title: Judgment of the Court (Sixth Chamber) of 5 February 2004 in Case C-157/02 (Reference for a preliminary ruling from the Oberster Gerichtshof ): Rieser Internationale Transporte GmbH v Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) (Carriage of goods by road — Tolls — Brenner motorway — Prohibition of discrimination — Discrimination on grounds of the nationality of the haulier or of the origin or destination of the vehicle)

text:
C 71/4                   EN                          Official Journal of the European Union                                               20.3.2004
                  JUDGMENT OF THE COURT                                            Articles 7(h) of Directive 93/89 and 7(9) of Directive 1999/
                                                                                62 may not, be relied upon by individuals against State
                                                                                authorities so far as concerns the calculating of tolls for vehicles
                           (Sixth Chamber)                                         having a laden weight of at least 12 tonnes used for the carriage
                                                                                of goods for the full itinerary of the Austrian Brenner motorway
                         of 5 February 2004                                        when the Directives have not been transposed, or have been
                                                                                imperfectly transposed, into domestic law.
in Case C-157/02 (Reference for a preliminary ruling                         3.    Austrian hauliers, like the hauliers of the other Member States,
from the Oberster Gerichtshof ): Rieser Internationale                             may rely on Articles 7(b) of Directive 93/89 and 7(4) of
Transporte GmbH v Autobahnen- und Schnellstraßen-                                  Directive 1999/62 in order to claim that because of the
                 Finanzierungs-AG (Asfinag) (1)                                    (excessive) rate for the full itinerary on the Austrian Brenner
                                                                                motorway they suffer discrimination in comparison with road
                                                                                users using parts only of the itinerary on that motorway.
(Carriage of goods by road — Tolls — Brenner motorway —
Prohibition of discrimination — Discrimination on grounds                    4.    The judgment in Case C-21/94 Parliament v Council must be
of the nationality of the haulier or of the origin or destination                  interpreted as preserving the effects of Directive 93/89 until
                             of the vehicle)                                       20 July 1999, the date on which Directive 1999/62 entered
                                                                                into force.
                            (2004/C 71/05)                                   5.    During the period from 20 July 1999 to 1 July 2000, the
                                                                                Member States were required to refrain from taking any
                                                                                measures liable gravely to jeopardise the attainment of the result
                    (Language of the case: German)
                                                                                prescribed by Directive 1999/62 but individuals could not rely
                                                                                on that Directive against the Member States before national
(Provisional translation; the definitive translation will be published             courts in order to have a pre-existing national rule incompatible
                    in the European Court Reports)                                 with the Directive disapplied.
                                                                             (1) OJ C 169 of 13.7.2002.
In Case C-157/02: Reference to the Court under Article 234
EC by the Oberster Gerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Rieser Internationale Transporte GmbH and Autobahnen- und
Schnellstraßen-Finanzierungs-AG (Asfinag), on the interpret-
ation of Council Directive 93/89/EEC of 25 October 1993 on                                     JUDGMENT OF THE COURT
the application by Member States of taxes on certain vehicles
used for the carriage of goods by road and tolls and charges                                          (Second Chamber)
for the use of certain infrastructures (OJ 1993 L 279, p. 32)
and Directive 1999/62/EC of the European Parliament and of                                            of 29 January 2004
the Council of 17 June 1999 on the charging of heavy goods
vehicles for the use of certain infrastructures (OJ 1999 L 187,              in Case C-209/02: Commission of the European Communi-
p. 42), the Court (Sixth Chamber), composed of: V. Skouris,                                     ties v Republic of Austria (1)
acting for the President of the Sixth Chamber, J.N. Cunha
Rodrigues (Rapporteur), J.-P. Puissochet, R. Schintgen and
F. Macken, Judges; S. Alber, Advocate General; M.-F. Contet,                 (Directive 92/43/EEC — Failure of a Member State to fulfil
Principal Administrator, for the Registrar, has given a judgment             obligations — Conservation of natural habitats — Wild
on 5 February 2004, in which it has ruled:                                   fauna and flora — Habitat of the corncrake — ‘Wörschacher
                                                                                Moos’ special protection area)
1.    When contracts are concluded with road users, the provisions of                                    (2004/C 71/06)
      a directive capable of having direct effect may be relied upon
      against a legal person governed by private law where the State
                                                                                (Language of the case: German)
      has entrusted to that legal person the task of levying tolls for
      the use of public road networks and where it has direct or
      indirect control of that legal person.                                 (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
2.    Articles 7(b) of Council Directive 93/89/EEC of 25 October
      1993 on the application by Member States of taxes on certain
      vehicles used for the carriage of goods by road and tolls and          In Case C-209/02, Commission of the European Communities
      charges for the use of certain infrastructures and 7(4) of             (Agent: J.C. Schieferer), with an address for service in Luxem-
      Directive 1999/62/EC of the European Parliament and of the             bourg, v Republic of Austria (Agent: C. Pesendorfer), with an
      Council of 17 June 1999 on the charging of heavy goods                 address for service in Luxembourg: Application for a declar-
      vehicles for the use of certain infrastructures may, but               ation that, by authorising the proposed extension of the golf


title: Action brought on 14 February 1995 by SA Cimenteries CBR against the Commission of the European Communities (Case T-25/95)

