title: Case C-196/01: Action brought on 8 May 2001 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
14.7.2001             EN                     Official Journal of the European Communities                                      C 200/53
—    Infringement of Article 1(4) of Directive 91/689/EEC:              4.    Article 12 of the Trade Marks Directive provides that a
     Under the first indent of Article 1(4), a precise and                    trade mark shall be ‘liable’ to revocation in specified
     uniform definition of hazardous waste, required for                      circumstances. When those circumstances exist, must the
     application of the directive, is achieved by reference to                court revoke the trade mark, or does the court retain any
     Annexes I, II and III to the directive and the list of                   discretion as to whether to revoke?
     hazardous waste to be drawn up in accordance with the
     procedure laid down in Article 18. It follows that, in their
     legislation to transpose the directive, the Member States          (1) OJ L 40, 11.2.1989, p. 1.
     must take those annexes and that list as a basis for
     determining the field of application of their national
     provisions. The list, which is contained in Council
     Decision 94/904/EC, supplements the provisions of the
     directive on hazardous waste.
     The possibility for the Member States to adopt stricter
     protective measures in fields harmonised by Community              Action brought on 8 May 2001 by the Commission of the
     environmental provisions is not to be equated with an              European Communities against the Grand Duchy of
     option not to transpose such harmonisation measures.                                          Luxembourg
                                                                                (Case C-196/01)
(1) OJ L 194, 25.7.1975, p. 47.
(2) OJ L 78, 26.3.1991, p. 32.                                                                   (2001/C 200/95)
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice on 8 May 2001 by the
                                                                        Commission of the European Communities, represented by
                                                                        H. Støvlbaek and J. Adda, acting as Agents, with an address for
                                                                        service in Luxembourg.
Reference for a preliminary ruling by the House of Lords,               The applicant claims that the Court should:
by order of that court of 4 April 2001, in the case of                  —     declare that the Grand Duchy of Luxembourg has failed
Scandecor Development AB and others against Scandecor                         to comply with its obligations under Article 1(a) of
                   Marketing AB and another                                   Council Directive 75/442/EEC of 15 July 1975 on
                                                                              waste (1), as amended by Council Directive 91/156 EC of
                        (Case C-195/01)                                       18 March 1991 (2) and Commission Decision 94/3/EC of
                                                                              20 December 1993 establishing a list of wastes pursuant
                                                                              to Article 1(a) of Council Directive 75/442/EEC on
                        (2001/C 200/94)                                       waste (3);
Reference has been made to the Court of Justice of the                  —     order the Grand Duchy of Luxembourg to pay the costs.
European Communities by an order of the House of Lords of
4 April 2001, which was received at the Court Registry on
7 May 2001, for a preliminary ruling in the case of Scandecor           Pleas in law and main arguments
Development AB and others against Scandecor Marketing AB
and another, on the following questions:
                                                                        —     Although the Grand Duchy of Luxembourg was obliged,
                                                                              under the fourth paragraph of Article 249 EC, to
1.   Is a trade mark to be regarded as liable to mislead the
                                                                              incorporate the European Waste Catalogue (EWC), for-
     public within the meaning of article 12(2)(b) of Council
                                                                              ming the subject-matter of Decision 94/3/EC, into its
     Directive No 89/1104/EEC (1) of 21 December 1988 to
                                                                              national law, it has simply reproduced it in a ministerial
     approximate the laws of the Member States relating to
                                                                              circular which is binding on the administrative authorities
     trade marks (the ‘Trade Marks Directive’) if the origin of
                                                                              but not on third parties.
     the goods denoted by the mark is a bare exclusive
     licensee?                                                          —     At the same time, the Grand Duchy of Luxembourg
                                                                              introduced a nomenclature applying purely to Luxem-
2.   What are the criteria to be applied in determining whether               bourg, which is totally different from the EWC. Various
     a trading relationship comprises a single undertaking for                operations in respect of which use of the EWC is
     the purposes of the Trade Marks Directive?                               precluded are linked to the implementation of national
                                                                              measures designed to transpose the Community legis-
3.   Is a company a person for the purpose of article 6(1)(a)                 lation on waste. In addition, the coexistence of two lists
     of the Trade Marks Directive?                                            (the Luxembourg nomenclature and the EWC) between
 ---pagebreak--- C 200/54               EN                    Official Journal of the European Communities                                         14.7.2001
      which there is no unequivocal correlation has the effect          Justice (England & Wales), Queen’s Bench Division (Commer-
      of increasing the risk of confusion and classification            cial Court) of 13 November 2000, which was received at the
      errors. A Member State may not plead the mere concept             Court Registry on 30 May 2001, for a preliminary ruling in
      of ‘national management’ in order to be authorised to             the case of Joseph Lennox (trading as R. Lennox & Son) against
      derogate from the applicable Community legislation,               Industria Lavorazione Carni Ovine, on the following questions:
      inasmuch as there is no way of telling how the manage-
      ment of waste in Luxembourg relates to ‘specific needs’
      which are not covered by the relevant Community rules.
                                                                        1.    (a)  Where a consignment of sheep is exported from one
(1) OJ L 194 of 25.7.1975, p. 39.                                                  Member State to another Member State and the
(2) OJ L 78 of 26.3.1991.                                                          sheep are for slaughter on arrival, is the requirement
(3) OJ L 5 of 7.1.1994, p. 15.                                                     under Article 9 of Directive 91/68/EEC (1) complied
                                                                                with where the accompanying health certificate is
                                                                                not a Model I certificate, as in Annex E thereof, but
                                                                                is a Model II certificate?
Reference for a preliminary ruling by the Corte di Appello
di Firenze by order of that court of 23 January 2001 in                       (b) If the answer to Question 1(a) is No, so that the
the case of Altair Chimica SpA against ENEL Distribuzione                          consignment must be accompanied only by a Mo-
                                SpA                                                del I certificate, does the responsibility for identifying
                                                                                the correct certificate prior to export rest on the
                                                                                exporter or on the recipient of the sheep, or is it for
                         (Case C-207/01)                                           the applicable national law of the contract to
                                                                                determine which party bears this responsibility?
                         (2001/C 200/96)
Reference has been made to the Court of Justice of the
European Communities by order of the Corte di Appello
                                                                              (c)  Where a consignment of sheep is exported from one
(Court of Appeal), Florence, by order of 23 January 2001,
                                                                                Member State to another Member State and the
received at the Court Registry on 18 May 2001, for a
                                                                                sheep are for slaughter on arrival and where the
preliminary ruling in the case of Altair Chimica SpA v ENEL
                                                                                accompanying health certificate is a Model II certifi-
Distribuzione SpA on the exact interpretation of Articles 81,
                                                                                cate, is the national law of the State of destination
82 and 85 of the Treaty establishing the European Community,
                                                                                entitled to make the importation unlawful on the
of Directive 92/12/EEC (1) and Council Recommendation
                                                                                ground that the certificate is not a Model I certificate?
81/924/EEC of 27 October 1981, in order to ascertain whether
the provisions of national law laid down in Legislative Decrees
No 347/44 and No 896/47, Presidential Decree No 373/94,
Legislative Decree No 98/48 and Law No 9/91 are incompat-
ible with those provisions of Community law.                            2.    (a)  In July 1997, was it compatible with Community
                                                                                law, in particular Articles 28-30 EC (ex Articles 30-
                                                                                36) and/or Article 152 EC (ex 129 of the EC Treaty)
(1) Council Directive 92/12/EEC of 25 February 1992 on the general                 and/or Articles 6 and 174 EC (from ex 130r of the
    arrangements for products subject to excise duty and on the                    EC Treaty) and Council Directives 89/662/EEC (2),
    holding, movement and monitoring of such products (OJ 1992
    L 76, of 23 March 1992, p. 1).
                                                                                90/425/EEC (3) and 91/68/EEC, for a Member State
                                                                                to require that the health certificates required pursu-
                                                                                ant to Article 9 of Directive 91/68/EEC include the
                                                                                following declaration: ‘The animals referred to in
                                                                                this certificate were born and raised on farms
                                                                                in which no case of Transmissible Spongiform
                                                                                Encephalopathy (TSE) has been registered in the last
Reference for a preliminary ruling by the High Court                               6 years.’?
of Justice (England & Wales), Queen’s Bench Division
(Commercial Court), by order of that court of 13 Novem-
ber 2000, in the case of Joseph Lennox (trading as
R. Lennox & Son) against Industria Lavorazione Carni                          (b) If the answer to Question 2(a) is No, where the
                               Ovine                                               exporter has otherwise fulfilled its obligations under
                                                                                the applicable law of the contract to deliver the
                         (Case C-220/01)                                           sheep to the recipient’s place of business, is a
                                                                                national court required, in civil proceedings between
                         (2001/C 200/97)                                           the exporter and the recipient concerning their
                                                                                contractual rights and obligations regarding the
Reference has been made to the Court of Justice of the                             importation of the sheep, to ignore any obligations
European Communities by an order of the High Court of                              under the national law of the Member State of


title: Case T-275/99: Order of the Court of First Instance of 16 October 2006 — Self Service de Bleek v Commission

