ‘LEVELINA’ was justified for a certain type of pharmaceutical products and preparations, cannot constitute a ‘proper reason’ for non-use in the sense of Article 43(2) CTMR. Moreover, the applicant contends that even if the Court were to consider that the finding of the Board was correct and that non-use was sufficiently justified, the contested decision allegedly infringes Article 8(1)(b) CTMR.


title: Case C-360/13: Judgment of the Court (Fourth Chamber) of 5 June 2014 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and Others (Copyright — Information Society — Directive 2001/29/EC — Article 5(1) and (5) — Reproduction — Exceptions and limitations — Creation of copies of an internet site on-screen and in the cache of the hard disk in the course of browsing the internet — Temporary act of reproduction — Transient or incidental act — Integral and essential part of a technological process — Lawful use — Independent economic significance)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/13

         Judgment of the Court (Fourth Chamber) of 5 June 2014 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and Others
   (Case C-360/13) (1)

   ((Copyright - Information Society - Directive 2001/29/EC - Article 5(1) and (5) - Reproduction - Exceptions and limitations - Creation of copies of an internet site on-screen and in the cache of the hard disk in the course of browsing the internet - Temporary act of reproduction - Transient or incidental act - Integral and essential part of a technological process - Lawful use - Independent economic significance))
   2014/C 253/16
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Appellant: Public Relations Consultants Association Ltd

      Respondents: The Newspaper Licensing Agency Ltd and Others

      Re:

   Request for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Article 5(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Reproduction right — Exceptions and limitations — Concept of temporary, transient or incidental acts of reproduction which constitute an integral and essential part of a technological process — Reproduction of a webpage which is automatically stored in the memory cache and on the screen of a computer

      Operative part of the judgment

   Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders.

      (1)  OJ C 260, 7.9.2013.


title: Case C-356/12: Judgment of the Court (Fifth Chamber) of 22 May 2014 (request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Wolfgang Glatzel v Freistaat Bayern (Request for a preliminary ruling — Transport — Directive 2006/126/EC — Point 6.4 of Annex III — Validity — Charter of Fundamental Rights of the European Union — Articles 20, 21(1) and 26 — United Nations Convention on the Rights of Persons with Disabilities — Driving licences — Physical and mental fitness to drive a motor vehicle — Minimum standards — Visual acuity — Equal treatment — No possibility of derogation — Proportionality)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/5

         Judgment of the Court (Fifth Chamber) of 22 May 2014 (request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Wolfgang Glatzel v Freistaat Bayern
   (Case C-356/12) (1)

   ((Request for a preliminary ruling - Transport - Directive 2006/126/EC - Point 6.4 of Annex III - Validity - Charter of Fundamental Rights of the European Union - Articles 20, 21(1) and 26 - United Nations Convention on the Rights of Persons with Disabilities - Driving licences - Physical and mental fitness to drive a motor vehicle - Minimum standards - Visual acuity - Equal treatment - No possibility of derogation - Proportionality))
   2014/C 253/07
   Language of the case: German

      Referring court

   Bayerischer Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Wolfgang Glatzel

      Defendant: Freistaat Bayern

      Re:

   Request for a preliminary ruling — Bayerischer Verwaltungsgerichtshof — Validity of point 6.4 of Annex III to Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ 2006 L 403, p. 18), as amended by Commission Directive 2009/113/EC of 25 August 2009 (OJ 2009 L 223, p. 31) — Interpretation of Articles 20, 21 and 26 of the Charter of Fundamental Rights of the European Union — Minimum standards concerning physical and mental fitness to drive a motor vehicle of categories C, CE, C1, C1E, D, DE, D1 and D1E — Requirement for visual acuity of at least 0,1, with optical correction if necessary, in the worse of the two eyes

      Operative part of the judgment

   The examination of the question does not reveal any information capable of affecting the validity of point 6.4 of Annex III to Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences, as amended by Commission Directive 2009/113/EC of 25 August 2009 in the light of Articles 20, 21(1) or 26 of the Charter of Fundamental Rights of the European Union.

      (1)  OJ C 9, 12.1.2013.


title: Case F-72/12: Action brought on 9 July 2012 — ZZ v Commission

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/29

         Action brought on 9 July 2012 — ZZ v Commission
   (Case F-72/12)
   2012/C 258/54
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the Commission’s decision relating to the recovery of a certain amount of the remuneration of the applicant, formerly a member of the temporary staff at Grade A4 (AD12), then an official at Grade AD6, pursuant to Article 85 of the Staff Regulations.

      Form of order sought

               —

               Annul the decision of 20 December 2011 to proceed with the recovery of the sum of EUR 172 236,42 pursuant to Article 85 of the Staff Regulations;

               —

               in the alternative, order the Commission to compensate the applicant in the amount of EUR 172 236,42, or, in the further alternative, in the amount of the sums overpaid until the day on which the irregularity was discovered but not corrected, or, in the further alternative, in the amount of the sums overpaid until November 2010, when the applicant’s multiplication factor was eventually corrected;

               —

               order the European Commission to pay the costs.


title: Case T-354/14: Action brought on 19 May 2014  — Comercializadora Eloro v OHIM — Zumex Group (zumex)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/41

         Action brought on 19 May 2014 — Comercializadora Eloro v OHIM — Zumex Group (zumex)
   (Case T-354/14)
   2014/C 253/55
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Comercializadora Eloro, SA (Ecatepec, Mexico) (represented by: J. L de Castro Hermida, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Zumex Group, SA (Moncada, Spain)

      Form of order sought

   The applicant claims that the General Court should:

               —

               hold, on the basis of the documents filed in the administrative procedure and those submitted together with the present application, that the applicant has provided sufficient proof of use of its earlier mark ‘JUMEX’ for fruit juices in Class 32;

               —

               refuse the registration of the mark applied for ‘ZUMEX’ for all goods in Class 32 on account of the opposing party, who is the applicant in the present proceedings, having proved use of the mark with priority, because of the likelihood of confusion on the part of consumers arising from the coexistence in the market of both marks, given the similarity of the words and their identity in application.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Zumex Group, SA

      Community trade mark concerned: Figurative mark with word element ‘zumex’ for goods in Class 32 — Community trade mark application No 6 8 45  598

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

      Mark or sign cited in opposition: Word mark ‘JUMEX’ for goods in Class 32

      Decision of the Opposition Division: Opposition upheld

      Decision of the Board of Appeal: Decision of the Opposition Division annulled and opposition rejected

      Pleas in law:

               —

               Proof of use of the earlier mark;

               —

               Infringement of Article 8(1)(b) and (2) of Regulation No 207/2009.


title: Case C-444/10: Judgment of the Court (Second Chamber) of 10 November 2011 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Lüdenscheid v Christel Schriever (VAT — Sixth Directive — Article 5(8) — Concept of a ‘transfer of a totality of assets or part thereof’ — Transfer of the stock and fittings concomitant with the conclusion of a contract of lease of the business premises)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/17