text:
No C 101 /10            EN                     Official Journal of the European Communities                                   22 . 4 . 95
The applicants claim that the Court should :                              Action brought on 14 February 1995 by SA Cimenteries
                                                                          CBR against the Commission of the European
                                                                                Communities
( 1 ) annul Commission Regulation (EC ) No 2791 /94 of
      16 November 1994 on the exceptional allocation of a                                       (Case T-25/95 )
      quantity additional to the tariff quota for imports of                                     ( 95/C 101/26 )
      bananas in 1994 as a result of tropical storm Debbie ( 1 )
      save for Article 1 ( 1 ) thereof;                                                  (Language of the case: French)
( 2 ) order the defendant to pay the costs .                              An action against the Commission of the European
                                                                          Communities was brought before the Court of First
                                                                          Instance of the European Communities on 14 February
Pleas in law and main arguments adduced in support:                       1995 by SA Cimenteries CBR, the head office of which is in
                                                                          Brussels, represented by Michel Waelbroeck, Alexandre
                                                                          Vandencasteele and Denis Waelbroeck, of the Brussels Bar,
The applicants, two German companies importing bananas,
                                                                          with an address for service in Luxembourg at the Chambers
contest the way in which the quantity additional to the tariff
                                                                          of Ernest Arendt, 8—10 Rue Mathias Hardt.
quota for that product in 1994 has been allocated by
Regulation ( EEC ) No 2791/94 .
                                                                          The applicant claims that the Court should:
That Regulation was enacted following the severe damage                   — annul Articles 1 , 4, 7, 8 , 9 and 10 of the Commission
caused by tropical storm Debbie on 10 September 1994 to                       Decision of 30 November 1994 relating to a procedure
the banana plantations in the Community regions of                            under Article 85 of the EC Treaty ( Cases IV/33.126 and
Martinique and Guadeloupe and in the ACP States of Saint                      33.322 — Cement), inasmuch as it is stated therein that
Lucia and Dominica . It is intended to avert the risk of a steep              CBR has participated in agreements or concerted
rise in prices in several Community regions which may result                  practices contrary to Article 85 of the EC Treaty and it
from that damage .                                                            has been fined in that regard,
The applicants maintain that there is no legal basis whatever             — in the alternative, annul or at least reduce the fines
for the introduction of the exceptional allocation scheme at                  imposed on the applicant in Articles 9 and 10 of the
issue . Whilst it is true that Article 16 ( 3 ) of Regulation (EEC )          Decision,
No 404/93 on the common organization of the market in
bananas constitutes a legal basis for an increase in the quotas           — order the Commission to pay the costs.
in question, regard should be had in that connection to the
allocation rules laid down in Article 19 ( 1 ) of that                    Pleas in law and main arguments adduced in support:
Regulation. Nor does Article 20 of Regulation ( EEC )
No 404/93 constitute a legal basis for the Regulation at                  The applicant pleads, first, procedural defects, inasmuch as
issue. First, the modification of the allocation rules does not           the contested decision :
involve an implementing provision within the meaning of
Article 20; and, second, that Article merely provides for a               — was taken without the applicant having been given
system for forecasting demand, in relation to which it refers,                access to the majority of the documents in the
as regards the procedure to be applied, to Article 27 of the                  Commission's file or to the findings of fact based on
basic Regulation. Lastly, Article 30 of the basic Regulation                  those documents which are contained in the Statement
is concerned merely with transitional measures to facilitate                  of Objections,
the adaptation of the former national market organizations
to the new common organization of the market;                             — is vitiated by the absence of a statement of reasons
consequently, the contested regulation cannot fall within its                 and/or by contradictory reasoning,
scope .
                                                                          — contains allegations against the applicant based on
                                                                              numerous documents prepared in various languages
Since Regulation ( EEC ) No 404/93 is thus incapable of                       without translations of those documents having been
constituting the legal basis for the regulation at issue,                     provided in the Statement of Objections, with the result
recourse must be had to Article 43 of the EC Treaty.                          that it was not until the Decision was adopted that
However, since that provision confers legislative powers                      the applicant was able to assess the precise significance
only on the Council, and since the subject-matter of the                      given to them, by means of translation, by the
Regulation at issue cannot be regarded as an implementing                     Commission,
measure, it has been enacted in breach of Article 43 , and also
of Articles 145 and 155 , of the Treaty.                                  — may be vitiated by a failure to comply with the
                                                                              procedural requirements for the adoption of decisions,
H OJ No L 296 , 17. 11 . 1994, p . 33 .                                       since the Commission acknowledges that it encountered
                                                                              a problem which warranted the renotification of the
                                                                              Decision but which it dealt with, without any
                                                                              explanation or justification whatever, at the stage of
                                                                              authentication of the Decision .
 ---pagebreak--- 22 . 4 . 95           | EN                   Official Journal of the European Communities                                  No C 101 /11
As regards the substance of the case, the applicant considers           (iii ) request the Court to make any measures of preliminary
that the contested Decision :                                                    enquiry that it may consider necessary.
— fails to show that it participated in an alleged agreement
      on non-transhipment to domestic markets,                          Pleas in law and main arguments adduced in support:
— further fails to show that it participated in any                     The applicant maintains, on the one hand, that the contested
      agreement or concerted practice relating to Greek                 decision has infringed the EC Treaty because :
      cement ,
                                                                        — the findings in the decision that the Applicant infringed
— further fails to show that the limited activities of the                    Article 85 ( 1 ) of the EC Treaty are erroneous, being
      White Cement Committee were capable of constituting a                    based on a materially incorrect appreciation of the facts
      restriction of competition within the meaning of                         and vitiated by manifest errors of assessment,
      Article 85 of the EC Treaty.
                                                                        — the analysis of the application of Article 85 ( 1 ) to
In the alternative, the applicant applies for the reduction or                 associations of undertakings in the decision is flawed by
annulment of the fines imposed on it, asserting that those                     errors of law and inadequate reasoning.
fines :
                                                                        It considers, on the other hand, that the Commission has
— result in discriminatory treatment of the undertakings                infringed the applicant's right to be heard in the
      allegedly party to the agreement on non-transhipment to           administrative proceedings under Regulations ( EEC )
      domestic markets,
                                                                        No 17/92 and ( EEC ) No 99/63 , by failing to give it a full
                                                                        copy of the Statement of Objections and full access to the
— are wrongly based on certain factors found to be                      file .
      aggravating,
— fail to take into consideration the mitigating factors
      relating specifically to the applicant,
— impose, in the white cement sector, a pecuniary sanction
      on the applicant in respect of conduct which it adopted,
      with the approval of the Commission, in another                   Action brought on 15 February 1995 by Fédération de
      agreemeent and which cannot, therefore, be regarded as            l'Industrie Cimentière Belge asbl against the Commission of
      constituting, in its case, wilful or negligent infringement                           the European Communities
      of Article 85 .                                                                             ( Case T-30/95 )
                                                                                ( 95/C 101/28 )
                                                                                (Language of the case: French)
Action brought on 14 February 1995 by Cembureau —                       An action against the Commission of the European
Association Européenne du Ciment against the Commission                 Communities was brought before the Court of First
                  of the European Communities                           Instance of the European Communities on 15 February
                           (Case T-26/95 )                              1995 by Fédération de l'Industrie Cimentière Belge asbl, the
                            ( 95/C 101 /27                              head office of which is in Brussels ( Belgium ), represented by
                                                                        Onno W. Brouwer and Frédéric P. Louis, of the Brussels Bar,
                                                                        with an address for service in Luxembourg at the Chambers
                 (Language of the case: English)                        of M. Loesch, 11 Rue Goethe.
An action against the Commission of the European
Communities was brought before the Court of First                       The applicant claims that the Court should:
Instance of the European Communities on 14 February
1995 by Cembureau — Association Européenne du Ciment,                   — annul Articles 1 , 2, 5 , 8 and 9 of the Decision of the
represented by Julian Ellison with an address for service in                   Commission of 30 November 1994 relating to a
Luxembourg at the office of Aloyse May, 31 Grand Rue,                          proceeding under Article 85 of the EC Treaty ( Cases
L-2011 Luxembourg.                                                             IV/33.126 and 33.322 — Cement), inasmuch as
                                                                               Fédération de l'Industrie Cimentière Belge asbl is stated
The applicant claims that the Court should :                                   therein to have participated in agreements or concerted
                                                                               practices contrary to Article 85 of the EC Treaty and has
  (i ) annul the Commission's Decision in Cases IV/33.126                      been fined in that regard,
        and 33.322 — Cement, in so far as it affects
        Cembureau;                                                      — in the alternative, annul or reduce the fine imposed on
                                                                               the applicant by Article 9 ( 10 ) of the Decision,
 (ii) order the Commission to pay Cembureau's costs;
        and                                                             — order the Commission to pay the costs .


title: Action brought on 14 August 1996 by the Commission of the European Communities against the Portuguese Republic (Case C-276/96)