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/28

         Order of the Court of First Instance of 16 October 2006 — Self Service de Bleek v Commission
   (Case T-275/99) (1)

   (2006/C 310/53)

      Language of the case: Dutch

   The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

      (1)  OJ C 47, 19.2.2000.


title: Case T-776/15: Action brought on 30 December 2015 — Meissen Keramik v OHIM (MEISSEN KERAMIK)

text:
               29.2.2016

               EN

               Official Journal of the European Union

               C 78/32

         Action brought on 30 December 2015 — Meissen Keramik v OHIM (MEISSEN KERAMIK)
   (Case T-776/15)
   (2016/C 078/44)
   Language of the case: German

      Parties

      Applicant: Meissen Keramik GmbH (Meißen, Germany) (represented by: M. Vohwinkel and M. Bagh, lawyers)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community figurative mark containing the word elements ‘MEISSEN KERAMIK’ — Application for registration No 13 100 797

      Contested decision: Decision of the First Board of Appeal of OHIM of 28 October 2015 in Case R 531/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.


title: Case T-468/08 R: Order of the President of the Court of First Instance of 23 December 2008 — AES-Tisza v Commission (Application for interim measures — State aid — Commission decision declaring aid awarded by the Republic of Hungary to certain electricity producers through power purchase agreements to be incompatible with the common market — Application for suspension of operation — Lack of urgency — Weighing up of interests)

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/27

         Order of the President of the Court of First Instance of 23 December 2008 — AES-Tisza v Commission
   (Case T-468/08 R)
   (Application for interim measures - State aid - Commission decision declaring aid awarded by the Republic of Hungary to certain electricity producers through power purchase agreements to be incompatible with the common market - Application for suspension of operation - Lack of urgency - Weighing up of interests)
   (2009/C 55/51)
   Language of the case: English
   Parties

      Applicant: AES-Tisza Erőmű kft (AES-Tisza kft) (Tiszaújváros, Hungary) (represented by: T. Ottervanger and E. Henny, lawyers)

      Defendant: Commission of the European Communities (represented by: L. Flynn, N. Khan and K. Talabér-Ritz, acting as Agents)
   Re:
   Application for suspension of the operation of Article 1 of Commission Decision C(2008) 2223 final of 4 June 2008 on the State aid awarded by the Republic of Hungary through power purchase agreements.
   Operative part of the order

               1.

               The application for interim relief is dismissed.

               2.

               The costs are reserved.


title: Case T-427/17: Action brought on 5 July 2017 — Item Industrietechnik v EUIPO (EFUSE)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/59

         Action brought on 5 July 2017 — Item Industrietechnik v EUIPO (EFUSE)
   (Case T-427/17)
   (2017/C 277/84)
   Language of the case: German

      Parties

      Applicant: Item Industrietechnik GmbH (Solingen, Germany) (represented by: G. Hasselblatt, V. Töbelmann and M. Vitt, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘EFUSE’ — Application No 15 463 011

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 18 April 2017 in Case R 1882/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.


title: Case C-652/13: Order of the Court (Eighth Chamber) of 12 February 2015 — (request for a preliminary ruling from the Tribunale ordinario di Cagliari — Italy) — Criminal proceedings against Mirko Saba (Reference for a preliminary ruling — Article 99 of the Rules of Procedure — Identical questions referred — Articles 49 TFEU and 56 TFEU — Freedom of establishment — Freedom to provide services — Games of chance — National legislation — Reorganisation of the licencing system through an alignment of licence expiry dates — New call for tenders — Licences with a shorter period than that of licences awarded in the past — Restriction — Overriding reasons of general interest — Proportionality)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/3

         Order of the Court (Eighth Chamber) of 12 February 2015 — (request for a preliminary ruling from the Tribunale ordinario di Cagliari — Italy) — Criminal proceedings against Mirko Saba
   (Case C-652/13) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure - Identical questions referred - Articles 49 TFEU and 56 TFEU - Freedom of establishment - Freedom to provide services - Games of chance - National legislation - Reorganisation of the licencing system through an alignment of licence expiry dates - New call for tenders - Licences with a shorter period than that of licences awarded in the past - Restriction - Overriding reasons of general interest - Proportionality))
   (2015/C 127/03)
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Cagliari

      Criminal proceedings against

   Mirko Saba

      Operative part of the order

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

      (1)  OJ C 112, 14.4.2014.


title: Case T-223/08: Judgment of the Court of First Instance of 3 December 2009 — Iranian Tobacco v OHIM — AD Bulgartabac (Bahman) (Community trade mark — Revocation proceedings — Figurative Community trade mark Bahman — Interest in bringing proceedings not required — Article 55(1)(a) of Regulation (EC) No 40/94 (now Article 56(1)(a) of Regulation (EC) No 207/2009))

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/48

         Judgment of the Court of First Instance of 3 December 2009 — Iranian Tobacco v OHIM — AD Bulgartabac (Bahman)
   (Case T-223/08) (1)

   (Community trade mark - Revocation proceedings - Figurative Community trade mark Bahman - Interest in bringing proceedings not required - Article 55(1)(a) of Regulation (EC) No 40/94 (now Article 56(1)(a) of Regulation (EC) No 207/2009))
   2010/C 24/84
   Language of the case: German

      Parties

      Applicant: Iranian Tobacco Co. (Tehran, Iran) (represented by: M. Beckensträter, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: AD Bulgartabac Holding Sofia (Sofia, Bulgaria) (represented by: M. Maček, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 10 April 2008 in Case R 709/2007-1 concerning revocation proceedings between AD Bulgartabac Holding Sofia and Iranian Tobacco Co.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               orders Iranian Tobacco to pay the costs.

      (1)  OJ C 223 of 30.8.2008


title: Case C-41/09: Action brought on 29 January 2009 — Commission of the European Communities v Kingdom of the Netherlands

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/2

         Action brought on 29 January 2009 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-41/09)
   2009/C 129/03
   Language of the case: Dutch

      Parties

      Applicant: Commission of the European Communities (represented by: D. Triantafyllou and W. Roels, Agents)

      Defendant: Kingdom of the Netherlands

      Form of order sought

               —

               rule that, by applying a reduced rate of VAT to the supply, importation and intra-Community acquisition of certain live animals, in particular horses, which are not normally intended for the preparation or production of foodstuffs for human or animal consumption, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 12 of, in conjunction with Annex H to, the Sixth VAT Directive, (1) and under Articles 96, 97, 98 and 99(1) of, in conjunction with Annex III to, the VAT Directive; (2)

               —

               order the Kingdom of the Netherlands to pay the costs.

      Pleas in law and main arguments

   The Commission takes the view that the Netherlands Wet op de omzetbelasting (Law on turnover tax) breaches the provisions of Articles 96, 97, 98 and 99(1) of, in conjunction with Annex III to, the VAT Directive by applying a reduced rate of VAT to the supply of certain live animals (in particular, horses) even in cases where those animals are not intended for the preparation or production of foodstuffs. More specifically, the Commission is of the opinion that live animals — and, in particular, horses — which are not normally intended for use as foodstuffs do not come under Category 1 of Annex III to the VAT Directive.
   According to settled case-law, Category 1 of Annex III to the VAT Directive must, in the same way as any other provision concerning the reduced rates of VAT, be subject to strict interpretation. Furthermore, in the light of the wording of Category 1 of Annex III to the Directive, the reduced rate applies to foodstuffs.