      Judgment of the Court (Second Chamber) of 10 November 2011 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Lüdenscheid v Christel Schriever
      (Case C-444/10) (1)

      (VAT - Sixth Directive - Article 5(8) - Concept of a ‘transfer of a totality of assets or part thereof’ - Transfer of the stock and fittings concomitant with the conclusion of a contract of lease of the business premises)
      (2012/C 25/28)
      Language of the case: German

         Referring court

      Bundesfinanzhof

         Parties to the main proceedings

         Applicant: Finanzamt Lüdenscheid

         Defendant: Christel Schriever

         Re:

      Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Possibility for the Member States to exempt from VAT the transfer of a totality of assets — Lease for an indefinite period of the shop premises of a retail outlet together with the transfer to the lessee of ownership of the stock and shop fittings of the retail outlet — Possibility of categorising such a transaction as a ‘transfer of a totality of assets’ for the purposes of Article 5(8) of Directive 77/388/EEC.

         Operative part of the judgment

      Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that there is a transfer of a totality of assets, or a part thereof, for the purposes of that provision, where the stock and fittings of a retail outlet are transferred concomitantly with the conclusion of a contract of lease, to the transferee, of the premises of that outlet for an indefinite period but terminable at short notice by either party, provided that the assets transferred are sufficient for the transferee to be able to carry on an independent economic activity on a lasting basis.

         (1)  OJ C 317, 20.11.2010.


title: Case C-145/15: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 26 March 2015 — K. Ruijssenaars, A. Jansen, other parties: Staatssecretaris van Infrastructuur en Milieu, Royal Air Maroc

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/22

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 26 March 2015 — K. Ruijssenaars, A. Jansen, other parties: Staatssecretaris van Infrastructuur en Milieu, Royal Air Maroc
   (Case C-145/15)
   (2015/C 198/29)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicants: K. Ruijssenaars, A. Jansen

      Other parties: Staatssecretaris van Infrastructuur en Milieu, Royal Air Maroc

      Question referred

   Given that Netherlands law provides access to the civil courts to protect the rights which passengers may derive under EU law from Article 5(1)(c) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), does Article 16 of that Regulation oblige the national authorities to take implementing measures which form the basis for administrative enforcement action through the bodies designated under Article 16 separately in each individual case in which Article 5(1)(c) and Article 7 of the Regulation are infringed, in order to be able to guarantee a passenger’s right to compensation separately in each individual case?


title: Case C-465/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione by decision of that court of 11 June 2004 in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/4

         Reference for a preliminary ruling by the Corte Suprema di Cassazione by decision of that court of 11 June 2004 in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti
   (Case C-465/04)
   (2005/C 31/10)
   Language of the case: Italian
   Reference has been made to the Court of Justice of the European Communities by order of the Corte Suprema di Cassazione (Court of Appeal, Milan) (Italy) of 11 June 2004 received at the Court Registry on 3 November 2004, for a preliminary ruling in the case of Honyvem Informazioni Commerciali S.r.l. against Mariella De Zotti on the following questions:
   Given the tenor and purpose of Article 17 of the directive and, where applicable, of the criteria it offers for calculating the indemnity for which it provides, can Article 19 be interpreted as meaning that the national legislation implementing the directive can permit that a collective agreement (or contract) that is binding on the parties to certain contracts provides not for an indemnity owed to the agent in the set of circumstances set out in the second paragraph of Article 17 and payable in accordance with criteria that can be deduced therefrom but for an indemnity which is owed to the agent without regard to the conditions set out in the two indents of paragraph 2 a) (and for part of the indemnity whatever the reason for termination of the contract) and is calculated not in accordance with the criteria to be found in the directive (and, where applicable, at the maximum amount specified therein) but in accordance with the criteria set in the collective economic agreement. That is to say an indemnity determined (without any specific reference to the increase in business generated by the agent) on the basis of predetermined percentages of the remuneration received by the agent in the course of the relationship, with the result that, even if the requirements of the directive for entitlement to the indemnity are met fully or to a high degree, in many cases the level of the indemnity to be paid would have to be lower (sometimes much lower) than the ceiling provided for in the directive and in any event lower than could have been decided in specific terms by the court if it were not bound by the calculation parameters laid down in the collective economic agreement rather than the principles and criteria of the directive.
   Should the indemnity be calculated individually by estimating the further commissions that the agent could presumably have earned in the years following termination of the contract on the basis of the new customers he has brought or the substantial growth in business with existing customers that he has generated, and only then applying any adjustments to the amount, having in mind the criterion of equity and the ceiling laid down in the directive; or are other methods of calculation permitted, in particular composite methods that evaluate the criterion of equity more broadly and take the ceiling specified in the directive as their point of departure.
   In conclusion, pursuant to Article 234 EC, the questions indicated above regarding the interpretation of Articles 17 and 19 of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be referred to the Court of Justice.


title: Case C-183/99: Reference for a preliminary ruling by the Oberster Gerichtshof by order of 27 April 1999 in the case of Hugo Boss Aktiengesellschaft v Trigavina in Storitve D.O.O.