text:
No C 294/8                 EN                 Official Journal of the European Communities                                     5 . 10 . 96
       in its territory, or is Article 22 to be interpreted as           prescribed for doing so . That period expired on 1 January
       meaning that such entitlement exists so long as the               1986 without the Portuguese Republic having brought into
       person concerned fulfils all other conditions of the              force the necessary provisions .
       national legislation of the country which he or she
       leaves , apart from the residence requirement ?                   (') OJ No L 265 , 5 . 10 . 1984 , p . 1 .
(') Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the
      application of social security schemes to employed persons, to
      self-employed persons and to members of their families moving
      within the Community ( OJ English Special Edition 1971 ( II ),
      p. 416 ).                                                          Action brought on 21 August 1996 by the Commission of
( 2 ) Council Regulation ( EEC ) No 574/72 of 21 March 1972 laying        the European Communities against the French Republic
      down the procedure for implementing Regulation ( EEC )
      No 1408/71 ( OJ English Special Edition 1972 ( I ), p. 159 ).                                Case C-282/96 )
                                                                                ( 96/C 294/ 16 )
                                                                         An action against the French Republic was brought before
                                                                         the Court of Justice of the European Communities on
                                                                         21 August 1996 by the Commission of the European
                                                                         Communities , represented by Gotz zur Flausen , acting as
Action brought on 14 August 1996 by the Commission of                    Agent, assisted by J. -J. Evrard, of the Brussels Bar, with an
the European Communities against the Portuguese                          address for service in Luxembourg at the office of Carlos
                                Republic                                 Gomez de la Cruz, Wagner Centre, Kirchberg.
                             Case C-276/96 )
                              96/C 294/ 1 5                              The applicant claims that the Court should :
                                                                         — declare that, by failing to adopt the laws, regulations or
An action against the Portuguese Republic was brought                        administrative provisions necessary to comply with
before the Court of Justice of the European Communities on                    Council Directive 91 / 157/EEC of 18 March 1991 on
14 August 1996 by the Commission of the European                              batteries and accumulators containing certain
Communities, represented by Thomas F. Cusack and Dr                           dangerous substances ('), or by failing to notify such
Francisco de Sousa Fialho, acting as Agents, with an address                 measures, the French Republic has failed to fulfil its
for service in Luxembourg at the office of Carlos Gomez de                    obligations under that Directive ,
la Cruz, of its Legal Service , Wagner Centre , Kirchberg.
                                                                         — order the French Republic to pay the costs .
The applicant claims that the Court should :                             Pleas in law and main arguments
— declare that, by failing to adopt the laws , regulations or            Under Article 189 of the EC Treaty, according to which a
       administrative provisions necessary to comply with                directive is to be binding, as to the result to be achieved , on
       Article 3 of Council Directive 84/466/Euratom of                  each Member State to which it is addressed, Member States
       3 September 1984 laying down basic measures for the               are required to observe the time limits laid down in
       radiation protection of persons undergoing medical                directives for their transposition . That time limit expired on
       examination or treatment ('), the Portuguese Republic             18 September 1992 without the French Republic having
       has failed to fulfil its obligations under the third              brought into force the necessary provisions in order to
       paragraph of Article 161 of the Euratom Treaty and                comply with the Directive referred to in the Commission 's
       Article 7 of Directive 84/466/Euratom , in conjunction            application .
       with Article 399 of the Act concerning the conditions of
       accession of the Portuguese Republic,                             (') OJ No L 78 , 26 . 3 . 1991 , p . 38 .
— declare , in the alternative , that, by failing to inform the
       Commission forthwith thereof, the Portuguese Republic
       failed to fulfil its obligations under the abovementioned
       provisions ,
                                                                         Action brought on 21 August 1996 by the Commission of
— order the Portuguese Republic to pay the costs .                         the European Communities against the French Republic
                                                                                Case C-283 /96 )
 Pleas in law and main arguments                                                                    ( 96/C 294/ 17 )
The mandatory nature of the provisions of the third                      An action against the French Republic was brought before
 paragraph of Article 161 of the Euratom Treaty requires                 the Court of Justice of the European Communities on
 Member States to adopt the measures necessary to transpose              21 August 1996 by the Commission of the European
 directives addressed to them before the expiry of the period             Communities , represented by Gotz zur Hausen , acting as


title: Case T-483/09: Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (Affiliato BRICO CENTER) (Community trade mark — Opposition proceedings — Application for Community figurative mark Affiliato BRICO CENTER — Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/28

         Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (Affiliato BRICO CENTER)
   (Case T-483/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark Affiliato BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 232/50
   Language of the case: Italian

      Parties

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

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

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1048/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 September 2009 (Case R 1048/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

               2.

               Dismisses the remainder of the action;

               3.

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

      (1)  OJ C 24, 30.1.2010.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 4 February 1998 in Case T-93/95: Bernard Laga v. Commission of the European Communities (Action for annulment - Compensation payable to milk producers - Regulation (EEC) No 2187/93 - Offer of compensation - Acts of national authorities - Control - Competence - Action for damages - Admissibility)

text:
28.3.98              EN                 Official Journal of the European Communities                                  C 94/19
2. dismisses the remainder of the action;                          3. orders the intervener to bear its own costs.
                                                                   (1) OJ C 208, 12.8.1995.
3. orders each party to bear its own costs.
(1) OJ C 90, 26.3.1994.
                                                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 4 February 1998
                                                                   in Case T-94/95: Jean-Pierre Landuyt v. Commission of
                                                                                the European Communities (1)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                   (Action for annulment Ð Compensation payable to milk
                     of 4 February 1998                            producers Ð Regulation (EEC) No 2187/93 Ð Offer of
                                                                   compensation Ð Acts of national authorities Ð Control
in Case T-93/95: Bernard Laga v. Commission of the                   Ð Competence Ð Action for damages Ð Admissibility)
                  European Communities (1)
                                                                                (98/C 94/50)
(Action for annulment Ð Compensation payable to milk
producers Ð Regulation (EEC) No 2187/93 Ð Offer of
compensation Ð Acts of national authorities Ð Control                             (Language of the case: French)
  Ð Competence Ð Action for damages Ð Admissibility)
                        (98/C 94/49)
                                                                   In Case T-94/95: Jean-Pierre Landuyt, residing at Grisolles
                                                                   (France), represented by Jean-FrancËois Le Petit, of the
                                                                   Paris Bar, with an address for service in Luxembourg at
                                                                   the Chambers of Aloyse May, 31 Grand-Rue, against
               (Language of the case: French)
                                                                   Commission of the European Communities (Agent: GeÂrard
                                                                   Rozet), supported by French Republic (Agents: initially
                                                                   Catherine de Salins and FreÂdeÂric Pascal, subsequently
                                                                   Kareen Rispail-Bellanger and Mr Pascal) Ð application,
In Case T-93/95: Bernard Laga, residing at Grisolles               first, for annulment of the decision of the Office National
(France), represented by Jean-FrancËois Le Petit, of the           Interprofessionnel du Lait et des Produits Laitiers of
Paris Bar, with an address for service in Luxembourg at            20 January 1995 finding the applicant ineligible for
the Chambers of Aloyse May, 31 Grand-Rue, against                  compensation under Council Regulation (EEC) No 2187/
Commission of the European Communities (Agent: GeÂrard             93 of 22 July 1993 providing for an offer of compensation
Rozet), supported by French Republic (Agents: initially            to certain producers of milk and milk products
Catherine de Salins and FreÂdeÂric Pascal, subsequently            temporarily prevented from carrying on their trade (OJ
Kareen Rispail-Bellanger and Mr Pascal) Ð application,             L 196, 5.8.1993, p. 6) and, second, for an order requiring
first, for annulment of the decision of the Office National        the Commission to make good the loss suffered as a result
Interprofessionnel du Lait et des Produits Laitiers of             of that decision Ð the Court of First Instance (First
20 January 1995 finding the applicant ineligible for               Chamber), composed of: A. Saggio, President, V. Tiili and
compensation under Council Regulation (EEC) No 2187/               R. M. Moura Ramos, Judges; J. Palacio GonzaÂlez,
93 of 22 July 1993 providing for an offer of compensation          Administrator, for the Registrar, has given a judgment on
to certain producers of milk and milk products                     4 February 1998, in which it:
temporarily prevented from carrying on their trade (OJ
L 196, 5.8.1993, p. 6) and, second, for an order requiring
the Commission to make good the loss suffered as a result
of that decision Ð the Court of First Instance (First              1. dismisses the application as inadmissible;
Chamber), composed of: A. Saggio, President, V. Tiili and
R. M. Moura Ramos, Judges; J. Palacio GonzaÂlez,
Administrator, for the Registrar, has given a judgment on          2. orders the applicant to pay the costs;
4 February 1998, in which it:
                                                                   3. orders the intervener to bear its own costs.
1. dismisses the application as inadmissible;
                                                                   (1) OJ C 208, 12.8.1995.
2. orders the applicant to pay the costs;


title: Case C-94/05: Reference for a preliminary ruling from the Bundesverwaltungsgericht by judgment of that court of 9 December 2004 in Emsland-Stärke GmbH v Bezirksregierung Weser-Ems

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/20

         Reference for a preliminary ruling from the Bundesverwaltungsgericht by judgment of that court of 9 December 2004 in Emsland-Stärke GmbH v Bezirksregierung Weser-Ems
   (Case C-94/05)
   (2005/C 93/37)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by judgment of the Bundesverwaltungsgericht (Federal Administrative Court) (Germany) of 9 December 2004, received at the Court Registry on 22 February 2005, for a preliminary ruling in the proceedings between Emsland-Stärke GmbH and Bezirksregierung Weser-Ems on the following questions

               1.

