title: Case T-245/03: Action brought on 20 June 2003 by Fédération Nationale des Syndicats d'Exploitants Agricoles (FNSEA) and Others against Commission of the European Communities

text:
23.8.2003            EN                          Official Journal of the European Union                                         C 200/33
Pleas in law and main arguments                                          European Communities on 20 June 2003 by Fédération des
                                                                         Nationale des Syndicats d'Exploitants Agricoles (FNSEA), the
The applicant, a former Commission official, worked for many             Fédération Nationale Bovine (FNB), the Fédération Nationale
years in the Berlaymont building, which was then contami-                des Producteurs de Lait (FNPL) and Jeunes Agriculteurs (JA),
nated with asbestos. In 1996, the applicant applied for recog-           Fédération Nationale, established in Paris, represented by Bruno
nition of the occupational nature of her illness and, in 1998,           Néouze and Valérie Ledoux, lawyers, with an address for
requested that a medical committee be consulted in accordance            service in Luxembourg.
with Article 21 of the Rules on the Insurance of Officials of
the European Communities against the Risk of Accident and of
Occupational Disease. That medical committee issued a first
                                                                         The applicants claims that the Court should:
majority opinion in 2000, but, after a complaint by the
applicant, the Commission decided to refer to it a second
time. On 23 April 2003, the applicant sent a diagnosis to the            —     annul the Commission Decision of 2 April 2003,
Commission, requesting that it be examined by the medical                      No C.38.279/F3 — French beef in respect of the FNSEA,
committee. In reply to that request, the Commission stated, by                 the FNB, the FNPL and the JA;
letter of 5 May 2003, that the medical committee had already
finished its work and that it was therefore impossible to
submit the diagnosis sent by the applicant to it for its opinion.        —     alternatively, cancel the fines imposed on them;
The applicant challenges that latter decision, which she claims
should be annulled. She also argues that the composition of
the medical committee should have been changed at the time               —     further and alternatively, reduce the amount of the fines;
of the second reference to it, and therefore requests that two
of its members be challenged. In support of her claims, she
alleges misuse of powers, lack of independence and neutrality            —     order the Commission of the European Communities to
on the part of the medical committee, infringements of the                     pay the costs.
principle of sound administration and the duty to pay due
regard to the welfare of officials, and infringement of the
principle of the protection of legitimate expectations.
                                                                         Pleas in law and main arguments
Action brought on 20 June 2003 by Fédération Nationale
des Syndicats d'Exploitants Agricoles (FNSEA) and Others
     against Commission of the European Communities                      The contested decision in the present case is the same as that
                                                                         in Case T-217/03 Fédération Nationale de la Coopération Bétail
                        (Case T-245/03)                                  et Viande (FNCBV) v Commission (1).
                        (2003/C 200/59)
                  (Language of the case: French)                         The pleas and main arguments are the same as those put
                                                                         forward in that case.
An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the             (1) See p. 30 of this Official Journal.


title: Case T-137/14: Judgment of the General Court of 23 October 2015 — I Castellani v OHIM — Chomarat (Representation of a circle) (Community trade mark — Revocation procedure — Figurative mark representing a circle — Genuine use of a mark — Extent of use — Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009 — Shape which differs by elements which do not alter the distinctive character of the mark — Rights of the defence — Article 75 of Regulation No 207/2009)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/29

         Judgment of the General Court of 23 October 2015 — I Castellani v OHIM — Chomarat (Representation of a circle)
   (Case T-137/14) (1)

   ((Community trade mark - Revocation procedure - Figurative mark representing a circle - Genuine use of a mark - Extent of use - Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009 - Shape which differs by elements which do not alter the distinctive character of the mark - Rights of the defence - Article 75 of Regulation No 207/2009))
   (2015/C 414/37)
   Language of the case: English

      Parties

      Applicant: I Castellani Srl (Meldola, Italy) (represented by: M. Caramelli, F. Boscariol de Roberto, I. Gatto and D. Martucci, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Rajh and A. Folliard-Monguiral, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Compagnie Chomarat (Paris, France)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 13 December 2013 (Case R 1001/2012-2), relating to revocation proceedings between Compagnie Chomarat and I Castellani Srl.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders I Castellani Srl to pay the costs.

      (1)  OJ C 135, 5.5.2014.


title: Case T-397/12: Judgment of the General Court of 19 May 2015 — Diputación Foral de Bizkaia v Commission (State aid — Construction — Aid provided by the Spanish authorities to the company Habidite — Agreements concluded with a view to the establishment of a factory manufacturing construction modules and the delivery of modular houses manufactured by that factory — Decision declaring the aid unlawful — Decision declaring the aid partly compatible and partly incompatible with the internal market — No prior notification — Rights of the defence — Obligation to give reasons)

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/28

         Judgment of the General Court of 19 May 2015 — Diputación Foral de Bizkaia v Commission
   (Case T-397/12) (1)

   ((State aid - Construction - Aid provided by the Spanish authorities to the company Habidite - Agreements concluded with a view to the establishment of a factory manufacturing construction modules and the delivery of modular houses manufactured by that factory - Decision declaring the aid unlawful - Decision declaring the aid partly compatible and partly incompatible with the internal market - No prior notification - Rights of the defence - Obligation to give reasons))
   (2015/C 213/49)
   Language of the case: Spanish

      Parties

      Applicant: Diputación Foral de Bizkaia (represented by: I. Sáenz-Cortabarría Fernández, lawyer)

      Defendant: European Commission (represented by: M. Afonso, É. Gippini Fournier and P. Němečková, acting as Agents)

      Re:

   Action for partial annulment of Commission Decision C (2012) 4194 final of 27 June 2012 concerning State aid SA.28356 (C 37/2009) (ex N 226/2009).

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Diputación Foral de Bizkaia to bear the costs.

      (1)  OJ C 319, 20.10.2012.


title: Case C-63/14: Judgment of the Court (Fifth Chamber) of 9 July 2015 — European Commission v French Republic (Failure of a Member State to fulfil obligations — State aid — Illegal aid incompatible with the internal market — Obligation of recovery — Absolutely impossible — Compensation for a service additional to the basic service)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/6

         Judgment of the Court (Fifth Chamber) of 9 July 2015 — European Commission v French Republic
   (Case C-63/14) (1)

   ((Failure of a Member State to fulfil obligations - State aid - Illegal aid incompatible with the internal market - Obligation of recovery - Absolutely impossible - Compensation for a service additional to the basic service))
   (2015/C 294/07)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: B. Stromsky, acting as Agent)

      Defendant: French Republic (represented by: G. de Bergues and D. Colas and N. Rouam and J. Bousin, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to take all the measures necessary to recover from Société Nationale Corse-Méditerranée (SNCM) the State aid declared illegal and incompatible with the internal market by Article 2(1) of Commission Decision 2013/435/EU of 2 May 2013 on State aid SA.22843 (2012/C) (ex 2012/NN) within the periods prescribed, by failing to cancel all the payments of aid referred to in Article 2(1) of that decision within the periods prescribed, and by failing to inform the Commission of the measures taken to comply with that decision within the period prescribed, the French Republic has failed to fulfil its obligations under Article 298, fourth paragraph, TFEU and Articles 3 to 5 of that decision;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 135, 5.5.2014.


title: Case F-63/10: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — BL v European Commission (Civil Service — Former official — Social security — Accident — Closure of the procedure for the application of Article 73 of the Staff Regulations — Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases — Length of the procedure)

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/35

         Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — BL v European Commission
   (Case F-63/10) (1)

   (Civil Service - Former official - Social security - Accident - Closure of the procedure for the application of Article 73 of the Staff Regulations - Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases - Length of the procedure)
   2012/C 227/58
   Language of the case: French

      Parties

      Applicant: BL (Brussels, Belgium) (represented by: L. Levi and C. Bernard-Glanz, lawyers)

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

      Re:

   Application to annul the Commission’s decision to close the procedure opened under Article 73 of the Staff Regulations following the applicant’s accident on 13 August 2001 by granting the applicant a rate of permanent invalidity of 6 % and an order that the defendant pay the applicant an amount in respect of damages.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of 28 October 2009 to close the opened under Article 73 of the Staff Regulations of Officials of the European Union following the accident to BL on 13 August 2001;

               2.