text:
C 204/30               EN                     Official Journal of the European Communities                                    17.7.1999
2. Is it compatible with free movement of capital for consent            Reference for a preliminary ruling by the Oberster
     of the land transfer authority, which has constitutive effect,      Gerichtshof by order of 27 April 1999 in the case of Hugo
     to be required for the acquisition of building land?                  Boss Aktiengesellschaft v Trigavina in Storitve D.O.O.
3. What effect does the standstill clause in point 1(e) of                                       (Case C-183/99)
     Annex XII to the EEA Agreement have on new types of
     situations requiring consent under land transfer law created
                                                                                (1999/C 204/58)
     after the signature of the EEA Agreement on 2 May 1992?
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of 27 April 1999 from the
                                                                         Oberster Gerichtshof (Austrian Supreme Court), which was
                                                                         received at the Court Registry on 18 May 1999, for a
                                                                         preliminary ruling in the case of Hugo Boss Aktiengesellschaft
                                                                         v Trigavina in Storitve D.O.O. on the following question:
Reference for a preliminary ruling by the Bundessozial-                  On a proper construction of Article 1 thereof, is Council
gericht by order of 15 October 1998 in the case of Meriem                Regulation (EC) No 3295/94 of 22 December 1994 laying
              Addou v Land Nordrhein-Westfalen                           down measures to prohibit the release for free circulation,
                                                                         export, re-export or entry for a suspensive procedure of
                                                                         counterfeit and pirated goods (Official Journal of the European
                         (Case C-180/99)                                 Communities L 341 of 30 December 1994) also applicable to
                                                                         situations in which goods of the type specified therein are, in
                                                                         the course of transit between two countries not belonging to
                         (1999/C 204/57)                                 the European Community, temporarily detained by the
                                                                         customs authorities in a Member State on the basis of that
                                                                         regulation, at the request of a holder of rights who claims that
Reference has been made to the Court of Justice of the                   his rights have been infringed and whose undertaking has
European Communities by order of 15 October 1998 from                    its registered office in a Member State of the European
the Bundessozialgericht (Federal Social Court), which was                Community?
received at the Court Registry on 17 May 1999, for a
preliminary ruling in the case of Meriem Addou v Land
Nordrhein-Westfalen on the following questions:
1. Does Council Regulation (EEC) No 1408/71 (1) of 14 June
     1971 on the application of social security schemes to
     employed persons, to self-employed persons and to mem-
     bers of their families moving within the Community apply            Reference for a preliminary ruling by the Tribunal de
     to refugees and to members of their families who are                Travail de Nivelles (Second Chamber), Section de Wavre,
     nationals of a non-member country if such persons have              by judgment of that court of 7 May 1999 in the case of
     no right of free movement under the Treaty of 25 March              Rudy Grzelczyk against the Centre Public d’Aide Sociale
     1957 establishing the European Community, as amended                                d’Ottignies-Louvain-La-Neuve
     by the Treaty of 7 February 1992 on European Union?
                                                                                (Case C-184/99)
2. If the answer to Question 1 is in the affirmative: Does
     Regulation (EEC) No 1408/71 also apply in the case where
     a refugee working as an employed person and the members                                     (1999/C 204/59)
     of his family have travelled directly to a Member State
     from a non-member country and have not moved within                 Reference has been made to the Court of Justice of the
     the Community?                                                      European Communities by judgment of the Tribunal de Travail
                                                                         de Nivelles (Second Chamber), Section de Wavre, of 7 May
3. If the answer to Question 2 is in the affirmative: Is a               1999, received at the Court Registry on 19 May 1999, for a
     family benefit such as child-raising allowance under the            preliminary ruling in the case of Rudy Grzelczyk against the
     Bundeserziehungsgeldgesetz (German Federal Law on                   Centre Public d’Aide Sociale d’Ottignies-Louvain-La-Neuve on
     Child-Raising Allowance) also payable to the spouse of              the following questions:
     such an employed person who is likewise not a national of
     a Member State and who is herself neither an employed               1. Is it contrary to Community law — more particularly, the
     person nor a recognised refugee?                                        principles of European citizenship and of non-
                                                                             discrimination enshrined in Articles 6 and 8 of the Treaty
                                                                             established in the European Community — for entitlement
(1) JO L 149 of 5.7.1971, p. 2; OJ, English Special Edition 1971 (II),       to a social benefit under a non-contributory scheme, such
    p. 416.                                                                  as that introduced by the Belgian Law of 7 August 1974
                                                                             on the minimum means of subsistence, to be conferred
                                                                             only on nationals of the Member States to whom Regu-
                                                                             lation (EEC) No 1612/68 of 15 October 1968 (1) applies
                                                                             and not on all citizens of the Union?


title: Case F-150/12: Order of the Civil Service Tribunal of 24 June 2013 — Weissenfels v Parliament

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/52

         Order of the Civil Service Tribunal of 24 June 2013 — Weissenfels v Parliament
   (Case F-150/12) (1)

   2013/C 252/97
   Language of the case: German
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 147, 25.5.2013, p. 36.


title: Case T-4/09: Order of the Court of First Instance of 4 June 2009 — UniCredit v OHIM — Union Investment Privatfonds (UniCredit) (Community trade mark — Opposition — Withdrawal of Opposition — No need to adjudicate)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/50

         Order of the Court of First Instance of 4 June 2009 — UniCredit v OHIM — Union Investment Privatfonds (UniCredit)
   (Case T-4/09) (1)

   (Community trade mark - Opposition - Withdrawal of Opposition - No need to adjudicate)
   2009/C 180/94
   Language of the case: Italian

      Parties

      Applicant: UniCredit SpA (Rome, Italy) (represented by: G. Floridia and R. Floridia, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Union Investment Privatfonds GmbH (Frankfurt, Germany) (represented by: J. Zindel, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 3 November 2008 (Case R 1449/2006-2) concerning opposition proceedings between UniCredit SpA and Union Investment Privatfonds GmbH.

      Operative part of the order

               1.

               There is no need to adjudicate on the action.

               2.

               The applicant is ordered to bear its own costs and to pay those incurred by the defendant.

      (1)  OJ C 55, 07.03.2009.


title: Case T-361/04: Action brought on 1 September 2004 by the Republic of Austria against the Commission of the European Communities

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/44

         Action brought on 1 September 2004 by the Republic of Austria against the Commission of the European Communities
   (Case T-361/04)
   (2004/C 300/86)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 September 2004 by the Republic of Austria, represented by Ministerialrat H. Dossi, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the decision underlying the Commission's letter of 22 June 2004, whereby the Commission declined to submit the draft of a successor regulation to the ecopoints regulation or similar regulation for the safeguarding of the environment and public health on a lasting and environmentally sound basis within the meaning of Protocol No 9 to the Act of Accession, thereby finally rejecting the Austrian Republic's call upon the Commission to act of 31 March 2004;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   Protocol No 9 on road, rail and combined transport in Austria to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded of 24 June 1994 contains special provisions for the transit of heavy goods vehicles through Austria for the protection of the environment and human health. According the the applicant, the aim of these provisions is to reduce the total NOx-emissions of heavy goods vehicles in transit through Austria […] in the period between 1 January 1992 and 31 December 2003 as shown by the table in Annex 4 by 60 %. In accordance with the meaning and general economy of that provision, total NOx-emissions were thus to be reduced by 60 %.
   The applicant argues that Article 11(4) of the Protocol speaks of the sought-after 60 % reduction in the Nox-emissions of heavy goods vehicles in transit being attained on a lasting and environmentally sound basis, and that it therefore assumes that that aim formulated in the Protocol continues to have effect after the formal expiry of the transit system on 31 December 2003. In the submission of the Republic of Austria, the aims of the Protocol continue to be binding, and there is therefore a legal requirement to adopt a successor regulation to the ecopoints regulation in conformity with primary law, or a regulation which similarly secures the aim of the transit protocol.
   The applicant argues that Regulation (EC) No 2327/2003 (1), adopted by the Council and the Parliament in the meantime, does not meet the requirement that environmental and public health protection be secured on a lasting and environmentally sound basis within the meaning of the provisions of Protocol No 9, and that the applicant has therefore challenged it in an annulment action (2). That means that, at present, there is no Community law protective regime in existence to comply with the continuing binding primary law objectives of the Protocol, and the Commission fails in its duty to act by not immediately submitting a draft of a transitional regime pending the adoption of the new transport costs directive.
   The applicant therefore argues that the Commission's final refusal of 22 June 2004 to act in accordance with that duty to act should be annulled.