                           (a)

                           Does Article 13(4) in conjunction with Article 4(5) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96 apply where a contract said to be a cultivation contract is concluded and is accepted by the competent authority under Article 4(2) and (3) of the Regulation but where the contract is not concluded with a potato producer but with a dealer who obtains the potatoes directly or indirectly from potato producers?

                           (b)

                           Does Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96 require the starch-producing undertaking to have exceeded its sub-quota by taking delivery of the potatoes?

               2.

                           (a)

                           Does the system of sanctions provided for in Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96, by contradistinction to Article 13(3) of that Regulation, satisfy Community-law standards of certainty?

                           (b)

                           Is the sanction provided for in Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96, in view of its amount, necessary to protect the financial interests of the Community within the meaning of Article 2(1) of Regulation (EC, Euratom) No 2988/95 in cases such as this? Is it commensurate with protection of the financial interests of the Community in cases such as this?

               3.

               Is an irregularity liable to a sanction under Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96 caused by negligence within the meaning of Article 5(1) of Regulation (EC, Euratom) No 2988/95 even if the authority has approved the premium in full knowledge of the facts?


title: Case T-130/01: Action brought on 11 June 2001 by Sykes Enterprises Incorp. against the Office for Harmonisation in the Internal Market.

text:
1.9.2001              EN                     Official Journal of the European Communities                                       C 245/25
Grounds of claim:             No risk of confusion within the           Grounds of claim:             Incorrect      interpretation   of
                              meaning of Article 8(1)(b) of                                           article 7 (1) b) of Council Regu-
                              Council Regulation (EC) No 40/94                                        lation 40/94 (1).
                              of 20 December 1993 on the
                              Community trade mark, since
                              there is neither a visual nor pho-        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                              netic similarity between the trade            Community trade mark (OJ L 11, p. 1).
                              marks nor do they desgignate
                              goods which may be confused
                                                                        Action brought on 18 June 2001 by Hans Fuchs Ver-
                                                                        sandschlachterei KG against the Commission of the Euro-
                                                                                pean Communities
Action brought on 11 June 2001 by Sykes Enterprises
Incorp. against the Office for Harmonisation in the
                        Internal Market                                                          (Case T-134/01)
                        (Case T-130/01)                                                          (2001/C 245/41)
                        (2001/C 245/40)                                                   (Language of the case: German)
                  (Language of the case: English)
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
An action against the Office for Harmonisation in the Internal          European Communities on 18 June 2001 by Hans Fuchs
Market was brought before the Court of First Instance of the            Versandschlachterei KG, Duisburg (Germany), represented by
European Communities on 11 June 2001 by Sykes Enterprises               Ulrich Schrömbergs and Lothar Harings, Rechtsanwälte.
Incorp., Florida, USA, represented by Eberhard Körner of
Lichtenstein Körner & Partners, Stuttgard, Germany.
                                                                        The applicant claims that the Court should:
The applicant claims that the Court should:                             —     order the Commission to pay the applicant
                                                                              DEM 13 130,04 plus interest at 8 % per annum as from
                                                                              1 March 2000;
—     annul the contested decision of 7 March 2001 in Case
      No. R 0504/2000-3;
                                                                        —     in the alternative, order the Bundesanstalt für Landwirt-
                                                                              schaft und Ernährung to pay the applicant
—     order the Office to publish the trademark application                   DEM 13 130,04 plus interest at 8 % per annum as from
      concerned;                                                              1 March 2000;
—     order the Office to pay the costs.                                —     order the Commission to pay the costs.
Pleas in law and main arguments                                         Pleas in law and main arguments
Applicant for the Com-        Sykes Enterprises Inc.                    In connection with a programme to supply agricultural
munity trade mark:                                                      products to the Russian Federation (1), two tendering pro-
                                                                        cedures took place: one for procuring the products and the
The Community trade           Word mark: ‘Real people, real             other for their delivery to Russia. Commission Regulation
mark concerned:               solutions’       —      Application       (EC) No 1135/1999 (2) was to constitute the basis for the
                              no 1040534 for certain services           procurement of the products. Transport was dealt with by
                              in classes 35, 37 and 42                  Commission Regulation (EC) No 1955/1999 (3).
Decision of the Exam-         Rejection of the Application
iner:                                                                   The applicant submitted a tender for the procurement of pork
                                                                        for subsequent delivery to Russia and obtained the contract
Decision of the Board of      Rejection of the Appeal                   for the procurement of one lot. A third party obtained the
Appeal:                                                                 contract for delivery.


title: Case C-16/04: Action brought on 20 January 2004 by the Commission of the European Communities against the Federal Republic of Germany

