title: Case T-220/00: Action brought on 23 August 2000 by Cheil Jedang Corporation against the Commission of the European Communities

text:
C 316/30               EN                     Official Journal of the European Communities                                     4.11.2000
Action brought on 18 August 2000 by Ellos AB, a com-                     Action brought on 23 August 2000 by Cheil Jedang
pany incorporated under Swedish law, against the Office                  Corporation against the Commission of the European
          for Harmonisation in the Internal Market                                                Communities
                         (Case T-219/00)                                                         (Case T-220/00)
                        (2000/C 316/57)                                                          (2000/C 316/58)
                   (Language of the case: English)                                          (Language of the case: English)
An action against the Office for Harmonisation in the Internal           An action against the Commission of the European Communi-
Market was brought before the Court of First Instance of the             ties was brought before the Court of First Instance of the
European Communities on 18 August 2000 by Ellos AB, Borås                European Communities on 23 August 2000 by Cheil Jedang
(Sweden) represented by Göran Bergqvist, Albihns Patentbyrå,             Corporation, represented by Alasdair R.M. Bell, Solicitor (Scot-
Göteborg (Sweden).                                                       land), Rony Gerrits, Advocaat (Belgium) and James Killick,
                                                                         Barrister (England and Wales) of White & Case, Brussels.
The applicant claims that the Court should:
                                                                         The applicant claims that the Court should:
—     annul Decision No. 385/1999-1 of the First Board of
      Appeal of 15 June 2000 and order the Office to register
                                                                         —     annul Commission Decision No. C (2000) 1565 final of
      ELLOS for all classes sought;
                                                                               7 June 2000;
—     in the alternative, order the Office to register ELLOS for
      classes 24 and 35 as sought;                                       —     order the Commission to pay the costs.
—     order the Office to pay the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         The applicant in the present case, a company established under
                                                                         the laws of the Republic of Korea, produces lysine in Indonesia,
Trade Mark concerned:         word mark ‘ELLOS’ — Appli-                 some of which is sold in the European Union. It seeks the
                              cation No 88815                            annulment of the Commission decision dated 7 June 2000 —
                                                                         C(2000) 1565 final, concerning a procedure under Article 81
                                                                         of the EC Treaty (Case Comp/36.545/F3 — Amino Acids).
Product or Service:           certain goods and services in              This decision has imposed a fine inter alia to the applicant,
                              classes 24 (textiles), 25 (clothing),      after having considered it had infringed Article 81(1) of the EC
                              35 (customer services for mail-            Treaty and Article 53(1) of the EEA Agreement by participating
                              order sales)                               in agreements on prices, sales volumes and the exchange of
                                                                         individual information on sales volumes of synthetic lysing.
Contested         Decision    refusal of Registration by the
before the Board of           Examiner
Appeal:                                                                  The application challenges the decision, in particular, on the
                                                                         following grounds:
Pleas in law:                 — the trade mark is of enough
                                   distinctive character to be
                                   registered as a Community             —     The fine imposed on the applicant is too severe and thus
                                   trade mark                                  illegal as the Commission failed to take into account a
                                                                               series of elements either as a reduction in the duration of
                              — the office has failed to take                  the infringement or as a mitigation factor.
                                   into account that there are
                                   registered trade marks con-
                                   sisting of and containing the         —     The decision is contrary to the applicant’s legitimate
                                   word ‘ellos’ in Spain.                      expectations as well as to fundamental principles of EC
                                                                               law, as the Commission changed the applicable rules (i.e.
                                                                               the Commission Guidelines on the setting of fines (1))
                                                                               during the course of the administrative proceedings to
                                                                               the detriment of the applicant.
 ---pagebreak--- 4.11.2000               EN                      Official Journal of the European Communities                                     C 316/31
—     The decision is inadequately reasoned and is in breach of                  games of chance, by their nature, since they require the
      the principle of proportionality.                                          presence and direct involvement of the customer, cannot
                                                                                circulate beyond the casino, in striking contrast to other
                                                                                games of chance such as lotteries, betting on horses, dogs
                                                                                and so forth. Accordingly, the activity pursued in the
(1) Guidelines on the method of setting fines imposed pursuant to                Casino can never be described as commercial and made
    Article 15 (2) of Regulation No 17 and Article 65 (5) of the ECSC            subject to free competition.
    Treaty, OJ C 9, of 14.1.1998, p. 3.
                                                                           —     Breach of the obligation to provide a statement of
                                                                                reasons.
                                                                           —     Infringement of the rights of the defence, inasmuch as
                                                                                the applicant was never mentioned by the Commission
                                                                                in the documents made public during the procedure.
                                                                                Since it considered itself excluded from the procedure, it
                                                                                saw no reason whatsoever to intervene and submit
Action brought on 24 August 2000 by Casinò Municipale                           observations.
di Venezia SpA against Commission of the European
                           Communities
                          (Case T-221/00)
                          (2000/C 316/59)
                                                                           Action brought on 25 August 2000 by Otto Wöhr GmbH
                                                                             against the Commission of the European Communities
                    (Language of the case: Italian)
                                                                                (Case T-222/00)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                         (2000/C 316/60)
European Communities on 24 August 2000 by Casinò Munici-
pale di Venezia SpA, represented by Tito Ballerino, of the
Milan Bar.
                                                                                (Language of the case: German)
The applicant claims that the Court should:                                An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
—     annul Articles 1, 2 and 5 of the decision of the Com-                European Communities on 25 August 2000 by Otto Wöhr
      mission of 25 November 1999 so far as it is concerned                GmbH, of Friolzheim (Federal Republic of Germany), rep-
                                                                           resented by Dr Christofer Hebel and Dr Gesine Walz, Rechtsan-
                                                                           wälte, of Messrs Moosmayer, Hess, Hoffmann & Partner,
—     order the Commission to pay the costs.                               Stuttgart (Federal Republic of Germany).
                                                                           The applicant claims that the Court should:
Pleas in law and main arguments
                                                                           —     annul the defendant’s decision of 26 June 2000 not to
                                                                                open the main procedure for an examination of State
The decision contested in the present case is the same as in                     aid in favour of Hydraulik Markranstädt GmbH (Case
Case T-218/00 Cooperativa Mare Azzurro and Others v                              No NN 48/98) and Hydraulik Seehausen GmbH (Case
Commission.                                                                      No NN 49/98);
In support of its arguments, the applicant claims:                         —     order the defendant to pay the costs.
—     The conditions laid down in the first paragraph of
                                                                           Pleas in law and main arguments
      Article 87 of the EC Treaty were not met. The applicant
      claims in that regard that, first, Casinò di Venezia retains
      a lawful monopoly, since its activity is not subject                 By the contested decision, the Commission declined to open
      to competition by virtue of statutory protection, and,               the main procedure pursuant to Article 88(2) EC for an
      secondly, that the services provided by the applicant                examination of the compatibility with the common market of
      consist only in making available to customers its gaming             State aid granted by the German authorities to Hydraulik
      areas free of charge. The applicants point out that such             Markranstädt and Hydraulik Seehausen.


title: JUDGMENT OF THE COURT of 9 July 1997 in Case C-316/95 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Generics BV v. Smith Kline & French Laboratories Ltd (Articles 30 and 36 of the EC Treaty - Patent - Registration of medicinal products - Infringement)

