title: Judgment of the Court of First Instance of 15 January 2003 in Case T-99/01: Mystery drinks GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Earlier national trade mark Mixery — Application for Community word mark MYSTERY — Proof of use of earlier mark — Relative ground for refusal — Article 8(1)(b) of Regulation No 40/94)

text:
C 101/32                EN                         Official Journal of the European Union                                       26.4.2003
                                                        COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               Harmonisation in the Internal Market (Trade Marks and
                                                                           Designs) (OHIM) (Agents: A. von Mühlendahl, B. Weggenmann
                        of 6 February 2003                                 and C. Røhl Søberg), the intervener before the Court of First
                                                                           Instance being Karlsberg Brauerei KG Weber, established in
in Case T-7/01: Norman Pyres v Commission of the                           Homburg (Germany), represented by R. Lange: Action brought
                   European Communities ( 1)                               against the decision of the Third Chamber Board of Appeal of
                                                                           the Office for Harmonisation in the Internal Market (Trade
(Member of the temporary staff — Extension of contract —                   Marks and Designs) of 12 February 2001 (Case R 251/2000-
                                Term)                                      3), concerning the registration of the sign MYSTERY as a
                                                                           Community trade mark, which was opposed by the national
                          (2003/C 101/56)                                  trade mark Mixery, the Court of First Instance (Second
                                                                           Chamber), composed of: R.M. Moura Ramos, President, J. Pir-
                   (Language of the case: English)                         rung and A.W.H. Meij, Judges, Registrar: D. Christensen,
                                                                           Administrator, has given a judgment on 15 January 2003, in
                                                                           which it:
In Case T-7/01, Norman Pyres, former member of the
temporary staff of the Commission of the European Communi-                 1.     Dismisses the application;
ties, residing in Brussels (Belgium), represented by G. Vander-
sanden and L. Levi, lawyers, with an address for service in
Luxembourg, v Commission of the European Communities                       2.     Orders the parties to bear their own costs.
(Agent: J. Currall): Application for annulment of the Com-
mission’s decision to extend the applicant’s temporary staff
contract for a term limited to six months, the Court of First              (1 ) OJ C 227 of 11.8.2001.
Instance (P. Mengozzi, Single Judge); J. Plingers, Administrator,
for the Registrar, has given a judgment on 6 February 2003,
in which it:
1.     Dismisses the action;
2.     Orders each party to bear its own costs.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
( 1) OJ C 95 of 24.3.2001.
                                                                                of 13 February 2003
                                                                           in Case T-333/01: Karl L. Meyer v Commission of the
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                                   European Communities ( 1)
                        of 15 January 2003                                 (OCT — Action for damages — Duty of publication and
                                                                                control — Causal link)
in Case T-99/01: Mystery drinks GmbH v Office for
Harmonisation in the Internal Market (Trade Marks and
                        Designs) (OHIM) ( 1)                                                          (2003/C 101/58)
(Community trade mark — Opposition procedure — Earlier
national trade mark Mixery — Application for Community                                         (Language of the case: French)
word mark MYSTERY — Proof of use of earlier mark —
Relative ground for refusal — Article 8(1)(b) of Regulation
                             No 40/94)
                                                                           In Case T-333/01, Karl L. Meyer, residing at Uturoa (French
                          (2003/C 101/57)                                  Polynesia), represented by J.-D. des Arcis, lawyer, with an
                                                                           address for service in Luxembourg, v Commission of the
                   (Language of the case: German)                          European Communities (Agents: M.-J. Jonczy and B. Mar-
                                                                           tenczuk): Application for compensation for damage allegedly
                                                                           suffered by the applicant because of alleged maladministration
In Case T-99/01, Mystery drinks GmbH, in judicial liquidation,             by the Commission in the application of decisions on the
established in Eppertshausen (Germany), represented by T. Je-              association of the overseas countries and territories, the Court
staedt, V. von Bomhard and A. Renck, lawyers, v Office for                 of First Instance (Third Chamber), composed of: K. Lenaerts,


title: Case C-35/09: Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza (Indirect taxation — Tax on the increase in share capital — Article 4(1)(c) of Directive 69/335/EEC — National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty — The recipient company and the notary jointly and severally liable — No capital contribution in fact made — Limitation of means of proof)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/11

         Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza
   (Case C-35/09) (1)

   (Indirect taxation - Tax on the increase in share capital - Article 4(1)(c) of Directive 69/335/EEC - National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty - The recipient company and the notary jointly and severally liable - No capital contribution in fact made - Limitation of means of proof)
   2010/C 234/16
   Language of the case: Italian

      Referring court

   Corte Suprema di Cassazione

      Parties to the main proceedings

      Applicants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

      Defendant: Paolo Speranza

      Re:

   Reference for a preliminary ruling — Corte Suprema di Cassazione — Interpretation of Article 4(1)(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition, 1969 (II), p. 412) — Company resolution converting a limited liability company into a public limited company — Duty on the corresponding increase in capital — National legislation imposing joint and several liability for payment of the duty on the company whose capital is increased and the notary

      Operative part of the judgment

               1.

               Articles 4(1)(c) and 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as not precluding a Member State from identifying the registration of an instrument recording an increase in the capital of a company as the point at which the chargeable event for capital duty occurs, provided that there remains a connection between the levying of the duty and the actual contribution of assets to the company receiving them. If, at the time when such an instrument is executed, the actual contribution of assets has not been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite. The principle of effectiveness must be interpreted as precluding national legislation which restricts, before the tax courts, the means of proving that no contribution was in fact effected to increase the capital of a company, in accordance with the company’s resolution, to the production of a civil judgment that has become final declaring the registration null and void or annulling it, so that capital duty must in any event be paid and can be reimbursed only by means of the production of such a civil judgment.

               2.

               Directive 69/335, as amended, must be interpreted as not precluding a Member State from providing that the public officer who drafted or certified the instrument recording the increase in capital is jointly and severally liable for payment of capital duty, provided that the officer has the right to bring an action under a right of recourse against the company receiving the capital contribution.

      (1)  OJ C 82, 04.04.2009.


title: Case T-217/05: Action brought on 3 June 2005 by Marker Völkl International GmbH against Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/25

         Action brought on 3 June 2005 by Marker Völkl International GmbH against Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-217/05)
   (2005/C 205/46)
   Language in which the application was submitted: German
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 3 June 2005 by Marker Völkl International GmbH, established in Baar (Switzerland), represented by J. Bauer, lawyer.
   Icon Health & Fitness Italia S.P.A., Perugia (Italy), was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               1.

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 1 April 2005, case number R 708/2004-1;

               2.

               order the defendant to pay the costs.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               The applicant, Marker Völkl International GmbH

               Community trade mark concerned:

               The word mark 'MOTION' for goods in Classes 25 and 28 (Application No 2 099 687)

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

               Icon Health & Fitness Italia S.P.A.

               Mark or sign cited in opposition:

               The word mark 'FIT MOTION' for goods in Classes 25 and 28 (Community trade mark No 1 775 196)

               Decision of the Opposition Division:

               Rejection of application No 2 099 687

               Decision of the Board of Appeal:

               Dismissal of the appeal

               Pleas in law:

               The decision of the Board of Appeal infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark because there is no likelihood of confusion between the marks in opposition as the mark cited in opposition has no or rather very slight distinctive character and the similarity of the marks in opposition is slight.


title: Case T-356/14: Judgment of the General Court of 16 December 2015 — CareAbout v OHIM — Florido Rodríguez (Kerashot) (Community trade mark — Opposition proceedings — Application for Community word mark Kerashot — Earlier national figurative mark K KERASOL — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Partial refusal of registration by the Board of Appeal)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/47

         Judgment of the General Court of 16 December 2015 — CareAbout v OHIM — Florido Rodríguez (Kerashot)
   (Case T-356/14) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark Kerashot - Earlier national figurative mark K KERASOL - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Partial refusal of registration by the Board of Appeal))
   (2016/C 048/53)
   Language of the case: English

      Parties

      Applicant: CareAbout GmbH (Düsseldorf, Germany) (represented by: P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt, M. Bergermann, J. Vogtmeier and A. Kramer, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: José Luis Florido Rodríguez (Seville, Spain)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 March 2014 (Case R 1569/2013-4), relating to opposition proceedings between José Luis Florido Rodriguez and CareAbout GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders CareAbout GmbH to pay the costs.