text:
6.3.2004                EN                        Official Journal of the European Union                                             C 59/19
3.    Must Directive 2002/2/EC be interpreted as meaning that                   as set out in Article 1(1) thereof, must the definition of
      its application, and therefore its effectiveness, is subject              working time set out in the directive be considered to
      to the adoption of a positive list of feed materials                      apply exclusively to the Community thresholds estab-
      containing their specific names, as set out in the tenth                  lished by the directive or must it be considered to have
      recital to the preamble and the Commission Report                         general scope, applying also to the thresholds which,
      (COM2003 178) (2) dated 24 April 2003 or must the                         while adopted under the various national legal orders
      implementation of the directive in the Member States                      with a view to transposing the directive, may in fact be
      must take place before the adoption of the positive list of               set — as they have been in France in the interest of
      feed materials laid down by the directive, with reference                 employee protection — at a level affording greater
      to a list of the feed materials contained in the compound                 protection than the thresholds established by the direc-
      feedingstuffs by the names and generic definitions of their               tive?
      commodity classes?
                                                                          2.    To what extent could a strictly proportional system of
4.    Is Directive 2002/2/EC to be regarded as unlawful on                      equivalence, which involves calculating the total number
      the grounds of infringement of the principle of equal                     of hours in attendance before applying a weighting
      treatment and non-discrimination to the detriment of                      mechanism to them which reflects even the very least
      feedingstuff producers when compared with the pro-                        work-intensive periods during periods of inactivity, be
      ducers of foodstuffs for human consumption in so far as                   considered compatible with the objectives of the Working
      the former are subject to rules requiring indications of the              Time Directive?
      quantities of feed materials in compound feedingstuffs?
(1) OJ L 63 of 6.03.2002, p. 23.                                          (1) Council Directive 93/104/EC of 23 November 1993 concerning
(2) Not published.                                                            certain aspects of the organization of working time (OJ L 307 of
                                                                              13.12.1993, p. 18).
Reference for a preliminary ruling by the Conseil d’État
by order of that Court of 3 December 2003 in the case of
Abdelkader Dellas, Confédération générale du travail,
Fédération nationale des syndicats des services de santé                  Action brought on 20 January 2004 by the Commission
et des services sociaux CFDT and Fédération nationale de                  of the European Communities against the Federal Repub-
l’action sociale Force Ouvrière against Secrétariat général                                          lic of Germany
du gouvernement; Intervener: Union des fédérations et
syndicats nationaux d’employeurs sans but lucratif du
           secteur sanitaire, social et médico-social                                                (Case C-16/04)
                           (Case C-14/04)                                                            (2004/C 59/32)
                          (2004/C 59/31)
                                                                          An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European Communi-
Reference has been made to the Court of Justice of the                    ties on 20 January 2004 by the Commission of the European
European Communities by order of the Conseil d’État (Council              Communities, represented by Denis Martin and Horstpeter
of State) of 3 December 2003, received at the Court Registry              Kreppel, acting as Agents, with an address for service in
on 15 January 2004, for a preliminary ruling in the case of               Luxembourg.
Abdelkader Dellas, Confédération générale du travail, Fédér-
ation nationale des syndicats des services de santé et des
services sociaux CFDT and Fédération nationale de l’action
sociale Force Ouvrière against Secrétariat général du gouverne-           The applicant claims that the Court should:
ment; Intervener: Union des fédérations et syndicats nationaux
d’employeurs sans but lucratif du secteur sanitaire, social et            1.    Declare that
médico-social (Union of national federations and unions of
non-profit-making employers in the health, social and medico-
social sectors) on the following questions:                                     a)    by virtue of the fact that, contrary to the require-
                                                                                ments of Community law,
1.    In the light of the purpose of the Working Time
      Directive (1), namely to lay down minimum safety and                            —     § 30(4) VBG 1/GUV.01 permits sliding doors
      health requirements for the organisation of working time,                             and revolving doors as emergency doors,
 ---pagebreak--- C 59/20                 EN                        Official Journal of the European Union                                          6.3.2004
            —    § 1(1), § 3(1), § 35 and § 37 of the Muster-             —     order the Kingdom of Spain to pay the costs.
                 bauordnung do not contain any sufficiently
                 clear workplace or protection rules for sky-
                 lights, and
                                                                          Pleas in law and main arguments
            —    § 3(1) point 1, and § 20 of the Arbeitsstätten-
                 verordnung do not contain sufficiently binding
                 rules for loading ramps,
                                                                          The period prescribed for the transposition of the Directive
      b)    and also by failing to inform the Commission of the           into domestic law expired on 27 November 2002.
            amendment of the laws at issue, the Federal Republic
            of Germany has failed to fulfil its obligations under
            Articles 3 and 10 of Council Directive 89/654/                (1) OJ L 309 of 27.11.2001, p. 1.
            EEC (1) of 30 November 1989 concerning the mini-
            mum safety and health requirements for the work-
            place (first individual directive within the meaning
            of Article 16(1) of Directive 89/391/EEC).
2.    Order the Federal Republic of Germany to pay the costs
      of the proceedings.
                                                                          Action brought on 23 January 2004 by the Commission
                                                                          of the European Communities against the French Republic
Pleas in law and main arguments
                                                                                (Case C-20/04)
The period for implementing the directive expired on
31 December 1992 without the Federal Republic of Germany
having adopted the necessary provisions in order to comply                                         (2004/C 59/34)
with its obligations under Article 3 in conjunction with
Annex I, point 4.4, third sentence, point 10.1, first sentence,
point 10.2 and point 14.1 of the directive.
                                                                          An action against the French Republic was brought before the
(1 ) OJ 1989 L 393, p. 1.
                                                                          Court of Justice of the European Communities on 23 January
                                                                          2004 by the Commission of the European Communities,
                                                                          represented by W. Wils, acting as Agent, with an address for
                                                                          service in Luxembourg.
                                                                          The Commission of the European Communities claims that
Action brought on 21 January 2004 by the Commission                       the Court should:
of the European Communities against the Kingdom of
                               Spain
                                                                          1.    declare that by failing to adopt the laws, regulations
                           (Case C-17/04)                                       and administrative provisions necessary to comply with
                                                                                Commission Directive 2002/50/EC of 6 June 2003
                                                                                adapting to technical progress Council Directive 1999/
                           (2004/C 59/33)                                       36/EC on transportable pressure equipment (1), or, in any
                                                                                event, by failing to inform the Commission thereof, the
                                                                                French Republic has failed to fulfil its obligations under
An action against the Kingdom of Spain was brought before                       that directive;
the Court of Justice of the European Communities on 21 Janu-
ary 2004 by the Commission of the European Communities,                   2.    order the French Republic to pay the costs.
represented by Gregorio Valero Jordana of the Legal Service,
with an address for service in Luxembourg.
The applicant claims that the Court should:                               Pleas in law and main arguments
—     declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with              The time-limit for transposition of the directive expired on
      Directive 2001/80/EC (1) of the European Parliament and             1 January 2003.
      of the Council of 23 October 2001 on the limitation of
      emissions of certain pollutants into the air from large
      combustion plants and in any event by failing to com-               (1) OJ 2002 L 149, p. 28.
      municate those measures to the Commission, the
      Kingdom of Spain has failed to fulfil its obligations under
      that directive;


title: Case C-163/17: Request for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 3 April 2017 — Abubacarr Jawo v Bundesrepublik Deutschland

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/2

         Request for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 3 April 2017 — Abubacarr Jawo v Bundesrepublik Deutschland
   (Case C-163/17)
   (2017/C 318/03)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof Baden-Württemberg

      Parties to the main proceedings

      Applicant: Abubacarr Jawo

      Defendant: Bundesrepublik Deutschland

      Questions referred

               1.

               Is an asylum seeker absconding within the meaning of the second sentence of Article 29(2) of Regulation (EU) No 604/2013 (1) only where he purposefully and deliberately evades apprehension by the national authorities responsible for carrying out the transfer in order to prevent or impede the transfer, or is it sufficient if, for a prolonged period, he ceases to live in the accommodation allocated to him and the authority is not informed of his whereabouts and therefore a planned transfer cannot be carried out?
               Is the person concerned entitled to rely on the correct application of the provision and to plead in proceedings against the transfer decision that the transfer time limit of six months has expired, because he was not absconding?

               2.

               Does an extension of the time limit provided for under the first subparagraph of Article 29(1) of Regulation (EU) No 604/2013 arise solely as a result of the fact that the transferring Member State informs the Member State responsible, before the expiry of the time-limit, that the person concerned has absconded, and at the same time specifies an actual time limit, which may not exceed 18 months, by which the transfer will be carried out, or is an extension possible only in such a way that the Member States involved stipulate by mutual agreement an extended time limit?

               3.

               Is transfer of the asylum seeker to the Member State responsible inadmissible if, in the event of international protection status being granted, he would be exposed there, in view of the living conditions then to be expected, to a serious risk of experiencing treatment as referred to in Article 4 of the Charter of Fundamental Rights?
               Does this question as formulated still fall within the scope of application of EU law?
               According to which criteria under EU law are the living conditions of a person recognised as a beneficiary of international protection to be assessed?

      (1)  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).


title: Case C-117/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v Y Denmark Aps

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/22

         Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v Y Denmark Aps
   (Case C-117/16)
   (2016/C 270/30)
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: Skatteministeriet

      Defendant: Y Denmark Aps

      Questions referred

               1.

               Does a Member State’s reliance on Article 1(2) of the Directive (1) on the application of domestic provisions required for the prevention of fraud or abuse presuppose that the Member State in question has adopted a specific domestic provision implementing Article 1(2) of the Directive, or that national law contains general provisions or principles on fraud and abuse that can be interpreted in accordance with Article 1(2)?

                           1.1

                           If question 1 is answered in the affirmative, can Paragraph 2(1)(c) of the Law on corporation tax, which provides that ‘it is a precondition that taxation of the dividends be waived … under the provisions of Council Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 1(2) of the Directive?

               2.

               Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of distributed dividends is contingent on whether the dividends recipient is deemed to be the beneficial owner of the dividends, a conventional anti-abuse provision covered by Article 1(2) of the Directive?

                           2.1.

                           If so, is the term ‘agreement’ in Article 1(2) of the Directive then to be construed as presupposing that the Member State may, under its domestic law, rely on the double taxation convention, to the detriment of the taxpayer?

               3.

               Should the Court answer question 2 in the affirmative, is it then for the national courts to define what is included in the concept ‘beneficial owner’, or should the concept, in the application of Directive 90/435/EEC, be interpreted as meaning that a specifically EU law significance should be attached to the concept referred to the EU Court of Justice for a ruling?