text:
6 . 9 . 97           I EN [               Official Journal of the European Communities                                    C 271 / 1
                                                                  I
                                                            (Information)
                                               COURT OF JUSTICE
                                                        COURT OF JUSTICE
                JUDGMENT OF THE COURT                                     submission by another person of samples of medicinal
                         of 9 July 1997                                   products, manufactured in accordance with that
                                                                          process by a person other than the patentee, to the
in Case C-3 16/95 ( reference for a preliminary ruling from               authority       competent    for   issuing    marketing
the Hoge Raad der Nederlanden): Generics BV v. Smith                      authorizations, is justified under Article 36 of the EC
              Kline & French Laboratories Ltd ( ! )                       Treaty.
(Articles 30 and 36 of the EC Treaty — Patent —
     Registration of medicinal products — Infringement)               3 . When a person other than the patentee has infringed
                         ( 97/C 271 /01 )                                 the patent laws of a Member State by submitting
                                                                          samples of a medicinal product manufactured in
                                                                          accordance with a patented process to the authority
                 (Language of the case: Dutch)
                                                                          competent for issuing marketing authorizations and
                                                                          has thus obtained the authorization sought, an order
  (Provisional translation; the definitive translation will be            of a national court prohibiting the infringer from
           published in the European Court Reports)                       marketing such a product for a specified period
                                                                          following the expiry of the patent in order to prevent
In Case C-3 16/95 : reference to the Court under Article 177              him from deriving any unfair profit from his
of the EC Treaty from the Hoge Raad der Nederlanden                       infringement constitutes a measure having equivalent
( Supreme Court of the Netherlands ) for a preliminary                    effect within the meaning of Article 30 of the EC
ruling in the proceedings pending before that court                       Treaty capable of being justified under Article 36 of
between      Generics   BV    and  Smith    Kline   &   French            that Treaty.
Laboratories Ltd — on the interpretation of Articles 30
and 36 of the EC Treaty — the Court, composed of: G. C.               4 . Where the submission of samples of a medicinal
Rodriguez Iglesias, President, J. C. Moitinho de Almeida,                 product to the competent authority with a view to
J. L. Murray and L. Sevon ( Presidents of Chambers ),                     obtaining a marketing authorization has given rise to a
P. J. G. Kapteyn, C. Gulmann ( Rapporteur ), D. A. O.                     patent infringement, Community law, and in particular
Edward, G. Hirsch, P. Jann, H. Ragnemalm and M.                           Article 36 of the Treaty, does not preclude a national
Wathelet, Judges; F. G. Jacobs, Advocate General; D.                      court from prohibiting the infringer from marketing
Louterman-Hubeau, Principal Administrator, for the                        that product for 14 months after the expiry of the
Registrar, has given a judgment on 9 July 1997, in which                  patent in question, when that period, although
it has ruled :                                                            exceeding the maximum period authorized by Article 7
                                                                          of Council Directive 65/65/EEC of 26 January 1965
1 . Application of a rule of national law which gives the                 on the approximation of provisions laid down by law,
     proprietor of a patent in respect of a manufacturing                 regulation or administrative action relating to
     process for a medicinal product the right to oppose the              proprietary medicinal products, read in conjunction
     submission by another person of samples of medicinal                 with Article 4 (c) of Council Directive 75/319/EEC of
     products manufactured in accordance with that                        20 May 1975 on the approximation of provisions laid
     process to the authority competent for issuing                       down by law, for the procedure for granting a
     marketing authorizations constitutes a measure having                marketing authorization, corresponds to the actual
     equivalent effect to a quantitative restriction within               average duration - of such a procedure in the Member
     the meaning of Article 30 of the EC Treaty.                          State concerned.
2. Application of a rule of national law which gives the             (*) OJ C 315 , 25 . 11 . 1995 .
     proprietor of a patent in respect of a manufacturing
     process for a medicinal product the right to oppose the


title: Order of the Court of First Instance of 14 June 2002 in Case T-327/00: ICAT Food SpA v Commission of the European Communities (Common customs tariff — Failure to proceed to post-clearance recovery of import duties — No need to adjudicate)

text:
24.8.2002               EN                       Official Journal of the European Communities                                           C 202/27
      ORDER OF THE COURT OF FIRST INSTANCE                                  D.P. Domenicucci, lawyers, with an address for service in
                                                                            Luxembourg, against Commission of the European Communi-
                         of 10 June 2002                                    ties (Agents: R. Tricot and M. Moretto) — application for
                                                                            annulment of Commission Decision C(2000)1612 of 19 June
in Case T-200/00, Glenryck UK Ltd and Others v Com-                         2000 rejecting the request not to proceed with the post-
          mission of the European Communities (1)                           clearance recovery of import duties in respect of canned tuna
                                                                            from Turkey — the Court of First Instance (Fourth Chamber),
(Common customs tariff — Remission of import duties —                       composed of M. Vilaras, President, V. Tiili and P. Mengozzi,
                Case not proceeding to judgment)                            Judges; H. Jung, Registrar, made an order on 14 June 2002,
                                                                            the operative part of which is as follows:
                         (2002/C 202/42)
                                                                            1.    There is no need to adjudicate on the present action.
                   (Language of the case: English)
                                                                            2.    The Commission shall bear all the costs.
In Case T-200/00, Glenryck UK Ltd, established in Henley-
on-Thames (United Kingdom), Maple Leaf Foods UK Ltd,                        (1) OJ 2000 C 372.
established in London, Martin Mathews & Co Ltd, established
in Cheshunt (United Kingdom), and North Country Quality
Foods Ltd, established in Salford (United Kingdom), represent-
ed by M. Cornwell-Kelly, Solicitor, and E. Mc Nicholas and
S. Saltissi, Barristers, with an address for service in Luxem-
bourg, v Commission of the European Communities, (Agents:
R. Tricot and M. Shotter) — application for annulment of
Commission Decision No C(2000) 1078 of 2 May 2000 (REM
14/99), of Commission Decision No C(2000) 1083 of 2 May
2000 (REM 16/99), of Commission Decision No C(2000)                                   ORDER OF COURT OF FIRST INSTANCE
1081 of 8 May 2000 (REM 15/99) and of Commission
Decision No C(2000) 1178 of 15 May 2000 (REM 43/99)                                                    of 6 June 2002
rejecting the requests for the remission of customs duties in
respect of the importation by the applicants of canned tuna
from Turkey, the Court of First Instance (Fourth Chamber)                   in Case T-105/01, Società Lavori Impianti Metano Sicilia
composed of M. Vilaras, President, V. Tiili and P. Mengozzi,                (SLIM Sicilia) v Commission of the European Communi-
Judges, Registrar; H. Jung, has made an order on 10 June 2002                                               ties (1)
the operative part of which is as follows:
                                                                            (European Regional Development Fund — Projects co-
1.    There is no need to adjudicate in the present action.
                                                                            financed by the ERDF — Refusal to extend the time limit for
2.    The Commission shall pay the costs in their entirety.                 the submission of an application for final payment — Action
                                                                                for annulment — Admissibility)
(1) OJ C 302 of 21.10.00.
                                                                                (2002/C 202/44)
                                                                                (Language of the Case: Italian)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                            In Case T-105/01, Società Lavori Impianti Metano Sicilia (SLIM
                         of 14 June 2002                                    Sicilia), established in Syracuse (Italy), represented by N. Saitta,
                                                                            F. Saitta, M. Siragusa, F.M. Moretti and C. Lanciani, lawyers,
in Case T-327/00: ICAT Food SpA v Commission of the                         v Commission of the European Communities (Agents: Van
                   European Communities (1)                                 Vliet, assisted by M. Moretto) — application for annulment of
                                                                            the decision of the Commission contained in a letter sent to
(Common customs tariff — Failure to proceed to post-                        the Italian Government on 12 December 2000 refusing to
clearance recovery of import duties — No need to adjudicate)                extend the time limit for the submission of the application for
                                                                            final payment and closure of the file concerning assistance
                         (2002/C 202/43)                                    granted under the European Regional Development Fund
                                                                            No 840503013/001 in respect of the project for the methana-
                    (Language of the case: Italian)                         tion of the municipality of Syracuse — the Court of First
                                                                            Instance (Second Chamber) composed of R. M. Moura Ramos,
                                                                            President, J. Pirrung and A. W. H. Meij, Judges, Registrar;
In Case T-327/00: ICAT Food SpA, established in Milan (Italy),              H. Jung, has made an order on 6 June 2002 the operative part
represented by R. Delfino, M. Merola, F. Santaniello and                    of which is as follows:


title: Case C-306/04: Reference for a preliminary ruling by the Gerechtshof te Amsterdam by decision of that court of 13 July 2004 in the case of Compaq Computer International Corporation against Inspecteur van de Belastingdienst – Douanedistrict Arnhem.

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/30

         Reference for a preliminary ruling by the Gerechtshof te Amsterdam by decision of that court of 13 July 2004 in the case of Compaq Computer International Corporation against Inspecteur van de Belastingdienst – Douanedistrict Arnhem.
   (Case C-306/04)
   (2004/C 228/62)
   Reference has been made to the Court of Justice of the European Communities by decision of the Gerechtshof te Amsteredam (Amsterdam Regional Court of Appeal) of 13 July 2004, received at the Court Registry on 19 July 2004, for a preliminary ruling in the case of Compaq Computer International Corporation against Inspecteur van de Belastingdienst – Douanedistrict Arnhem on the following question:
   Where computers on which operating systems installed by the seller are imported, must the value of the software made available to the seller by the buyer free of charge be added to the transaction price of those computers pursuant to Article 32(1)(b) of the Community Customs Code (1) where the value thereof is not included in the transaction price?