               Orders the European Commission to pay BL the sum of EUR 2 500;

               3.

               Dismisses the remainder of the action;

               4.

               Orders the European Commission to bear its own costs and to pay the costs incurred by BL.

      (1)  OJ C 260, 25.9.2010, p. 29.


title: Case F-118/15: Action brought on 18 August 2015 — ZZ v Commission

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/57

         Action brought on 18 August 2015 — ZZ v Commission
   (Case F-118/15)
   (2015/C 320/79)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: N. de Montigny, J.-N. Louis, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Application for annulment of the Commission’s decision not to promote the applicant under the 2014 promotion procedure.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the decision of 14 November 2014 publishing the list of officials promoted under the 2014 promotion procedure in so far as it does not include the applicant’s name;

               —

               order the Commission to pay the costs.


title: Case C-386/04: Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften (Free movement of capital — Corporation tax — Exemption of rental income — Residence qualification — Charitable foundation governed by private law)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/9

         Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften
   (Case C-386/04) (1)

   (Free movement of capital - Corporation tax - Exemption of rental income - Residence qualification - Charitable foundation governed by private law)
   (2006/C 281/13)
   Language of the case: German
   Referring court
   Bundesfinanzhof
   Parties to the main proceedings

      Applicant: Centro di Musicologia Walter Stauffer

      Defendant: Finanzamt München für Körperschaften
   Re:
   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 52 of the EC Treaty (now, after amendment, Article 43 EC), Article 58 of the EC Treaty (now Article 48 EC), Article 59 of the EC Treaty (now, after amendment, Article 49 EC) and Article 73b of the EC Treaty (now Article 56 EC) — National corporation tax legislation — Exemption for charitable foundations established under private law receiving income in the territory from the letting of property subject to the condition that those foundations are resident.
   Operative part of the judgment
   Article 73b of the EC Treaty, in conjunction with Article 73d of the EC Treaty, must be interpreted as precluding a Member State which exempts from corporation tax rental income received in its territory by charitable foundations which, in principle, have unlimited tax liability if they are established in that Member State, from refusing to grant the same exemption in respect of similar income to a charitable foundation established under private law solely on the ground that, as it is established in another Member State, that foundation has only limited tax liability in its territory.

      (1)  OJ C 262, 23.10.2004.


title: Case C-293/15 P: Order of the Court (Eighth Chamber) of 30 June 2016 — Slovenská pošta a.s. v European Commission, Slovak Republic, Cromwell a.s, Slovak Mail Services a.s., Prvá Doručovacia a.s., ID Marketing Slovensko s.r.o. (formerly TNT Post Slovensko s.r.o.) (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Public undertakings — Amendment of Slovakian legislation on postal services — Exclusive rights granted to incumbent operator Slovenská pošta a.s. to provide ‘hybrid’ mail services — Decision declaring those provisions incompatible with Articles 86 EC and 82 EC)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/11

         Order of the Court (Eighth Chamber) of 30 June 2016 — Slovenská pošta a.s. v European Commission, Slovak Republic, Cromwell a.s, Slovak Mail Services a.s., Prvá Doručovacia a.s., ID Marketing Slovensko s.r.o. (formerly TNT Post Slovensko s.r.o.)
   (Case C-293/15 P) (1)

   ((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - Public undertakings - Amendment of Slovakian legislation on postal services - Exclusive rights granted to incumbent operator Slovenská pošta a.s. to provide ‘hybrid’ mail services - Decision declaring those provisions incompatible with Articles 86 EC and 82 EC))
   (2016/C 343/16)
   Language of the case: English

      Parties

      Appellant: Slovenská pošta a.s. (represented by: O. Brouwer and A. Pliego Selie, advocaten)

      Other parties to the proceedings: European Commission (represented by: T. Christoforou, R. Sauer and C. Vollrath, acting as Agents), Slovak Republic, (represented by: B. Ricziová, acting as Agent), Cromwell a.s., Slovak Mail Services a.s., Prvá Doručovacia a.s., ID Marketing Slovensko s.r.o. (formerly TNT Post Slovensko s.r.o.)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Slovenská pošta a.s. shall bear its own costs and pay those incurred by the European Commission.

               3.

               The Slovak Republic shall bear its own costs.

      (1)  OJ C 302, 14.9.2015.


title: Case C-217/00 P: Appeal brought on 31 May 2000 by Buzzi Unicem SpA ("Unicem") against the judgment delivered on 15 March 2000 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Joined Cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 between Cimenteries CBR SA and Others and the Commission of the European Communities