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

      (2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Case C-32/10: Order of the Court of 11 May 2011 (reference for a preliminary ruling from the Varhoven kasatsionen sad (Bulgaria)) — Tony Georgiev Semerdzhiev v ET Del-Pi-Krasimira Mancheva (Article 92(1) of the Rules of Procedure — Directive 90/314/EEC — Package travel, package holidays and package tours — Facts preceding the accession of the Republic of Bulgaria to the European Union — Manifest lack of jurisdiction of the Court to answer the questions referred)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/10

         Order of the Court of 11 May 2011 (reference for a preliminary ruling from the Varhoven kasatsionen sad (Bulgaria)) — Tony Georgiev Semerdzhiev v ET Del-Pi-Krasimira Mancheva
   (Case C-32/10) (1)

   (Article 92(1) of the Rules of Procedure - Directive 90/314/EEC - Package travel, package holidays and package tours - Facts preceding the accession of the Republic of Bulgaria to the European Union - Manifest lack of jurisdiction of the Court to answer the questions referred)
   2011/C 232/16
   Language of the case: Bulgarian

      Referring court

   Varhoven kasatsionen sad (Bulgaria)

      Parties to the main proceedings

      Applicant: Tony Georgiev Semerdzhiev

      Defendant: ET Del-Pi-Krasimira Mancheva

      Intervening party: ZAD Bulstrad VIG

      Re:

   Reference for a preliminary ruling — Varhoven kasatsionen sad — Interpretation of Articles 2(1)(c), 4(1)(b)(iv) and 5(2)(3) and (4) of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59) — Concept of ‘other tourist services’ not ancillary to transport or accommodation to be borne by the organiser — Obligation for the organiser to conclude an individual insurance contract for each consumer and to provide the consumer with the original before travel — Obligation for the organiser to conclude an individual insurance contract covering costs of repatriation in case of accident — Concept of ‘damage’ resulting for the consumer from the failure to perform or the improper performance of the contract — Non-material damages included

      Operative part of the order

   The Court of Justice of the European Union clearly has no jurisdiction to rule on the questions referred by the Varhoven kasatsionen sad (Bulgaria).

      (1)  OJ C 100, 17.4.2010.


title: Case T-76/05: Action brought on 18 February 2005 by Dario Scotto against the Commission of the European Communities

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/40

         Action brought on 18 February 2005 by Dario Scotto against the Commission of the European Communities
   (Case T-76/05)
   (2005/C 93/72)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 February 2005 by Dario Scotto, represented by Prof. Massimo Condinanzi, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision of the Commission of 27 October 2004 which rejected complaint No R/616/04 lodged by the applicant of 12 July 2004 and accordingly annul Career Development Review No 23330;

               —

               order the Commission to pay the costs of the case.

         Pleas in law and main arguments
   The applicant in this case challenges the assessment relating to his Career Development Review (CDR) for the period 1 January 2003 to 31 August 2003.
   In support of his claims, the applicant pleads:

               —

               Infringement of Article 43 of the Staff Regulations and the relevant implementing provisions.

               —

               Infringement of the procedure for drawing up the CDR on account of incomplete assessment of the reference period.

               —

               The existence of manifest errors of fact in evaluating the applicant's activities with regard to the individual objectives assigned to him.


title: Case T-661/11: Judgment of the General Court of 2 December 2014  — Italy v Commission (EAGGF — ‘Guarantee’ Section — EAGF and EAFRD — Expenditure excluded from financing — Milk products — Assigned revenue — Key controls — Lateness — Flat-rate financial correction — Legal basis — Article 53 of Regulation (EC) No 1605/2002  — Recurrence)

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/25

         Judgment of the General Court of 2 December 2014 — Italy v Commission
   (Case T-661/11) (1)

   ((EAGGF - ‘Guarantee’ Section - EAGF and EAFRD - Expenditure excluded from financing - Milk products - Assigned revenue - Key controls - Lateness - Flat-rate financial correction - Legal basis - Article 53 of Regulation (EC) No 1605/2002 - Recurrence))
   (2015/C 026/29)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and G. Aiello and P. Grasso, avvocati dello Stato)

      Defendant: European Commission (represented by: P. Rossi and D. Nardi, acting as Agents)

      Re:

   Application for annulment of Commission Implementing Decision 2011/689/EC of 14 October 2011 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2011 L 270, p. 33), in so far as it imposes on the Italian Republic a flat-rate financial correction of EUR 7 0 9 12  382 in respect of irregularities in controls concerning milk quotas, found in the Italian regions of Abruzzo, Lazio, Marche, Puglia, Sardinia, Calabria, Friuli Venezia Guilia and Valle d’Aosta, in the years 2004/2005, 2005/2006 and 2006/2007.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 49, 18.2.2012.


title: Case C-480/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 25 October 2012 — Minister van Financiën; other party: X BV

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/22

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 25 October 2012 — Minister van Financiën; other party: X BV
   (Case C-480/12)
   2013/C 26/41
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Minister van Financiën

      Other party: X BV

      Questions referred

               1.

                           (a)

                           Must Articles 203 CCC [Community Customs Code] and 204 CCC, (1) read in conjunction with Article 859 (in particular Article 859(2)(c)) CCIP [Regulation implementing the Community Customs Code], (2) be interpreted as meaning that the (mere) exceeding of the transportation time-limit set in accordance with Article 356(1) CCIP does not lead to a customs debt being incurred by reason of a removal from customs supervision within the meaning of Article 203 CCC, but to a customs debt being incurred on the basis of Article 204 CCC?

                           (b)

                           Does an affirmative answer to Question 1 require that the persons concerned supply the customs authorities with information regarding the reasons for exceeding the time-limit or that they at least explain to the customs authorities where the goods were held during the time which elapsed between the time-limit set in accordance with Article 356 [CCIP] and the time at which they were actually presented at the customs office of destination?

               2.

               Must the Sixth Directive, (3) in particular Article 7 of that directive, be interpreted as meaning that VAT becomes chargeable when a customs debt is incurred exclusively on the basis of Article 204 CCC?

      (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

      (2)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

      (3)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case T-26/11: Action brought on 18 January 2011 — Fraas v OHIM (Tartan pattern in black, beige, brown, dark red and grey colours)

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/29

         Action brought on 18 January 2011 — Fraas v OHIM (Tartan pattern in black, beige, brown, dark red and grey colours)
   (Case T-26/11)
   2011/C 72/46
   Language in which the application was lodged: German

      Parties

      Applicant: V. Fraas GmbH (Helmsbrechts-Wüstenselbitz, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

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

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 November 2010 in Case R 1317/2010-4;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Figurative mark, which shows a tartan pattern in black, beige, brown, dark red and grey colours, for goods in classes 18, 24 and 25.

      Decision of the Examiner: Rejection of the registration.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) read in conjunction with Article 7(2) of Regulation (EC) No 207/2009, (1) since the trade mark concerned is distinctive, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 because the Board of Appeal failed to deal with the applicant’s extensive factual and legal submissions.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case F-8/11: Action brought on 7 February 2011 — Nieminen v Council

text:
               26.3.2011

               EN

               Official Journal of the European Union

               C 95/14

         Action brought on 7 February 2011 — Nieminen v Council
   (Case F-8/11)
   2011/C 95/22
   Language of the case: French

      Parties

      Applicant: Risto Nieminen (Kraainen, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision of the appointing authority not to promote the applicant to Grade AD12 under the 2010 promotion procedure.