      (1)  OJ L 302 of 19 October 1992, p. 1.


title: Case C-262/08: Judgment of the Court (Third Chamber) of 10 June 2010 (Reference for a preliminary ruling from the Østre Landsret — Denmark) — CopyGene A/S v Skatteministeriet (Sixth VAT Directive — Exemptions — Article 13A(1)(b) — Hospital and medical care — Closely related activities — Duly recognised establishments of a nature similar to hospitals or centres for medical treatment or diagnosis — Private stem cell bank — Services of collection, transportation, analysis and storage of umbilical cord blood of newborn children — Possible autologous or allogeneic use of stem cells)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/3

         Judgment of the Court (Third Chamber) of 10 June 2010 (Reference for a preliminary ruling from the Østre Landsret — Denmark) — CopyGene A/S v Skatteministeriet
   (Case C-262/08) (1)

   (Sixth VAT Directive - Exemptions - Article 13A(1)(b) - Hospital and medical care - Closely related activities - Duly recognised establishments of a nature similar to hospitals or centres for medical treatment or diagnosis - Private stem cell bank - Services of collection, transportation, analysis and storage of umbilical cord blood of newborn children - Possible autologous or allogeneic use of stem cells)
   2010/C 221/04
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: CopyGene A/S

      Defendant: Skatteministeriet

      Re:

   Reference for a preliminary ruling — Østre Landsret — Article 13A(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), now Article 132(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Exemption for hospital and medical care and closely related activities — Services consisting in the collection, transportation, analysis and storage of umbilical cord blood from newborn children with a view to autologous use of stem cells, potentially closely related to possible future hospital care, supplied by a private stem cell bank

      Operative part of the judgment

               1.

               The concept of activities ‘closely related’ to ‘hospital and medical care’ within the meaning of Article 13A(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that it does not cover activities such as those at issue in the main proceedings consisting in the collection, transportation and analysis of umbilical cord blood and the storage of stem cells contained in it, where the medical care provided in a hospital environment to which those activities are merely potentially related has not been performed, commenced or yet envisaged;

               2.

               If the services of stem cell banks such as those at issue in the main proceedings are performed by professional medical personnel, where such stem cell banks, although authorised by the competent health authorities of a Member State, within the framework of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells, to handle human tissue and cells, do not receive any support from the public social security scheme and where the payment for those services is not covered by that scheme, Article 13A(1)(b) of Sixth Directive 77/388 does not preclude the national authorities from deciding that taxable persons such as CopyGene A/S are not ‘other duly recognised establishments of a similar nature’ to ‘hospitals [and] centres for medical care or diagnosis’ within the meaning of Article 13A(1)(b) of Sixth Directive 77/388. However, neither can that provision be interpreted as requiring, as such, the competent authorities to refuse to treat a private stem cell bank as an establishment ‘duly recognised’ for the purposes of the exemption in question. To the extent that it is necessary, it is for the referring court to determine whether the refusal of recognition for the purposes of the exemption provided for in Article 13A(1)(b) of Sixth Directive 77/388 complies with European Union law and, in particular, with the principle of fiscal neutrality.

      (1)  OJ C 209, 15.08.2008.


title: Case T-31/07 R: Order of the President of the Court of First Instance of 19 July 2007 — Du Pont de Nemours (France) and Others v Commission (Applications for interim measures — Application for suspension of operation of a measure — Directive 91/414/EEC — Admissibility — Prima facie case — Urgency — Balance of interests)

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/11

         Order of the President of the Court of First Instance of 19 July 2007 — Du Pont de Nemours (France) and Others v Commission
   (Case T-31/07 R)
   (Applications for interim measures - Application for suspension of operation of a measure - Directive 91/414/EEC - Admissibility - Prima facie case - Urgency - Balance of interests)
   (2007/C 223/16)
   Language of the case: English
   Parties

      Applicants: Du Pont de Nemours (France) SAS (Puteaux, France); Du Pont Portugal — Serviços, Sociedada Unipessoal Lda (Lisbon, Portugal); Du Pont Ibérica SL (Barcelona, Spain); Du Pont de Nemours (Belgium) BVBA (Mechelen, Belgium); Du Pont de Nemours Italiana Srl (Milan, Italy); Du Pont De Nemours (Nederland) BV (Dordrecht, Netherlands); Du Pont de Nemours (Deutschland) GmbH (Bad Homburg vor der Höhe, Germany); DuPont CZ s.r.o. (Prague, Czech Republic); DuPont Magyarország Kereskedelmi kft (Budaors, Hungary); DuPont Poland sp. z o.o (Warsaw, Poland); DuPont Romania Srl (Bucharest, Romania); DuPont (UK) Ltd (Stevenage, United Kingdom); Dy-Pont Agkro Ellas AE (Halandri, Greece); DuPont International Operations SARL (Grand Saconnex, Switzerland); DuPont Solutions (France) SAS (Puteaux) (represented by: D. Waelbroeck and N. Rampal, lawyers)

      Defendant: Commission of the European Communities (represented by: L. Parpala and B. Doherty, acting as Agents)
   Re:
   Application for the suspension of certain provisions of Commission Directive 2006/133/EC of 11 December 2006 amending Council Directive 91/414/EEC to include flusilazole as active substance (OJ 2006 L 349, p. 27).
   Operative part of the order

               1.

               The expiry of the period for which flusilazole is included in Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market, fixed at 30 June 2008 in the Annex to Commission Directive 2006/133/EC of 11 December 2006 amending Council Directive 91/414/EEC to include flusilazole as active substance, is suspended until judgment is delivered in the main proceedings;

               2.

               The date by which the Member States have to amend or withdraw, if necessary, after review, the authorisation of products containing flusilazole, also fixed at 30 June 2008 under the second subparagraph of Article 3(2) of Directive 2006/133, is suspended until judgment is delivered in the main proceedings;

               3.

               The restriction contained in part A of the Specific Provisions of the Annex to Directive 2006/133 on the types of crops on which the use of flusilazole may be authorised by the Member States, namely cereals other than rice, oilseed rape, maize and sugar beet, is suspended until judgment is delivered in the main proceedings;

               4.

               Costs are reserved.


title: Case T-420/16: Action brought on 29 July 2016 — SJM Coordination Center v Commission

text:
               26.9.2016

               EN

               Official Journal of the European Union

               C 350/23

         Action brought on 29 July 2016 — SJM Coordination Center v Commission
   (Case T-420/16)
   (2016/C 350/29)
   Language of the case: English

      Parties

      Applicant: St. Jude Medical Coordination Center (SJM Coordination Center) (Zaventem, Belgium) (represented by: F. Louis and J. Ylinen, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium;

               —

               alternatively, annul the contested decision to the extent that it includes the Applicant among the beneficiaries of the alleged aid scheme;

               —

               alternatively, annul the contested decision to the extent that it orders the recovery of any alleged aid amount from the Applicant;

               —

               order the Commission to pay the costs of the Applicant.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a lack of competence.
               The Applicant puts forward that the Commission lacks competence to issue the contested decision and that the contested decision violates the principle of conferral limiting Union competences.

               2.

               Second plea in law, alleging a violation of the right to be heard.
               The Applicant puts forward that the Commission’s contradictory positions in its opening decision and in the contested decision have violated the right to be heard of the Applicant.

               3.

               Third plea in law, alleging a wrong characterisation as an aid scheme.
               The Applicant puts forward that the contested decision erroneously concludes to the existence of a scheme, that the Commission’s approach violates its duty to conduct a comprehensive, diligent and impartial examination of the facts under investigation.

               4.

               Fourth plea in law, alleging an insufficient statement of reasons.
               The Applicant puts forward that the Commission does not appropriately state the reasons on which the contested decision was based.

               5.