      (1)  OJ C 253, 4.8.2014.


title: Action brought on 12 May 1995 by Friedel Börsch against the Council of the European Union and the Commission of the European Communities (Case T-120/95)

text:
8 . 7. 95            LEN                    Official Journal of the European Communities                                   No C 174/9
Instance of the European Communities on 28 April 1995 by               The applicant submits that:
X, represented by Mr Drs. P. Bergkamp, with an address for
service in Luxembourg at c/o Ms Ruth Bleijerveld , Embassy
of the Netherlands, 5 , rue C. M. Spoo, L-2546                         ( a ) the measures decided in the judgment of 9 June 1994
Luxembourg.                                                                  necessarily include , under Article 1 76 of the EC Treaty,
                                                                             a decision as to the applicant's fitness without undue
                                                                             and unnecessary delay and without subjecting the
                                                                             applicant to any further medical examination ;
The applicant claims that the Court should :
                                                                       ( b ) the defendant has all information and data about the
— annul the decision of the Commission of the European                       applicant's fitness that is necessary to make a
     Communities        signed    by Frans          de    Koster,            decision ;
     Director-General , Directorate-General of Personnel and
     Administration , dated 17 February 1995, confirming
     the decision of the defendant, signed by Frans de Koster,         (c ) the defendant has had an opportunity to examine the
     Director-General , Directorate-General of Personnel and                 applicant, who has fully cooperated with all tests and
     Administration, dated 4 November 1994 and the                           examinations that the defendant has required ;
     decision of the defendant, signed by Nicolas Hoffmann,
     Chef du Service Medical, Directorate-General of
     Personnel and Administration, dated 2 August 1994,                ( d ) the health status of the applicant today is irrelevant, in
                                                                             so far as the Commission must only make a decision
                                                                             based on the applicant 's fitness at the time of the
— annul the decision of the defendant, signed by Frans de                    medical examination in 1990;
     Koster , Director-General, Directorate-General of
     Personnel and Administration, dated 1 February 1995 ,
     denying the applicant's claims for compensation of                ( e ) the defendant has refused to compensate the applicant's
     damages caused by the defendant's requirement that the                  damages caused by the liver biopsy and the breach of
     applicant undergo a liver biopsy , and the defendant's                  confidentiality, in spite of the fact that the decision to
     breach of its duty to maintain the confidentiality of the               require that the applicant undergo a liver biopsy was
     applicant's medical and personal data ,                                 not made solely and exclusively by the specialist, but
                                                                             was made by the defendant itself, and the fact that the
                                                                             defendant physicians have breached their obligations to
— order the defendant to compensate all material and                         maintain confidentiality and that the applicant has
     non-material damages caused by this biopsy and the                      suffered material and non-material harm as a result of
     breach of confidentiality, and                                          these wrongful acts of the defendant.
— order the defendant to pay the costs of ( 1 ) the
     proceedings and ( 2 ) the applicant's lawyer's fees, in
     accordance with applicable law.
Pleas in law and main arguments adduced in support:
                                                                       Action brought on 12 May 1995 by Friedel Borsch against
The applicant is the same as in case T-94/92, which has been            the Council of the European Union and the Commission of
judged by a judgment of 9 June 1 994, whereby the Court of                                the European Communities
First Instance has annulled the defendant's decision of
24 September 1991 and 3 July 1992, declaring that the                                          (Case T-120/95 )
applicant did not satisfy the requirement of physical fitness                                    ( 95 /C 174/ 16 )
laid down in Article 28 ( e ) of the Staff Regulations .
In 1990 , although the applicant had previously informed the                            (Language of the case: German)
defendant of a liver biopsy conducted in Spain, the
 Commission required a second liver biopsy, which resulted
 in confirming the results of the first one . As a complication         An action against the Council of the European Union and
 of the second biopsy, the applicant suffered a biliary                 the Commission of the European Communities was brought
 peritonitis, severe pain and suffering and his life was in             before the Court of First Instance of the European
 danger . Furthermore , without the applicant's consent, a              Communities on 12 May 1995 by Friedel Borsch of
 physician of the Commission's medical service has informed             Wipperfiirth, Germany, represented by Bernd Meisterernst,
 various other persons of the results of the liver biopsy.              Mechtild Diising, Dietrich Manstetten, Frank Schulze and
 Finally, by letter of 2 August 1 994 , the defendant invited the       Winfried Haneklaus, Rechtsanwalte, Miinster, with an
 applicant to make an appointment for a 'new                            address for service in Luxembourg at the Chambers of
 pre-appointment medical examination '.                                 Dupong & Associes, 14a Rue des Bains .
 ---pagebreak--- No C 174/ 10        EN                 Official Journal of the European Communities                                  8 . 7. 95
The applicant claims that the Court should :                      2 . join the present application with the pending Case
                                                                      T-77/93 Hiilseberg and Others v. Council and
1 . order the defendants jointly and severally to pay the             Commission and likewise stay the proceedings .
    applicant SLOM-III compensation for the period from
    3 July 1984 to 29 July 1993 in the amount of DM               Pleas in law and main arguments adduced in support:
    193 864,60 together with interest at 8 % for the period
    from 19 May 1992 , and order the defendants jointly and       The pleas in law and main arguments are similar to those in
    severally to pay the costs of the proceedings ;               Case T-20/94 .


title: Case T-264/11 P: Appeal brought on 21 May 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 8 March 2011 in Case F-59/09, De Nicola v EIB

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/30

         Appeal brought on 21 May 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 8 March 2011 in Case F-59/09, De Nicola v EIB
   (Case T-264/11 P)
   2011/C 211/64
   Language of the case: Italian

      Parties

      Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by L. Isola, lawyer)

      Other party to the proceedings: European Investment Bank

      Form of order sought by the appellant

   The appellant claims that the Court should, acting as an appeal court and dismissing the submissions of the other party to the proceedings, reverse the judgment under appeal in part, grant the application for measures of inquiry and the outstanding heads of claim in the administrative appeal and order the EIB to pay the costs of the appeal proceedings.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on 7 pleas in law.

         The application for annulment

               1.

               With regard to the application for annulment of Memorandum No HR/Coord/2008-0038/BK of 22 September 2008, the appellant claims that the Civil Service Tribunal totally ignored that document, even though it referred to the EIB’s defence, according to which it is legitimate to choose not to provide the employee with a copy of the sound recording of the meeting of the Appeals Committee or of the formal minutes of the meeting, so that, in conclusion, the EIB is free to distort the facts because it is impossible to adduce evidence in rebuttal.

               2.

               The appellant none the less sought annulment of the decision of the Appeals Committee.
               The Civil Service Tribunal, in line with the procedure under Article 90 of the Staff Regulations, held that the fact that the application (made first in the administrative procedure and then before the Tribunal) is the same entitled it to examine only the latter and to consider that the former as being completely encompassed within the latter. The appellant disputes that Article 90 of the Staff Regulations is applicable and claims the right to a declaration of annulment, because the document in question forms part of his personal file and could have an adverse effect on his future career.

               3.

               Finally, the Civil Service Tribunal rejected the application for annulment of the promotions on the basis that it was out of time. The appellant submits that that decision was unlawful on four grounds.

         The application for a declaration

               4.

               The appellant sought a declaration from the Tribunal that the harassment to which he has been subjected for 18 years should be considered as a whole and fulfils all the criteria of what has been identified by academic legal writing and employment case-law as mobbing. The appellant claims that the document entitled ‘Policy of respect for an individual’s dignity in the workplace’ (which does not even define mobbing) is inadequate and disputes the decision of the Civil Service Tribunal, which held that the application was inadmissible, since it sought findings of principle or orders against the EIB which the Tribunal is not entitled to make. In fact, the appellant maintains that his application was misconstrued, because he sought a declaration that he had been subjected to abuse by a number of employees, a determination as to whether that harassment, considered as a whole, constituted the offence which is summarised by the term mobbing, and a finding that the EIB was liable for that conduct, as agent.

               5.

               The appellant also challenges the judgment under appeal in so far as the Civil Service Tribunal, in breach of Article 41 of the Staff Regulations, claimed that it was necessary, which was not the case, to have recourse to analogy and itself created a set of rules applicable to the EIB, in breach of its right of self-determination.

               6.