      (1)  Regulation (EC) No 2327/2003 of the European Parliament and of the Council of 22 December 2003 establishing a transitional points system applicable to heavy goods vehicles travelling through Austria for 2004 within the framework of a sustainable transport policy (OJ 2003 L 345, p. 30).

      (2)  Case C-161/04 Republic of Austria v Council and Parliament (OJ 2004 C 106, p. 49)


title: Case T-137/07: Action brought on 2 May 2007 — Portela — Comércio de artigos ortopédicos e hospitalares v Commission

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/25

         Action brought on 2 May 2007 — Portela — Comércio de artigos ortopédicos e hospitalares v Commission
   (Case T-137/07)
   (2007/C 155/51)
   Language of the case: Portuguese
   Parties

      Applicant: Portela — Comércio de artigos ortopédicos e hospitalares, Lda. (Queluz, Portugal) (represented by: C. Mourato, lawyer)

      Defendant: the Commission of the European Communities
   Form of order sought

               —

               that the Court of First Instance should impose on the Commission the obligation to act in accordance with Article 14b of Council Directive 93/42/EEC of 14 June 1993 (1), in particular by requiring the notified body, through the German State, to activate the civil liability insurance provided for in point 6 of Annex XI to Directive 93/42 of 14 June and in point 7(a) of the document MEDDEV 2.10-2 Rev 1 April 2001, so as to indemnify the applicant for the damage sustained;

               —

               or, in case the applicant is not indemnified for the damage sustained by means of that compulsory civil liability insurance, an order that the Commission should pay the applicant the sum of EUR 2 419 665,42 as compensation for the damage sustained;

               —

               an order that the Commission should pay the applicant default interest calculated on the basis of the reference rate of the European Central Bank, increased by two percentage points, from the date this action was lodged;

               —

               an order that the Commission should pay the costs, in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance, in particular expenses necessarily incurred by the applicant for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration and expenses of lawyers, in accordance with Article 91(b) of those Rules.

         Pleas in law and main arguments
   In carrying on its commercial activity, the applicant, a commercial company with its seat in Portugal, imported from Taiwan in the first half of 2002 two batches of 5 184 digital thermometers manufactured by the undertaking Geon Corporation (‘Geon’) which proved to be faulty.
   Geon's system of quality control was monitored by the TÜV Rheinland (
         T

      echnischer

         Ü

      berwachungs-

         V

      erein, Technical Monitoring Association of the Rhineland) which, as the notified body responsible for that process, was under a legal duty to carry out adequate inspections and assessments for the purpose of making sure that the manufacturer applied the approved quality system, possibly making unannounced visits to the manufacturer during which it could, if necessary, carry out or ask for tests in order to check that the quality control system worked properly, in accordance with Articles 4.2 and 4.3 of Annex V to the Directive.
   The notified body in question, TÜV Rheinland, was unable to ensure that the product it certified was fit to be marketed safely in Europe, being unwilling also to assume its repsonsibilities when alerted by the applicant to the serious problems caused by that product.
   That body thus infringed point 4 of Annex V to the Directive and points 1, 2 and 4, in particular 4.1, 4.3 and 4.4 of Module D (production quality assurance) in Council Decision 93/465/EEC of 22 July 1993 (2).
   The procedure to be adopted by the Commission and the Member States when any doubt arises as to the competence of a notified body consists, as stated in the first subparagraph of point 6.2.2. of the Guide to the implementation of directives based on the new approach and the global approach, in reassessing that body's ability to undertake the actions for which it was notified.
   It fell within the Commission's powers to require the competent German authority, in accordance with point A, Chapter I of the Annex to Decision 93/465, to take appropriate measures as provided for by the document MEDDEV 2.10-2 Rev 1 of April 2001, it being obliged to act with regard to the body it had itself designated.
   For circumstances such as those of the present case, in which there transpires a fault in the procedure for assessing the production quality of the undertaking in question which leads to the placing on the market of goods that are not in conformity with requirements and that pose a threat to the health of consumers, as happened, point 6 of Annex XI to the Directive provides that the notified body must take out civil liability insurance to be activated when any accident occurs, covering in particular those cases in which the notified body is obliged to withdraw or suspend certificates, as is also provided by point 7 of document MEDDEV 2.10-2 Rev 1.
   Regardless of the responsibilities of the national bodies entrusted with surveillance of the market in the examination of the notified body's competence, and despite the fact that the Commission may not act directly in respect of that notified body, it fell to the Commission, automatically advised of the serious problem that had arisen, to act together with the Member State in whose territory the body in question had its headquarters, obliging it to take the corrective measures necessary in order that the safety and health of European citizens might be assured, in accordance with Article 152(1) of the EC Treaty.
   The applicant requested only that the Commission should oblige the competent German national authority, the BfArM (Bundesinstitut für Arzneimittel und Medizinprodukte, the Federal Institute for Drugs and Medical Devices), through the German State, to make use of the civil liability insurance provided for by law, so allowing the applicant to be compensated for the damage caused by the placing on the market of goods carrying the EC marking when they were not in fact in conformity.
   Point 8.3.3 of the Guide states that ‘The Commission is responsible for administering the safeguard clause at Community level, and for ensuring that it applies to the whole of the Community.’
   Infarmed (Instituto Nacional da Farmácia e do Medicamento, the National Institute of Pharmacy and Medicine) suspended the marketing in Portugal of the goods in question and ordered them to be withdrawn in accordance specifically with Article 14b of the Directive.
   The Commission thus infringed the following provisions of law: Article 152(1) of the EC Treaty, Article 14b of Directive 93/42, points 6.2.2, first paragraph, 8.2.2, 8.2.3., 8.3.2 and 8.3.3 of the Guide to the implementation of directives based on the new approach and the global approach and point 1, Chapter I, of the Annex to Decision 93/465.
   By failing to fulfil its obligations under the abovementioned provisions of law, the Commission has prevented the applicant from being compensated for the loss sustained by means of recourse to the abovementioned compulsory civil liability insurance.
   The applicant had expected to sell at least 500 000 thermometers a year.
   From the moment the decision was taken to withdraw those goods from the market, the doors of that market were closed to the applicant, since its image was irreparably associated with the non-conformity [with the requirements] of the goods it had placed on the market.
   The damage suffered by the applicant amounts to a total of EUR 2 419 665,42.

      (1)  Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1).