text:
C 247/10               EN                   Official Journal of the European Communities                                          26.8.2000
      irrelevant any document which did not have an objective          B.    Pleas in law relating to the reduction of
      link with the charges laid against the appellant or                    the fine
      which did not counter directly the documentary evidence
      adduced by the Commission and, in any event, by the              1.     Error in law as regards failure to change the fine where
      manner in which the Court of First Instance ascertained          the Commission measure is annulled in part.
      whether the rights of defence had in fact been infringed
      on account of the improper access to the file during the         2.     Infringement of Article 15(2) of Regulation No 17 and
      administrative procedure.                                        inadequacy of the statement of reasons so far as concerns
                                                                       assessment of the gravity of the infringement with which
                                                                       Italcementi is charged.
(iii) Infringement of the rights of defence as regards access to
      the file entails the annulment of the decision at issue
      irrespective of whether the undertaking which stands             3.     Infringement of Article 15(2) of Regulation No 17 so far
      accused is able to show that access during the administrat-      as concerns assessment of the duration of the infringement
      ive procedure might have led the Commission to arrive            with which Italcementi is charged.
      at a different conclusion.
                                                                       (1) Commission Decision 94/815/EC of 30 November 1994 relating
                                                                           to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
2.     Infringement of the rights of the defence, inadequate               — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).
statement of reasons and contradiction with an earlier decision
regarding the decision dropping the national objections com-
municated by letter of 27 November 1993.
B.    Substance
                                                                       Appeal brought on 31 May 2000 by Buzzi Unicem SpA
                                                                       (‘Unicem’) against the judgment delivered on 15 March
1.     Error in law and contradiction with another part of the         2000 by the Court of First Instance of the European
statement of reasons as regards assessment of the validity of          Communities (Fourth Chamber, Extended Composition)
the agreement on contracts and agreements signed in April              in Joined Cases T-25/95, T-26/95, T-30/95, T-31/95,
1987 with Calcestruzzi.                                                T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95,
                                                                       T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95,
                                                                       T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95,
                                                                       T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95,
Pleas in law relating to the cancellation or reduction of              T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95,
the fine                                                               T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and
                                                                       T-104/95 between Cimenteries CBR SA and Others and
                                                                              the Commission of the European Communities
                                                                                (Case C-217/00 P)
A.    Pleas in law relating to the cancellation
      of the fine
                                                                                (2000/C 247/13)
1.     Misapplication of Community law and case-law and                An appeal against the judgment delivered on 15 March by the
infringement of Article 253 of the Treaty as regards assessment        Court of First Instance of the European Communities (Fourth
of the inadequacy of the statement of reasons for the decision         Chamber, Extended Composition) in Joined Cases T-25/95,
at issue so far as concerns the fine.                                  T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95,
                                                                       T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95,
                                                                       T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95,
2.     Infringement of Article 15(2) of Regulation No 17,              T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95,
breach of the principle of proportionality, manifest error of          T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95,
assessment and inadequate statement of reasons so far as               T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95,
concerns the sales taken into account when calculating the             T-87/95, T-88/95, T-103/95 and T-104/95 between Cimente-
fines.                                                                 ries CBR SA and Others and the Commission of the European
                                                                       Communities, was brought before the Court of Justice of the
                                                                       European Communities on 31 May 2000 by Buzzi Unicem
3.     Misapplication of Community law, breach of the prin-            SpA, whose principal office is in Turin (Italy), represented by
ciples of fairness, proportionality and non-discrimination and         Cristoforo Osti, of the Rome Bar, and Alessandra Prastaro, of
inadequate statement of reasons as regards assessment of the           the Lecce Bar, with an address for service in Luxembourg at
criteria used when determining the fines.                              the Chambers of Marc Loesch, 11 Rue Goethe.
 ---pagebreak--- 26.8.2000              EN                    Official Journal of the European Communities                                       C 247/11
The Appellant claims that the Court should:                             —     the documents produced to the Court of First Instance
                                                                              and adduced by the Commission as direct proof of
Mainly                                                                        the existence of the Cembureau Agreement do not
                                                                              demonstrate in any way that Unicem participated in that
1.    set aside the judgment of 15 March 2000 by the Court of                 agreement;
      First Instance of the European Communities (Fourth
      Chamber, Extended Composition) in Case T-50/95                    —     both the Commission and the Court of First Instance
      Unicem v Commission                                                     were wrong to refer to a ‘single agreement’, since such an
                                                                              expression presupposes uninterrupted and continuous
2.    accordingly, annul the Commission’s decision of                         conduct.
      30 November 1994 (1)
3.    order the Commission to pay the costs.                            So far as concerns the legality of the regular exchange of price
                                                                        information, the appellant challenges the grounds of the
                                                                        judgment of the Court of First Instance on the grounds that
In the alternative                                                      they are illogical, erroneous and circular.
Should the Court of Justice decide not to set the judgment of
the Court of First Instance aside, reduce the fine                      So far as concerns the agreement relating to the ETF (herein-
                                                                        after ‘the ETF’), the judgment of the Court of First Instance is
                                                                        vitiated by an inadequate statement of reasons concerning
In any event                                                            Unicem’s participation in and accession to the agreement
                                                                        setting up the ETF. The appellant claims that the reasoning of
Make any other order which it may deem appropriate or just.             the Court of First Instance concerning the infringement of the
                                                                        rights of the defence by the Commission when it broadened
                                                                        the charges set out in the SO and failed to forward to the
Pleas and main arguments                                                appellant a revised SO should be disregarded. Moreover, the
                                                                        Court of First Instance committed a manifest error of assess-
                                                                        ment with regard to the commencement of Unicem’s alleged
Error in law inasmuch as it disregarded the objections raised
                                                                        participation in the ETF.
by Unicem relating to the finding of infringement of the rights
of the defence as a result of the failure to grant access, during
the administrative procedure, to substantial parts of the               So far as concerns the measures to defend the Italian market,
documents which formed part of the investigation file.                  the judgment of the Court of First Instance is vitiated by an
                                                                        error of assessment and misapplication of the law with regard
Failure to specify the persons to whom the objections in the            to the decision to drop the national objections. Regarding
Statement of Objections (SO) were addressed prevented the               Unicem’s participation in the concerted practices designed to
appellant from ascertaining the scope and content of the                withdraw Calcestruzzi as a customer from the Greek pro-
objections raised against it. The Court of First Instanced was          ducers, and from Titan in particular, the appellant contends
wrong to confirm the Commission’s finding that the claimants            that the Court of First Instance should have challenged the
should have ‘deduced’ what it was they were accused of from             probative value of the documents used by the Commission.
the wording of certain phrases in the SO.
The excessive length of proceedings before the Court of First           The appellant is of the view that the reasoning of the Court of
Instance is an infringement of Article 6(1) of the European             First Instance is vitiated inasmuch as it finds there to be a link
Convention on Human Rights.                                             between the Calcestruzzi agreements and the ETF. It also
                                                                        submits that the Court of First Instance was wrong in its
                                                                        conclusion that the measures to defend the domestic market
The Court of First Instance disregarded Unicem’s complaints             were part of the ETF agreement which in its turn was held to
relating to: breach of the principle of equal treatment as              be part of the single Cembureau agreement.
between Unicem itself and other Italian undertakings in similar
situations; breach of the rights of defence on account of the
excessive length of the administrative procedure and of the             So far as concerns the fines, the appellant contests the
Commission’s having based its own arguments on statements               judgment of the Court of First Instance on the following
made by the parties during the procedure contrary to the                grounds:
principle of ‘non-self-incrimination’.
                                                                        —     infringement of Article 190 of the Treaty, Article 15(2)
So far as concerns the Cembureau Agreement, the appellant
                                                                              of Regulation No 17 and the principle of equal treatment
claims that:
                                                                              and proportionality;
—     the Court of First Instance did not properly assess the
      information which prompted the Commission to provide              —     manifest error in that the Court of First Instance imposed
      contradictory reasons for its definition of the relevant                a single fine for the group of infringements found on the
      market;                                                                 grey cement market;
 ---pagebreak--- C 247/12               EN                       Official Journal of the European Communities                                      26.8.2000
—     manifest error in the assessment of the respective                         (ii) and/or annul, or at least reduce, the fine imposed on
      responsibilities in the infringement relating to the Cembu-                      Cementir;
      reau single agreement;
—     misassessment of mitigating and aggravating circum-                  —     in the alternative, annul the contested judgment in whole
      stances;                                                                   or in part and refer the matter back to the Court of First
                                                                                Instance for a ruling on the merits in the light of
                                                                                directions provided by the Court;
—     error in the calculation of the fines on account of the
      erroneous calculation of the duration of the infringement;
                                                                           —     order the Commission to pay the costs of the present
—     manifest error in respect of the turnover for the preceding                proceedings and the proceedings before the Court of First
      year;                                                                      Instance in Case T-87/95.
—     error in the method used to calculate the fine (fixing of
      fines in ecu and choice of conversion rate).
                                                                           Pleas in law and main arguments
(1) Commission Decision 94/815/EC of 30 November 1994 relating
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).              The judgment of the Court of First Instance is vitiated by
                                                                           erroneous application of Community law and infringement of
                                                                           the rights of the defence arising from the impossibility of
                                                                           obtaining access to all the documents contained in the
                                                                           Commission’s file during the administrative procedure.
                                                                           The appellant argues that the legal conclusions of the Court of
                                                                           First Instance concerning the meetings of the Head Delegates
Appeal brought on 31 May 2000 by Cementir — Cemen-
                                                                           of Cembureau lack a coherent basis in law and logic and reveal
terie del Tirreno SpA against the judgment delivered on
                                                                           a distortion of essential evidence. The Court of First Instance
15 March 2000 by the Court of First Instance of the
                                                                           did not carry out an accurate assessment of the specific
European Communities in Joined Cases T-25/95, T-36/95,
                                                                           position of Cementir, and thus arrived at a legal qualification
T-30/32/95, T-34-39/95, T-42-46/95, T-48/95, T-50-65/95,
                                                                           of that company’s conduct devoid of all foundation, conflicting
T-68-71/95, T-87-88/95 and T-103-104/95 between
                                                                           with the principles of the burden of proof and the presumption
Cimenteries CBR and Others and the Commission of the
                                                                           of innocence, and defective in its statement of reasons.
                     European Communities
                        (Case C-219/00 P)                                  Concerning access to the file relating to the existence of the
                                                                           Cembureau agreement, Cementir maintains that the Court of
                         (2000/C 247/14)                                   First Instance was wrong to hold that the failure to grant access
                                                                           to certain documents, specified by the appellant following
                                                                           measures of organisation by the Court of First Instance, did
An appeal against the judgment delivered on 15 March 2000                  not constitute an infringement of the appellant’s defence
by the Court of First Instance of the European Communities in              rights.
Joined Cases T-25/95, T-36/95, T-30/32/95, T-34-39/95,
T-42-46/95, T-48/95, T-50-65/95, T-68-71/95, T-87-88/95
and T-103-104/95 between Cimenteries CBR and Others and
                                                                           Concerning the exchange of price information during the
the Commission of the European Communities was brought
                                                                           Head Delegates’ meetings, the appellant maintains that the
before the Court of Justice of the European Communities on
                                                                           hypothesis by the Court of First Instance, according to which
31 May 2000 by Cementir — Cementerie del Tirreno SpA,
                                                                           price information made it possible to compare existing price
with its registered office in Rome (Italy), represented by
                                                                           levels on the various national markets, is without foundation.
Antonio Tizzano, Gian Michele Roberti and Paola Criscuolo
                                                                           An exchange taking place in those circumstances could not in
Gaito, of the Naples Bar, with an address for service in Belgium
                                                                           any way reduce market uncertainties and could not therefore
at the Chambers of Antonio Tizzano, Place du Grand Sablon
                                                                           have contributed in any way to the drawing up or implemen-
36, 1000 Brussels.
                                                                           tation of the alleged Cembureau agreement. Seen in that light,
                                                                           the exchange could not be regarded as incompatible with
The appellant claims that the Court should:                                Article 81 EC (ex Article 85).
—     annul the contested Judgment in whole or in part, and
      accordingly:                                                         With reference to the concerted practice alleged in
                                                                           Article 4(3)(a) of the decision, Cementir maintains that there is
      (i)   declare Commission Decision 94/8155/EC of                      no evidence to indicate that it participated. The assessments of
            30 November 1994 (1) (Cases 1V/33.126 and                      the Court of First Instance on that point therefore lack adequate
            33.322 Cement) wholly or partially void;                       reasoning.