               4.

               Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, is the concept then to be interpreted as meaning that in a company resident in a Member State which, in circumstances such as those of the present case, receives dividends from a subsidiary in another Member State, is the ‘beneficial owner’ of those dividends as that concept is to be interpreted under EU law?

                           (a)

                           Is the concept ‘beneficial owner’ to be interpreted in accordance with the corresponding concept in Article 1(1) of Directive 2003/49/EC (‘the Interest & Royalties Directive’), read in conjunction with Article 1(4) thereof?

                           (b)

                           Should the concept be interpreted solely in the light of the commentary on Article 10 of the OECD 1977 Model Tax Convention (paragraph 12), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’, and the additions made in 2014 regarding ‘contractual or legal obligations’?

                           (c)

                           What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ if the dividends recipient has had a contractual or legal obligation to pass the interest to another person?

                           (d)

                           What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ that the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

               5.

               If it is assumed in the case that there are ‘domestic provisions required for the prevention of fraud or abuse’, see Article 1(2) of Directive 90/435/EEC, that dividends have been distributed from a company (A) resident in a Member State to a parent company (B) in another Member State and from there passed to that company’s parent company (C), resident outside the EU/EEA, which in turn has distributed the funds to its parent company (D), also resident outside the EU/EEA, that no double taxation convention has been entered into between the first-mentioned State and the State where C is resident, that a double taxation convention has been entered into between the first-mentioned State and the State where D is resident, and that the first-mentioned State, under its legislation, would therefore not have had a claim to tax at source on dividends distributed from A to D, had D been the direct owner of A, is there abuse under the Directive so that B is not protected thereunder?

               6.

               If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member State taxes the parent company resident in the other Member State on the dividends, then the Member State in question deems resident parent companies in otherwise similar circumstances to the exempt from tax on such dividends?

               7.

               If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), and the parent company in the latter Member State is deemed to have limited tax liability in that Member State on the dividends in question, does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims lodged against a company resident in the same Member State?

               8.

               Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, and if a company (parent company) resident in a Member State cannot, on that basis, be deemed exempt from tax at source pursuant to Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), is the latter Member State then bound pursuant to Directive 90/435/EEC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner?

               9.

               If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:

                           (a)

                           the latter Member State requires the subsidiary to retain tax at source on the dividends and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the parent company is resident in the Member State?

                           (b)

                           the latter Member State calculates overdue interest on the tax at source owing?
                           The EU Court of Justice is requested to include the answer to questions 6 and 7 in its answer to question 9.

               10.

               In circumstances where:

                           (1)

                           a company (parent company) resident in a Member State fulfils the requirement in Directive 90/435/EEC of owning (in 2005 and 2006) at least 20 % of the share capital of a company (subsidiary) resident in another Member State;

                           (2)

                           the parent company is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) in Directive 90/435/EEC concerning dividends distributed by the subsidiary;

                           (3)

                           the parent company’s (direct or indirect) shareholder(s), resident in a non-EU/EEA country, are deemed to be the beneficial owner(s) of the dividends in question;

                           (4)

                           the aforementioned (direct or indirect) shareholder(s) also do not fulfil the aforementioned capital requirement;
                           does Article 56 EC then preclude legislation under which the Member State where the subsidiary is situated taxes the dividends in question when the Member State in question deems resident companies fulfilling the capital requirement in Directive 90/435/EEC, that is to say, in fiscal years 2005 and 2006 owns at least 20 % of the share capital in the dividend-distributing company (15 % in 2007 and 2008 and 10 % thereafter), to be tax-exempt on such dividends?

      (1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States.

      OJ 1990 L 225, p. 6


title: Case T-122/15: Action brought on 12 March 2015 — Landeskreditbank Baden-Württemberg v ECB

text:
               1.6.2015

               EN

               Official Journal of the European Union

               C 178/17

         Action brought on 12 March 2015 — Landeskreditbank Baden-Württemberg v ECB
   (Case T-122/15)
   (2015/C 178/18)
   Language of the case: German

      Parties

      Applicant: Landeskreditbank Baden-Württemberg — Förderbank (Karlsruhe, Germany) (represented by: A. Glos, K. Lackhoff and M. Benzing, lawyers)

      Defendant: European Central Bank

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the ECB of 5 January 2015 (ECB/SSM/15/1 — 0SK1ILSPWNVBNQWU0W18/3), by ordering the effects of the substituted decision of the ECB of 1 September 2014 (ECB/SSM/14/1 — 0SK1ILSPWNVBNQWU0W18/1) to be maintained;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the ECB applied an inappropriate criterion for the assessment of particular circumstances

                           —

                           The applicant asserts that the ECB based its decision as to whether, despite satisfying the size criterion, the applicant was to be classified as a less significant entity on grounds of particular circumstances under the second subparagraph of Article 6(4) of Regulation (EU) No 1024/2013 (1) read in conjunction with Article 70(1) of Regulation (EU) No 468/2014 (2) on four different and mutually irreconcilable assessment criteria. Each of those criteria was in itself erroneous.

                           —

                           The applicant further asserts that for the existence of particular circumstances under Article 70(1) of Regulation No 468/2014 it is decisive that there were ‘specific and factual circumstances’ that made the classification of an entity as significant, and thereby necessarily subject to the ECB’s central supervision, ‘inappropriate’. According to the applicant, the classification of an entity as significant merely on the basis of its size was ‘inappropriate’, within the meaning of Article 70(1) of Regulation No 468/2014, where such a classification was not necessary for the attainment of the objectives of Regulation No 1024/2013. Supervision by the competent national authorities with macroprudential supervision by the ECB would have sufficed.

               2.

               Second plea in law, alleging manifest errors in the assessment of the facts of the case

                           —

                           The applicant asserts that the ECB erred (i) since in view of the submissions made by the applicant at the hearing and in the proceedings before the Administrative Board of Review the classification of the applicant as a significant entity was not in any way necessary for the attainment of the objectives of Regulation No 1024/2013 and (ii) because the classification of the applicant as a less significant entity was also inconsistent with the basic principles of that regulation. The ECB’s decision that particular circumstances did not exist was a manifest error.

               3.

               Third plea in law, alleging an infringement of the obligation to state reasons

                           —

                           The applicant asserts that the reasons for the contested decision were illogical and contradictory. The ECB relied on a total of four assessment criteria which bore no relation to one another and were mutually irreconcilable.

                           —

                           The principal grounds for the contested decision cannot be extrapolated from the contested decision. On the contrary, the ECB’s line of argumentation consisted in mere assertions and negations.

                           —

                           Furthermore, the decision erroneously failed to take into consideration the applicant’s submissions in the administrative proceedings. In particular, the ECB did not explain why the factual and legal arguments presented by the applicant were not sufficient to rebut the presumption laid down in the second subparagraph of Article 6(4) of Regulation No 1024/2013.

               4.

               Fourth plea in law, alleging an ultra vires misuse of powers by failing to exercise discretion

                           —

                           The applicant claims that the ECB breached its obligation in each individual case to exercise the discretion provided for in Article 6(4) of Regulation No 1024/2013 and Article 70 of Regulation No 468/2014. The ECB thereby misused its powers.

               5.

               Fifth plea in law, alleging a breach of the obligation to assess and take into consideration all of the relevant circumstances of each individual case

                           —

                           The applicant asserts that, in exercising the margin of discretion bestowed upon it, the ECB breached its duty to assess and take into consideration diligently and impartially all of the relevant facts and points of law of the case at issue. In particular, the ECB failed to evaluate all of the facts and points of law invoked by the applicant.