      (2)  OJ 1993 L 220, p. 23.


title: Case C-403/10 P: Judgment of the Court (Third Chamber) of 28 July 2011 — Mediaset SpA v European Commission, Sky Italia Srl (Appeal — Subsidies granted by the Italian Republic to promote the purchase of digital decoders — Non-inclusion of decoders for the reception solely of television programmes broadcast by satellite — Decision declaring the aid to be incompatible with the common market)

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/9

         Judgment of the Court (Third Chamber) of 28 July 2011 — Mediaset SpA v European Commission, Sky Italia Srl
   (Case C-403/10 P) (1)

   (Appeal - Subsidies granted by the Italian Republic to promote the purchase of digital decoders - Non-inclusion of decoders for the reception solely of television programmes broadcast by satellite - Decision declaring the aid to be incompatible with the common market)
   2011/C 298/17
   Language of the case: English

      Parties

      Appellant: Mediaset SpA (represented by: K. Adamantopoulos, dikigoros, G. Rossi, avvocato, E. Petritsi, dikigoros)

      Other parties to the proceedings: European Commission (represented by: B. Martenczuk and B. Stromsky, Agents), Sky Italia Srl (represented by: F. González Díaz, abogado and F. Salerno, avocat)

      Re:

   Appeal brought against the judgment of the General Court (Second Chamber) of 15 June 2010 in Case T-177/07 Mediaset SpA v Commission dismissing an action for the annulment in part of Commission Decision C(2006) 6634 final of 24 January 2007 declaring incompatible with the common market subsidies granted by Italy, in 2004 and 2005, to enable consumers to purchase or to rent interactive digital decoders capable of receiving programmes using digital or cable terrestrial technology on the ground that those subsidies exclude decoders capable of receiving programmes using satellite television broadcasting technology (Aid No C 52/2005, ex NN 88/2005, ex CP 101/2004)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mediaset SpA to bear its own costs and to pay the costs of the European Commission and of Sky Italia Srl.

      (1)  OJ C 301, 6.11.2010.


title: Case C-545/10: Judgment of the Court (First Chamber) of 11 July 2013 — European Commission v Czech Republic (Failure of a Member State to fulfil obligations — Transport — Directive 91/440/EEC — Development of the Community’s railways — Article 10(7) — Regulatory body — Competences — Directive 2001/14/EC — Allocation of railway infrastructure capacity — Article 4(1) — Charging framework — Article 6(2) — Measures intended to provide the infrastructure manager with incentives to reduce the costs of provision of infrastructure and the level of access charges — Article 7(3) — Setting charges for the minimum access package and track access to service facilities — Cost directly incurred as a result of operating the railway service — Article 11 — Performance scheme — Article 30(5) — Regulatory body — Competence — Administrative appeal against the decisions of the regulatory body)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/5

         Judgment of the Court (First Chamber) of 11 July 2013 — European Commission v Czech Republic
   (Case C-545/10) (1)

   (Failure of a Member State to fulfil obligations - Transport - Directive 91/440/EEC - Development of the Community’s railways - Article 10(7) - Regulatory body - Competences - Directive 2001/14/EC - Allocation of railway infrastructure capacity - Article 4(1) - Charging framework - Article 6(2) - Measures intended to provide the infrastructure manager with incentives to reduce the costs of provision of infrastructure and the level of access charges - Article 7(3) - Setting charges for the minimum access package and track access to service facilities - Cost directly incurred as a result of operating the railway service - Article 11 - Performance scheme - Article 30(5) - Regulatory body - Competence - Administrative appeal against the decisions of the regulatory body)
   2013/C 252/06
   Language of the case: Czech

      Parties

      Applicant: European Commission (represented by: M. Šimerdová and H. Støvlbæk, Agents)

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

      Intervener in support of the defendant: Kingdom of Spain (represented by: S. Centeno Huerta, Agent)

      Re:

   Failure of a Member State to fulfil its obligations — Failure to adopt, within the prescribed period, all provisions necessary to comply with Article 10(7) of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25), and with Articles 4(1), 6(2), 7(3), 11 and 30(5) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (OJ 2001 L 75, p. 29).

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 4(1), 6(2), 11 and 30(5) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004, the Czech Republic has failed to fulfil its obligations under those provisions;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Commission, the Czech Republic and the Kingdom of Spain to bear their own costs.

      (1)  OJ C 38, 5.2.2011.


title: Case T -179/04: Order of the Court of First Instance of  22 November 2005  — Siegfried Krahl v Commission

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/25

         Order of the Court of First Instance of 22 November 2005 — Siegfried Krahl v Commission
   (Case T -179/04) (1)

   (2006/C 22/48)

      Language of the case: French

   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 201, 7.8.2004.


title: Judgment of the Court (Fifth Chamber) of 9 November 2000 in Case C-126/99 (reference for a preliminary ruling from the Pretore di Torino): Roberto Vitari v European Training Foundation (Local staff — Article 79 of the Conditions of Employment of other Servants — Fixed-term contract of employment — Conversion into contract for an indefinite period — Whether or not national legislation applicable)