               Fifth plea in law, alleging an erroneous finding of selectivity under Article 107(1) TFUE.
               The Applicant puts forward that the contested decision errs with regard to all three steps establishing selectivity in numerous ways: (i) Article 185(2)(b) of the Belgian Income Tax Code (‘Code des impôts sur les revenus 1992’ or ‘CIR’) and the excess profit rule cannot be excluded from from the system of reference; (ii) the ruling received by the Applicant derogates neither (a) from the arm’s length principle, nor (b) from Belgian corporate income tax system; and (iii) the alleged derogation would be justified by the need to avoid double taxation.

               6.

               Sixth plea in law, alleging a lack of advantage.
               The Applicant puts forward that the contested decision does not analyse the existence of an advantage. According to the Applicant, it has not received an advantage and any benefit to it is in line with the arm’s length principle lais down in Article 9 of the OECD Model Tax Convention, which Article 185(2) CIR introduces to Belgian law.

               7.

               Seventh plea in law, alleging a violation of the principle of equal treatment.
               The Applicant puts forward that the contested decision violates the principle of equal treatment by (i) claiming that the arm’s length principle entitles tax administrations to increase the tax base of Multinational Enterprises (‘MNE’) and at the same time requiring a concrete risk of double taxation to allow for downward adjustments and (ii) limiting the analysis of an advantage to the level of the Belgian MNE entity.

               8.

               Eighth plea in law, alleging a violation of the principles of legal certainty and legality.
               The contested decision infringes the principle of legal certainty by (i) breaking with case law and its own Commission previous practice and (ii) a lack of identification of the alleged advantage.

               9.

               Ninth plea in law, alleging recovery results in double taxation.
               The Applicant puts forward that the contested decision errs to assume that there can be no double taxation concern, which would increase if the Applicant was ordered to pay any amount in the recovery process. According to the Applicant, the contested decision must therefore be annulled, to the extent that it orders Belgium to recover any amount from the Applicant.

               10.

               Tenth plea in law, alleging that recovery cannot be subjected to commission discretion.
               The Applicant puts forward that the contested decision appears to grant the Commission discretionary power to reject adaptations of the taxpayer’s taxable basis based on actual factual circumstances at the time the Ruling was obtained.


title: Case C-169/07: Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung, Oberösterreichische Landesregierung (Freedom of establishment — Social security — National health system financed by the State — System of benefits in kind — System of reimbursement of costs paid by the person insured — Authorisation to set up a private outpatient dental clinic — Criterion of assessment of the need to set up a health institution — Objective of maintaining a balanced high-quality medical or hospital service open to all — Objective of preventing a risk of serious harm to the financial balance of the social security system — Consistency — Proportionality)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/4

         Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung, Oberösterreichische Landesregierung
   (Case C-169/07) (1)

   (Freedom of establishment - Social security - National health system financed by the State - System of benefits in kind - System of reimbursement of costs paid by the person insured - Authorisation to set up a private outpatient dental clinic - Criterion of assessment of the need to set up a health institution - Objective of maintaining a balanced high-quality medical or hospital service open to all - Objective of preventing a risk of serious harm to the financial balance of the social security system - Consistency - Proportionality)
   2009/C 113/07
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Hartlauer Handelsgesellschaft mbH

      Defendants: Wiener Landesregierung, Oberösterreichische Landesregierung

      Re:

   Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Articles 43 EC and 48 EC — Authorisation of a private hospital to provide outpatient dental medicine — Authorisation subject to an assessment of the needs of the market

      Operative part of the judgment

   Articles 43 EC and 48 EC preclude national legislation such as that at issue in the main proceedings under which authorisation is necessary for the setting up of a private health institution in the form of an independent outpatient dental clinic, and authorisation must be refused if there is no need for that outpatient clinic, having regard to the care already offered by contractual practitioners, where that legislation does not also subject group practices to such a system and is not based on a condition capable of adequately circumscribing the exercise by the national authorities of their discretion.

      (1)  OJ C 155, 7.7.2007.


title: Case F-25/13: Action brought on 21 March 2013 — ZZ v Commission

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/55

         Action brought on 21 March 2013 — ZZ v Commission
   (Case F-25/13)
   2013/C 156/103
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: L. Vogel, lawyer)

      Defendant: Commission

      Subject-matter and description of the proceedings

   The annulment of the decisions transferring pensions acquired before entry into service at the Commission on the basis of the Paymaster Office (PMO).

      Form of order sought

               —

               Annul the decision adopted by the Appointing Authority on 11 December 2012, rejecting the claims made by the applicant on 16 August 2012 and 28 August 2012 against the decisions of the PMO.4 on 21 May 2012, 31 May 2012 and 2 July 2012;

               —

               In so far as necessary, annul in addition those decisions of 21 May 2012, 31 May 2012 and 2 July 2012 adopted by the PMO.4, against which the applicant’s claims were brought;

               —

               Declare the general implementing provisions of Articles I1 and 12 of Annex VII to the Staff Regulations, pursuant to Article 277 of the EC Treaty of 25 March 1957, as adopted on 3 March 2011, unlawful and inapplicable to the present case, particularly Article 9 thereof;

               —

               Order the defendant to pay the costs of the proceedings in accordance with Article 87 of the Rules of Procedure and the expenses necessarily incurred for the purpose of the proceedings, in particular the cost of having an address for service, travel and subsistence expenses and lawyers’ fees in accordance with Article 91(b) of those Rules.


title: Case T-334/06: Order of the Court of First Instance of 25 November 2008 — Commission v Northumbrian Water

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/36

         Order of the Court of First Instance of 25 November 2008 — Commission v Northumbrian Water
   (Case T-334/06) (1)

   (2009/C 19/69)

      Language of the case: English

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

      (1)  OJ C 326, 30.12.2006.


7.8.1999              EN                   Official Journal of the European Communities                                     C 226/27
Action brought on 15 June 1999 by the Commission of                          Removal from the register of Case C-10/99 (1)
 the European Communities against the French Republic
                                                                                (1999/C 226/48)
                        (Case C-230/99)
                                                                      By order of 29 April 1999 the President of the Court of Justice
                        (1999/C 226/46)                               of the European Communities has ordered the removal from
                                                                      the register of Case C-10/99 (reference for a preliminary ruling
An action against the French Republic was brought before the          from the Amtsgericht München): Peter Feiler v Karlsruher
Court of Justice of the European Communities on 15 June               Lebensversicherungs-AG.
1999 by the Commission of the European Communities,
represented by Hendrik van Lier, Legal Adviser, and Olivier
Couvert-Castéra, a national civil servant on secondment to the        (1) OJ C 71 of 13.3.1999.
Legal Service, acting as Agent with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
Centre, Kirchberg.
The applicant claims that the Court should:
— Declare that, by adopting the order of 9 November 1994                     Removal from the register of Case C-63/98 (1)
    ‘concerning rubber material and rubber articles in contact
    with foodstuffs, food products and beverages for consump-
    tion’, without expressly recognising the technical rules                                  (1999/C 226/49)
    standards and manufacturing processes which are lawfully
    followed in the other Member States, and the findings             By order of 4 May 1999 the President of the Court of Justice
    from the related checks and tests carried out by an               of the European Communities has ordered the removal from
    inspection and supervisory body or a laboratory officially        the register of Case C-63/98: Commission of the European
    recognised in another Member State, the French Republic           Communities v Netherlands.
    has failed to fulfil its obligations under Article 28 (ex
    Article 30) of the EC Treaty;
                                                                      (1) OJ C 166 of 30.5.1998.
— Order the French Republic to pay the costs.
Pleas in law and main arguments
The effect of the French rules referred to in the application is
to prevent the marketing in France of the products concerned                 Removal from the register of Case C-311/98 (1)
which, albeit lawfully manufactured or marketed in another
Member State, do not comply with the French legislation;
those rules therefore constitute a restriction on intra-                                      (1999/C 226/50)
Community trace. The Commission does not deny that the
provisions of the above order are designed to meet public             By order of 21 May 1999 the President of the Court of Justice
health requirements, but it questions whether they are pro-           of the European Communities has ordered the removal from
portionate in relation to the objective pursued in the absence        the register of Case C-311/98: Commission of the European
of any provision for the mutual recognition of products which         Communities v Kingdom of Spain.
ensure an equivalent lever of protection to that sought under
the French legislation.
                                                                      (1) OJ C 299 of 26.9.1998.
       Removal from the register of Case C-292/98 (1)
                        (1999/C 226/47)                                      Removal from the register of Case C-66/98 (1)
By order of 19 April 1999 the President of the Fourth Chamber                                 (1999/C 226/51)
of the Court of Justice of the European Communities has
ordered the removal from the register of Case C-292/98:               By order of 26 May 1999 the President of the Third Chamber
Commission of the European Communities v Italian Republic.            of the Court of Justice of the European Communities has
                                                                      ordered the removal from the register of Case C-66/98:
(1) OJ C 299 of 26.9.1998.                                            Commission of the European Communities v Italian Republic.
                                                                      (1) OJ C 137 of 2.5.1999.