title: Case T-159/08: Order of the Court of First Instance of 10 June 2009 — Procter & Gamble v OHIM — Bayer (LIVENSA) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/15

         Order of the Court of First Instance of 10 June 2009 — Procter & Gamble v OHIM — Bayer (LIVENSA)
   (Case T-159/08) (1)

   (Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
   2009/C 233/26
   Language of the case: English

      Parties

      Applicant: The Procter & Gamble Company (Cincinnati, United States) (represented by: K. Sandberg, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Bayer AG (Leverkusen, Germany)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 11 February 2008 (Case R 960/2007-2) relating to opposition proceedings between Bayer AG and The Procter & Gamble Company.

      Operative part of the order

               1.

               There is no longer any need to adjudicate in the action.

               2.

               The applicant shall bear its own costs and shall pay those incurred by OHIM.

      (1)  OJ C 171, 5.7.2008.


title: Case C-96/06: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of  23 January 2006  in Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/6

         Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 23 January 2006 in Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas
   (Case C-96/06)
   (2006/C 96/10)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg (Germany) of 23 January 2006, received at the Court Registry on 17 February 2006, for a preliminary ruling in the proceedings between Viamex Agrar Handels GmbH and Hauptzollamt Hamburg-Jonas on the following questions:

               1.

               Does Article 5(3) of Regulation No 615/98 (1) constitute an exclusion, with the consequence that the burden of proof in respect of the requirements of Article 5(3) of Regulation No 615/98 is on the Principal Customs Office?

               2.

               If the first question is answered in the affirmative: In order to conclude under Article 5(3) of Regulation No 615/98 that the directive has not been complied with, is it necessary to have proof that there has been an infringement of Directive 91/628/EEC (2) in the particular case, or does the competent authority discharge its burden of proof if it relies on and provides evidence of circumstances which in an overall view indicate a material probability that the directive on the protection of animals during transport has not been complied with (also) in relation to the export consignment in question?

               3.

               Irrespective of the answers to questions 1 and 2: May the competent authority refuse to pay (all of) the export refund to the exporter under Article 5(3) of Regulation No 615/98 where there are no indications that the (potential) infringement of Directive 91/628/EEC has in fact been deleterious to the wellbeing of the animals during transport in relation to the export consignment in question?

      (1)  OJ L 82 of 19.3.1998, p. 19.

      (2)  OJ L 240 of 11.12.1991, p. 17.


title: Case C-510/09: Order of the President of the Court of 9 June 2010 — European Commission v French Republic

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/38

         Order of the President of the Court of 9 June 2010 — European Commission v French Republic
   (Case C-510/09) (1)

   ()
   2010/C 346/69
   Language of the case: French
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 37, 13.2.2010.


title: Action brought on 3 April 1996 by the Commission of the European Communities against the Kingdom of Spain (Case C-107/96)