text:
27.1.2001                 EN                        Official Journal of the European Communities                                                C 28/5
1.    It does not require that a jurisdiction clause be formulated in          Council of 14 June 1971 on the application of social security
      such a way that the competent court can be determined on its             schemes to employed persons, to self-employed persons and
      wording alone. It is sufficient that the clause state the objective      to members of their families moving within the Community,
      factors on the basis of which the parties have agreed to choose          as amended and updated by Council Regulation (EEC)
      a court or the courts to which they wish to submit disputes              No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) and
      which have arisen or which may arise between them. Those                 amended by Council Regulation (EEC) No 2332/89 of 18 July
      factors, which must be sufficiently precise to enable the court          1989 (OJ 1989 L 224, p. 1) — the Court (Sixth Chamber),
      seised to ascertain whether it has jurisdiction, may, where              composed of: C. Gulmann, President of the Chamber,
      appropriate, be determined by the particular circumstances of            V. Skouris, J.-P. Puissochet (Rapporteur), R. Schintgen and
      the case.                                                                F. Macken, Judges; J. Mischo, Advocate General; R. Grass,
                                                                               Registrar, has given a judgment on 9 November 2000, in
2.    It applies only if, first, at least one of the parties to the original   which it has ruled:
      contract is domiciled in a Contracting State and, secondly, the
      parties agree to submit any disputes before a court or the courts        Articles 6 and 7 of Regulation (EEC) No 1408/71 of the Council
      of a Contracting State.                                                  of 14 June 1971 on the application of social security schemes to
                                                                               employed persons, to self-employed persons and to members of their
3.    A jurisdiction clause agreed between a carrier and a shipper             families moving within the Community, as amended and updated by
      which appears in a bill of lading is enforceable against a third         Council Regulation (EEC) No 2001/83 of 2 June 1983 and
      party bearer of the bill of lading if he succeeded to the rights         amended by Council Regulation (EEC) No 2332/89 of 18 July
      and obligations of the shipper under the applicable national             1989, do not preclude application of provisions of an inter-State
      law when he acquired the bill of lading. If he did not, it must          convention on unemployment insurance which are more advantageous
      be ascertained whether he accepted that clause having regard to          for the insured, provided that the latter exercised his right to freedom
      the requirements laid down in the first paragraph of Article 17          of movement before the date of entry into force of that regulation,
      of the Convention, as amended.                                           even if, as a result of the reference period prescribed by the national
                                                                               legislation applicable to determination of the insured’s entitlement, it
(1) OJ C 397 of 19.12.1998.                                                    is not possible for him to claim a right to benefits based entirely on
                                                                               the period prior to that date.
                                                                               (1) OJ C 121 of 1.5.1999.
                  JUDGMENT OF THE COURT
                            (Sixth Chamber)
                                                                                JUDGMENT OF THE COURT
                        of 9 November 2000
                                                                                (Fifth Chamber)
in Case C-75/99 (reference for a preliminary ruling from
the Bundessozialgericht): Edmund Thelen v Bundesanstalt                                                of 9 November 2000
                               für Arbeit (1)
                                                                               in Case C-126/99 (reference for a preliminary ruling
(Social security — Articles 6 and 7 of Regulation (EEC)                        from the Pretore di Torino): Roberto Vitari v European
No 1408/71 — Applicability of a convention between                                                    Training Foundation (1)
          Member States on unemployment insurance)
                                                                               (Local staff — Article 79 of the Conditions of Employment
                             (2001/C 28/08)                                    of other Servants — Fixed-term contract of employment —
                                                                               Conversion into contract for an indefinite period — Whether
                                                                                or not national legislation applicable)
                    (Language of the case: German)
                                                                                (2001/C 28/09)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                  (Language of the case: Italian)
In Case C-75/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Bundessozialge-                    (Provisional translation; the definitive translation will be published
richt (Federal Social Court), Germany, for a preliminary ruling                                    in the European Court Reports)
in the proceedings pending before that court between Edmund
Thelen and Bundesanstalt für Arbeit — on the interpretation                    In Case C-126/99: reference to the Court under Article 177 of
of Articles 6 and 7 of Regulation (EEC) No 1408/71 of the                      the EC Treaty (now Article 234 EC) from the Pretore di Torino
 ---pagebreak--- C 28/6                  EN                       Official Journal of the European Communities                                          27.1.2001
(Labour Court, Turin), Italy, for a preliminary ruling in the               — application for partial annulment of Commission Decision
proceedings pending before that court between Roberto Vitari                1999/187/EC of 3 February 1999 on the clearance of the
and European Training Foundation — on the interpretation of                 accounts presented by the Member States in respect of the
Article 79 of the Conditions of Employment of other Servants                expenditure for 1995 of the Guarantee Section of the European
of the European Communities — the Court, (Fifth Chamber),                   Agricultural Guidance and Guarantee Fund (OJ 1999 L 61,
composed of: A. La Pergola, President of the Chamber,                       p. 37) in so far as it excludes from Community financing
M. Wathelet (Rapporteur), D.A.O. Edward, P. Jann and                        expenditure of GBP 869 283 incurred in the United Kingdom
L. Sevón, Judges; D. Ruiz-Jarabo Colomer, Advocate General;                under the scheme established by Commission Regulation (EEC)
R. Grass, Registrar, has given a judgment on 9 November                     No 1164/89 of 28 April 1989 laying down detailed rules
2000, in which it has ruled:                                                concerning the aid for fibre flax and hemp (OJ 1989 L 121,
                                                                            p. 4) — the Court (Fifth Chamber), composed of: D.A.O.
                                                                            Edward, acting as President of the Fifth Chamber, L. Sevón
On a proper construction of Article 79 of the Conditions of                 and P. Jann (Rapporteur), Judges; D. Ruiz-Jarabo Colomer,
Employment of other Servants of the European Communities, that              Advocate General; L. Hewlett, Administrator, for the Registrar,
provision precludes the possibility for a Community institution to          has given a judgment on 9 November 2000, in which it:
conclude a fixed-term contract of employment with a member of its
local staff where that is contrary to its own rules applicable to the       1.    Annuls Commission Decision 1999/187/EC of 3 February
conditions of employment of local staff and drawn up in accordance                1999 on the clearance of the accounts presented by the Member
with the rules and practice of the State in which the duties are                  States in respect of the expenditure for 1995 of the Guarantee
performed. It is therefore for the national court to determine whether,           Section of the European Agricultural Guidance and Guarantee
in accordance with Article 3 of the rules governing the conditions of             Fund, in so far as it excludes from Community financing
employment of local staff serving in Italy adopted by the Commission,             expenses of GBP 869 283 incurred in the United Kingdom of
the circumstances surrounding the work, or the nature of that work,               Great Britain and Northern Ireland under the scheme estab-
made it necessary for the local-staff contract between the parties to             lished by Commission Regulation (EEC) No 1164/89 of
the main proceedings to be concluded for a fixed term. If not, it is for          28 April 1989 laying down detailed rules concerning the aid
the national court to convert that contract into a contract of                    for fibre flax and hemp;
employment for an indefinite period.
                                                                            2.    Orders the Commission of the European Communities to pay
                                                                                the costs.
(1) OJ C 204 of 17.7.1999.
                                                                            (1) OJ C 188 of 3.7.1999.
                  JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                              (Fifth Chamber)
                       of 9 November 2000                                                            of 9 November 2000
in Case C-148/99: United Kingdom of Great Britain                           in Case C-207/99 P: Commission of the European Com-
and Northern Ireland v Commission of the European                                           munities v Claudine Hamptaux (1)
                           Communities (1)
                                                                            (Appeal — Officials — Promotion — Consideration of
(EAGGF — Clearance of accounts — 1995 financial year                                                  comparative merits)
— Regulation (EEC) No 1164/89 — Aid for fibre flax and
                                 hemp)                                                                   (2001/C 28/11)
                            (2001/C 28/10)
                                                                                (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-148/99: United Kingdom of Great Britain and
Northern Ireland (Agent: J.E. Collins, assisted by A. Sutton) v             In Case C-207/99 P: Commission of the European Communi-
Commission of the European Communities (Agent: P. Oliver)                   ties (Agents: C. Berardis-Kayser and F. Duvieusart-Clotuche and


title: Appeal brought on 26 March 1998 by the French Republic against the judgment delivered on 27 January 1998 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-67/94 between Ladbroke Racing Ltd and the Commission of the European Communities (Case C-83/98 P)