title: Case C-21/12 P: Appeal brought on 16 January 2012 by Abbott Laboratories against the judgment of the General Court (Sixth Chamber) delivered on 15 November 2011 in Case T-363/10 Abbott Laboratories v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/13

         Appeal brought on 16 January 2012 by Abbott Laboratories against the judgment of the General Court (Sixth Chamber) delivered on 15 November 2011 in Case T-363/10 Abbott Laboratories v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-21/12 P)
   2012/C 98/21
   Language of the case: German

      Parties

      Appellant: Abbott Laboratories (represented by: R. Niebel and C. Steuer, Rechtsanwälte)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

               —

               Set aside the judgment of the General Court of the European Union of 15 November 2011 in Case T-363/10;

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 June 2010 (Case R 1560/2009-1) relating to application for Community trade mark No 008 448 251 RESTORE;

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

      Pleas in law and main arguments

   The grounds of the appeal against the decision of the General Court at issue are, in essence, as follows:

               1.

               First, the appellant complains of the General Court’s distortion of the facts or of the evidence. The General Court erroneously proceeded on the assumption that it is common knowledge that the word ‘restore’ has a direct medical meaning. What was undisputed in the proceedings was merely the fact that ‘restore’ is translated [into German] as ‘wiederherstellen’. A medical connection cannot, however, be detected in that. The fact that the General Court’s view is based on the dictionary excerpts produced represents a distortion of the evidence. Those excerpts show that ‘restore’ does not have any medical meaning per se, but that it is a multifaceted concept that can be understood in a variety of ways, depending on the context. That meaning cannot therefore be regarded as a matter of common knowledge and thus as a fact that, exceptionally, does not need to be proved.

               2.

               Second, the appellant alleges infringement of Article 7(1)(c) of Regulation No 207/2009. The General Court erred in law in classifying the trade mark RESTORE as a purely descriptive indication. In order for Article 7(1)(c) of Regulation No 207/2009 to be applied, the sign applied for must be able to serve, in trade, ‘to designate’ the kind etc. of goods. According to the case-law of the Court of Justice, the descriptive statement must be obvious from the sign applied for and the word itself must be descriptive. That is the case in this instance.
               The verb ‘restore’ does not in itself provide any indication of the kind, quality or intended purpose of the goods in respect of which registration is sought. The verb ‘restore’ acquires a descriptive function only in constructions that include one or more nouns (for example, ‘restore one’s health’). In so far as the assumption is made that a medical connection arises from the circumstances, that is insufficient, according to the case-law of the Court of Justice, as that would require a transfer on the part of the public, in the sense of an effort of interpretation. A meaning associated with medicine can arise only if words such as ‘health’ are added, which are precisely what are missing in this case. Instead of examining the trade mark applied for (RESTORE) both the Board of Appeal and the General Court examined a trade mark RESTORE SOMEONE’S HEALTH.

               3.

               Third, the appellant alleges infringement of Article 7(1)(b) of Regulation No 207/2009. The Board of Appeal classified the trade mark RESTORE as a sign devoid of any distinctive character, in disregard of the appropriate legal criterion, and thus erred in law by refusing to register the trade mark. According to the appellant, the Board of Appeal and the General Court also took the view that the RESTORE trade mark applied for was devoid of any distinctive character on the grounds of its allegedly descriptive nature. This has already been countered in the submissions made in relation to the second ground of appeal.
               Nor can the judgment be justified on the alternative grounds that concern the lack of any distinctive character (paragraphs 52 to 54 of the judgment). The considerations are a tautological reiteration of the argument that a descriptive trade mark is always devoid of distinctive character. The fact that the public does not expect to find a functional description — even in the form of a single word — on a medical product also suggests the absence of any descriptive character.

               4.

               Fourth, the appellant alleges infringement of the second sentence of Article 75 of Regulation No 207/2009. The Board of Appeal’s decision was based, in essence, on dictionary excerpts to which the appellant did not have access and in respect of which the appellant consequently could not be heard. That represents an infringement of the right to a fair hearing, since, according to the case-law of the Court of Justice, a decision may be based only on matters on which the parties have had an opportunity to present their comments. However, according to the case-law of the Court of Justice, the Board of Appeal is under an obligation to communicate, for the purposes of the presentation of comments, those facts which it has assembled of its own motion and which it intends to use as a basis for its decision. In that regard the Board of Appeal failed in one essential respect as far as the proceedings were concerned to produce the dictionary excerpts it had obtained, and thus infringed the right to a fair hearing.

               5.

               Fifth, the appellant alleges breach of the principle of equal treatment. The Board of Appeal disregarded the case-law of the Court of Justice in failing to take into account the existence of earlier registrations and thus its own practice in relation to registration. The appellant does not deny in that regard that that principle is subject to the principle of legality. The mere reference to that principle is not, however, sufficient to override the principle of equal treatment. Instead, it should have been specifically explained why it should be assumed that those earlier registrations were unlawful per se.


2.2.2002              EN                     Official Journal of the European Communities                                 C 31/17
       Removal from the register of Case T-52/01 (1)                          Removal from the Register of Case T-140/01 (1)
                        (2002/C 31/32)                                                          (2002/C 31/33)
                  (Language of the case: Spanish)
                                                                                (Language of the case: French)
By order of 3 October 2001 the President of the Third
Chamber of the Court of First Instance of the European                  By order of 9 November 2001, the President of the Second
Communities has ordered the removal from the register of                Chamber of the Court of First Instance of the European
Case T-52/01 Juergen Schaefer v Commission of the European              Communities has ordered the removal from the Register of
Communities.                                                            Case T-140/01: Paul Doyle v Commission of the European
                                                                        Communities.
(1) OJ C 134 of 5.5.2001.
                                                                        (1) OJ C 245 of 1.9.2001.


title: Case C-205/02 P: Appeal brought on 3 June 2002 by KE KELIT Kunststoffwerke Gesellschaft m.b.H against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-17/99 between KE KELIT Kunststoffwerke Gesellschaft m.b.H and the Commission of the European Communities