      (1)  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

      (2)  Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1).


title: Case T-235/15 R: Order of the President of the General Court of 23 May 2016 — Pari Pharma v EMA (Application for interim measures — Access to documents — Regulation (EC) No 1049/2001 — Documents held by the EMA concerning information submitted by an undertaking as part of its application for authorisation to place a medicinal product on the market — Order granting suspension of operation of the decision to grant a third party access to the documents — Application for cancellation — No change in circumstances — Article 159 of the Rules of Procedure of the General Court)

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/39

         Order of the President of the General Court of 23 May 2016 — Pari Pharma v EMA
   (Case T-235/15 R)
   ((Application for interim measures - Access to documents - Regulation (EC) No 1049/2001 - Documents held by the EMA concerning information submitted by an undertaking as part of its application for authorisation to place a medicinal product on the market - Order granting suspension of operation of the decision to grant a third party access to the documents - Application for cancellation - No change in circumstances - Article 159 of the Rules of Procedure of the General Court))
   (2016/C 260/49)
   Language of the case: English

      Parties

      Applicant: Pari Pharma GmbH (Starnberg, Germany) (represented by: M. Epping and W. Rehmann, lawyers)

      Defendant: European Medicines Agency (represented by: T. Jabłoński, N. Rampal Olmedo, A. Spina, A. Rusanov and S. Marino, acting as Agents)

      Intervener in support of the defendant: Novartis Europharm Ltd (Camberley, United Kingdom) (represented by: C. Schoonderbeek, lawyer)

      Re:

   Application based on Article 159 of the Rules of Procedure of the General Court seeking the cancellation of the order of 1 September 2015 in Pari Pharma v EMA (T-235/15 R, EU:T:2015:587), by which it granted the suspension of operation of Decision EMA/271043/2015 of the EMA of 24 April 2015, granting to a third party, pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), access to certain documents containing information submitted in the context of an application for marketing authorisation for the medicinal product Vantobra.

      Operative part of the order

               1.

               The request seeking the cancellation of the order of 1 September 2015 in Pari Pharma v EMA (T-235/15 R, EU:T:2015:587) is rejected.

               2.

               The costs are reserved.


1.5.1999               EN                  Official Journal of the European Communities                                 C 121/15
       Removal from the register of Case C-373/96 (1)                        Removal from the register of Case C-220/97 (1)
                        (1999/C 121/31)                                                      (1999/C 121/34)
By order of 3 February 1999 the President of the Court of             By order of 11 February 1999 the President of the Court of
Justice of the European Communities has ordered he removal            Justice of the European Communities has ordered the removal
from the register of Case C-373/96 (reference for a preliminary       from the register of Case C-220/97: Commission of the
ruling from the Tribunale di Trento): Ministero delle Finanze         European Communities v. Federal Republic of Germany.
v. Merkur Chemical Srl.
(1) OJ C 40, 8.2.1997.                                                (1) OJ C 252, 16.8.1997.
       Removal from the register of Case C-98/97 (1)
                        (1999/C 121/32)                                      Removal from the register of Case C-394/98 (1)
By order of 3 February 1999 the President of the Court of                                    (1999/C 121/35)
Justice of the European Communities has ordered he removal
from the register of Case C-98/97 (reference for a preliminary        By order of 11 February 1999 the President of the Court of
ruling from the Tribunale Civile e Penale di Torino): CIF Srl v.      Justice of the European Communities has ordered the removal
Ministero delle Finanze.                                              from the register of Case C-394/98: Commission of the
                                                                      European Communities v. Kingdom of Belgium.
(1) OJ C 142, 10.5.1997.
                                                                      (1) OJ C 1, 4.1.1999.
       Removal from the register of Case C-72/98 (1)
                        (1999/C 121/33)
                                                                             Removal from the register of Case C-395/98 (1)
By order of 3 February 1999 the President of the Court of
Justice of the European Communities has ordered he removal
from the register of Case C-72/98 (reference for a preliminary                               (1999/C 121/36)
ruling from the Tribunal de Grande Instance, Lyon): SA
Gougenheim Imprimerie Publicité v. Directeur des Services             By order of 11 February 1999 the President of the Court of
Fiscaux du Rhône.                                                     Justice of the European Communities has ordered the removal
                                                                      from the register of Case C-395/98: Commission of the
(1) OJ C 151, 16.5.1998.                                              European Communities v. Kingdom of Belgium.
                                                                      (1) OJ C 397, 19.12.1998.


title: Case T-216/99: Action brought on 30 September 1999 by Ter Huurne's Handelsmaatschappĳ B.V. against the Commission of the European Communities

text:
C 6/24                 EN                    Official Journal of the European Communities                                      8.1.2000
The applicant claims that the Court should:                             Action brought on 30 September 1999 by Anton Dürbeck
                                                                        GmbH against the Commission of the European Com-
— annul the Commission’s decision (C(1999) 2539 final) (1)                                           munities
    of 20 July 1999 concerning State aid granted by the
    Netherlands to 633 service stations in the region bordering
    Germany, and order that no demand for repayment should                                       (Case T-218/99)
    be made;
— alternatively, decide the matter in such way as the Court                                       (2000/C 6/45)
    shall consider to be fair and reasonable;
— order the Commission to pay the costs.
                                                                                (Language of the Case: German)
Pleas in law and main arguments
                                                                        An action against the Commission of the European Communi-
The pleas in law and main arguments are the same as in Case             ties was brought before the Court of First Instance of the
T-210/99.                                                               European Communities on 30 September 1999 by Anton
                                                                        Dürbeck GmbH, Frankfurt am Main, Germany, represented by
                                                                        Gert Meier, Rechtsanwalt, Berrenrather Strasse 313, Cologne.
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                        The applicant claims that the Court should:
                                                                        1. annul, on the ground of infringement of the Treaty, the
                                                                             Commission decision of 28 July 1999 on the adoption of
Action brought on 30 September 1999 by Ter Huurne’s                          transitional measures in favour of A. Dürbeck within the
Handelsmaatschappij B.V. against the Commission of the                       framework of the common organisation of the market in
                    European Communities                                     bananas;
                        (Case T-216/99)
                                                                        2. order the Commission to pay the costs.
                          (2000/C 6/44)
                   (Language of the Case: Dutch)                        Pleas in law and main arguments
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              By the contested decision, the Commission refused to award
European Communities on 30 September 1999 by Ter Huur-                  the applicant additional licences for the import of
ne’s Handelsmaatschappij B.V., of Haaksbergen (Netherlands),            25 000 tonnes of bananas from third countries because a case
represented by H.C. van der Sijs, of the Enschede Bar, with an          of hardship was not present, the applicant’s current situation
address for service in Luxembourg at the Registry of the Court          was already to be regarded as balanced and that situation
of First Instance, Kirchberg.                                           could, moreover, have been foreseen.
The applicant claims that the Court should:
                                                                        The applicant complains that Article 30 of Regulation
— annul the Commission’s decision (C(1999) 2539 final) (1)              No 404/93 (1) has been infringed.
    of 20 July 1999 concerning State aid granted by the
    Netherlands to 633 service stations in the region bordering
    Germany;                                                            According to the applicant, the hardship to be offset consists
                                                                        in its inability to import the bananas covered by the contract
— order the Commission to pay the costs.                                which it concluded in 1991 with the enterprise Consultban in
                                                                        Machala, Ecuador for the weekly marketing of 100 000 to
                                                                        150 000 crates of bananas. It has also lost licences in respect
Pleas in law and main arguments                                         of 14 312 tonnes of bananas as a result of the change in
                                                                        the reference period pursuant to Article 4(2) of Regulation
The pleas in law and main arguments are the same as in Case             No 2362/98 (2). The ensuing loss of 75 % of its import rights
T-210/99.                                                               has caused the applicant serious difficulties and has practically
                                                                        meant its elimination from the market. The loss amounts to
                                                                        DM 3 578 000, that is to say double its share capital. Under
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                        Article 30 of Regulation No 404/93 the defendant is obliged
                                                                        to compensate for the hardship which has been caused by
                                                                        Regulation No 2362/98.


title: Case T-172/05: Action brought on 29 April 2005 by Armacell Enterprise GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/30

         Action brought on 29 April 2005 by Armacell Enterprise GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-172/05)
   (2005/C 171/50)
   Language in which the application was lodged: English
   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 29 April 2005 by Armacell Enterprise GmbH, established in Münster, (Germany), represented by O. Spuhler, lawyer.
   NMC, Société Anonyme established in Raeren (Belguim) was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of the defendant dated 23 February 2005 in Case R 552/2004-1;

               —

               order the defendant to bear the costs of the proceedings.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               Armacell Enterprises GmbH

               Community trade mark concerned:

               The word mark ARMAFOAM for goods in class 20 (Foam goods made of elastomers, thermoplastics or thermosets as system component or as end use application) — application No 2 487 338

               Proprietor of mark or sign cited in the opposition proceedings:

               NMC S.A.