               Moreover, the Civil Service Tribunal incorrectly applied to a private employment contract rules which are instead laid down only for civil servants and, what is worse, claimed to be entitled to apply to tortious acts committed by certain employees the rules governing administrative acts.

         The application for orders to be made

               7.

               The appellant sought three orders, namely that the EIB should be ordered to: (1) desist from the mobbing; (2) pay compensation for the personal, material and non-material damage; and (3) pay the costs of the proceedings.
               The Tribunal failed to rule on the first claim.
               It rejected the second claim after misconstruing it, because the appellant claimed compensation as a result of the unlawful conduct on the part of the EIB, irrespective of the manner in which that conduct may classified when the request that the claim be viewed as a whole is considered.
               In any event, the appellant does not consider the claim to be inadmissible on the ground that there is no ‘act capable of causing injury’ to which a claim for compensation could be linked, since the employment relationship is private and what is at issue here are not administrative acts but tortious act.
               The third claim was rejected by the Tribunal on the incorrect assumption that the appellant had not applied for the EIB to pay the costs of the proceedings.


title: Reference for a preliminary ruling by the Tribunal de Grande Instance de Metz by judgment of that court of 19 December 1996 in the case of Procureur de la République against André Ambry (Case C-410/96)

text:
No C 74/ 12            I EN                  Official Journal of the European Communities                                             8 . 3 . 97
the European Communities on 23 December 1996 by                          If the appellants' action is not considered admissible, in
Sveriges Betodlares Centralforening and Mr Sven Ake                      the particular circumstances of their case, there would be
Henrikson, represented by Otfried Lieberknecht, Rechts                  no other feasible way for them to challenge the unlawful
anwalt, Diisseldorf, Michael Schiitte, Rechtsanwalt, Berlin,             administrative act of the Commission constituted by
and Vanessa Turner, Solicitor of the Supreme Court of                    Regulation ( EC) No 1734/95 ('). This would lead to an
England and Wales, with an address for service in                        unacceptable loophole in the system of judicial review of
Luxembourg at the Chambers of Bonn & Schmitt, 62,                        administrative acts of the Commission.
avenue Guillaume .
                                                                         (') Commission Regulation ( EC ) No 1734/95 of 14 July 1995
The appellant claims that the Court should:                                   fixing, for the 1994/95 marketing year, the specific agricultural
                                                                              conversion rate applicable to the minimum sugarbeet prices
— set aside the Order of the Court of First Instance of                       and the production levy and additional levy in the sugar sector
       4 October 1996,                                                        ( OJ No L 165 , 15 . 7 . 1995 , p. 12 ).
— declare that the application in Case T- 197/95 is
       admissible,
— order the Commission to bear the costs of these
       proceedings and the proceedings                 concerning       Reference for a preliminary ruling by the Tribunal de
       admissibility in Case T-197/95 .                                 Grande Instance de Metz by judgment of that court of
                                                                         19 December 1996 in the case of Procureur de la
Pleas in law and main arguments adduced in support:                                       Republique against Andre Ambry
                                                                                ( Case C-410/96 )
In its legal analysis of the case, the Court of First Instance                                           ( 97/C 74/23 )
infringed Community law (in particular, Article 173 (4 ) of
the EC Treaty, which grants the appellants the right to
challenge the contested Regulation since this Regulation                Reference has been made to the Court of Justice of the
directly and individually concerned them ) by reaching                  European Communities by judgment of the Tribunal de
conclusions which were :                                                Grande Instance ( Regional Court), Metz, of 19 December
                                                                         1996, received at the Court Registry on 24 December
( i ) not justified on the facts;                                        1996, for a preliminary ruling in the case of Procureur de
                                                                        la Republique v. Andre Ambry on the following question:
( ii ) in contradiction to the case-law of the Court of Justice
       of the European Communities and of the Court of                  Are the provisions of Article 14 of Decree No 94.490 of
       First Instance itself.                                           15 June 1994, adopted pursuant to Article 31 of Law No
                                                                        92.645 of 13 July 1992, to be regarded as not in
In particular the Court of First Instance infringed                     conformity with Directive 73/183/EEC ( J ), the first
Community law in four ways .                                            Coordination Directive of 15 December 1989 (2 ),
                                                                        Article 59 of the Treaty establishing the European
In the first place, the Court took the view that the                    Communities and Article 73 B of the Maastricht Treaty, in
contested Regulation did not constitute a bundle of                     so far as they require that, where a financial security is
decisions, thus failing to recognize the true nature of this            issued in a Member State of the EC other than France, an
Regulation.                                                             agreement must be concluded between the credit
                                                                        institution or insurance company situated in the Member
The second infringement of Community law by the Court                   State other than France and a credit institution or an
of First Instance was the failure, having regard to the case           insurance company situated in France ?
law of the Court of Justice, to take proper account of the
specific and serious negative effect on the appellants of the           (') OJ No L 194, 16 . 7. 1973 , p . 1 .
contested Regulation, in particular having regard to the                ( 2 ) OJ No L 386 , 30 . 12 . 1989 , p . 1 .
nine currency devaluations in Sweden between 1 January
and 30 June 1995 .
The third infringement of Community law was the Court
of First Instance 's conclusion that the Commission was
not, in this case, under a duty to take account of the                  Reference for a preliminary ruling from the Korkein
consequences of the measure it envisaged adopting for the              Hallinto-oikeus by order of that court of 13 December
situation of certain individuals, i . e . the Swedish sugarbeet         1996 in the proceedings brought by Kainuun Liikenne Oy
growers .                                                                                and Oy Pohjolan Liikenne Ab
                                                                                ( Case C-412/96 )
The fourth infringement of Community law was the Court
of     First  Instance's   conclusion that    neither   individual                                      ( 97/C 74/24 )
Swedish beet growers ( such as Mr Henrikson ) nor Sveriges
Betodlares Centralforening as the association representing              Reference has been made to the Court of Justice of
all Swedish beet growers in negotiations with the Swedish              the European Communities by an order of the Korkein
sugar manufacturer were individually concerned by the                  Hallinto-oikeus ( Supreme Administrative Court ) of
contested Regulation .                                                  13 December 1996, which was received at the Court


title: Case T-265/13: Judgment of the General Court of 18 September 2014  — Polo/Lauren v OHIM — FreshSide (Representation of a boy on a bicycle holding a mallet) (Community trade mark — Opposition proceedings — Application for the Community figurative mark representing a boy on a bicycle holding a mallet — Earlier Community and national figurative marks representing a polo player — Relative grounds for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 8(5) of Regulation No 207/2009)

text:
               3.11.2014

               EN

               Official Journal of the European Union

               C 388/14

         Judgment of the General Court of 18 September 2014 — Polo/Lauren v OHIM — FreshSide (Representation of a boy on a bicycle holding a mallet)
   (Case T-265/13) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark representing a boy on a bicycle holding a mallet - Earlier Community and national figurative marks representing a polo player - Relative grounds for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009 - Article 8(5) of Regulation No 207/2009))
   2014/C 388/17
   Language of the case: English

      Parties

      Applicant: The Polo/Lauren Company, LP (New York, United States) (represented by: S. Davies, Solicitor, J. Hill, Barrister, and R. Black, Solicitor)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock and N. Bambara, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: FreshSide Ltd (London, United Kingdom) (represented by: N. Lockett, Solicitor)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 1 March 2013 (Case R 15/2012-2), relating to opposition proceedings between The Polo/Lauren Company, LP and FreshSide Ltd.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 1 March 2013 (Case R 15/2012-2);

               2.

               Orders OHIM to bear its own costs and to pay the costs incurred by The Polo/Lauren Company, LP;

               3.

               Orders FreshSide Ltd to bear its own costs.

      (1)  OJ C 207, 20.7.2013.


title: Case C-211/15 P: Judgment of the Court (First Chamber) of 26 October 2016 — Orange, formerly France Télécom v European Commission (Appeal — Competition — State aid — Aid granted by the French Republic to France Télécom — Reform of the arrangements for financing the retirement pensions of civil servants working for France Télécom — Reduction of the compensation to be paid to the State by France Télécom — Decision declaring the aid compatible with the internal market under certain conditions — Definition of aid — Definition of economic advantage — Selective nature — Adverse effect on competition — Distortion of the facts — No statement of reasons — Substitution of grounds)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/14

         Judgment of the Court (First Chamber) of 26 October 2016 — Orange, formerly France Télécom v European Commission
   (Case C-211/15 P) (1)

   ((Appeal - Competition - State aid - Aid granted by the French Republic to France Télécom - Reform of the arrangements for financing the retirement pensions of civil servants working for France Télécom - Reduction of the compensation to be paid to the State by France Télécom - Decision declaring the aid compatible with the internal market under certain conditions - Definition of aid - Definition of economic advantage - Selective nature - Adverse effect on competition - Distortion of the facts - No statement of reasons - Substitution of grounds))
   (2017/C 006/17)
   Language of the case: French

      Parties

      Appellant: Orange, formerly France Télécom (represented by: S. Hautbourg and S. Cochard-Quesson, avocats)

      Other party to the proceedings: European Commission (represented by: B. Stromsky and L. Flynn, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Orange to pay the costs.