text:
24.8.2002               EN                    Official Journal of the European Communities                                         C 202/3
The appellant claims that the Court should:                              —      Procedural errors:
                                                                                —    In regard to the applications for evidence to be
1.    Set aside the judgment of the Fourth Chamber of the                            taken: the Court of First Instance omitted to hear
      Court of First Instance of the European Communities of                         the evidence of witnesses named by the applicants
      20 March 2002 in Case T-9/99 (application for annul-                           in connection with statements in certain paragraphs
      ment of Commission Decision 1999/60/EC of 21 Octo-                             of the application. In the present case — if the legal
      ber 1998 relating to a proceeding under Article 85 of the                      view is taken that there were no applications in due
      EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe                         form for the taking of evidence, which is denied, in
      Cartel) (OJ 1999 L 24, p. 1) or, in the alternative,                           the correct exercise of its discretion the Court of
      reduction of the fine imposed on the applicants (appel-                        First Instance was at any rate obliged of its own
      lants) in Articles 2, 3 and 4 of the operative part of the                     motion to hear the witness evidence of the persons
      decision) and annul in its entirety Decision 1999/60/                          named
      EC of 21 October 1998 adopted by the Commission
      (respondent) relating to a proceeding under Article 85 of                 —    The grounds on which the judgment appealed
      the EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated                          against is based contain as to certain points on
      Pipe Cartel) (OJ 1999 L 24, p. 1);                                             findings which conflict with the documents before
                                                                                the Court.
2.    In the event, set aside the judgment of the Fourth
      Chamber of the Court of First Instance of the European
      Communities of 20 March 2002 in Case T-9/99 (appli-
      cation for annulment of Commission Decision 1999/60/
      EC of 21 October 1998 relating to a proceeding under               Appeal brought on 3 June 2002 by KE KELIT Kunst-
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —              stoffwerke Gesellschaft m.b.H against the judgment deliv-
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in             ered on 20 March 2002 by the Fourth Chamber of the
      the alternative, reduction of the fine imposed on the              Court of First Instance of the European Communities
      applicants (appellants) in Articles 2, 3 and 4 of the              in Case T-17/99 between KE KELIT Kunststoffwerke
      operative part of the decision) and refer the present case         Gesellschaft m.b.H and the Commission of the European
      back to the Court of First Instance for further proceedings                                   Communities
      and a fresh judgment;                                                                      (Case C-205/02 P)
3.    In the event, set aside the judgment of the Fourth                                          (2002/C 202/04)
      Chamber of the Court of First Instance of the European
      Communities of 20 March 2002 in Case T-9/99 (appli-                An appeal against the judgment delivered on 20 March 2002
      cation for annulment of Commission Decision 1999/60/               by the Fourth Chamber of the Court of First Instance of the
      EC of 21 October 1998 relating to a proceeding under
                                                                         European Communities in Case T-17/99 between KE KELIT
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —              Kunststoffwerke Gesellschaft m.b.H and the Commission of
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the         the European Communities (1) was brought before the Court
      alternative, for reduction of the fine imposed on the
                                                                         of Justice of the European Communities on 3 June 2002 by
      applicants (appellants) in Article 2 of the operative part         KE KELIT Kunststoffwerke Gesellschaft m.b.H, represented by
      of the decision) and reduce the amount of the fine(s)              Dr Walter Löbl, of Grassner Lenz Thewanger & Partners in
      imposed on the ‘Henss/Isoplus-group’ or the appellants
                                                                         Linz, with an address for service in Luxembourg at the
      in Articles 3(d) and 5(d) of Commission Decision 1999/             Chambers of Linklaters Loesch.
      60/EC of 21 October 1998 relating to a proceeding under
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —
                                                                         The appellant claims that the Court should:
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1);
                                                                         Annul the judgment of the Court of First Instance of the
4.    Order the Commission of the European Communities —                 European Communities of 20 March 2002, served on
      respondent — to pay the costs including the costs of the           26 March 2002, in Case T-17/99 KE KELIT Kunststoffwerke
      appeal proceedings.                                                Gesellschaft m.b.H v Commission of the European Communi-
                                                                         ties (application for annulment of Commission Decision 1999/
                                                                         60/EC of 21 October 1998 relating to a proceeding under
                                                                         Article 85 of the EC Treaty (Case No IV/35.691/E-4: — Pre-
                                                                         Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the alternative,
Pleas and main arguments                                                 reduction of the fine imposed on the applicant in that
                                                                         decision), in so far as it concerns the appellant (applicant);
—     Infringement of Community law: The appellants maintain             in the event,
      their submissions in connection with the objection of
      illegality of the guidelines on the method of setting fines        —      Set aside that judgment and refer the case back to the
      imposed pursuant to Article 15(2) of Regulation No 17,                    Court of First Instance for resumption of proceedings;
      on infringement of the right to be heard in connection             in the event,
      with application of the guidelines, on infringement of
      Article 15(2) of Regulation No 17 and on infringement              —      reduce the fine imposed on KE KELIT Kunststoffwerke
      of Article 81 EC.                                                         Gesellschaft m.b.H,
 ---pagebreak--- C 202/4                 EN                    Official Journal of the European Communities                                       24.8.2002
—     but in any event order the Commission of the European              European Communities in case T-23/99 between LR af 1998
      Communities to pay the costs of the proceedings at first           A/S, formerly Løgstør Rør A/S, and the Commission of the
      instance and on appeal.                                            European Commuinities, was brought before the Court of
                                                                         Justice of the European Communities on 3 June 2002 by LR af
                                                                         1998 A/S, formerly Løgstør Rør A/S, established in Løgstør,
Pleas and main arguments                                                 Denmark, represented by D. Waelbroeck and H. Peytz, lawyers.
—     Infringement of substantive Community law
      —     Infringement of the business principle (equal treat-
            ment and reliance on previous decision-making                The Appellant claims that the Court should:
            practice): the Commission was not entitled to depart
            from its previous decision-making practice and to
            apply the ‘guidelines’ particularly since it promised        —     annul the contested judgment of the Court of First
            the appellant advantages for cooperation (infor-                   Instance of 20 March 2002 in Case T-23/99;
            mation concerning cooperation). By securing coop-
            eration the Commission was bound to existing
            practices in regard to the setting of fines.                 —     annul the Commission’s Decision of 21 October 1998,
                                                                               as modified by a decision of 6 November 1998 in Case
      —     Infringement of the principle of equal treatment and               IV/35.691, District Heating Pipes, fining the Appellant or
            discrimination (in relation to the duration of the                 at the very least substantially reduce the amount of the
            infringement): Whilst, according to the intendment                 fine, or in the alternative refer the case back to the Court
            and wording of the guidelines, fines are to be                     of First Instance for judgment;
            graduated in line with the duration of an infringe-
            ment, the judgment appealed against admits, in the
            appellant’s case, of a clearly greater than linear
            increase even where the reference period of one year         —     declare the Guidelines on the method of setting fines
            has been exceeded only by three months.                            pursuant to Article 15(2) of Regulation 17/62 (2) and
                                                                               Article 65(5) of the ECSC Treaty, (OJ 1998 C 9/3) illegal
      —     Infringement of the prohibition of retroactive effect              pursuant to Article 241 of the EC Treaty; and
            owing to application of the ‘guidelines’ inasmuch as,
            for the purpose of determining the fine, those
            guidelines have regard to overall turnover instead of        —     order the Commission to pay the costs.
            product turnover, as before.
—     Infringement of essential procedural requirements
      —     Infringement of the right to be heard;
      —     Infringement of the duty to provide a statement of           Pleas in law and main arguments
            reasons.
(1) KE KELIT Kunststoffwerke Gesellschaft m.b.H v Commission of
    the European Communities [2002] ECR II-0000.
                                                                         Erroneous appreciation of the criteria for setting the fine
                                                                         (infringement of Article 15(2) of Regulation 17/62 and the
                                                                         principles of proportionality and equal treatment; misapplica-
                                                                         tion or — in the alternative — illegality of the 1998
                                                                         Guidelines): the Court of First Instance cannot claim to have
                                                                         taken sufficiently account of all factors relevant to the fine in
Appeal brought on 3 June 2002 by LR af 1998 A/S,                         upholding the Commission’s calculation of the fine starting
formerly Løgstør Rør A/S, against the judgment delivered                 from a basic amount which, in the case of the Appellant, was
on 20 March 2002 by the Fourth Chamber of the Court                      set so high that adjustments for duration, aggravating, and
of First Instance of the European Communities in case                    mitigating factors, all took place or would have taken place at
T-23/99 (1) between LR af 1998 A/S, formerly Løgstør Rør                 a level high above the maximum limit of the fine (10 % of
 A/S, and the Commission of the European Communities                     world wide turnover) set out in Regulation 17/62. The entire
                                                                         method for calculation of the fine is flawed and represents a
                                                                         wrong interpretation and application of Regulation 17/62.
                         (Case C-206/02 P)
                                                                         The method results in final fines which do not reflect properly
                                                                         the relevant individual factors, and do not even reflect the
                          (2002/C 202/05)                                relative size of the basic amounts chosen by the Commission
                                                                         as adjusted for relevant factors, but instead — in the case of all
                                                                         undertakings in categories 2 and 3 — solely reflect the size
An appeal against the judgment delivered on 20 March 2002                of the undertakings’ world wide group turnover, thereby
by the Fourth Chamber of the Court of First Instance of the              attributing a disproportionate importance to this figure.


title: Case C-94/10: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 17 February 2010 — Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/32

         Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 17 February 2010 — Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet
   (Case C-94/10)
   2010/C 100/47
   Language of the case: Danish

      Referring court

   Vestre Landsret

      Parties to the main proceedings

      Applicant: Danfoss A/S and Sauer-Danfoss ApS

      Defendant: Skatteministeriet

      Questions referred

               1.

               Does Community law preclude a Member State from rejecting a claim for reimbursement brought by an undertaking to which excise duty imposed contrary to a directive has been passed on, where such rejection — in circumstances such as those of the present case — is on the ground that it is not the undertaking that paid the duty to the State?

               2.