      Form of order sought

               —

               Annul the decision of the appointing authority of 26 October 2010 rejecting the applicant’s complaint against the decision not to promote him to Grade AD 12 under the 2010 promotion procedure;

               —

               in so far as necessary, annul the decision of the appointing authority not to promote the applicant to Grade AD12 under the 2010 promotion procedure;

               —

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


title: Case T-548/12: Action brought on 18 December 2012 — Deutsche Rockwool Mineralwoll v OHIM — Redrock Construction (REDROCK)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/21

         Action brought on 18 December 2012 — Deutsche Rockwool Mineralwoll v OHIM — Redrock Construction (REDROCK)
   (Case T-548/12)
   2013/C 63/41
   Language in which the application was lodged: English

      Parties

      Applicant: Deutsche Rockwool Mineralwoll GmbH & Co. OHG (Gladbeck, Germany) (represented by: J. Krenzel, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Redrock Construction s.r.o. (Prague, Czech Republic)

      Form of order sought

   The applicant claims that the Court should:

               —

               Set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 October 2012 in case R 1596/2011-4; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark in black and white ‘REDROCK’, for, among others, goods and services in classes 1, 2, 17, 19 and 37 — Community trade mark registration No 3866365

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Applicant for the declaration of invalidity of the Community trade mark: The applicant

      Grounds for the application for a declaration of invalidity: The request for a declaration of invalidity was based on the grounds laid down in Article 53(1)(a) in conjunction with Article 8(1)(b) of Council Regulation No 207/2009. The cancellation applicant invoked the following earlier rights: German trade mark registration No 30229274 of the word mark ‘Rock’, for goods and services in classes 1, 6, 7, 8, 17, 19, 37 and 42; German trade mark registrations No 30312115, No 2078534, No 2078535, No 2079579, No 39502727, No 39517348, No 39543868, No 39551027, No 39605619, No 39644214, No 39707589, No 39737546, No 39920622, No 30166175, No 30166176, No 30166177, No 30212141, of the word marks ‘KEPROCK’, ‘FLEXIROCK’, ‘FORMROCK’, ‘FLOOR-ROCK’, ‘TERMAROCK’, ‘KLIMAROCK’, ‘SPEEDROCK’, ‘DUROCK’, ‘SPLITROCK’, ‘PLANAROCK’, ‘TOPROCK’, ‘KLEMMROCK’, ‘FLIXROCK’, ‘SONOROCK PLUS’, ‘VARIROCK’, ‘SONOROCK’, AND ‘MASTERROCK’, for goods and services in classes 17, 19 and 37.

      Decision of the Cancellation Division: Rejected the request of declaration of invalidity against the CTM registration

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.


title: Case T-388/13: Action brought on 22 July 2013 — Costa Crociere v OHIM — Guerlain (SAMSARA)

text:
               12.10.2013

               EN

               Official Journal of the European Union

               C 298/9

         Action brought on 22 July 2013 — Costa Crociere v OHIM — Guerlain (SAMSARA)
   (Case T-388/13)
   2013/C 298/15
   Language in which the application was lodged: English

      Parties

      Applicant: Costa Crociere SpA (Genova, Italy) (represented by: A. Vanzetti, S. Bergia and G. Sironi, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Guerlain SA (Levallois-Perret, France)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of 13 May 2013 given in Case R 2049/2011-4; and

               —

               Order the other parties to reimburse the costs incurred by the applicant before the OHIM, as well as during the present proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The verbal mark SAMSARA for services in class 44 — Community trade mark application No 8 979 122

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

      Mark or sign cited in opposition: Community trade mark registration No 497 966 of the verbal mark SAMSARA for goods in class 3

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

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8 (1) (b) of Council Regulation (EC) No 207/2009 on the Community trade mark (1).

      (1)  OJ 2009 L 78, p. 1


title: Case T-451/12: Action brought on 15 October 2012 — Stromberg Menswear v OHIM — Leketoy Stormberg Inter (STORMBERG)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/19

         Action brought on 15 October 2012 — Stromberg Menswear v OHIM — Leketoy Stormberg Inter (STORMBERG)
   (Case T-451/12)
   2013/C 63/39
   Language in which the application was lodged: English

      Parties

      Applicant: Stromberg Menswear Ltd (Leeds, United Kingdom) (represented by: A. Tsoutsanis, lawyer, and C. Tulley, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Leketoy Stormberg Inter AS (Kristiansand S, Norway)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2012 in case R 389/2012-4;

               —

               Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2012 in case R 389/2012-4 and grant the request for re-establishment of rights, and i) primarily, annul the decision of the Cancellation Division of 11 January 2011 to terminate the revocation proceedings under No 4054 C and order the Cancellation Division to re-open the revocation proceedings under No 4054 C and invite Stromberg Menswear to submit observations to continue the revocation proceedings, or, ii) alternatively, allow Stromberg Menswear to appeal the decision of the Cancellation Division of 11 January 2011 to close the revocation proceedings and refer the appeal back to the Board of Appeal; and

               —

               Order OHIM to pay any and all costs and legal fees incurred by Stromberg Menswear in connection with the proceedings before the Board of Appeal and before the General Court.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘STORMBERG’, for goods and services in class 25 — Community trade mark registration No 2557155

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Party applying for revocation of the Community trade mark: The applicant

      Decision of the Cancellation Division: Declared the cancellation proceedings closed following a surrender of the contested CTM by its proprietor

      Decision of the Board of Appeal: Rejected the request for restitution in integrum into the time limit for filing the notice of appeal and declared that the appeal was deemed not having been filed

      Pleas in law:

               —

               Infringement of Article 81 of Council Regulation No 207/2009;

               —

               Infringement of Articles 75 and/or 76 of Council Regulation No 207/2009.


title: Case T-496/11: Judgment of the General Court of 4 March 2015 — United Kingdom v ECB (Economic and monetary policy — ECB — Action for annulment — Eurosystem Oversight Policy Framework — Challengeable act — Admissibility — Oversight of payment and securities settlement systems — Application to central counterparty clearing systems of a requirement to be located in a Member State party to the Eurosystem — Competence of the ECB)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/18

         Judgment of the General Court of 4 March 2015 — United Kingdom v ECB
   (Case T-496/11) (1)

   ((Economic and monetary policy - ECB - Action for annulment - Eurosystem Oversight Policy Framework - Challengeable act - Admissibility - Oversight of payment and securities settlement systems - Application to central counterparty clearing systems of a requirement to be located in a Member State party to the Eurosystem - Competence of the ECB))
   (2015/C 127/24)
   Language of the case: English

      Parties

      Applicant: United Kingdom of Great Britain and Northern Ireland (represented initially by S. Ossowski, S. Behzadi-Spencer and E. Jenkinson, subsequently by S. Behzadi-Spencer and E. Jenkinson, and finally by V. Kaye, acting as Agents, and by K. Beal QC and P. Saini QC)

      Defendant: European Central Bank (ECB) (represented initially by A. Sáinz de Vicuña Barroso and K. Laurinavičius, subsequently by A. Sáinz de Vicuña Barroso and P. Papapaschalis and finally by P. Papapaschalis and P. Senkovic, acting as Agents, and by R. Subiotto QC, F.-C. Laprévote, lawyer, and P. Stuart, Barrister)

      Intervener in support of the applicant: Kingdom of Sweden (represented by A. Falk, C. Meyer-Seitz, C. Stege, S. Johannesson, U. Persson and H. Karlsson, acting as Agents)

      Interveners in support of the defendant: Kingdom of Spain (represented by A. Rubio González, abogado del Estado); and French Republic (represented by G. de Bergues, D. Colas and E. Ranaivoson, acting as Agents)

      Re:

   Action for annulment of the Eurosystem Oversight Policy Framework published by the ECB on 5 July 2011, in so far as it sets a location requirement applicable to central counterparties established in Member States that are not party to the Eurosystem.

      Operative part of the judgment

   The Court:

               1)

               Annuls the Eurosystem Oversight Policy Framework, published by the European Central Bank (ECB) on 5 July 2011, in so far as it sets a requirement to be located within a Member State party to the Eurosystem for central counterparties involved in the clearing of securities;

               2)

               Orders the ECB to bear its own costs and to pay those incurred by the United Kingdom of Great Britain and Northern Ireland;

               3)

               Orders the Kingdom of Spain, the French Republic and the Kingdom of Sweden to bear their own costs.