      (1)  OJ C 245, 27.7.2015.


title: Case T-381/00: Action brought on 20 December 2000 by Franz-Martin Wasmeier against the Commission of the European Communities

text:
C 95/14                 EN                     Official Journal of the European Communities                                      24.3.2001
1.    The operation of the decision of the Commission of 9 March          Action brought on 20 December 2000 by Franz-Martin
      2000 relating to the withdrawal of marketing authorisations         Wasmeier against the Commission of the European Com-
      for medicinal products for human use which contain amfepra-                                      munities
      mone [C(2000) 453] is suspended in relation to the applicant.
                                                                                (Case T-381/00)
2.    Costs are reserved.
                                                                                (2001/C 95/28)
                                                                                (Language of the case: German)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
      ORDER OF THE COURT OF FIRST INSTANCE                                European Communities on 20 December 2000 by Franz-
                                                                          Martin Wasmeier, of Munich (Germany), represented by
                                                                          Gerhard Maier, of Messrs Kalaitzis, Türck & Maier, Bernau am
                      of 15 November 2000                                 Chiemsee (Germany).
in Case T-157/00: Nicole Robert v European Parliament (1)                 The applicant claims that the Court should:
                                                                          —     annul the Commission’s decision of 7.9.2000 concerning
(Officials — Prior administrative complaint — Time-limits
                                                                                the applicant’s complaint and the Commission’s decision
— Action brought prior to rejection of the complaint —
                                                                                of 24.9.1999 concerning his classification in grade A 7;
                          Inadmissibility)
                                                                          —     order the Commission to adopt a fresh decision concern-
                           (2001/C 95/27)                                       ing the applicant’s classification in grade, accompanied
                                                                                by a comprehensive statement of reasons;
                    (Language of the case: French)                        —     order the Commission to pay the costs.
In Case T-157/00: Nicole Robert, an official of the European
Parliament, residing at Strassen (Luxembourg), represented by             Pleas in law and main arguments
A. Lorang, of the Luxembourg Bar, with an address for service
in Luxembourg at the latter’s Chambers, 2 Rue des Dahlias,
v European Parliament (Agents: Y. Pantalis and D. Moore) —                Having sat an open competition, the applicant was appointed
application for annulment of the Parliament’s decision not to             an official of the Commission and classified in grade A 7, step
promote the applicant to grade B 1 in the context of the 1999             1. The applicant lodged a complaint against that decision,
promotions procedure, and of the decisions promoting other                seeking classification in grade A 6.
officials in the course of the procedure for that year — the
Court of First Instance (Fifth Chamber), composed of: P. Lindh,
President, and R. Garcı́a-Valdecasas and J.D. Cooke, Judges;              The action is directed against the Commission’s decision
H. Jung, Registrar, made an order on 15 November 2000, the                rejecting that complaint. The applicant asserts inter alia that:
operative part of which is as follows:
                                                                          —     the Commission’s decision is vitiated by errors in the
1.    The application is dismissed as inadmissible.                             investigation of the facts and errors of judgment;
2.    The parties are to bear their own costs.                            —     the Commission wrongly failed to carry out a comprehen-
                                                                                sive assessment of the applicant’s qualifications; and
                                                                          —     the principles of the protection of legitimate expectations
(1) OJ C 247 of 26.8.2000.                                                      and of equal treatment have been violated.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 10 October 1996 in Joined Cases C-245/94 and C-312/94 (references for a preliminary ruling from the Landessozialgericht Nordrhein-Westfalen): Ingrid Hoever and Iris Zachow v. Land Nordrhein-Westfalen (Social security - Family benefits - Article 73 of Regulation (EEC) No 1408/71 - Article 4 (1) of Directive 79/7/EEC - Article 7 (2) of Regulation (EEC) No 1612/68)

text:
No C 370/2             LIN                      Official Journal of the European Communities                                        7 . 12 . 96
reclassification of facts under national law with a view to                     a family benefit within the meaning of Article 4 (1 ) (h)
penalizing breaches of the Community legislation                                of Council Regulation (EEC) No 1408/71 of 14 June
applicable at the material time.                                                 1971 on the application of social security schemes to
                                                                                employed persons, to self-employed persons and to
f 1 ) OJ No C 392 , 31 . 12 . 1994 .                                            members of their families moving within the
                                                                                Community, in the version amended and updated by
                                                                                Regulation (EEC) No 2001 /83 of 2 June 1983 , as
                                                                                amended by Regulation (EEC) No 3427/89 of
                                                                                30 October 1989 .
                  JUDGMENT OF THE COURT
                            (Fifth Chamber)                                2 . Where an employed person is subject to the legislation
                         of 10 October 1996                                     of a Member State and lives with his or her family in
                                                                                another Member State, that person 's spouse is entitled,
in Joined Cases C-245/94 and C-3 12/94 (references for a                        under Article 73 of Regulation (EEC) No 1408/71 , to
preliminary ruling from the Landessozialgericht Nordrhein                      receive a benefit such as child-raising allowance in the
Westfalen): Ingrid Hoever and Iris Zachow v. Land                               State of employment.
                       Nordrhein-Westfalen (*)
(Social security — Family benefits — Article 73 of                         3 . Article 3 (I ) and (2) of Council Directive 79/7/EEC of
Regulation (EEC) No 1408/71 — Article 4 (1 ) of Directive                       19 December 1978 on the progressive implementation
79/7/EEC        — Article          7 (2)    of Regulation      (EEC)            of the principle of equal treatment for men and women
                               No 1612/68)
                                                                                in matters of social security must be interpreted as
                              ( 96/C 370/03 )                                   meaning that a child-raising allowance such as that
                                                                                provided for by Article 1 et seq. of the Bundeserzie
                  (Language of the case: German)                                hungsgeldgesetz does not fall within the scope of that
                                                                                Directive.
    (Provisional translation; the definitive translation will be
             published in the European Court Reports)                      (!) OJ No C 304, 29 . 10 . 1994.
                                                                                OJNoC38Q , 31 . 12 . 1994 .
In Joined Cases C-245/94 and C-3 12/94: reference to the
Court under Article 177 of the EC Treaty by the
Landessozialgericht Nordrhein-Westfalen ( North Rhine
Westphalia Higher Social Court ) ( Germany ) for a
preliminary ruling in the proceedings pending before that
court between Ingrid Hoever and Iris Zachow of the one                                     JUDGMENT OF THE COURT
part and the Land Nordrhein-Westfalen ( Land of North                                              of 15 October 1996
Rhine-Westphalia ) of the other part on the interpretation of
Article 4 ( 1 ) ( h) and Article 73 of Council Regulation ( EEC )          in Case C-3 11/94 ( reference for a preliminary ruling from
No 1408/71 of 14 June 1971 on the application of social                    the Netherlands Raad van State ): IJssel-Vliet Combinatie
security schemes to employed persons, to self-employed                                BV v. Minister van Economische Zaken 0 )
persons and to members of their families moving within the                         (State aid for the construction of a fishing vessel)
Community ( Official Journal, English Special Edition 1971
( II ), p. 416 ), in the version amended and updated by                                               ( 96/C 370/04 )
Regulation ( EEC ) No 2001 /83 of 2 June 1983 ( OJ No
L 230 , 1983 , p. 6 ), as amended by Regulation ( EEC ) No
3427/89 of 30 October 1989 ( OJ No L 331 , 1989, p. 1 ), of                                  (Language of the case: Dutch)
Article 4 ( 1 ) of Council Directive 79/7/EEC of 19 December
1978 on the progressive implementation of the principle of                    (Provisional translation; the definitive translation will be
equal treatment for men and women in matters of social                                published in the European Court Reports)
security ( OJ No L 6, 1979, p. 24 ) and of Article 7 ( 2 ) of
Council Regulation ( EEC ) No 1612/68 of 15 October 1968
on      freedom     of   movement       for   workers    within  the       In Case C-3 11 /94 : reference to the Court under Article 177
Community ( Official Journal, English Special Edition 1968                 of the EC Treaty from the Netherlands Raad van State
(II ), p. 475 ) — the Court ( Fifth Chamber), composed of:                 ( Council of State ) for a preliminary ruling in the
J. C. Moitinho de Almeida , President of the Chamber, L.                   proceedings pending before that court between IJssel-Vliet
Sevon, D. A. O. Edward ( Rapporteur), P. Jann and M.                       Combinatie BV and Minister van Economische Zaken — on
Wathelet, Judges; Advocate-General : F. G. Jacobs;                         the interpretation of Articles 42 , 92 and 93 of the EEC
Registrar: D. Louterman-Hubeau, Principal Administrator,                   Treaty, of Council Regulation ( EEC ) No 4028/86 of
has given a judgment on 10 October 1996, in which it rules:                 18 December 1986 on Community measures to improve
                                                                           and adapt structures in the fisheries and aquaculture sector
1 . A benefit such as the child-raising allowance provided                 ( OJ No L 376 , 1986 , p. 7 ), of Council Directive 87/167/
       for by the Bundeserziehungsgeldgesetz, which is                     EEC of 26 January 1987 on aid to shipbuilding ( OJ No
       automatically granted to persons fulfilling certain                 L 69, 1987, p. 55 ) and of the guidelines for the examination
       objective criteria, without any individual and                      of State aids in the fisheries sector ( OJ No C 313 , 1988 ,
       discretionary assessment of personal needs, and which               p. 21 ) — the Court, composed of: G. C. Rodriguez Iglesias,
       is intended to meet family expenses, must be treated as             President, G. F. Mancini, J. L. Murray and L. Sevon