text:
1 . 6 . 96             EN                   Official Journal of the European Communities                                        No C 158/5
preliminary ruling in the case of Directeur Général des                1 . Having regard to the facts held to be proved ( ) in part 3
Douanes et Droits Indirects v. Eridania Béghin-Say SA on                      of this judgment ( above all those set out in paragraphs A
the following questions :                                                     to D and L, commencing on the 7th folio and ending on
                                                                              the 12th folio ) and the applicable Community
( 1 ) Is Article 9 of Council Regulation ( EEC )                              provisions, is the dual (2 ) tariff classification assigned to
       No 3677/86 (') of 24 November 1986 laying down                         the goods in question by the Tribunal Técnico de l a
       provisions for the implementation of Regulation                        Instância and later confirmed by the Tribunal Técnico
       No 1999/85 ( 2 ) valid, in that it provides that, in order             de 2 a Instância and the Tribunal Tributârio de 2a
       for goods to rank as equivalent goods, they must fall                  Instância correct ?
       within the same subheading of the Common Customs
       Tariff as the import goods, notwithstanding that the            2 . If not, what is the proper tariff classification ?
       basic regulation, Regulation No 1999/85 of 16 July
       1985 , does not lay down any such condition ?
                                                                       (') The imported goods are an electrical apparatus of the make
( 2 ) Is Article 9 of Council Regulation ( EEC ) No 3677/86 of               Merlin Gerin , model : Alpes 100 12 KVA, comprising :
       24 November 1986 valid , in that it provides that, in                 ( a ) a cabinet containing:
       order for goods to rank as equivalent goods, they must                      1 , a rectifier-charger which feeds, from the electricity
       fall within the same subheading of the Common                                   network , an undulator and maintains a battery on
       Customs Tariff as the import goods, notwithstanding                             charge;
                                                                                2 , an    undulator    which converts direct current into
       that such a condition gives rise to disproportionate                            regulated alternating current;
       effects for economic operators ?                                            3 , a static inverter switch which enables surges to be
                                                                                absorbed without giving rise to a disproportionate
( 3 ) Is Article 9 of Council Regulation ( EEC ) No 3677/86 of                         feed ;
       24 November 1986 valid, having regard to the                          ( b ) a second cabinet containing a sealed set of lead-acid
       principles of the protection of legitimate expectations                     accumulators which can operate independently for 30
       and legal certainty, in that it provides that, in order for                 minutes .
       goods to rank as equivalent goods, they must fall within        ( 2 ) The rectifier/charger, the AC converter and the inverter were
       the same subheading of the Common Customs Tariff as                   classified under tariff heading 85.01 B.II.(f) and the cabinet
       the import goods, notwithstanding that that Article,                  containing the accumulators was classified under heading 85.04
                                                                             B.I.
       combined with the provisions of Regulation
       No 2658/87 on the combined nomenclature ( 3 ),
       suddenly made it impossible, with effect from
        1 January 1988 and only until 1 January 1992, for
       persons to avail themselves of the inward-processing
       relief arrangements in respect of compensation on an
       equivalent basis as between cane sugar and beet
       sugar ?
                                                                       Action brought on 3 April 1996 by the Commission of the
                                                                            European Communities against the Kingdom of Spain
(') OJ No L 351 , 1986 , p . 1 .
( 2 ) OJ No L 188 , 1985 , p . 1 .                                                                   ( Case C-107/96 )
C ) OJ No L 256 , 1987, p . 1 .                                                                        ( 96/C 158/ 10 )
                                                                       An action against the Kingdom of Spain was brought before
                                                                       the Court of Justice of the European Communities on
                                                                       3 April 1996 by the Commission of the European
Reference for a preliminary ruling by order of the Supremo              Communities, represented by Richard Wainwright,
Tribunal Administrative ( Second Division — Taxation                   Principal Legal Adviser, and Fernando Castillo de la Torre,
Matters ) of 28 February 1996 in the proceedings pending               of its Legal Service, with an address for service in
before that court between Codiesel — Sociedade de Apoio                 Luxembourg at the office of Carlos Gômez de la Cruz,
Técnico       à   Industria,    Lda,   and   Conselho     Técnico      Wagner Centre .
                              Aduaneiro
                         ( Case C-105 /96 )
                           ( 96/C 158/09 )
                                                                       The applicant claims that the Court should :
 Reference has been made to the Court of Justice of the                 1 , declare that, by failing to adopt and bring into force,
 European Communities by an order of the Supremo                               within the prescribed period, the laws, regulations or
 Tribunal Administrative ( Supreme Administrative Court)                       administrative provisions necessary to comply with
 ( Second Division — Taxation Matters ) of 28 February                         Council Directive 91 /156/EEC ( 1 ) of 18 March 1991
 1996 , which was received at the Court Registry on 1 April                    amending Directive 75/442/EEC ( 2 ) on waste , the
 1 996 , for a preliminary ruling in the proceedings pending                   Kingdom of Spain has failed to fulfil its obligations
 before that court between Codiesel — Sociedade de Apoio                       under Articles 5 and 189 of the Treaty establishing the
 Técnico à Industria, Lda, and Conselho Técnico Aduaneiro                      European Community;
 ( Customs      Examination        Board ) on    the    followings
 questions :                                                            2 , order the defendant to pay the costs .
 ---pagebreak--- No C 158/6             EN                   Official Journal of the European Communities                                   1 . 6 . 96
Pleas in law and main arguments                                        Action brought on 3 April 1996 by the Commission of the
                                                                          European Communities against the Hellenic Republic
The mandatory nature of the third paragraph of Article 189                                    ( Case C- 1 09/96 )
and the first paragraph of Article 5 of the EC Treaty requires
Member States to adopt the measures necessary to comply                                          ( 96/C 158/ 12 )
with the Directives which are addressed to them within the
period prescribed therein. That period expired on 1 April              An action against the Hellenic Republic was brought before
 1993 without the Kingdom of Spain having brought into                 the Court of Justice of the European Communities on
force the necessary provisions .                                       3 April 1 996 by the Commission of the European
                                                                       Communities, represented by Dimitrios Gouloussis, Legal
(') OJ No L 78 , 26 . 3 . 1991 , p . 32 .                              Adviser at the Commission, with an address for service in
( 2 ) OJ No L 194, 25 . 7 . 1975 , p . 39 .                            Luxembourg at the office of Carlos Gômez de la Cruz, of the
                                                                       Commission's Legal Service, Wagner Centre, Kirchberg.
                                                                       The applicant claims that the Court should :
                                                                       — declare that the Hellenic Republic has failed to fulfil its
Reference for a preliminary ruling by the Tribunal de                      obligations under the EC Treaty by failing to adopt and
Première Instance de Bruxelles by judgment of that court of                also to communicate to the Commission in due time the
27 March 1996 in the case of Procureur du Roi, civil party:                laws, regulations and administrative provisions
Union professionnelle belge des médecins spécialistes en                   necessary in order to comply fully with Council
ophtalmologie et chirurgie oculaire against Dennis Mac                     Directive 91/371 /EEC of 20 June 1991 on the
Queen and Others , party liable at civil law: Vision Express               implementation of the Agreement between the European
                             Belgium SA                                    Economic Community and the Swiss Confederation
                         ( Case C-108/96 )                                 concerning direct insurance other than life
                                                                           assurance (');
                           ( 96/C 158/ 11 )
                                                                       — order the Hellenic Republic to pay the costs .
Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal de                    Pleas in law and main arguments
Première Instance de Bruxelles ( Court of First Instance,
Brussels ) of 27 March 1996 , which was received at the                Under Article 189 ( 3 ) of the Treaty establishing the
Court Registry on 3 April 1 996 , for a preliminary ruling in          European Community directives are to be binding upon
the case of Procureur du Roi, civil party: Union                       each Member State to which they are addressed . The
professionnelle belge des médecins spécialistes en                     Hellenic Republic has not yet adopted the measures
ophtalmologie et chirurgie oculaire against Dennis Mac                 necessary to incorporate the relevant Directive fully into
Queen, Derek Pouton, Caria Emma Johanna Godts and                      Greek law and has also failed to communicate any such
Youssef Antoun, party liable at civil law: Vision Express              measures to the Commission .
Belgium SA, on the following questions :
                                                                       (') OJ No L 205 , 1991 , p . 48 .
1 . Is a prohibition, arising from the interpretation or the
      application of a provision of national law, restraining
      opticians in other Member States from offering within a
      Member State, for the correction of purely optical
      eyesight defects, services consisting of an objective
      eyesight examination, that is to say otherwise than by          Action brought on 3 April 1996 by the Commission of the
      using a method by which the client himself determines               European Communities against the Hellenic Republic
      the eyesight deficiencies and sees to the corection to be                              ( Case C-1 10/96 )
      made , compatible with Articles 5 , 52 and 59 of the EC
      Treaty ?                                                                                ( 96/C 158 /13 )
2 . Are obstacles within a Member State to the marketing of           An action against the Hellenic Republic was brought before
      equipment which enables an objective eyesight                   the Court of Justice of the European Communities on
      examination to be carried out with a view to correcting          3 April 1996 by the Commission of the European
      purely optical eyesight defects, such as, for example, an        Communities, represented by Dimitrios Gouloussis, Legal
      autorefractor, arising from the ban imposed by national         Adviser at the Commission, with an address for service in
      law on opticians established in other Member States              Luxembourg at the office of Carlos Gomez de la Cruz, of the
      preventing them from offering, within that Member                Commission's Legal Service, Wagner Centre, Kirchberg.
      State, services consisting of an objective eyesight
      examination, that is to say a non-subjective                    The applicant claims that the Court should :
      examination, for the correction of purely optical
      eyesight defects, compatible with Article 30 of the EC          — declare that the Hellenic Republic has failed to fulfil its
      Treaty ?                                                             obligations under the EC Treaty by failing to adopt and
                                                                           also to communicate to the Commission in due time
                                                                           the laws, regulations and administrative provisions


title: Action brought on 5 July 1995 by Kirsten Schelbeck against the European Parliament (Case T-141/95)

text:
 L 9 . 95             EN                  Official Journal of the European Communities                                No C 229/25
Action brought on 5 July 1995 by Georges Cantone against             Pleas in law and main arguments adduced in support:
       the Commission of the European Communities
                       ( Case T-139/95 )                             The applicant, an official of the European Parliament of
                         ( 95/C 229/54 )                             Danish nationality, receives family allowances for her three
                                                                     children under Danish legislation. Taking the view that
                (Language of the case: French)                       those allowances should be regarded as of the same nature
                                                                     as those payable in accordance with Annex VII to the
An action against the Commission of the European                     Staff Regulations, the Parliament initially deducted the
Communities was brought before the Court of First                    corresponding amount from the applicant's salary. By letter
Instance of the European Communities on 5 July 1995 by               of 1 December 1994 , and purportedly on the basis of a
Georges Cantone, resident in Luxembourg, represented by              'change in practice', the appointing authority decided to
Jean-Noel Louis, Thierry Demaseure, Ariane Tornel and                cease applying the non-aggregation rule to the allowances in
Veronique Leclercq, all of the Brussels Bar, with an address         dispute with effect from 1 May 1993 and consequently to
for service in Luxembourg at the offices of Fiduciaire Myson         reimburse to the applicant the amounts unduly levied since
                                                                     that date .
Sari, 1 Rue Glesener.
The applicant claims that the Court should:                          The applicant claims that she is also entitled to
                                                                     reimbursement of the amounts unduly deducted before May
— annul, so far as may be necessary, the confirmatory                1993 . In that connection she claims that the 'change in
    decision of 19 December 1994 and the decision of                 practice' which gave rise to the contested decision derives
    17 May 1995 expressly rejecting the applicant's                  from the fact that the Parliament itself had realized that, by
    complaint,                                                       treating the allowances payable under the Danish legislation
                                                                     in question, which are of a fiscal nature, on the same basis as
— annul the Commissions' decision of 4 November 1994,
                                                                     the family allowances under Annex VII to the Staff
    fixing Luxembourg as the applicant's place of                    Regulations, which are social in nature, it had committed a
    recruitment,
                                                                     manifest error of assessment. To set a temporal limit on the
— order the defendant to pay the costs .                             reimbursement of the amounts unduly deducted is therefore
                                                                     unreasonable .
Pleas in law and main arguments adduced in support:
                                                                     The applicant further maintains that, by adopting the
The pleas in law and main arguments are similar to those in          contested decision, the European Parliament acted contrary
Case T-33/95 I 1 ).                                                  to the principles of equal treatment and of
                                                                     non-discrimination between officials .
H OJ No C 101 , 22 . 4 . 1995 , p . 14 .
Action brought on 5 July 1995 by Kirsten Schelbeck against
                   the European Parliament
                       ( Case T-141 /95 )                            Action brought on 6 July 1995 by Werner Haberer against
                                                                     the Council of the European Union and the Commission of
                          ( 95/C 229/55 )                                             the European Communities
                (Language of the case: French)                                             ( Case T-143/95 )
                                                                                95/C 229/56
An action against the European Parliament was brought
before the Court of First Instance of the European
Communities on 5 July 1995 by Kirsten Schelbeck, residing                           (Language of the case: German)
in Luxembourg, represented by Jean-Noel Louis, Thierry
Demaseure and Veronique Leclercq, of the Brussels Bar,               An action against the Council of the European Union and
with an address for service in Luxembourg at the offices of          the Commission of the European Communities was brought
Fiduciaire Myson Sarl, 1 Rue Glesener.                               before the Court of First Instance of the European
                                                                     Communities on 6 July 1995 by Werner Haberer, Riegel
The applicant claims that the Court should:                           ( Federal Republic of Germany ), represented by Bernd
— annul the decision of the European Parliament refusing             Meisterernst, Mechtild Düsing, Dietrich Manstetten, Frank
    the applicant reimbursement of the amounts unlawfully            Schulze and Winfried Haneklaus, Rechtsanwälte, Münster,
    deducted from the family allowances to which she was             with an address for service in Luxembourg at the Chambers
    entitled with respect to the period from 1 November              of Dupong & Associés, 14a Rue des Bains.
     1987 to 30 April 1993 ,
                                                                     The applicant claims that the Court should:
— annul the implied decision of 1 July 1995 rejecting her
    complaint,
                                                                       1 . order the defendants to pay to the applicant SLOM I
— order the Parliament to pay the costs.                                   compensation for the period from 30 November 1985