      (1)  OJ C 340, 19.11.2011.


title: Case C-511/08: Judgment of the Court (Fourth Chamber) of 15 April 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Verbraucherzentrale Nordrhein-Westfalen eV v Handelsgesellschaft Heinrich Heine GmbH (Directive 97/7/EC — Consumer protection — Distance contracts — Right of withdrawal — Consumer charged with the cost of delivering the goods)

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/6

         Judgment of the Court (Fourth Chamber) of 15 April 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Verbraucherzentrale Nordrhein-Westfalen eV v Handelsgesellschaft Heinrich Heine GmbH
   (Case C-511/08) (1)

   (Directive 97/7/EC - Consumer protection - Distance contracts - Right of withdrawal - Consumer charged with the cost of delivering the goods)
   2010/C 148/09
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Verbraucherzentrale Nordrhein-Westfalen eV

      Defendant: Handelsgesellschaft Heinrich Heine GmbH

      Re:

   Preliminary ruling — Bundesgerichtshof — Interpretation of Article 6(1), second sentence, and Article 6(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19) — National legislation which allows the costs of delivering the goods to be charged to the consumer if he withdraws from the contract

      Operative part of the judgment

   Article 6(1), first subparagraph, second sentence, and Article 6(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts are to be interpreted as precluding national legislation which, in the context of a distance contract, requires the cost of delivering the goods to be charged to the consumer after he exercises his right of withdrawal.

      (1)  OJ C 32, 7.2.2009.


title: Case C-538/11: Reference for a preliminary ruling from the Landesgericht Salzburg (Austria) as Employment and Social Court lodged on 21 October 2011 — Hermine Sax v Pensionsversicherungsanstalt, Landesstelle Salzburg

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/30

      Reference for a preliminary ruling from the Landesgericht Salzburg (Austria) as Employment and Social Court lodged on 21 October 2011 — Hermine Sax v Pensionsversicherungsanstalt, Landesstelle Salzburg
      (Case C-538/11)
      (2012/C 25/52)
      Language of the case: German

         Referring court

      Landesgericht Salzburg

         Parties to the main proceedings

         Applicant: Hermine Sax

         Defendant: Pensionsversicherungsanstalt Landesstelle Salzburg

         Questions referred

                  1.

                  Are Regulation (EC) No 883/2004, in particular Article 7 and Title III, Chapter 1 (Sickness benefits), and Regulation (EC) No 987/2009 to be interpreted as meaning that a person needing long-term care who is receiving an Austrian pension may demand the payment of care allowance under the Bundespflegegeldgesetz (Federal Law on care allowance, BPGG) as a sickness benefit in cash, irrespective of her main residence in Germany, if she meets the other requirements for entitlement under the BPGG and do those regulations thus preclude the application of the national provision in Paragraph 3 BPGG?

                  2.

                  If the reply to the first question is in the affirmative:
                  Are Regulation (EC) No 883/2004, in particular Articles 10 and 11(3)(e), and also Articles 21, 29 and 34 and/or Title III, Chapter 1 (Sickness benefits), and Regulation (EC) No 987/2009 to be interpreted as meaning that a person needing long-term care who is receiving a double pension, to be exact, an Austrian pension and a German pension, may demand the payment of care allowance under the BPGG as a sickness benefit in cash, irrespective of her main residence in Germany, if she meets the other requirements for entitlement under the BPGG and do those regulations thus preclude the application of the national provision in Paragraph 3 BPGG?

                  3.

                  If the reply to the second question is in the affirmative:
                  How are Regulation (EC) No 883/2004, in particular Articles 10 and 34, and Article 31, and Regulation (EC) No 987/2009 to be interpreted where there are concurrent benefits, with set-off, from the social security system for covering the risk of need for long-term care, that is to say, in the present case, entitlement to a combination benefit of German care allowance (choice between benefit in kind and cash benefit) and entitlement to Austrian care allowance, more specifically:

                              3.1.

                              Is only the cash benefit granted by Germany, the State of residence, or only the care benefit in kind or the entire care benefit (total of care allowance and value of care benefit in kind) to be set off against the Austrian care allowance under the BPGG which is to be exported, and is regard to be had to the differing price levels in the Member States concerned?

                              3.2.

                              Is it necessary, when effecting the required set-off, to consider whether the State of residence grants care benefits with equivalent cover or are such care benefits from the State of residence to be left out of account when effecting set-off where those benefits are provided for only in the State of residence by the social security system to cover the risk of need for long term care?

                              3.3.

                              Must the Social Court hearing the action brought by the person needing long-term care examine the substantive conditions for set-off if the defendant institution has not initiated a procedure within the meaning of Article 31 of Regulation (EC) No 987/2009, has made no submissions concerning the question of benefits with equivalent cover and, in particular, has omitted to inform the person needing long-term care of the prohibition of concurrent benefits?


title: Case F-82/14: Judgment of the Civil Service Tribunal (First Chamber) of 22 September 2015 — Gioria v Commission (Civil Service — Open competitions — Competition EPSO/AST/126/12 — Family relationship between a member of the selection board and a candidate — Conflict of interests — Article 27 of the Staff Regulations — Recruitment of officials with the highest integrity — Decision to exclude the candidate from the competition)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/47

         Judgment of the Civil Service Tribunal (First Chamber) of 22 September 2015 — Gioria v Commission
   (Case F-82/14) (1)

   ((Civil Service - Open competitions - Competition EPSO/AST/126/12 - Family relationship between a member of the selection board and a candidate - Conflict of interests - Article 27 of the Staff Regulations - Recruitment of officials with the highest integrity - Decision to exclude the candidate from the competition))
   (2015/C 363/56)
   Language of the case: Italian

      Parties

      Applicant: Roberto Gioria (Veruno, Italy) (represented by: M. Cornacchia, lawyer)

      Defendant: European Commission (represented by: J. Currall and G. Gattinara, acting as Agents)

      Re:

   Application for annulment of the decision to exclude the applicant from Competition EPSO/AST/126/2012 because he did not inform the Selection Board of his family relationship to one of the members of the board.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Gioria to bear half of his own costs;

               3.

               Orders the European Commission to bear its own costs and to pay half of the costs incurred by Mr Gioria.

      (1)  OJ C 388, 3.11.2014, p. 32.


title: Judgment of the Court of first instance 7 February 2002 in Case T-261/94: Bernhard Schulte v Council of the European Union and Commission of the European Communities (Action for damages — Non-contractual liability — Milk — Additional levy — Reference quantity — Regulation (EC) No 2187/93 — Compensation for producers — Act of the national authorities — Limitation)