title: Judgment of the Court of First Instance of 14 December 2000 in Case T-613/97: Union Française de l'Express (Ufex) and Others v Commission of the European Communities (State aid — Rights of the defence — Access to the file — Requirement to state reasons — Postal sector — Cross-subsidies between the reserved sector and the competitive sector — Concept of State aid — Normal market conditions)

text:
C 108/14               EN                       Official Journal of the European Communities                                          7.4.2001
                                                          COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                      of 12 December 2000
                                                                                of 14 December 2000
in Case T-296/97: Alitalia — Linee aeree italiane SpA v
        Commission of the European Communities (1)
                                                                           in Case T-613/97: Union Française de l’Express (Ufex) and
                                                                             Others v Commission of the European Communities (1)
(State aid — Recapitalisation of Alitalia by the Italian
authorities — Classification of the measure — Private
       investor test — Examination by the Commission)                      (State aid — Rights of the defence — Access to the file —
                                                                           Requirement to state reasons — Postal sector — Cross-
                         (2001/C 108/22)                                   subsidies between the reserved sector and the competitive
                                                                           sector — Concept of State aid — Normal market conditions)
                    (Language of the case: Italian)
                                                                                (2001/C 108/23)
In Case T-296/97: Alitalia — Linee aeree italiane SpA,
established in Rome, Italy, represented by F. Sciaudone and
G.M. Roberti, of the Naples Bar, M. Siragusa, of the Rome Bar,                                (Language of the case: French)
G. Scassellati Sforzolini, of the Bologna Bar, M. Beretta, of the
Bergamo Bar, and F.M. Moretti, of the Venice Bar, and initially
by A. Tizzano, of the Naples Bar, with an address for service
in Luxembourg at the Chambers of Elvinger, Hoss and                        In Case T-613/97: Union Française de l’Express (Ufex), estab-
Prussen, 2 Place Winston Churchill, against Commission of                  lished in Roissy-en-France (France), DHL International, estab-
the European Communities (Agents: D. Triantafyllou, A. Abate               lished in Roissy-en-France, Federal Express International
and E. Cappelli,) supported by Air Europe SpA, established in              (France), established in Gennevilliers (France), CRIE, established
Gallarate, Italy, represented by L. Pierallini and A. Costantini,          in Asnières (France), represented by É. Morgan de Rivery, of
of the Rome Bar, with an address for service in Luxembourg at              the Paris Bar, and J. Derenne, of the Brussels and Paris Bars,
the Chambers of A. Lorang, 51 Rue Albert 1er, and by Air                   with an address for service in Luxembourg at the Chambers of
One SpA, established in Chieti, Italy, represented by M. Merola,           A. Schmitt, 7 Val Sainte-Croix, against Commission of the
of the Rome Bar, and A. Sodano del Foro Adele, of the Naples               European Communities (Agents: G. Rozet and D. Triantafyl-
Bar, with an address for service in Luxembourg at the                      lou), supported by French Republic, (Agents: K. Rispal-Bellan-
Chambers of A. Lorang, 51 Rue Albert 1er — application for                 ger and F. Million), by Chronopost SA, established in Issy-les-
annulment of Commission Decision 97/789/EC of 15 July                      Moulineaux (France), represented by V. Bouaziz Torron and
1997 concerning the recapitalisation of the company Alitalia               D. Berlin, of the Paris Bar, with an address for service in
(OJ 1997 L 322, p. 44) — the Court of First Instance (Third                Luxembourg at the Chambers of A. May, 398 Route d’Esch,
Chamber, Extended Composition), composed of: K. Lenaerts,                  and by La Poste, established in Boulogne-Billancourt (France),
President, J. Azizi, R.M. Moura Ramos, M. Jaeger and P. Men-               represented by H. Lehman, of the Paris Bar, with an address
gozzi, Judges; J. Palacio González, Administrator, for the                for service in Luxembourg at the Chambers of A. May, 398
Registrar, has given a judgment on 12 December 2000, in                    Route d’Esch, application for annulment of Commission
which it:                                                                  Decision 98/365/EC of 1 October 1997 concerning alleged
                                                                           State aid granted by France to SFMI-Chronopost (OJ 1998
                                                                           L 164, p. 37) — the Court of First Instance (Fourth Chamber,
1.    Annuls Commission Decision 97/789/EC of 15 July 1997
                                                                           Extended Composition), composed of: V. Tiili, President,
      concerning the recapitalisation of the company Alitalia;
                                                                           P. Lindh, R.M. Moura Ramos, J.D. Cooke and P. Mengozzi,
                                                                           Judges; G. Herzig, Administrator, for the Registrar, has given a
2.    Orders the Commission to bear its own costs and to pay those         judgment on 14 December 2000, in which it:
      incurred by the applicant;
3.    Orders Air One SpA and Air Europe SpA to bear their own              1.    Annuls Article 1 of Commission Decision 98/365/EC of
      costs.                                                                     1 October 1997 concerning alleged State aid granted by France
                                                                                to SFMI-Chronopost in so far as it finds that the logistical and
                                                                                commercial assistance provided by La Poste to its subsidiary
(1) OJ C 41 of 7.2.1998.                                                         SFMI-Chronopost does not constitute State aid to SFMI-
                                                                                Chronopost;
                                                                           2.    Dismisses the remainder of the application;
 ---pagebreak--- 7.4.2001                 EN                     Official Journal of the European Communities                                         C 108/15
3.    Orders the applicants to bear 10 % of their own costs;               3.    orders the defendant to bear the costs in Case T-130/98.
4.    Orders the Commission to bear its own costs and to pay 90 %          4.    orders each of the parties to bear their own costs, including
      of the costs incurred by the applicants;                                   those relating to the interlocutory proceedings, in Case
                                                                                T-131/98.
5.    Orders the French Republic, Chronopost SA and La Poste to
      bear their own costs.
                                                                           (1) OJ C 327 of 24.10.1998.
(1) OJ C 72 of 7.3.1998.
                                                                               JUDGMENT OF THE COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 5 December 2000
                       of 13 December 2000
                                                                           in Case T-136/98: Anna Maria Campogrande v Com-
                                                                                mission of the European Communities (1)
in Joined Case T-130/98 and T-131/98: Francis Panichelli
                     v European Parliament (1)
                                                                           (Officials — Duty to render assistance — Sexual harass-
(Temporary agents — Engaged on the basis of Article 2(c)                                                    ment)
of the Conditions of Employment of other Servants of the
Communities — Reclassification of a post — Absence of                                                (2001/C 108/25)
promotion to Grade A 4 — Staff reports — Action for
annulment and claim for damages — Admissibility of the
action — Dismissal pursuant to Article 47(2)(a) of the
Conditions of Employment of other Servants of the Com-                                         (Language of the case: French)
munities — Whether internal procedure observed — Reason
                for dismissal — Misuse of powers)                          In Case T-136/98: Anna Maria Campogrande, an official at
                                                                           the Commission of the European Communities, residing in
                          (2001/C 108/24)                                  Brussels, represented by A. Krywin, of the Brussels Bar, with
                                                                           an address for service in Luxembourg at the Chambers of
                                                                           A. Lutgen, 1 Rue Jean-Pierre Brasseur, against Commission of
                                                                           the European Communities (Agents: C. Berardis-Kayser and
                     (Language of the case: French)                        F. Clotuche-Duvieusart) — first, application for annulment of
                                                                           the implied decision of the Commission rejecting the appli-
In Joined Cases T-130/98 and T-131/98: Francis Panichelli,                 cant’s request for assistance of 27 June 1997 and, secondly, a
former temporary agent of the European Parliament, residing                claim for damages to make good the harm suffered — the
in Wezembeek-Oppem (Belgium), represented by E. Boigelot,                  Court of First Instance (Fourth Chamber), composed of V. Tiili,
of the Brussels Bar, with an address for service in Luxembourg             President, R.M. Moura Ramos and P. Mengozzi, Judges; Blanca
at the Chambers of L. Schiltz, 2 Rue du Fort Rheinsheim,                   Pastor, Principal Administrator, for the Registrar, gave a
against European Parliament (Agents: M. Moore and J. Sant’An-              judgment on 5 December 2000, in which it:
na) — application for (Case T-130/98) annulment of the
implied rejection of the applicant’s request of 11 July 1997               1.    annuls the implied decision of the Commission rejecting the
and for an order requiring the defendant to pay damages and                      applicant’s request for assistance of 27 June 1997;
(Case T-131/98) for annulment of the decision communicated
on 2 July 1998 bringing to an end the applicant’s temporary                2.    dismisses the remainder of the application;
contract — the Court of First Instance (Second Chamber),
composed of J. Pirrung, President, A. Potocki and A.W.H. Meij,
Judges; Blanca Pastor, Principal Administrator, for the Regis-             3.    orders the Commission to pay the costs.
trar, gave a judgment on 13 December 2000, in which it:
1.    joins Cases T-130/98 and T-131/98 for the purpose of the             (1) OJ C 327 of 24.10.1998.
      judgment.
2.    dismisses the applications in Cases T-130/98 and T-131/98.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 11 August 1995 in Case C-63/94 (reference for a preliminary ruling from the Tribunal de Commerce, Mons): Groupement National des Négociants en Pommes de Terre de Belgique v. ITM Belgium SA and Vocarex SA (Free movement of goods - Prohibition of sales yielding very low profit margins)