               Does Community law preclude a Member State from rejecting a claim for damages brought by an undertaking to which excise duty imposed contrary to a directive has been passed on, where such rejection — in circumstances such as those of the present case — is on the grounds put forward by the Member State (specifically, that the undertaking is not the directly injured party and that there is no direct causal link between any loss and the conduct giving rise to liability)?


title: Case C-77/13: Request for a preliminary ruling from the Tribunal d’instance de Quimper (France) lodged on 14 February 2013 — CA Consumer Finance v Francine Crouan, née Weber, Tual Crouan

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/12

         Request for a preliminary ruling from the Tribunal d’instance de Quimper (France) lodged on 14 February 2013 — CA Consumer Finance v Francine Crouan, née Weber, Tual Crouan
   (Case C-77/13)
   2013/C 123/18
   Language of the case: French

      Referring court

   Tribunal d’instance de Quimper

      Parties to the main proceedings

      Applicant: CA Consumer Finance

      Defendants: Francine Crouan, née Weber, Tual Crouan

      Question referred

   Does Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) preclude an interpretation of the national law which validates terms that unilaterally vary the rate of interest in credit agreements, leaving the reasons for the variation in the rate and the methods for calculating that rate to the discretion of the lender, where there are no valid reasons specified in the agreement, if those terms are consistent with wording established by legislation and the lender has, in implementing the agreement, satisfied the statutory requirements relating to the information which must be provided to the borrower?

      (1)  OJ 1993 L 95, p. 29.


title: Judgment by the Court of First Instance of 27 February 2003 in Case T-61/01 Vendedurías de Armadores Reunidos, SA v Commission of the European Communities (Fisheries — Community financial aid — Suspension of aid — Action for damages)

text:
10.5.2003               EN                         Official Journal of the European Union                                            C 112/29
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               unlawful suspension of the aid allocated to the joint enterprise
                                                                           fisheries project SM/ESP/18/93, the Court of First Instance
                       of 26 February 2003                                 (Third Chamber), composed of K. Lenaerts, President, and
                                                                           J. Azizi and M. Jaeger, Judges; Registrar: J. Palacio González,
                                                                           Principal Administrator, gave the following judgment on
in Case T-59/01: Albert Nardone v Commission of the                        27 February 2003:
                   European Communities ( 1)
                                                                           1.     The application is dismissed;
(Action for annulment — Former official - Request for
                         invalidity pension)
                                                                           2.     The applicant is ordered to pay the costs.
                           (2003/C 112/54)
                                                                           (1 ) OJ C 150 of 19.5.01.
                    (Language of the case: French)
In Case T-59/01: Albert Nardone, a former official of the
Commission of the European Communities, residing in Piétrain
(Belgium), represented by J. R. Iturriagagoitia Bassas and                      JUDGMENT OF THE COURT OF FIRST INSTANCE
K. Delvolvé, lawyers, against the Commission of the European
Communities (Agent: J. Currall) — application, principally, for
the annulment of the Commission decision of 20 March 2000                                            of 6 March 2003
refusing to grant the applicant an invalidity pension, —
the Court of First Instance (First Chamber), composed of:                  in Case T-128/01: DaimlerChrysler Corporation v Office
B. Vesterdorf, President, N.J. Forwood and H. Legal, Judges;               for Harmonisation in the Internal Market (Trade Marks
D. Christensen, Administrator, for the Registrar, has given a                                    and Designs) (OHIM) (1)
judgment on 26 February 2003, in which it:
                                                                           (Community trade mark — Figurative mark — Represen-
1.     Dismisses the application;                                          tation of a vehicle grille — Absolute ground for refusal —
                                                                           Article 7(1)(b) of Regulation (EC) No 40/94 — Mark devoid
2.     Orders the parties to bear their own costs.                                             of any distinctive character)
( 1) OJ C 173 of 16.6.01.                                                                             (2003/C 112/56)
                                                                                (Language of the case: English)
                                                                           In Case T-128/01, DaimlerChrystler Corporation, established
     JUDGMENT BY THE COURT OF FIRST INSTANCE                               in Auburn Hills, Michigan (United States), represented by
                                                                           T. Cohen Jehoram, lawyer, with an address for service in
                       of 27 February 2003                                 Luxembourg, v Office for Harmonisation in the Internal
                                                                           Market (Trade Marks and Designs) (OHIM) (Agents: A. von
                                                                           Mühlendahl and O. Waelbroeck): Action brought against the
in Case T-61/01 Vendedurías de Armadores Reunidos, SA                      decision of the Second Board of Appeal of the Office for
       v Commission of the European Communities ( 1)                       Harmonisation in the Internal Market (Trade Marks and
                                                                           Designs) of 21 March 2001 (Case R 309/1999-2), the Court
(Fisheries — Community financial aid — Suspension of aid                   of First Instance (Fourth Chamber), composed of: M. Vilaras,
                      — Action for damages)                                President, V. Tiili and P. Mengozzi, Judges; J. Palacio González,
                                                                           Principal Administrator, for the Registrar, has given a judgment
                           (2003/C 112/55)                                 on 6 March 2003, in which it:
                   (Language of the case: Spanish)                         1.     Annuls the decision of the Second Board of Appeal of the Office
                                                                                for Harmonisation in the Internal Market (Trade Marks and
                                                                                Designs) of 21 March 2001 (Case R 309/1999-2);
In Case T-61/01, Vendedurías de Armadores Reunidos, SA,                    2.     Orders the defendant to pay the costs.
established in Huelva (Spain), represented by represented by J.-
R. García-Gallardo Gil-Fournier and D. Domínguez Pérez,
lawyers, v the Commission of the European Communities                      (1 ) OJ C 245 of 1.9.2001.
(agents: S. Pardo Quintillán and J. Guerra Fernández), an
application for compensation for the damages caused by the


title: Case T-257/14: Action brought on 24 April 2014  — Novomatic v OHIM — Berentzen Mally Marketing plus Services (BLACK JACK TM)

text:
               24.6.2014

               EN

               Official Journal of the European Union

               C 194/32

         Action brought on 24 April 2014 — Novomatic v OHIM — Berentzen Mally Marketing plus Services (BLACK JACK TM)
   (Case T-257/14)
   2014/C 194/41
   Language in which the application was lodged: German

      Parties

      Applicant: Novomatic AG (Gumpoldskirchen, Austria) (represented by: W. Mosing, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Berentzen Mally Marketing plus Services GmbH (Meerbusch, Germany)

      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 18 February 2014 in Case R 329/2012-4 with the consequence that OHIM will have to reject the opposition in its entirety due to lack of similarity of the goods and/or signs and lack of a likelihood of confusion and allow Community trade mark application No 9 4 56  278 to proceed to registration in accordance with the application;

               —

               Order OHIM and — in the case of written intervention — the opposing party to bear their own costs and to pay the costs incurred by the applicant in the appeal proceedings before the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and in these proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the figurative mark including the word elements ‘BLACK JACK TM’ for goods and services in Classes 9, 28 and 41 — Community trade mark application No 9 4 56  278

      Proprietor of the mark or sign cited in the opposition proceedings: Berentzen Mally Marketing plus Services GmbH

      Mark or sign cited in opposition: the word and figurative mark ‘BLACK TRACK’ for goods in Classes 18, 25 and 28

      Decision of the Opposition Division: the opposition was rejected

      Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the trade mark application was rejected in part