text:
18.5.2002              EN                     Official Journal of the European Communities                                            C 118/23
as supplemented by Commission Regulation (EEC) No 1371/                  1.    Declares that the defendants are bound to make good the
84 of 16 May 1984 laying down detailed rules for the                           damage sustained by the applicant as a result of the application
application of the additional levy referred to in Article 5c of                of Council Regulation (EEC) No 857/84 of 31 March 1984
Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11), Court of                    adopting general rules for the application of the levy referred to
First Instance (Fourth Chamber), composed of: P. Mengozzi,                     in Article 5c of Regulation (EEC) No 804/68 in the milk
President, V. Tilli and R. M. Moura Ramos, Judges; D. Christens-               and milk products sector, as supplemented by Commission
en, Administrator, for the Registrar, has given a judgment on                  Regulation (EEC) No 1371/84 of 16 May 1984 laying down
7 February 2002, in which it:                                                  detailed rules for the application of the additional levy referred
                                                                               to in Article 5c of Regulation (EEC) No 804/68, in so far as
1.    Dismisses the application;                                               those regulations did not make provision for the allocation of a
                                                                               reference quantity to producers who, pursuant to an undertaking
                                                                               given under Council Regulation (EEC) No 1078/77 of 17 May
2.    Orders the applicant to pay the costs.
                                                                               1977 introducing a system of premiums for the non-marketing
                                                                               of milk and milk products and for the conversion of dairy herds,
(1) OJ C 218 of 6.8.1994.                                                      did not deliver milk during the reference year opted for by the
                                                                               Member State concerned;
                                                                         2.    Declares that the period in respect of which the applicant must
                                                                               be compensated for the losses sustained as a result of the
                                                                               application of Regulation No 857/84 is that beginning on
                                                                               5 August 1987 and ending on 28 March 1989;
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              3.    Orders the parties to forward to the Court, within six months
                                                                               of this judgment, particulars of the amounts to be paid,
                         7 February 2002                                       established by mutual agreement;
                                                                         4.    Orders the parties, in the absence of such agreement, to submit
in Case T-201/94: Erwin Kustermann v Council of the                            to the Court within the same period their quantified claims;
European Union and Commission of the European Com-
                            munities (1)                                 5.    Reserves the costs.
(Action for damages — Non-contractual liability — Milk —
Additional levy — Reference quantity — Regulation (EC)                   (1) OJ C 218 of 6.8.1994.
No 2187/93 — Compensation for producers — Interruption
                     of the limitation period)
                         (2002/C 118/36)
                   (Language of the case: German)                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                7 February 2002
In Case T-201/94, Erwin Kustermann, residing in Eggenthal
                                                                         in Case T-261/94: Bernhard Schulte v Council of the
(Germany), represented by H.-P. Ried, Y. Schur and R. Bruk-
                                                                         European Union and Commission of the European Com-
hardt, lawyers, with an address for service in Luxembourg, v
                                                                                munities (1)
Council of the European Union (agent: A.-M. Colaert) and
Commission of the European Communities (Agents: D. Booß,
M. Niejahr, H.-J. Rabe and M. Núñez-Müller): Application for           (Action for damages — Non-contractual liability — Milk —
compensation under Article 178 and the second paragraph of               Additional levy — Reference quantity — Regulation (EC)
Article 215 of the EC Treaty (now Article 235 EC and the                 No 2187/93 — Compensation for producers — Act of the
second paragraph of Article 288 EC) for damage suffered by                               national authorities — Limitation)
the applicant as a result of his having been prevented from
marketing milk by virtue of Council Regulation (EEC)                                                (2002/C 118/37)
No 857/84 of 31 March 1984 adopting general rules for the
application of the levy referred to in Article 5c of Regulation                              (Language of the case: German)
(EEC) No 804/68 in the milk and milk products sector (OJ
1984 L 90, p. 13), as supplemented by Commission Regulation
(EEC) No 1371/84 of 16 May 1984 laying down detailed rules
for the application of the additional levy referred to in Article        In Case T-261/94, Bernhard Schulte, residing in Delbrück
5c of Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11),                 (Germany), represented by R. Freise, lawyer, v Council of the
Court of First Instance (Fourth Chamber), composed of:                   European Union (agents: A.-M. Colaert and M. Núñez-Müller)
P. Mengozzi, President, V. Tilli and R. M. Moura Ramos,                  and Commission of the European Communities (Agents:
Judges; D. Christensen, Administrator, for the Registrar, has            D. Booß, M. Niejahr and M. Núñez-Müller): Application for
given a judgment on 7 February 2002, in which it:                        compensation under Article 178 and the second paragraph of
 ---pagebreak--- C 118/24               EN                     Official Journal of the European Communities                                         18.5.2002
Article 215 of the EC Treaty (now Article 235 EC and the                 1.    Annuls the decision of the selection board in competition COM/
second paragraph of Article 288 EC) for damage suffered by                     A/12/98 in so far as it concerns the mark awarded to the
the applicant as a result of his having been prevented from                    applicant for the oral test;
marketing milk by virtue of Council Regulation (EEC)
No 857/84 of 31 March 1984 adopting general rules for the
application of the levy referred to in Article 5c of Regulation          2.    Orders the Commission to pay the costs.
(EEC) No 804/68 in the milk and milk products sector, (OJ
1984 L 90, p. 13), as supplemented by Commission Regulation
(EEC) No 1371/84 of 16 May 1984 laying down detailed rules
for the application of the additional levy referred to in                (1) OJ C 273 of 23.9.2000.
Article 5c of Regulation (EEC) No 804/68 (OJ 1984 L 132,
p. 11), Court of First Instance (Fourth Chamber), composed of:
P. Mengozzi, President, V. Tilli and R. M. Moura Ramos,
Judges; D. Christensen, Administrator, for the Registrar, has
given a judgment on 7 February 2002, in which it:
1.    Dismisses the application;
2.    Orders the applicant to pay the costs.
                                                                         ORDER OF THE PRESIDENT OF THE COURT OF FIRST
(1) OJ C 304 of 29.10.1994.                                                                           INSTANCE
                                                                                19 December 2001
                                                                         in Joined Cases T-195/01 R and T-207/01 R, Government
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              of Gibraltar v Commission of the European Communities
                       of 7 February 2002
                                                                         (Proceedings for interim relief — State aid — Decision to
                                                                         initiate a formal investigation procedure — Admissibility —
in Case T-193/00: Bernard Felix v Commission of the                      Prima facie case — Urgency — None — Balancing of
                   European Communities (1)                                                             interests)
(Officials — Open competition — Oral test — Non-
inclusion in the reserve list — Consistency of the composition                                     (2002/C 118/39)
      of the selection board — Knowledge of languages)
                         (2002/C 118/38)                                                    (Language of the Case: English)
                   (Language of the case: French)
                                                                         In Joined Cases T-195/01 R and T-207/01 R, Government of
In Case T-193/00: Bernard Felix, an official of the Commission           Gibraltar, represented by A. Sutton, M. Llamas, Barristers, and
of the European Communities, residing at Arlon (Belgium),                W. Schuster, lawyer, with an address for service in Luxem-
represented by J.-N. Louis and V. Peere, lawyers, with an                bourg, against Commission of the European Communities,
address for service in Luxembourg, v Commission of the                   (Agents: V. Di Bucci and R. Lyal): Application for interim
European Communities (Agent: J. Currall) — application for               measures in respect of the decisions of the Commission of
annulment of the decision of the selection board in compe-               11 July 2001, notified to the Government of the United
tition COM/A/12/98 awarding the applicant a lower mark                   Kingdom by letters SG(2001) D/289755 and SG(2001) D/
than the minimum required for the oral test and excluding                289757, to initiate the procedure provided for by
him from the reserve list — the Court of First Instance (Fifth           Article 88(2) EC in respect of alleged State aid granted under
Chamber), composed of: J.D. Cooke, President, and R. Gracı́a-            Gibraltarian legislation to exempt and qualifying companies
Valdecasas and P. Lindh, Judges; J. Plingers, Administrator, for         respectively, the President of the Court of First Instance made
the Registrar, has given a judgment on 7 February 2002, in               the following order on 19 December 2001, the operative part
which it:                                                                of which is as follows:


title: Case C-155/05: Reference for a preliminary ruling from the Commissione Tributaria Regionale di Firenze, Sezione 33, by order of that court of 23 March 2005 in the proceedings between Villa Maria Beatrice Hospital Srl and Agenzia Entrate — Ufficio Firenze 1

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/4

         Reference for a preliminary ruling from the Commissione Tributaria Regionale di Firenze, Sezione 33, by order of that court of 23 March 2005 in the proceedings between Villa Maria Beatrice Hospital Srl and Agenzia Entrate — Ufficio Firenze 1
   (Case C-155/05)
   (2005/C 155/07)
   Language of the case: Italian
   Reference has been made to the Court of Justice of the European Communities by order of the Commissione Tributaria Regionale di Firenze, Sezione 33 (Florence Regional Tax Court, Section 33) (Italy) of 23 March 2005, received at the Court Registry on 6 April 2005, for a preliminary ruling in the proceedings between Villa Maria Beatrice Hospital Srl and Agenzia Entrate — Ufficio Firenze 1 on the following question:
   Is paragraph 27d of Article 10 of Presidential Decree No 633 of 26 October 1972 compatible with subparagraph (c) of Article 13B (‘Other exemptions’) of Sixth Council Directive 77/388/EEC of 17 May 1977? (1)

      (1)  OJ L 145 of 13.06.1977, p. 1.


title: Case T-324/04: Action brought on 6 August 2004 by F against the Commission of the European Communities