text:
 No C 268/8            EN                 Official Journal of the European Communities                                  14 . 10 . 95
              JUDGMENT OF THE COURT                                  preliminary ruling in the proceedings pending before that
                        ( Sixth Chamber)                             court between G. H. E. J. Wielockx and Inspecteur der
                                                                     Directe Belastingen — on the interpretation of Article 52 of
                      of 11 August 1995                              the EC Treaty — the Court, composed of: G. C. Rodriguez
in Case C-63/94 (reference for a preliminary ruling from the         Iglesias, President, F. A. Schockweiler, P. J. G. Kapteyn, C.
Tribunal de Commerce, Mons ): Groupement National des                Gulmann and P. Jann ( Presidents of Chambers ), G. F.
Négociants en Pommes de Terre de Belgique v. ITM                     Mancini, J. C. Moitinho de Almeida, D. A. O. Edward
               Belgium SA and Vocarex SA i 1 )                       ( Rapporteur ), G. Hirsch, H. Ragnemalm and L. Sevôn,
 (Free movement of goods — Prohibition of sales yielding             Judges; P. Léger, Advocate-General ; L. Hewlett,
                   very low profit margins)                          Administrator, for the Registrar, has given a judgment on
                                                                     11 August 1995 , in which it rules :
                          ( 95/C 268/15 )
               (Language of tbe case: Frencb)                        a rule laid down by a Member State which allows its
                                                                     residents to deduct from their taxable income business
(Provisional translation; the definitive translation will be         profits which they allocate to form a pension reserve but
         published in the European Court Reports)                    denies that benefit to Community nationals liable to pay tax
                                                                     who, although resident in another Member State, receive all
                                                                     or almost all of their income in the first State, cannot be
In Case C-63 /94 : reference to the Court under Article 177 of      justified by the fact that the periodic pension payments
the EC Treaty from the Tribunal de Commerce                          subsequently drawn out of the pension reserve by the
( Commercial Court), Mons, for a preliminary ruling in the           non-resident taxpayer are not taxed in the first State but in
proceedings pending before that court between                        the State of residence — with which the first State has
Groupement National des Négociants en Pommes de Terre                concluded a double-taxation convention — even if, under
de Belgique v. ITM Belgium SA and Vocarex SA — on the                the tax system in force in the first State, a strict
interpretation of Article 30 of the EC Treaty — the Court            correspondence between the deductibility of the amounts
( Sixth Chamber ), composed of: F. A. Schockweiler,                 added to the pension reserve and the liability to tax of the
President of the Chamber, G. F. Mancini ( Rapporteur ),             amounts drawn out of it cannot be achieved by generalizing
C. N. Kakouris, J. L. Murray and G. Hirsch , Judges; G.              the benefit. Such discrimination is therefore contrary to
Cosmas, Advocate-General; H. A. Riihl, Principal                    Article 52 of the EC Treaty.
Administrator, for the Registrar, has given a judgment on
11 August 1 995 , in which it rules :
                                                                     (') OJ No C 103 , 11 . 4 . 1994 .
Article 30 of the EC Treaty is to be interpreted as not
applying where a Member State prohibits by legislation any
sale which yields only a very low profit margin.
(') OJ No C 103 , 11 . 4 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Sixth Chamber )
              JUDGMENT OF THE COURT                                                        of 11 August 1995
                      of 11 August 1995                             in Case C-92/94 ( reference for a preliminary ruling from the
in Case C-80/94 (reference for a preliminary ruling from the        Court of Appeal ( Civil Division )): Secretary of State for
Gerechtshof te 's-Hertogenbosch ): G. H. E. J. Wielockx v.          Social Security, Chief Adjudication Officer v. Rose Graham
            Inspecteur der Directe Belastingen (*)                                             and Others ( l )
(Article 52 of the EC Treaty — Requirement of equal                  (Equality between men and women — Invalidity benefits —
        treatment — Tax on non-residents ' income)                                    Link with pensionable age)
                          ( 95/C 268/16 )                                                      ( 95/C 268/17 )
               (Language of the case: Dutch)
                                                                                (Language of the case: English)
(Provisional translation; the definitive translation will be
         published in the European Court Reports)                   In Case C-92/94 : reference to the Court under Article 177 of
                                                                    the EC Treaty by the Court of Appeal ( Civil Division ),
In Case C-80/94 : reference to the Court under Article 177 of       London, for a preliminary ruling in the proceedings pending
the EC Treaty from the Gerechtshof te 's-Hertogenbosch               before that court between Secretary of State for Social
( Regional Court of Appeal, 's-Hertogenbosch ) for a                 Security, Chief Adjudication Officer and Rose Graham,


title: Case C-34/10: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 21 January 2010 — Prof. Dr. Oliver Brüstle v Greenpeace e.V.

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/19

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 21 January 2010 — Prof. Dr. Oliver Brüstle v Greenpeace e.V.
   (Case C-34/10)
   2010/C 100/29
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Prof. Dr. Oliver Brüstle

      Defendant: Greenpeace e.V.

      Questions referred

               1.

               What is meant by the term ‘human embryos’ in Article 6(2)(c) of Directive 98/44/EC? (1)

                           a)

                           Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied?

                           b)

                           Are the following organisms also included:

                                       1.

                                       unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;

                                       2.

                                       unfertilised human ova whose division and further development have been stimulated by parthenogenesis?

                           c)

                           Are stem cells obtained from human embryos at the blastocyst stage also included?