      Pleas in law: Infringement of Articles 8(1)(b) and 75 of Regulation No 207/2009


title: Case C-441/01: Action brought on 15 November 2001 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
2.2.2002              EN                    Official Journal of the European Communities                                          C 31/5
Action brought on 15 November 2001 by the Com-                         where possible — an internal working conditions service must
mission of the European Communities against the                        be established is entirely immaterial, inasmuch as that rule
                 Kingdom of the Netherlands                            already follows from the combined provisions of Article 7(1)
                                                                       and 7(3) and there was thus no need to reiterate it in
                                                                       Article 7(6).
                        (Case C-441/01)
                                                                       (1) OJ L 183, 29.6.1989, p. 1.
                         (2002/C 31/09)
An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 November 2001 by the Commission of the European                     Reference for a preliminary ruling by the Vestre Landsret
Communities, represented by H. van Vliet and H. Kreppel,               by order of 13 September 2001 in the case of Poul
acting as Agents.                                                                        Nørgaard v Skatteministeriet
                                                                                (Case C-443/01)
The applicant claims that the Court should:
                                                                                (2002/C 31/10)
—     Declare that, by authorising employers freely to choose
      between internal and external health and safety services,
      the Kingdom of the Netherlands has failed to fulfil its
      obligations under the EC Treaty and under Article 7(3) of        Reference has been made to the Court of Justice of the
      Directive 89/391/EEC (1) on the introduction of measures         European Communities by order of 13 September 2001 by
      to encourage improvements in the safety and health of            the Vestre Landsret (Western Regional Court), which was
      workers at work;                                                 received at the Court Registry on 19 November 2001, for a
                                                                       preliminary ruling in the case of Poul Nørgaard v Skatteminis-
                                                                       teriet (Ministry of Fiscal Affairs) on the following questions:
—     Order the Kingdom of the Netherlands to pay the costs
      of the proceedings.
                                                                       Question 1
                                                                       Must Article 13.B(b)(1) of Sixth VAT Directive 77/388/EEC (1)
                                                                       be construed as meaning that a short-term letting such as
                                                                       described in the order is covered by the phrase ‘provision of
Pleas in law and main arguments                                        accommodation ... in the hotel sector or in sectors with a
                                                                       similar function’?
                                                                       Question 2
The Netherlands authorities err in challenging the Com-
mission’s interpretation of Article 7(3) to the effect that the        If lettings of immovable property for holiday purposes for
Directive does not confer on employers, in the organisation of         fixed periods of less than one month and divisible by one week
protective and preventive measures, the choice between using           may be covered by the phrase ‘provision of accommodation ...
competent members of their own staff and enlisting competent           in the hotel sector or in sectors with a similar function’, can
external services, but rather establishes a hierarchy between          Member States then define the term ‘sectors with a similar
those two solutions with the objective criterion of whether or         function’ on the basis of a comprehensive assessment of
not there are staff in the undertaking having the necessary            objective criteria, such as, for instance, whether the immovable
competence to carry out activities in the area of protection           property is separately registered, whether the immovable
against and prevention of occupational risks. It is clear from         property is connected to facilities that are shared by other
the structure and wording of Article 7 of the Directive, in            properties, and whether services such as the provision of bed
particular Article 7(1), that the Community legislature has            linen, breakfast, cleaning and suchlike are provided?
provided that the employer must, in principle, designate
persons within the undertaking to perform the tasks in
question. It is evident from the connection between
                                                                       (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
Article 7(2), second sentence, and Article 7(3) that, even if an           harmonisation of the laws of the Member States relating to
employer might prefer to engage an outside company and                     turnover taxes — Common system of value added tax: uniform
require his employees to work exclusively for the purposes of              basis of assessment.
the undertaking, he may not do so but must rather designate
employees and allow those employees the time to perform
their tasks. The fact that Article 7(6) does not provide that —


title: Action brought on 20 October 1997 by Guérin Automobiles against Commission of the European Communities (Case T-276/97)

text:
C 7/22                 EN                   Official Journal of the European Communities                                       10. 1. 98
In support of the forms of order which it seeks, the                   Pleas in law and main arguments adduced in support:
applicant relies on the following pleas in law:
                                                                       The applicant contests the definitive rejection of the
Ð breach of essential procedural requirements in that, in              complaint which it lodged against the company Volvo
     the contested decision, the Commission gives no                   France on the basis of Article 85 of the EC Treaty and
     reasons for its failure to take action regarding the              Commission Regulation (EEC) No 123/85 (1) concerning
     infringements ante-dating the entry into force of                 the imposition by that company of concession conditions
     Regulation (EC) No 1475/95, which were reported to                which the applicant considers incompatible with that
     it,                                                               Regulation.
Ð infringement of the Treaty, in that the defendant                    The contentions and principal arguments adduced in
     manifestly erred in its appraisal of the facts,                   support are the same as those in Case T-275/95 GueÂrin
                                                                       Automobiles v. Commission (2).
Ð misuse of powers, in that, in repeating in its analysis
     the arguments put forward by Nissan France, the                   (1) Commission Regulation (EEC) No 123/85 of 12 December
                                                                           1984 on the application of Article 85 (3) of the Treaty to
     defendant's intention was to grant an amnesty. Also,                  certain categories of motor vehicle distribution and servicing
     the defendant's attitude runs directly counter to the                 agreements (OJ L 15, 18. 1. 1985, p. 16).
     Community interest as a result of its refusal to ensure           (2) See page 21 of this Official Journal.
     the real effectiveness of Community competition law.
(1) Commission Regulation (EEC) No 123/85 of 12 December
    1984 on the application of Article 85 (3) of the Treaty to
    certain categories of motor vehicle distribution and servicing
    agreements (OJ L 15, 18. 1. 1985, p. 16).
(2) Commission Regulation (EC) No 1475/95 of 28 June 1995 on           Action brought on 20 October 1997 by Ismeri Europa Srl
    the application of Article 85 (3) of the Treaty to certain         against the Court of Auditors of the European
    categories of motor vehicle distribution and servicing                                       Communities
    agreements (OJ L 145, 29. 6. 1995, p. 25).
                                                                                (Case T-277/97)
                                                                                (98/C 7/64)
                                                                                (Language of the case: Italian)
Action brought on 20 October 1997 by GueÂrin                           An action against the Court of Auditors of the European
Automobiles against Commission of the European                         Communities was brought before the Court of First
                           Communities                                 Instance of the European Communities on 20 October
                         (Case T-276/97)                               1997 by Ismeri Europa Srl, represented by Sergio
                                                                       Ristuccia and Gian Luigi Tosato, of the Rome Bar, with
                            (98/C 7/63)
                                                                       an address for service in Luxembourg at the Chambers of
                                                                       Alex Schmitt, 7, val Ste Croix.
                 (Language of the case: French)
                                                                       The applicant claims that the Court should:
An action against the Commission of the European
Communities was brought before the Court of First
                                                                       (a) declare the Court of Auditors to be liable in damages
Instance on 20 October 1997 by GueÂrin Automobiles,
                                                                             and order it to:
represented       by     Xavier     LemeÂe,      court-appointed
administrator, instructing Jean Claude Fourgoux, of the
Paris Bar, with an address for service in Luxembourg at                      Ð pay an amount which the Court may deem
the Chambers of Pierrot Schiltz, 4, rue BeÂatrix de                               appropriate to make good the damage suffered by
Bourbon.                                                                          the applicant in respect of its reputation,
                                                                             Ð pay ECU 943 725 by way of reparation for
The applicant claims that the Court of First Instance                             material damage suffered as a result of the
should:                                                                           termination of a number of contracts,
Ð annul the Commission decision of 25 April 1997,                            Ð pay an amount to be determined by way of legal
                                                                                proceedings or which the Court may deem fair
                                                                                and equitable in order to make good loss of
Ð formally take note that Mr LemeÂe reserves the right to                         earnings,
     bring an action for compensation pursuant to
     Article 215 of the Treaty,
                                                                             Ð pay interest at the legal rate taking currency
                                                                                fluctuations into account in respect of each of the
Ð order the Commission to pay the costs.                                          above heads of claim,


title: Case T-224/07: Action brought on 22 June 2007 — Imperial Chemical Industries v OHIM (LIGHT & SPACE)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/42

         Action brought on 22 June 2007 — Imperial Chemical Industries v OHIM (LIGHT & SPACE)
   (Case T-224/07)
   (2007/C 199/80)
   Language of the case: English
   Parties

      Applicant: Imperial Chemical Industries plc (London, United Kingdom) (represented by: S. Malynicz, Barrister, and V. Chandler, Solicitor)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               The decision of the First Board of Appeal dated 30 March 2007 in Case R 1631/2006-1 shall be annulled.

               —

               The Office shall bear its own costs and pay those of the applicant.

         Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘LIGHT & SPACE’ for goods in class 2 — application No 5 147 756

      Decision of the examiner: Refusal of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal regarded the trade mark in question as if it were an advertising slogan, indication of quality or incitement to purchase without considering whether the trade mark could also be an indication of origin.
   Furthermore, the Board of Appeal erred in its examination of the trade mark as a whole and in its examination of its component parts and committed an error of law by requiring that the trade mark combines words that are unusual or out of the ordinary in relation to the goods in question in order to acquire distinctive character.
   Finally the Board of Appeal did not assess distinctiveness in relation to the specific goods applied for.