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/42

         Action brought on 6 August 2004 by F against the Commission of the European Communities
   (Case T-324/04)
   (2004/C 300/83)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 6 August 2004 by F, residing in Rhode St Genèse (Belgium), represented by Eric Boigelot, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision of 8 January 2004 of the PMO2 (Office for the Administration and Payment of Individual Entitlements - Wages and salaries, expenses for business travel, experts) laying down detailed arrangements for an initial recovery of undue payments received by the applicant;

               —

               annul the decision of 18 November 2003 of the PMO1 (Office for the Administration and Payment of Individual Entitlements – Administration of individual pecuniary entitlements) cancelling the expatriation allowance previously paid to the applicant;

               —

               annul the decision of the PMO2 of 9 February laying down detailed arrangements for the recovery of undue payments received by the applicant;

               —

               annul the decision of the appointing authority of 2 July 2004 served on the applicant on 7 July 2004 replying to the complaint lodged by the applicant;

               —

               annul any measure resulting from or relating to those decisions taken after the lodging of this action;

               —

               order the reimbursement of all sums which have been or will be deducted from the salary of the applicant from February 2004 onwards with interest at 5.25 % from the date of the lodging of the complaint;

               —

               grant the applicant compensation for non-material loss assessed ex aequo et bono at EUR 3 000 by way of damages, without prejudice to any increase during the proceedings;

               —

               order the defendant to pay the costs in any event, including the fees of counsel consulted by the applicant in order to bring the action.

         Pleas in law and main arguments:
   The applicant took up his duties with the Commission on 16 September 1987. Having initially worked in Luxembourg, he has worked in Brussels since 1 April 1989. The applicant received the expatriation allowance both in Luxembourg and in Brussels.
   By the contested decisions the Commission cancelled that allowance with effect from the applicant's transfer to Brussels, having become aware that the applicant had lived and worked in Brussels during the reference period, that is to say, from 16 March 1982 to 15 March 1987. The Commission also laid down the arrangements for the repayment of the undue payments received by the applicant.
   In support of his application the applicant pleads the infringement of Articles 69 and 85 of the Staff Regulations, of Article 4 of Annex VII to the Staff Regulations and of the principles of good administration, the protection of legitimate expectations and equal treatment. He also pleads breach of the duty to have regard for the welfare of officials and manifest errors of assessment. On that point, the applicant first points out that, during the reference period, he worked for a foreign professional organisation of steel companies. According to the applicant, that organisation should be considered to be an international organisation and, therefore, the period during which he was working there should not be taken into account. The applicant also argues that, in any event, for most of the reference period he was not in Brussels on a permanent basis as his economic activities at that time were concentrated abroad.


title: Case T-108/09: Action brought on 16 March 2009 — Ravensburger v OHIM — Educa Borras (MEMORY)

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/16

         Action brought on 16 March 2009 — Ravensburger v OHIM — Educa Borras (MEMORY)
   (Case T-108/09)
   2009/C 129/27
   Language in which the application was lodged: English

      Parties

      Applicants: Ravensburger AG (Ravensburg, Germany) (represented by: R. Kunze, lawyer and Solicitor and G. Würtenberger, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Educa Borras S.A. (Sant Quirze del Valles, Spain)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 January 2009 in case R 305/2008-2; and

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark “MEMORY” for goods in classes 9 and 28

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the term “memory” to be descriptive and lacking distinctive character at the time the cancellation proceedings took place, and thereby wrongly ignored that only those circumstances presented at the time of registration of the trade mark in question can be taken into account; Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the use of the term “memory” to be descriptive based on only two references of use within the European Community and without further determination whether these suggest descriptive use, thereby disregarding the long-term unchallenged use of the registered trade mark in question for games in a competitive consumer-oriented marketing; The Board of Appeal wrongly based its confirmation of the descriptive and non-distinctive character of the registered trade mark in question on unevaluated sources having their origin in countries outside the European Union; Infringement of Article 75 of Council Regulation 40/94 as the Board of Appeal erred when refusing to grant the request to summons for a hearing lodged by the applicant.


title: Case C-325/13 P: Appeal brought on 17 June 2013 by Peek & Cloppenburg KG against the judgment of the General Court (Fifth Chamber) delivered on 18 April 2013 in Case T-506/11 Peek & Cloppenburg KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               24.8.2013

               EN

               Official Journal of the European Union

               C 245/4

         Appeal brought on 17 June 2013 by Peek & Cloppenburg KG against the judgment of the General Court (Fifth Chamber) delivered on 18 April 2013 in Case T-506/11 Peek & Cloppenburg KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-325/13 P)
   2013/C 245/07
   Language of the case: German

      Parties

      Appellant: Peek & Cloppenburg KG (Düsseldorf, Germany) (represented by: P. Lange, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Peek & Cloppenburg KG (Hamburg, Germany)

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of the European Union of 18 April 2013 in Case T-506/11;

               —

               annul the decision of the First Board of Appeal of OHIM of 28 February 2011 in Case R 53/2005-1;

               —

               order OHIM and Peek & Cloppenburg KG (Hamburg) to pay the costs.

      Pleas in law and main arguments

   The appellant pleads an infringement of Article 8(4) of Regulation No 207/2009 (1) through misinterpretation of the criterion ‘confers … the right to prohibit the use of a subsequent trade mark’.
   Contrary to what the General Court held, it is not possible to proceed on the basis that the provision requires solely that the right asserted be of more than local significance. The criterion at issue is to be interpreted as limiting further the category of signs of more than local significance that can be relied upon in opposition. This interpretation is that the national right at issue must confer upon its proprietor the right to prohibit the use of a subsequent trade mark in the entire territory of the Member State in which the right originates.
   This view is supported by the significance of the opposition procedure in respect of a Community trade mark application, by the provisions of Articles 110 and 111 of Regulation No 207/2009 and by the way in which the criterion in Article 4(4)(b) of Directive 2008/95/EC, (2) which is identical to that in Article 8(4) of Regulation No 207/2009, is understood.
   The German legislature, interpreting Article 4(4)(b) of Directive 2008/95/EC correctly, transposed that provision into national law so as to mean that the right at issue must confer upon its proprietor the power to prohibit the use of a subsequent trade mark in the entire territory of the Federal Republic of Germany. The interpretation of the criterion ‘confers … the right to prohibit the use of a subsequent trade mark’ is relevant to the dispute.
   In the alternative, the appellant pleads an infringement of Article 8(4) of Regulation No 207/2009 through misinterpretation of the concept ‘of more than mere local significance’ by the General Court. It relies in this regard on the significance of the opposition procedure, on the purpose of limiting the category of national signs that can be relied upon in opposition, on the connection with the provisions of Articles 110 and 111 of Regulation No 207/2009, and on Article 4(4)(b) of Directive 2008/95/EC.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

      (2)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).


title: Case F-86/09: Action brought on 21 October 2009 — W v Commission

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/40

         Action brought on 21 October 2009 — W v Commission
   (Case F-86/09)
   2010/C 11/77
   Language of the case: French

      Parties

      Applicant: W (Brussels, Belgium) (represented by: E. Boigelot, lawyer)

      Defendant: Commission of the European Communities

      Subject-matter and description of the proceedings

   Annulment of the decision not to grant the household allowance to the applicant.