text:
4.7.98                EN                  Official Journal of the European Communities                                  C 209/15
Appeal brought on 26 March 1998 by the French                            French Government in its Statement in Intervention;
Republic against the judgment delivered on 27 January                    and based part of its reasoning on false premisses.
1998 by the Second Chamber (Extended Composition) of
the Court of First Instance of the European Communities
                                                                         Staggered payment of sums owed to the
in Case T-67/94 (1) between Ladbroke Racing Ltd and the
                                                                         Tr e a s u r y ( M e a s u r e 5 )
         Commission of the European Communities
                       (Case C-83/98 P)
                                                                         As explained in the Commission's Decision, this
                         (98/C 209/29)
                                                                         measure consisted in deferring the date for payment
                                                                         of the public levy by the PMU to the Treasury.
An appeal against the judgment delivered on 27 January
1998 by the Second Chamber (Extended Composition) of
the Court of First Instance of the European Communities                  Whereas the Commission found that the cash-flow
in Case T-67/94 between Ladbroke Racing Ltd and the                      facilities granted to the PMU amounted to an
Commission of the European Communities, was brought                      adjustment of the State levy arrangements in favour
before the Court of Justice of the European Communities                  of that body, which was consistent with the nature
on 26 March 1998 by the French Republic, represented by                  and general scheme of the system and did not
Kareen Rispal Bellanger, Jean-Marc Belorgey and FreÂdeÂrik               constitute State aid, the Court of First Instance held
Million, acting as agents, with an address for service                   that the Commission had misapplied Article 92(1) of
in Luxembourg at the French Embassy, 8, Boulevard                        the Treaty.
Joseph II.
                                                                         The French Government points out that in this regard
The Appellant claims that the Court should annul                         the Court of First Instance took no account of the
paragraph 1 of the operative part of the judgment under                  facts and arguments put forward in its Statement in
appeal and uphold the form of order sought at first                      Intervention. The French Government cannot do
instance by the Commission, that is to say, that                         other than repeat the criticisms voiced in respect of
Ladbroke's application should be dismissed.                              the preceding measure.
Pleas in law and main arguments adduced in support:
                                                                         Furthermore, at paragraph 79 of the judgment under
(A) Application of Article 92(1) of the Treaty                           appeal, the Court of First Instance errs in stating that
                                                                         (1) the contested Decision contains no statement to
     The 1.6 % reduction in the public levy to                           the effect that the change in the rules for payment of
     the benefit of the PMU (Measure 3)                                  the public levies to the Treasury did not constitute an
                                                                         ad hoc derogation, but was a general amendment to
     As described in the Commission's Decision, the                      the tax regime for the entire horse-racing sector and
     measure at issue consisted in the reallocation in                   (2) authorisation to defer payment was granted solely
     favour of the PMU of a share in the levy which had                  for the benefit of the PMU.
     previously gone to public funds.
     The Court of First Instance, after having interpreted               Unclaimed winnings made available to
     the Commission's Decision as declining to regard the                the racecourse undertakings (Measure 1)
     measure in question as State aid on the grounds that
     the measure was:                                                    As explained in the Commission's Decision, this
     (a) merely a limited reduction in the rate of taxation             measure consists in allowing the PMU to retain
           (approximately 1.6 %) and did not strengthen                  unclaimed winnings.
           the financial situation of an undertaking in a
           monopoly position;                                            The Commission essentially took the view that, in so
                                                                         far as that share of resources had always been
      (b) ongoing in character; and
                                                                         allocated to the PMU, it did not constitute a transfer
      (c) not aimed at financing an ad hoc operation but                 of State resources, despite the fact that the racecourse
           at increasing the resources of the recipients of             undertakings could no longer use the funds involved
           the non-public levies''                                       other than for certain purposes, and any sums
                                                                         remaining unused reverted to the State.
     went on to find that these criteria were not an
     appropriate basis for ruling out the existence of aid               The Court of First Instance found that the fact that
     for the purposes of Article 92(1).                                  the State controls the use of these funds Ð which
                                                                         would otherwise constitute the PMU's normal
     In the French Government's submission, in order to                  resources which it could deploy as it wished Ð meant
     reach that conclusion the Court of First Instance                   that they were State resources.
     made a number of errors in law; gave insufficient
     grounds, contrary to Article 190 of the Treaty, for
     certain steps in its reasoning; failed to state a position          In the French Government's submission, that
     with regard to certain crucial factors identified by the            constitutes a further error in law on the part of the
     Commission in its Decision and pleadings, and by the                Court of First Instance.
 ---pagebreak--- C 209/16             EN                   Official Journal of the European Communities                                    4.7.98
    Exemptions from the one-month delay                                   an aid measure which the Commission has held to be
    r u l e f o r t h e d e d u c t i o n o f VAT f r o m                 incompatible with the common market, it may itself,
    1 January 1989 onwards                                                in accordance with the fundamental principles of
                                                                          Community law, take this into account in order to
    The French Government points out that this measure                    waive reimbursement of the measure in question.
    enabled the PMU to deduct VAT paid on its
    purchases by reference to the month when those                   (1) OJ C 90, 26.3.1994, p. 23.
    purchases were made and not the following month,
    as would have been the normal rule.
    Since its inception in 1969, that cash-flow facility
    was offset, however, by the lodging of a permanent
    non-interest-bearing deposit with the Treasury.
                                                                     References for a preliminary ruling from the Consiglio di
                                                                     Stato (Council of State) by orders of that court of
    It is true, as the Court of First Instance observed, that
                                                                     20 January 1998, in the cases of (1) Questore (senior
    the Commission made a factual error in its decision
                                                                     police official), Macerata v. Claudio Peroni, (2) Questore,
    in so far as it stated that the Treasury deposit had
                                                                     Genoa v. Eliana Fasciolo, (3) Questore, Genoa v. Umberto
    only existed since 1989.
                                                                     Merlo, (4) Questore, Catanzaro v. Patrizia Caffarelli, (5)
                                                                     Questore, Milan v. Chiara Picerno, (6) Questore, Imperia
    The Commission considered that the measure at issue
                                                                     v. Gianluca Barrese, Andrea De Sanctis and SaS Riviera,
    constituted a State aid, compatible with the common
                                                                     (7) Questore, Pavia v. Giovanni Giacchetto and (8)
    market before 1989 by reason of the fact that any
                                                                                Questore, Savona v. Francesco Amato
    disturbance thereby caused to the common market
    was negligible. After 1 January 1989, by reason of                                 (Case C-86/98 to C-93/98)
    the existence of the compensatory deposit with the                                        (98/C 209/30)
    Treasury, the Commission took the view that it no
    longer constituted State aid.
                                                                     Reference has been made to the Court of Justice of the
    The Court of First Instance annulled the                         European Communities by orders of the Consiglio di Stato
    Commission's assessment regarding the period after               of 20 January 1998, which were received at the Court
    1 January 1989 on the basis of factors essentially               Registry on 13 March 1998, for a preliminary ruling in
    related to the preceding period and the mere finding             the cases of (1) Questore, Macerata v. Claudio Peroni,
    that the compensation for the year 1989 had been                 (2) Questore, Genoa v. Eliana Fasciolo, (3) Questore,
    inadequate.                                                      Genoa v. Umberto Merlo, (4) Questore, Catanzaro v.
                                                                     Patrizia Caffarelli, (5) Questore, Milan v. Chiara Picerno,
    However, the Court of First Instance could not rely              (6) Questore, Imperia v. Gianluca Barrese, Andrea De
    solely on those factors in order to infer that the               Sanctis and SaS Riviera, (7) Questore, Pavia v. Giovanni
    Commission's assessment in respect of the entire                 Giacchetto and (8) Questore, Savona v. Francesco Amato
    period after 1 January 1989 was erroneous. In this               on the following question:
    respect also the judgment of the Court of First
    Instance is vitiated by flawed reasoning and by an               Do the Treaty provisions on the provision of services
    inadequate statement of grounds.                                 preclude rules such as the Italian betting legislation in
                                                                     view of the social policy concerns and of the concern to
(B) Recovery of aid which is incompatible with the                   prevent fraud that justify it?
    common market
    Since the Commission found in its Decision that the
    PMU's exemption from the housing levy as from
    1989 was incompatible with the Treaty, but that the
    recipient was required to repay amounts involved
    only with effect from the date when the procedure                Action brought on 7 April 1998 by the Republic of
    was opened in 1991, by reason of the fact that it                      Austria against the Commission of the European
    could legitimately have entertained expectations                                           Communities
    based on the earlier decision of the Conseil d'EÂtat,                                    (Case C-99/98)
    the Court of First Instance essentially held that the                                     (98/C 209/31)
    Commission could not itself take into account the
    recipient's legitimate expectations, as relied upon by
    the Member State, in order to dismiss the                        An action against the Commission of the European
    requirement to repay aid which it deemed                         Communities was brought before the Court of Justice of
    incompatible with the common market.                             the European Communities on 7 April 1998 by the
                                                                     Republic of Austria, represented by Dr. Wolf Okresek,
    The French Government believes that the judgment                 Head of Section, Director of the Constitutional Section of
    of the Court of First Instance is also vitiated in this          the Office of the Federal Chancellor of the Republic of
    respect by an error of law and that when the                     Austria, with an address for service in Luxembourg at the
    Commission is advised by a Member State of                       office of Dr. Josef Magerl, Ambassador, Austrian Embassy,
    legitimate expectations on the part of the recipient of          3 Rue des Bains.