C 366/32              EN                    Official Journal of the European Communities                                18.12.1999
       Removal from the register of Case T-385/94 (1)                         Removal from the register of Case T-160/95 (1)
                       (1999/C 366/70)                                                        (1999/C 366/73)
                 (Language of the case: German)                                         (Language of the case: German)
By order of 29 September 1999 the President of the Fourth              By order of 29 September 1999 the President of the Fourth
Chamber of the Court of First Instance of the European                 Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of               Communities has ordered the removal from the register of
Case T-385/94: Johann Wißmüller v Council of the European              Case T-160/95: Harald Meuser v Council of the European
Union and Commission of the European Communities.                      Union and Commission of the European Communities.
(1) OJ No C 392 of 31.12.1994.                                         (1) OJ No C 248 of 23.9.1995.
       Removal from the register of Case T-397/94 (1)                         Removal from the register of Case T-202/95 (1)
                       (1999/C 366/71)                                                        (1999/C 366/74)
                 (Language of the case: German)                                         (Language of the case: German)
By order of 29 September 1999 the President of the Fourth              By order of 29 September 1999 the President of the Fourth
Chamber of the Court of First Instance of the European                 Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of               Communities has ordered the removal from the register of
Case T-397/94: Gerjet Meyenburg v Council of the European              Case T-202/95: Heinrich Gottmann v Council of the European
Union and Commission of the European Communities.                      Union and Commission of the European Communities.
(1) OJ No C 400 of 31.12.1994.                                         (1) OJ No C 351 of 30.12.1995.
       Removal from the register of Case T-399/94 (1)                         Removal from the register of Case T-150/96 (1)
                       (1999/C 366/72)                                                        (1999/C 366/75)
                 (Language of the case: German)                                          (Language of the case: French)
By order of 29 September 1999 the President of the Fourth              By order of 19 October 1999 the President of the First
Chamber of the Court of First Instance of the European                 Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of               Communities has ordered the removal from the register of
Case T-399/94: Josef Speckbacher v Council of the European             Case T-150/96: Austin Rowan v Commission of the European
Union and Commission of the European Communities.                      Communities.
(1) OJ No C 392 of 31.12.1994.                                         (1) OJ No C 354 of 23.11.1996.


title: Case F-84/05: Judgment of the Civil Service Tribunal (Second Chamber) of 1 March 2007 — Neirinck v Commission (Officials — Temporary staff — Admissibility — Request within the meaning of Article 90(1) of the Staff Regulations — Principle of the protection of legitimate expectations — Alleged promise to recruit)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/55

         Judgment of the Civil Service Tribunal (Second Chamber) of 1 March 2007 — Neirinck v Commission
   (Case F-84/05) (1)

   (Officials - Temporary staff - Admissibility - Request within the meaning of Article 90(1) of the Staff Regulations - Principle of the protection of legitimate expectations - Alleged promise to recruit)
   (2007/C 82/115)
   Language of the case: French
   Parties

      Applicant: Wineke Neirinck (Brussels, Belgium) (represented by: G. Vandersanden, L. Levi and C. Ronzi, lawyers)

      Defendant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios, agents)
   Re:
   An application for damages seeking compensation for the loss suffered by the applicant as a result of not having been employed as a member of the temporary staff following an alleged error on the part of the defendant's administration.
   Operative part of the judgment
   The Tribunal:

               1.

               dismisses the action;

               2.

               orders each party to bear its own costs.

      (1)  OJ C 281, 12.11.2005, p. 29 (case initially registered before the Court of First Instance of the European Communities under number T-334/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).


title: Case T-151/00: Action brought on 7 June 2000 by Le Laboratoire du Bain against the Council of the European Union and the Commission of the European Communities