      Form of order sought

               —

               Annul the decision of the Office for the administration and payment of individual entitlements of 5 March 2009 not to grant the household allowance to the applicant;

               —

               annul the rejection of the complaint brought by the applicant on 2 April 2009, recorded as No R/149/09 under Article 90(2) of the Staff Regulations, issued by the Director General of DG Admin as appointing authority and dated 17 July 2009;

               —

               order the Commission of the European Communities to pay the costs.


title: Case C-139/07 P: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Technische Glaswerke Ilmenau GmbH, Republic of Finland, Kingdom of Sweden (Appeals — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Documents relating to procedures for reviewing State aid — Exception concerning protection of the purposes of investigations — Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/2

         Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Technische Glaswerke Ilmenau GmbH, Republic of Finland, Kingdom of Sweden
   (Case C-139/07 P) (1)

   (Appeals - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Documents relating to procedures for reviewing State aid - Exception concerning protection of the purposes of investigations - Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access)
   2010/C 234/02
   Language of the case: German

      Parties

      Appellant: European Commission (represented by: V. Kreuschitz, P. Aalto and C. Docksey, Agents)

      Other parties to the proceedings: Technische Glaswerke Ilmenau GmbH (represented by C. Arhold and N. Wimmer, Rechtsanwälte), Republic of Finland (represented by J. Heliskoski, Agent), Kingdom of Sweden (represented by K. Wistrand, S. Johannesson and K. Petkovska, Agents)

      Intervener in support of Technische Glaswerke Ilmenau GmbH: Kingdom of Denmark (represented by B. Weis Fogh, Agent)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission in which the Court of First Instance annulled the decision of the Commission of 28 May 2002 in so far as it refused to grant the applicant access to documents relating to the investigation procedures in respect of State aid granted to it — Application of Regulation (EC) No 1049/2001 to cases involving the investigation of State aid — Obligation of the institution concerned to undertake a specific and individual appraisal of the content of the documents referred to in the request for access

      Operative part of the judgment

   The Court:

               1.

               Annuls points 1 and 3 of the operative part of the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission;

               2.

               Dismisses the action brought before the Court of First Instance of the European Communities for annulment of the decision of the Commission of the European Communities of 28 May 2002 in so far as it refuses access to documents relating to procedures for reviewing State aid granted to Technische Glaswerke Ilmenau GmbH;

               3.

               Orders Technische Glaswerke Ilmenau GmbH to bear its own costs and pay those incurred by the European Commission, both at first instance and on appeal;

               4.

               Orders the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

      (1)  OJ C 140, 23.6.2007.


title: Case T-474/07: Order of the Court of First Instance of 5 October 2009 — Commission v CAE Consulting Sven Rau

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/62

         Order of the Court of First Instance of 5 October 2009 — Commission v CAE Consulting Sven Rau
   (Case T-474/07) (1)

   2009/C 282/116

      Language of the case: German

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

      (1)  OJ C 79, 29.3.2008.


title: Case F-9/12: Action brought on 20 January 2012 — ZZ v European Parliament

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/30

         Action brought on 20 January 2012 — ZZ v European Parliament
   (Case F-9/12)
   2012/C 133/60
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: L. Lévi and M. Vandenbussche, lawyers)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Application for an order that the European Parliament pay compensation for the material and non-material loss allegedly suffered by the applicant as a result of errors committed in the management of her reserve list

      Form of order sought

               —

               Recognise that the Parliament has non-contractual liability for the errors committed in the management of her reserve list;

               —

               Pay compensation for the applicant’s material loss evaluated, for the period from December 2003 to December 2011, at EUR 749 449,03, plus pensions funds, and for the subsequent period until the legal retirement age, at the monthly net payment amounts corresponding to the salaries fixed for officials in function group AD from grade AD 9 step 2, second year, taking account of the normal career of an official of that grade, supplemented by the corresponding contributions to the sickness fund. All to be increased by late-payment interest at the rate of the European Central Bank plus two points;

               —

               Pay compensation for the non-material loss evaluated at EUR 70 000;

               —

               Order the European Parliament to pay the costs.


title: Case C-484/04: Action brought on 23 November 2004 by the Commission of the European Communities against the United Kingdom

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/7

         Action brought on 23 November 2004 by the Commission of the European Communities against the United Kingdom
   (Case C-484/04)
   (2005/C 31/16)
   Language of procedure: English
   An action against the United Kingdom was brought before the Court of Justice of the European Communities on 23 November 2004 by the Commission of the European Communities, represented by Gérard Rozet and Nicola Yerrell, acting as agents, with an address for service in Luxembourg.
   The Applicant claims that the Court should declare that:

               1)

               in applying the derogation to workers whose working time is partially not measured or predetermined or can be determined by the worker himself; and

               2)

               in failing to adopt adequate measures for the implementation of the rights to daily and weekly rest, the United Kingdom has failed to fulfil its obligations under Article 17, paragraph 1 of Council Directive 93/104/EC of 23rd November 1993 concerning certain aspects of the organisation of working time (1) and Article 249 EC. order the United Kingdom to pay the costs.

         Pleas in law and main arguments:
   Application of the Derogation in Article 17(1)
   Article 17(1) of the Directive provides for the possibility for Member States to derogate from certain articles of the Directive when, on account of the specific characteristics of the activity concerned, the duration of working time is not measured or predetermined or can be determined by the workers themselves.
   The UK implemented the Directive into national law via the Working Time Regulations 1998 (SI 1998/1833) (‘the 1998 Regulations’). These Regulations initially included in regulation 20 a derogation to the provisions relating to maximum weekly working time, length of night work, daily and weekly rest and rest breaks which broadly mirrored the terms of Article 17(1) of the Directive.
   However, regulation 4 of the Working Time Regulations 1999 (SI 1999/3372) subsequently introduced a new sub-paragraph into regulation 20 of the 1998 Regulations, in the following terms:

                  ‘(2)

                  Where part of the working time of a worker is measured or predetermined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself, regulations 4(1) and (2) and 6(1), (2) and (7) shall apply only to so much of his work as is measured or predetermined or cannot be determined by the worker himself’.

   (Regulations 4 and 6 govern maximum weekly working time and the length of night work respectively).
   This amendment added an additional exemption in cases where a worker's working time is partly measured, predetermined or determined by the worker and partly not. In such cases, the provisions relating to weekly working time and night work only apply in relation to that part of the worker's work which is measured, predetermined or cannot be determined by the worker himself.
   In the Commission's view, regulation 20(2) goes beyond the permitted boundaries of the derogation in Article 17(1), which applies only to workers whose working time as a whole is not measured or predetermined or can be determined by workers themselves.
   Implementation of the provisions relating to workers' rest periods
   Articles 3 and 5 of the Directive lay down minimum periods of daily and weekly rest for every worker. The corresponding provisions in the UK's national law measures are found in regulations 10 and 11 of the 1998 Regulations. However, the official Guidelines produced by the Department of Trade and Industry regarding the implementation of the 1998 Regulations state in their section 5 (entitled ‘Time Off’) that:

      ‘Employers must make sure that workers can take their rest, but are not required to make sure that they do take their rest’.

   In other words, employers are instructed that they are not required to ensure that workers are actually invoking and benefiting from the rest periods to which they are entitled, but merely that there is no obstacle impeding the worker who decides that he wishes to do so.
   In the Commission's view, the Guidelines thus clearly endorse and encourage a practice of non-compliance with the requirements of the Directive.

      (1)  OJ L 307, 13.12.1993, p. 18.


title: Case T-277/06: Judgment of the Court of First Instance of 7 May 2009 — Omnicare v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark OMNICARE — Earlier national figurative mark OMNICARE — Refusal of an application for restitutio in integrum)

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/35

         Judgment of the Court of First Instance of 7 May 2009 — Omnicare v OHIM
   (Case T-277/06) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark OMNICARE - Earlier national figurative mark OMNICARE - Refusal of an application for restitutio in integrum)
   2009/C 153/67
   Language of the case: English

      Parties

      Applicant: Omnicare, Inc. (Covington, Kentucky, United States) (represented initially by M. Edenborough, Barrister, and O. Patterson, Solicitor, and subsequently by M. Edenborough)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by S. Laitinen, and subsequently by G. Schneider, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Astellas Pharma GmbH (Munich, Germany) (represented by: A. Franke, lawyer)

      Re:

   ACTION brought against the decision of the Second Board of Appeal of OHIM of 24 July 2006 (Case R 446/2006-2), concerning opposition proceedings between Yamanouchi Pharma GmbH and Omnicare, Inc. and rejecting the application for restitutio in integrum brought by the latter.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 July 2006 (Case R 446/2006-2);

               2.

               Orders OHIM to bear its own costs and to pay the costs incurred by Omnicare, Inc.;

               3.

               Orders Astellas Pharma GmbH to bear its own costs.

      (1)  OJ C 294, 2.12.2006.