title: Case T-429/13: Action brought on 19 August 2013 — Bayer CropScience v Commission

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/37

         Action brought on 19 August 2013 — Bayer CropScience v Commission
   (Case T-429/13)
   2013/C 325/62
   Language of the case: English

      Parties

      Applicant: Bayer CropScience AG (Monheim am Rhein, Germany) (represented by: K. Nordlander, lawyer, and P. Harrison, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare its application admissible;

               —

               Annul Commission’s Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances (OJ L 139, 25.5.2013, p.12); and

               —

               Order the Commission to pay the Applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that by adopting the Contested Measure, the Commission exceeded the powers granted to it under Regulation 1107/2009 (1) (the ‘Enabling Regulation’), and that the Contested Measure therefore lacks a proper legal basis, because:

                           —

                           the Commission breached Article 21 of the Enabling Regulation by: (i) failing to take into account monitoring data showing that the active substances in question did not pose unacceptable risks to bees; and (ii) concluding, erroneously, that there existed new and relevant scientific information such as to give the Commission competence to act; and

                           —

                           the Commission breached Article 49 of the Enabling Regulation by banning the sale of seeds treated with the active substances in question without establishing ‘substantial concerns’ that the treated seeds are ‘likely to constitute a serious risk to human or animal health or to the environment’ that ‘cannot be contained satisfactorily’ through other measures.

               2.

               Second plea in law, alleging that the Contested Measure was adopted in a manner that breached Article 12(2) and Annex II point 3.8.3. of the Enabling Regulation, and denied the Applicant’s legitimate expectations, because:

                           —

                           the Enabling Regulation mandated that, and the Applicant had legitimate expectations that, existing and applicable guidance would be used in the conduct of the risk assessments that gave rise to the Contested Measure, but that existing and applicable guidance was ignored in favour of a scientific opinion that did not constitute guidance and a draft guidance document that was neither available nor agreed.

               3.

               Third plea in law, alleging that the Commission’s application of the Enabling Regulation in adopting the Contested Measure constituted a breach of the Applicant’s fundamental rights to property and to conduct its business, because:

                           —

                           the decisions to remove (and amend) approvals for the Applicant’s products were based on an unlawful application of the Enabling Regulation that failed adequately to take into account the long history of safe use of the active substances in question or the value and significance of the Applicant’s intellectual property in, and long-term investments in, the active substances.

               4.

               Fourth plea in law, alleging that the Contested Measure was adopted following a procedure that failed to respect the Applicant’s right to be heard, because:

                           —

                           the conduct of the relevant risk assessments on the basis of a scientific opinion and a draft guidance document (as opposed to the existing and applicable guidance) automatically led to the identification of ‘data gaps’ that the Applicant had never had the opportunity to address.

               5.

               Fifth plea in law, alleging that the adoption of the Contested Measure breaches the principle of proportionality, because:

                           —

                           in a number of areas (including in its restrictions on foliar, amateur and indoor uses of the Applicant’s products), the Contested Measure goes beyond what is appropriate to the achievement of its legitimate objectives and may even undermine them, and the Commission failed to consider less restrictive options for regulation that were available to it.

               6.

               Sixth plea in law, alleging that that the adoption of the Contested Measure breaches the precautionary principle, because:

                           —

                           inter alia, it involved the Commission, as risk manager, taking a purely hypothetical approach to risk, which was founded on mere conjecture and which was not scientifically verified (a result, in large part of the risk assessments not constituting a thorough scientific assessment), and it involved the Commission refusing to conduct any analysis of the potential benefits and costs of its actions.

      (1)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC


title: COMPOSITION OF THE EFTA COURT

text:
Important legal notice

|

E1998J1029(01)

COMPOSITION OF THE EFTA COURT

Official Journal C 331 , 29/10/1998 P. 0024 - 0024

COMPOSITION OF THE EFTA COURT (98/C 331/08)Appointment of the Registrar of the EFTA CourtMr Gunnar Selvik was appointed Registrar of the EFTA Court pursuant to Article 9, Protocol 5 of the ESA/Court Agreement for the period from 1 September 1998 to 31 August 2001, to succeed Mr Per Christiansen. At a public sitting of the EFTA Court of 17 September 1998, Mr Gunnar Selvik took the oath prescribed in Article 10, Protocol 5 of the ESA/Court