text:
C 247/30               EN                      Official Journal of the European Communities                                    26.8.2000
—     By failing to base its decision upon the criteria prescribed        Pleas in law and main arguments
      in the applicable directive, the Commission erred in law.
                                                                          The applicant is an international association of European flat
—     By failing to accept that exceptional circumstances were            glass producers. It seeks annulment of a Commission decision
      present which could justify reaching a different con-               relating to aid granted by Italy to Sangalli Manfredonia Vetro
      clusion than that of the CPMP, the Commission made a                in connection with the construction of a flat-glass factory at
      manifest error of appreciation, violated the rights of the          Manfredonia in southern Italy.
      applicant to have a fair, neutral and careful examination
      of its products and failed to respect the applicable
      legislation.                                                        The applicant maintains that the regional aid project in issue
                                                                          should have been notified to the Commission in the context
                                                                          of the multi-sectoral framework on regional aid. It doubts that
—     The decision fails to explain, in a clear and consistent
                                                                          the subsidy decision was taken by the Italian authorities on a
      manner, why the two products were harmful, and is
                                                                          date prior to that of the entry into force of the framework
      therefore vitiated by inadequate reasoning.
                                                                          scheme. Moreover, the project exceeds the parameters of the
                                                                          regional scheme authorised by previous decisions of the
—     The decision fails to respect the property rights of                Commission.
      the applicant as these are protected by the European
      Convention for the protection of Human Rights and
      Fundamental Freedoms.                                               In addition, the applicant disputes the Commission’s con-
                                                                          clusion that Sangalli and the Sangalli Vetro group were
                                                                          medium-sized undertakings and that they were therefore
                                                                          entitled to receive an additional 15 % by way of gross grant
(1) Council Directive 65/65/EEC of 26 January 1965 on the approxi-        equivalent (GGE). It postulates that the method used to define
    mation of provisions laid down by Law, Regulation or Adminis-
    trative Action relating to proprietary medicinal products (OJ
                                                                          undertakings covered by the notion of small and medium-
    1965, 22, p. 369).                                                    sized enterprises (SMEs) is contrary to Article 87(3)(a) and (e)
                                                                          EC. That method prompted the Commission unlawfully to
                                                                          authorise the grant of aid to undertakings which are not SMEs.
                                                                          Lastly, the Commission committed a manifest error in its
                                                                          assessment of the facts in deciding that the investment aid in
                                                                          issue was in accordance with the Commission’s previous
                                                                          decisions approving the aid scheme provided for in Law
                                                                          No 488/92. Contrary to the requirement laid down by that
Action brought on 6 June 2000 by Groupement Européen                      law, the project in issue was not economically viable. The
des Producteurs de Verre Plat against the Commission of                   Commission’s assessment in that regard was, on the facts,
                   the European Communities                               manifestly erroneous.
                         (Case T-150/00)
                         (2000/C 247/53)
                    (Language of the case: French)                        Action brought on 7 June 2000 by Le Laboratoire du Bain
                                                                          against the Council of the European Union and the
                                                                                Commission of the European Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 June 2000 by Groupement                                                 (Case T-151/00)
Européen des Producteurs de Verre Plat, established in Brussels,
represented by Bernard van de Walle de Ghelcke, of the
                                                                                (2000/C 247/54)
Brussels Bar.
The applicant claims that the Court should:                                                 (Language of the case: French)
—     annul decision C(99) 2895 final of the Commission of                An action against the Council of the European Union and the
      the European Communities of 20 July 1999 — State aid                Commission of the European Communities was brought
      C86/98 (ex NN 135/98 — Italy — aid granted to Sangalli              before the Court of First Instance of the European Communities
      Manfredonia Vetro, Apulia (Italy));                                 on 7 June 2000 by Le Laboratoire du Bain, established at
                                                                          Nontron (France), represented by Claude Lazarus, of the Paris
—     order the Commission to pay all of the costs.                       Bar.
 ---pagebreak--- 26.8.2000              EN                    Official Journal of the European Communities                                        C 247/31
The applicant claims that the Court should:                             The applicant claims that the Court should:
—     order the Council of the European Union and the                   —     declare that the Commission has improperly failed to act,
      Commission of the European Communities to pay to the                    inasmuch as it has unlawfully omitted to take a decision
      applicant, pursuant to Article 288 of the EC Treaty, the                on the complaint made pursuant to Article 3 of Regu-
      sum of 762 245 euro in respect of the damage suffered,                  lation No 17/62; and
      subject to the making up of the sum due to the full
      amount;                                                           —     order the defendant to pay the costs.
—     order the Council of the European Union and the
      Commission of the European Communities to pay the                 Pleas in law and main arguments
      costs.
                                                                        The applicant in the present case, whose principal activity is
Pleas in law and main arguments                                         the parallel exportation of medicinal products, objects to the
                                                                        Commission’s failure to respond to the complaint submitted
                                                                        by it regarding the Merck group. That complaint concerned
The applicant company, an undertaking specialising in the               the strategy developed by the latter to combat the parallel
development and manufacture of effervescent cosmetic prod-              market in medicinal products, which took the form of such
ucts for the bath which exports a significant proportion of its         measures as:
production to the United States, is claiming compensation for
the damage suffered as a result of the retaliatory measures             —     the repeated and systematic refusal, on the strength of its
applied by the American authorities to a series of Community                  dominant position, to supply the applicant with three of
products, including bath preparations other than bath salts, in               its special pharmaceutical products;
the context of the dispute concerning the European system for
the importation of bananas. It maintains that the damage                —     the conclusion of concerted agreements with its licensees
which it has suffered is a direct consequence of:                             and certain wholesalers containing an absolute prohib-
                                                                              ition on the exportation of the products referred to above;
—     the adoption and retention by the Council and by
      the Commission of the Community system for the                    —     the establishment of a system of market quotas.
      importation of fresh bananas in breach of the rules laid
      down by GATT and the WTO; and of
                                                                        The complaint was submitted on 15 December 1997, but no
—     the fact that those two institutions omitted to take              decision has been taken on it to date. According to the
      into account the situation of undertakings subjected to           applicant, that inactivity, of over two years’ duration, is placing
      sanctions, which was bound to result from the approach            it in a situation of serious defencelessness. The applicant also
      adopted by them, in violation of the Community prin-              maintains, moreover, that the relevant case-law must be
      ciples of equality and non-discrimination, the protection         understood as imposing on the Commission the obligation to
      of legitimate expectations, freedom to pursue a pro-              examine the facts and legal aspects brought to its attention
      fessional activity and proportionality.                           and to communicate to the party concerned its assessment
                                                                        thereof.
Action brought on 6 June 2000 by Spain Pharma S.A.
  against the Commission of the European Communities                    Action brought on 8 June 2000 by Nicole Robert against
                                                                                the European Parliament
                         (Case T-153/00)
                                                                                (Case T-157/00)
                         (2000/C 247/55)
                                                                                (2000/C 247/56)
                  (Language of the case: Spanish)
                                                                                (Language of the case: French)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              An action against the Court of Auditors was brought before
European Communities on 6 June 2000 by Spain Pharma                     the Court of First Instance of the European Communities on
S.A., established in Madrid, represented by Ricardo Gutiérrez           8 June 2000 by Nicole Robert, residing at Strassen (Luxem-
Sánchez, lawyer.                                                       bourg), represented by Alain Lorang, of the Luxembourg Bar.


title: Case T-114/02: Action brought on 15 April 2002 by BaByliss SA against the Commission of the European Communities