               2.

               What is meant by the expression ‘uses of human embryos for industrial or commercial purposes’? Does it include any commercial exploitation within the meaning of Article 6(1) of the Directive, especially use for the purposes of scientific research?

               3.

               Is technical teaching to be considered unpatentable pursuant to Article 6(2)(c) of the Directive even if the use of human embryos does not form part of the technical teaching claimed with the patent, but is a necessary precondition for the application of that teaching,

                           a)

                           because the patent concerns a product whose production necessitates the prior destruction of human embryos,

                           b)

                           or because the patent concerns a process for which such a product is needed as base material?

      (1)  Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13).


title: Case C-372/16: Request for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 6 July 2016 — Soha Sahyouni v Raja Mamisch

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/33

         Request for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 6 July 2016 — Soha Sahyouni v Raja Mamisch
   (Case C-372/16)
   (2016/C 343/45)
   Language of the case: German

      Referring court

   Oberlandesgericht München

      Parties to the main proceedings

      Applicant: Soha Sahyouni

      Defendant: Raja Mamisch

      Questions referred

               1.

               Does the scope of Council Regulation (EU) No 1259/2010 (1) of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10), as defined in Article 1 of that regulation, also include cases of private divorce, in this instance one pronounced by unilateral declaration of a spouse before a religious court in Syria on the basis of sharia?

               2.

               If the answer to Question 1 is in the affirmative:
               In applying Regulation (EU) No 1259/2010 [when examining] Article 10 thereof in cases of private divorce,

                           (1)

                           is account to be taken in the abstract of a comparison showing that, while the applicable law pursuant to Article 8 grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to procedural and substantive conditions different from those applicable to access for the first spouse,
                           or

                           (2)

                           does the applicability of that rule depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

               3.

               If the answer to Question 2(2) is in the affirmative:
               Does the fact that the spouse discriminated against consents to the divorce — including by duly accepting compensation — itself constitute a ground for not applying that rule?

      (1)  OJ 2010 L 343, p. 10.


title: Case T-472/15 P: Judgment of the General Court of 1 March 2017 — EEAS v Gross (Appeal — Civil service — Officials — Promotion — 2013 promotion exercise — Non-inclusion on the list of promoted officials — No error of law)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/26

         Judgment of the General Court of 1 March 2017 — EEAS v Gross
   (Case T-472/15 P) (1)

   ((Appeal - Civil service - Officials - Promotion - 2013 promotion exercise - Non-inclusion on the list of promoted officials - No error of law))
   (2017/C 121/37)
   Language of the case: French

      Parties

      Appellant: European External Action Service (EEAS) (represented by: initially, S. Marquardt and M. Silva, and subsequently S. Marquardt, acting as Agents, and M. Troncoso Ferrer, S. Moya Izquierdo and F.-M. Hislaire, lawyers)

      Other party to the proceedings: Philipp Oliver Gross (represented by: J.-N. Louis and N. de Montigny, lawyers)

      Re:

   Appeal against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 3 June 2015, Gross v EEAS (F-78/14, EU:F:2015:52), seeking to have that judgment set aside.

      Operative part of the judgment

   The General Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European External Action Service (EEAS) to bear its own costs and to pay those incurred by Mr Philipp Oliver Gross in the present proceedings.

      (1)  OJ C 346, 19.10.2015.


title: Case T-130/14 P: Appeal brought on 24 February 2014 by Council of the European Union against the judgment of the Civil Service Tribunal of 12 December 2013 in Case F-142/11 Simpson v Council

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/53

         Appeal brought on 24 February 2014 by Council of the European Union against the judgment of the Civil Service Tribunal of 12 December 2013 in Case F-142/11 Simpson v Council
   (Case T-130/14 P)
   2014/C 135/68
   Language of the case: English

      Parties

      Appellant: Council of the European Union (represented by: M. Bauer and A. Bisch, acting as Agents)

      Other party to the proceedings: Erik Simpson (Brussels, Belgium)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               Set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 12 December 2013 in Case F-142/11, Erik Simpson v Council, insofar as it annuls the decision of the Council of the European Union of 9 December 2010 and declares that the Council of the European Union is to bear its own costs and orders it to pay the costs incurred by Mr. Simpson;

               —

               Refer the case back to the Civil Service Tribunal; and

               —

               Order the applicant at first instance to pay the costs of these proceedings.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on one plea in law, alleging that the conclusion of the Civil Service Tribunal, according to which the contested decision is unlawful on grounds of infringement of the obligation to state grounds, is based on erroneous premises due to the distortion of evidence and cannot therefore be upheld.


title: Case C-53/01: Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) — by order of that court of 23 November 2000 in the case of Linde AG

text:
C 150/8                  EN                     Official Journal of the European Communities                                       19.5.2001
1.    Declares that, by refusing to refund to taxable persons              Reference for a preliminary ruling from the Bundesge-
      established in a Member State other than the French Republic,        richtshof (Federal Court of Justice) — by order of that
      who are holders of a main contract for a composite supply of         court of 23 November 2000 in the case of Winward
      services relating to waste disposal, the value added tax which                                  Industries Inc.
      they have been required to pay to the French State in cases
      where they have subcontracted part of the work covered by such                                  (Case C-54/01)
      a contract to a taxable person established in France, the French
      Republic has failed to fulfil its obligations under the Eighth
      Council Directive 79/1072/EEC of 6 December 1979 on the                                        (2001/C 150/15)
      harmonisation of the laws of the Member States relating to
      turnover taxes — Arrangements for the refund of value added          Reference has been made to the Court of Justice of the
      tax to taxable persons not established in the territory of the       European Communities by an order of the Bundesgerichtshof
      country, in particular Article 2 thereof;                            of 23 November 2000, which was received at the Court
                                                                           Registry on 8 February 2001, for a preliminary ruling in the
2.    Dismisses the remainder of the application;                          case of Winward Industries Inc. on the following questions on
                                                                           the interpretation of Article 3(1)(b), (c) and (e) of the First
3.    Orders the French Republic to pay the costs.                         Council Directive 89/104/EEC of 21 December 1988 (1) to
                                                                           approximate the laws of the Member States relating to trade
(1) OJ C 55 of 20.02.1998.                                                 marks:
                                                                           1.    In determining whether a three-dimensional trade mark
                                                                                which depicts the shape of a product has distinctive
                                                                                character within the meaning of Article 3(1)(b) of the
                                                                                above directive is there a stricter test for distinctive
                                                                                character than in the case of other forms of trade marks?
Reference for a preliminary ruling from the Bundesge-
richtshof (Federal Court of Justice) — by order of that                    2.    In the case of three-dimensional trade marks which depict
    court of 23 November 2000 in the case of Linde AG                            the shape of the product, does Article 3(1)(c) of the
                                                                                Directive have any significance independently of
                                                                                Article 3(1)(e)? If so, when considering Article 3(1)(c) —
                           (Case C-53/01)                                        or alternatively Article 3(1)(e) — must regard be had to
                                                                                the interest of the trade in having the shape of the product
                          (2001/C 150/14)                                        available for use, so that registration is, at least in
                                                                                principle, ruled out and is possible as a rule only in the
Reference has been made to the Court of Justice of the                           case of trade marks which meet the requirements of
European Communities by an order of the Bundesgerichtshof                        Article 3(3), first sentence, of the directive?
of 23 November 2000, which was received at the Court
Registry on 8 February 2001, for a preliminary ruling in
the case of Linde AG on the following questions on the                     (1) OJ 1989 L 40, p. 1.
interpretation of Article 3(1)(b), (c) and (e) of the First Council
Directive 89/104/EEC of 21 December 1988 (1) to approximate
the laws of the Member States relating to trade marks:
1.    In determining whether a three-dimensional trade mark
      which depicts the shape of a product has distinctive
      character within the meaning of Article 3(1)(b) of the
      above directive is there a stricter test for distinctive             Reference for a preliminary ruling from the Bundesge-
      character than in the case of other forms of trade marks?            richtshof (Federal Court of Justice) — by order of that
                                                                           court of 23 November 2000 in the case of Rado Uhren
2.    In the case of three-dimensional trade marks which depict                                             AG
      the shape of the product, does Article 3(1)(c) of the
      Directive have any significance independently of                                                (Case C-55/01)
      Article 3(1)(e)? If so, when considering Article 3(1)(c) —
      or alternatively Article 3(1)(e) — must regard be had to
      the interest of the trade in having the shape of the product                                   (2001/C 150/16)
      available for use, so that registration is, at least in
      principle, ruled out and is possible as a rule only in the           Reference has been made to the Court of Justice of the
      case of trade marks which meet the requirements of                   European Communities by an order of the Bundesgerichtshof
      Article 3(3), first sentence, of the directive?                      of 23 November 2000, which was received at the Court
                                                                           Registry on 8 February 2001, for a preliminary ruling in the
(1) OJ 1989 L 40, p. 1.                                                    case of Rado Uhren AG on the following questions on the
                                                                           interpretation of Article 3(1)(b), (c) and (e) of the First Council
                                                                           Directive 89/104/EEC of 21 December 1988 (1) to approximate
                                                                           the laws of the Member States relating to trade marks:


title: Case T-404/08: Action brought on 20 September 2008 — Fluorsid and Minmet v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/52