               Trade mark or sign cited in opposition:

               The Community word mark NOMAFOAM for goods and/or services in classes 17, 19, 20, 27 and 28 (Products in semi-processed plastic materials; polyethylene foam; building materials (non metallic); …) Community trade mark No 672 816

               Decision of the Opposition Division:

               Rejection of the opposition

               Decision of the Board of Appeal:

               Annulment of the appealed decision and rejection of the Community trade mark application

               Pleas in law:

               Infringement of Article 43(5), second sentence, and Article 8(1)(b) of Council Regulation No 40/94 in that there is no likelihood of confusion between the trademarks and goods in question.


title: Case C-441/11 P: Judgment of the Court (Fourth Chamber) of 6 December 2012 — European Commission v Verhuizingen Coppens NV (Appeal — Competition — Agreements, decisions and concerted practices — Article 81 EC and Article 53 of the EEA Agreement — International removal services market in Belgium — Cartel involving three individual agreements — Single and continuous infringement — Failure to prove that an undertaking party to an individual agreement was aware of the other individual agreements — Annulment, in whole or in part, of the Commission decision — Articles 263 TFEU and 264 TFEU)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/14

         Judgment of the Court (Fourth Chamber) of 6 December 2012 — European Commission v Verhuizingen Coppens NV
   (Case C-441/11 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Article 81 EC and Article 53 of the EEA Agreement - International removal services market in Belgium - Cartel involving three individual agreements - Single and continuous infringement - Failure to prove that an undertaking party to an individual agreement was aware of the other individual agreements - Annulment, in whole or in part, of the Commission decision - Articles 263 TFEU and 264 TFEU)
   2013/C 26/24
   Language of the case: Dutch

      Parties

      Appellant: European Commission (represented by: A. Bouquet, S. Noë and F. Ronkes Agerbeek, Agents)

      Other party to the proceedings: Verhuizingen Coppens NV (represented by: J. Stuyck and I. Buelens, advocaten)

      Re:

   Appeal brought against the judgment delivered by the General Court (Eighth Chamber) on 16 June 2011 in Case T-210/08 Verhuizingen Coppens v Commission by which the General Court annulled Article 1(i) and Article 2(k) of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union of 16 June 2011 in Case T-210/08 Verhuizingen Coppens v Commission;

               2.

               Annuls Article 1(i) of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services) in so far as, by that provision, the European Commission does not simply find that Verhuizingen Coppens NV had participated in the agreement on a system of false quotes, known as ‘cover quotes’, from 13 October 1992 to 29 July 2003, but finds that company liable for the agreement on a system of financial compensation for rejected offers or for not quoting at all, known as ‘commissions’, and attributes to it liability for the single and continuous infringement;

               3.

               Sets the amount of the fine imposed on Verhuizingen Coppens NV under Article 2(k) of Decision C(2008) 926 final at EUR 35 000;

               4.

               Orders the European Commission, in addition to bearing its own costs at first instance and on appeal, to pay two thirds of the costs incurred by Coppens in both those sets of proceedings;

               5.

               Orders Coppens to bear one third of its own costs at first instance and on appeal.

      (1)  OJ C 331, 12.11.2011.


title: Action brought on 26 August 1997 by Catherine Metdepenningen and others against the Commission of the European Communities (Case T-243/97)

text:
1 . 11 . 97          EN                 Official Journal of the European Communities                                   C 331 /23
him when he was clearly eligible for promotion, and that           that, in view of the doubt subsisting at the end of the
he has suffered a significant setback in his career, no            investigation procedure, the decision which was adopted is
justification for which has been provided by the                   disproportionate to the conduct complained of, having
appointing authority.                                              regard in particular to the mitigating circumstances noted
                                                                   by the disciplinary authority.
Action brought on 22 August 1997 by Benedetto
         D'Agostino against the European Parliament                Action brought on 26 August 1997 by Catherine
                       ( Case T-242/97)                            Metdepenningen and others against the Commission of
                                                                                the European Communities
                         ( 97/C 331 /46
                                                                                (Case T-243/ 97)
                                                                                ( 97/C 331 /47 )
               (Language of the case: French)
An action against the European Parliament was brought                              (Language of the case: French)
before the Court of First Instance of the European
Communities on 22 August 1997 by Benedetto
D'Agostino, residing in Brussels, represented by Jean-Noel         An action against the Commission of the European
Louis, Thierry Demaseure and Ariane Tornel, of the                 Communities was brought before the Court of First
Brussels Bar, with an address for service in Luxembourg at         Instance of the European Communities on 23 June 1997
the offices of Fiduciaire Myson Sari, 30 Rue de Cessange .         by Catherine Metdepenningen, Jerome Poussielgue and
                                                                   Jiirgen Wettig, all residing in Brussels, represented by
                                                                   Nicolas Lhoest, of the Brussels Bar, with an address for
The applicant claims that the Court should:                        service in Luxembourg at the offices of Fiduciaire Myson
                                                                   Sari, 30 Rue de Cessange .
— annul the decision of 28 October 1996 downgrading
     the applicant from grade CI , step 4, to grade C5,            The applicants claim that the Court should:
     step 1 ,
                                                                   — annul the Commission's decisions rejecting the
— order the defendant to pay the costs.                                 requests of the three applicants that they be allowed to
                                                                        benefit from possible extension of their contracts as
                                                                        members of the temporary staff, up to a total of five
Pleas in law and main arguments adduced in support:
                                                                        years ,
The applicant maintains, first, that, by allowing an
unreasonable period to elapse between the various steps in         — declare      the      Commission     decision adopted      on
the proceedings against him, without there being any                    13 November 1996 unlawful in so far as it limits all
justification whatever for the length of time taken to                  temporary staff contracts falling under Article 2 ( a ) of
conclude those proceedings, the defendant has infringed                 the Conditions of Employment of Other Servants to a
the first paragraph of Article 7 of Annex IX to the Staff               maximum duration of three years, with a possibility of
Regulations of officials . The applicant further pleads                 extension for a maximum of one year,
infringement of the right to a fair hearing, in that the
contested decision is based on documents which were not
communicated to him .                                              — order the Commission to pay the costs.
The applicant also maintains that the decision in issue is         Pleas in law and main arguments adduced in support:
vitiated by a manifest error of assessment and by the
absence of a sufficient statement of reasons, and that it
was adopted in breach of the principle of proportionality.         The pleas in law and main arguments are the same as in
He states that the contested penalty was imposed on the            Case T-185/97 Godts v. Commission ( ! ).
basis of mere assertions which were not proven and which
were, in some cases, formally contested by the parties
concerned, and that the numerous inconsistencies                   (') OJ C252 , 16 . 8 . 1997, p . 37 .
throughout the whole of the case are such as to make it
impossible to establish the truth of the facts alleged
against him. Consequently, and in addition, he considers