text:
C 144/56              EN                     Official Journal of the European Communities                                     15.6.2002
Action brought on 6 April 2002 by Matratzen Concord                     Decision of the Oppo-         Rejection of the application for
GmbH against Office for Harmonisation in the Internal                   sition Division:              goods in classes 20 and 24, rejec-
              Market (Trade marks and designs)                                                        tion of the opposition as regards
                                                                                goods in class 10
                        (Case T-105/02)                                 Decision of the Board of      Dismissal of the applicant’s appeal
                                                                        Appeal:
                       (2002/C 144/110)                                 Grounds of claim:             —    No likelihood of confusion
                                                                                under Article 8 of Regulation
                                                                                (EC) No 40/94 (1);
(Language of the case to be determined in accordance with
Article 131(2) of the Rules of Procedure — Language in which the                                      —    No similarity between the
                 application was drafted: German)                                                          opposing marks;
                                                                                —    Incorrect division of the tra-
                                                                                de mark into its individual
                                                                                components;
An action against the Office for Harmonisation in the Internal
Market (Trade marks and designs) was brought before the                                               —    Failure to follow the case-
Court of First Instance of the European Communities on                                                     law of the Court of Justice
6 April 2002 by Matratzen Concord GmbH, of Cologne                                                         concerning the overall
(Germany), represented by W.-W. Wodrich, lawyer, with an                                                   impression of the trade
address for service in Luxembourg. The other party before the                                              mark;
Board of Appeal was Hukla Germany, S.A., of Castellbisbal
(Spain).                                                                                —    Right of a competitor in the
                                                                                market to combine the desig-
                                                                                nation of his main products
The applicant claims that the Court should:                                                                with the name of his firm;
                                                                                —    Opposing mark not capable
—     Set aside the decision of the defendant (Second Board of                                             of protection.
      Appeal) of 25 January 2002 (reference of the appeal R
      1045/2000-2);
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
—     Dismiss the opposition of the opponent of 17 December
      1998 (reference B 115 057);
—     Order the defendant and the opponent to pay all the
      costs of the procedure before the Opposition Division
      and the Board of Appeal and of the present proceedings.
                                                                        Action brought on 15 April 2002 by BaByliss SA against
                                                                              the Commission of the European Communities
                                                                                (Case T-114/02)
Pleas in law and main arguments
                                                                                (2002/C 144/111)
Applicant for the Com-         The applicant
munity trade mark:                                                                        (Language of the Case: French)
Community trade mark           Figurative       trade       mark
applied for:                   ‘MATRATZEN CONCORD’ for                  An action against the Commission of the European Communi-
                               goods in classes 10, 20 and 24 —         ties was brought before the Court of First Instance of the
                               Application No 739722                    European Communities on 15 April 2002 by BaByliss SA, of
                                                                        Montrouge (France), represented by Jacques-Philippe Gunther,
Proprietor of the right to     Hukla Germany, S.A.                      lawyer.
the trade mark or sign
asserted by way of oppo-                                                The applicant claims that the Court should:
sition in the opposition
proceedings:                                                            —     annul the decision adopted by the Commission on
                                                                              8 January 2002 in the case of COMP/M.2621 SEB v
Trade mark or sign             Spanish word trade mark                        MOULINEX;
asserted by way of oppo-       ‘MATRATZEN’ for goods in
sition:                        class 20                                 —     order the Commission to pay all the costs.
 ---pagebreak--- 15.6.2002              EN                   Official Journal of the European Communities                                    C 144/57
Pleas in law and main arguments                                        Fourthly, the applicant considers that the Commission erred
                                                                       in law by failing to examine the extent to which the derisory
                                                                       sum paid and the financial aid provided by the French State
                                                                       was likely to strengthen even further SEB’s position on the
                                                                       relevant markets.
SEB and Moulinex are active in the design, manufacture and
sale of domestic electric appliances worldwide. A proposed
merger of the two companies was notified to the Commission.
The applicant in this case informed the Commission of its
reservations in regard to the merger. The Commission none
the less declared the transaction compatible with the common
market and with the EEA Agreement, subject to compliance
with the undertakings given. The applicant is challenging that
decision. In support of its application the applicant relies first
of all on an infringement of essential procedural requirements         Action brought on 15 April 2002 by BaByliss SA against
in accepting the undertakings proposed by SEB late. Undertak-                 the Commission of the European Communities
ings must be submitted within three weeks from notification
of a transaction. The Commission allowed SEB to submit new
phase one undertakings five weeks after the transaction was                                    (Case T-114/02)
notified. The applicant claims that those undertakings could in
no circumstances be regarded as enhancing the original
undertakings but constituted new undertakings.                                                (2002/C 144/112)
                                                                                (Language of the Case: French)
Secondly, the applicant claims that the Commission erred in
law in deciding to authorise the operation without carrying            An action against the Commission of the European Communi-
out an in-depth investigation. The applicant claims that the           ties was brought before the Court of First Instance of the
conditions for authorisation in phase one were not met. The            European Communities on 15 April 2002 by BaByliss SA, of
undertakings proposed did not definitively resolve any serious         Montrouge (France), represented by Jacques-Philippe Gunther,
doubts as to the compatibility of the transaction with the             lawyer.
common market, as required by the Commission Notice on
remedies.
                                                                       The applicant claims that the Court should:
                                                                       —     annul the decision adopted by the Commission on
                                                                             8 January 2002 in the case of COMP/M.2621 SEB v
                                                                             MOULINEX;
Thirdly, the applicant considers that the Commission made a
manifest error of assessment in that the undertakings imposed          —     order the Commission to pay all the costs.
on SEB are insufficient to remove the competition concerns.
The Commission therefore authorised the transaction without
any undertakings on certain markets where there were serious
competition concerns. Moreover, an undertaking to grant a
trade mark licence is not by its nature sufficient to resolve the
competition concerns that the transaction raises. The period           Pleas in law and main arguments
for which the licence is granted is also insufficient for the
licensee to switch Moulinex’s products to its own brand in a
market characterised by strong brand loyalty. Furthermore, the
undertaking to supply the German market will have the effect           SEB and Moulinex are active in the design, manufacture and
of strengthening SEB/Moulinex’s position on that market.               sale of domestic electric appliances worldwide. A proposed
Finally, the fact that the Commission agreed to the same trade         merger of the two companies was notified to the Commission.
mark being used by different companies within the European             The applicant in this case informed the Commission of its
Union is liable to lead to coordinated behaviour by SEB/               reservations in regard to the merger. The Commission none
Moulinex and the licensees.                                            the less declared the transaction compatible with the common


29.4.2000             EN                   Official Journal of the European Communities                                     C 122/17
       Removal from the register of Case C-380/97 (1)                        Removal from the register of Case C-395/97 (1)
                         (2000/C 122/33)                                                     (2000/C 122/36)
By order of 20 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 1 February 2000 the President of the Court of
                                                                      Justice of the European Communities has ordered the removal
from the register of Case C-380/97 (reference for a preliminary
                                                                      from the register of Case C-395/97 (reference for a preliminary
ruling from the Arrondissementsrechtbank, The Hague): Emesa
Sugar (Free Zone) NV v Kingdom of the Netherlands and                 ruling from the Oberster Gerichtshof): Landesgrundver-
                                                                      kehrsreferent der Tiroler Landesregierung v Herbert Kappes
Others.
                                                                      and Edwin Neuner.
(1) OJ C 387 of 20.12.1997.
                                                                      (1) OJ C 26 of 24.1.1998.
       Removal from the register of Case C-345/97 (1)
                         (2000/C 122/34)                                     Removal from the register of Case C-290/99 (1)
By order of 27 January 2000 the President of the Court of                                    (2000/C 122/37)
Justice of the European Communities has ordered the removal
from the register of Case-345/97: Federal Republic of Germany
v Council of the European Union.                                      By order of 3 February 2000 the President of the Court of
                                                                      Justice of the European Communities has ordered the removal
                                                                      from the register of Case-290/99: Council of the European
(1) OJ C 357 of 22.11.1997.                                           Union v Martin Bangemann.
                                                                      (1) OJ C 314 of 30.10.1999.
       Removal from the register of Case C-407/97 (1)
                         (2000/C 122/35)
By order of 31 January 2000 the President of the Court of                    Removal from the register of Case C-288/98 (1)
Justice of the European Communities has ordered the removal
from the register of Case C-407/97 (reference for a preliminary
ruling from the Oberster Gerichtshof): Landesgrundver-                                       (2000/C 122/38)
kehrsreferent der Tiroler Landesregierung v Adolf Sparber,
Firma Atelier Delta Entwurf — und Planungsgesellschaft mbH,           By order of 18 February 2000 the President of the Court of
en liquidation, Hans-Eberhard Junkersdorf and Maria-Margare-          Justice of the European Communities has ordered the removal
te Junkersdorf.                                                       from the register of Case C-288/98 (reference for a preliminary
                                                                      ruling from the Corte Suprema di Cassazione): Istituto Nazion-
                                                                      ale della Previdenza Sociale (INPS) v Mario Maraldi SpA.
(1) OJ C 41 of 7.2.1998.
                                                                      (1) OJ C 278 of 5.9.1998.


title: Case T-695/13: Judgment of the General Court of 13 September 2016 — ENAC v INEA (Financial aid — Projects of common interest in the field of trans-European transport and energy networks — Realisation of a study for the intermodal development of Bergamo-Orio al Serio Airport — Determination of the final amount of the financial aid — Ineligible costs — Error of law — Obligation to state reasons)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/27

         Judgment of the General Court of 13 September 2016 — ENAC v INEA
   (Case T-695/13) (1)

   ((Financial aid - Projects of common interest in the field of trans-European transport and energy networks - Realisation of a study for the intermodal development of Bergamo-Orio al Serio Airport - Determination of the final amount of the financial aid - Ineligible costs - Error of law - Obligation to state reasons))
   (2016/C 402/29)
   Language of the case: Italian

      Parties

      Applicant: Ente nazionale per l’aviazione civile (ENAC) (Rome, Italy) (represented by: G. Palmieri and P. Garofoli, avvocati dello Stato)

      Defendant: Innovation and Networks Executive Agency (represented by: I. Ramallo, D. Silhol and Z. Szilvássy, acting as Agents, and by M. Merola, M. C. Santacroce and L. Armati, lawyers)

      Intervener in support of the applicant: Società per l’aeroporto civile di Bergamo-Orio al Serio SpA (SACBO SpA) (Grassobbio, Italy) (represented by: M. Muscardini, G. Greco and G. Carullo, lawyers)

      Re:

   Application based on Article 263 TFEU and seeking annulment of the letters of 18 March and 23 October 2013 of the Trans-European Transport Network Executive Agency (TEN-TEA), now INEA, relating to certain costs incurred on the occasion of the completion of a feasibility study for the intermodal nature of the Bergame-Orio al Serio airport (Italy) following the financial assistance granted by the European Commission to the applicant.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders the Ente nazionale per l’aviazione civile (ENAC, the National civil aviation authority, Italy) to pay the costs.

      (1)  OJ C 52, 22.2.2014.