         Action brought on 20 September 2008 — Fluorsid and Minmet v Commission
   (Case T-404/08)
   (2008/C 301/88)
   Language of the case: Italian
   Parties

      Applicants: Fluorsid SpA (Assemini, Italy) and Minmet Co. (Lausanne, Switzerland) (represented by: L. Vasques and F. Perego, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annulment of the decision of the Commission of the European Communities adopted on 25 June 2008 C(2008) 3043 concerning proceedings pursuant to Article 81 of the EC Treaty and Article 53 of the EAA Agreement, Case COMP/39.180 — Aluminium fluoride, notified to Fluorsid and Minmet on 11 July 2008 and 9 July 2008 respectively, or, in the alternative, for reduction of the fine imposed on Minmet and Fluorsid under the decision as provided for in Article 4482) of the Rules of Procedure of the Court.

         Pleas in law and main arguments
   By its present action, the companies Fluorsid and Minmet wish to challenge the decision by which the European Commission found an infringement of Article 81(1) of the Treaty and Article 53(1) of the EAA Agreement and therefore jointly and severally fined Fluorsid and Minmet for an alleged serious infringement of Article 81 of the Treaty for the sum of EUR 1 600 000 (one million six hundred thousand).
   In support of their claims, the applicants plead:

               —

               Absence of proof of the potential harm in the EAA and infringement of the provisions of Article 81 of the Treaty. In that respect it is stated that it is impossible to argue that four small undertakings, of which one has not even had sales in 2000 in the EAA, can, even in the abstract, impose prices on large aluminium producers (also called ‘smelters’) in a market in which it is supply and not demand which determines prices.

               —

               Infringement of the duty to state reasons regarding the proof of the unlawful conduct in breach of Article 253 of the Treaty and Article 2 of Regulation (EC) No 1/2003, for changing in a surreptitious manner the contested infringement in order to lessen the Commission's burden of proof. It claims on that point that the Commission was able to acquire evidence of an exchange of information between competitors, but not of an agreement with an object to restrict competition. That change of the description of the unlawful conduct favoured the Commission, which was then able to refer, in the applicants' view incorrectly, the per se rule laid down for hard core restrictions, therefore lightening its burden of proof and enabling it to disregard the fact that the alleged unlawful conduct had no effect on the market.

               —

               Infringement of Article 27 of Regulation No 1/2003 and of the rights of the defence, as well as of Articles 253 and 173 of the Treaty in so far as the Commission does not cite leniency in respect of Floursid under the Statement of Objections (SO), carried out investigations and acquired documentation for the case-file after the SO, and in the final decision challenged unlawful conduct which was different from that challenged in the SO (uninterrupted infringement and infringement lasting 6 months).

         The applicants also plead that:

               —

               To substantiate Minmet's involvement, documents against the applicants which were not cited in the SO were referred to in the final decision.

               —

               Although the Commission disregarded leniency in respect of Fluorsid in the SO in breach of the rights of the defence, in the second instance it inserted in the case-file both leniency in respect of the applicants and an addendum to the leniency issue lodged after the SO. In that manner the Commission (i) created uncertainty regarding leniency, detrimental to the time frame and substance of the applicants' rights of defence in breach of the rules set out in point 29 of the Commission Notice on immunity from fines and (ii) continued to carry out investigations after the SO, adding documentation to the file, thereby infringing fundamental procedural rules detrimental to all the parties to the proceedings.

               —

               The Commission defined the geographic market of aluminium fluoride in an inconsistent manner without stating satisfactory reasons and quantified the value of the market completely inconsistently.


title: Case C-481/11 P: Appeal brought on 21 September 2011 by Alcide Djédjé against the order of the General Court (Fifth Chamber) delivered on 13 July 2011 in Case T-351/11 Djédjé v Council

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/5

         Appeal brought on 21 September 2011 by Alcide Djédjé against the order of the General Court (Fifth Chamber) delivered on 13 July 2011 in Case T-351/11 Djédjé v Council

   (Case C-481/11 P)
   2012/C 6/06
   Language of the case: French

      Parties

      Appellant: Alcide Djédjé (represented by: L. Bourthoumieux, J. Vergès, R. Dumas and M. Ceccaldi, avocats)

      Other party to the proceedings: Council of the European Union

      Form of order sought

               —

               Declare the action brought by Mr Alcide Djédjé admissible;

               —

               Annul the order in Case T-351/11 of 13 July 2011, after holding it to be time-barred;

               —

               Refer the action back to the General Court in order that the appellant may claim his rights;

               —

               Order the Council of the European Union to pay the costs under Articles 69 and 73 of the Rules of Procedure of the Court.

      Pleas in law and main arguments

   In support of his appeal, the appellant raises the following pleas in law:

               —

                  Force majeure, the fact of the war interrupting the limitation period. The events with which the appellant had been confronted since November 2010 in Côte d’Ivoire constitute a case of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union, having regard to the state of war which interrupted the limitation period for acts adopted against him by the Council.

               —

               The present case of force majeure because of the war constitutes an obstacle to the appellant’s freely exercising his right of action against actions which manifestly infringe fundamental rights.

               —

               The fundamental rights and freedoms take priority over the principle of legal certainty. By applying the principle of legal certainty in order to declare the appellant’s application inadmissible, the General Court infringes the fundamental right of access to courts and tribunals and of the rights of the defence. Thus, the appellant has been deprived of his right to be heard by a court having jurisdiction.

               —

               The unenforceability of the time-limit on account of distance and of the time-limit for lodging an appeal in the event of war. The time-limit on account of distance and the time-limit for lodging an appeal cannot be enforced against a person residing in a State at open war. Such time-limits apply only in peacetime and on the continent of Europe. The appellant is located on another continent and, therefore, the strict application of Article 102 of the Rules of Procedure of the General Court to the present case is indisputably in breach of Article 6(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 263 of the Treaty on the Functioning of the European Union.

               —

               The primacy of Article 263 of the Treaty on the Functioning of the European Union. Article 102 of the Rules of Procedure of the General Court would render inoperable any obligation of notification as provided for in the Treaty on the Functioning of the European Union which provides that the period for lodging an appeal starts to run with effect from the publication or notification to the plaintiff of the measure or the day on which it came to his knowledge. Article 102 of the Rules of Procedure avoids the obligation of notification and does not take into account the day on which the application effectively became aware of the measure, thus restricting the letter and the spirit of Article 263 TFEU. Accordingly, Article 102 calls into question the rights laid down and protected by the Treaty, which is of higher legal standing and which is mandatory for the institutions comprising the European Union. Consequently, since the contested measures were not notified to the appellant, in breach of Article 263(5) of the Treaty on the Functioning of the European Union, the period for lodging an appeal can start only from when he became aware of the measures adopted against him.

               —

               A serious infringement of fundamental rights and freedoms. The principle of legal certainty as stated by the General Court seriously calls into question legal certainty as a whole since citizens seeking justice who reside outside the European Union and who reside in a country at war have sanctions issued against them against which they cannot effectively exercise their rights since they do not know of the sanction.

               —

               In the alternative, the appellant seeks the annulment of the measures adopted against him by the Council on the ground of the seriousness of the breach of fundamental rights and freedoms. Since the contested measures infringe fundamental freedoms protected by different international treaties, it is for the Court of Justice to annul those measures in so far as their unlawfulness contravenes the established European legal order and on the ground that no time-limit for lodging an appeal can be enforced because of the seriousness of the breach of the protected fundamental rights and freedoms.