title: Case C-196/03 P: Appeal brought on 3 May 2003 by Arnaldo Lucaccioni against the judgment delivered on 26 February 2003 by the First Chamber of the Court of First Instance of the European Communities in Case T-164/01 between Arnaldo Lucaccioni and the Commission of the European Communities

text:
19.7.2003              EN                         Official Journal of the European Union                                            C 171/11
Second ground:                 Erroneous interpretation and                           by exposing him to asbestos, a carcinogenic substan-
                               application of Articles 42 EC and                      ce which causes incurable serious illnesses,
                               43 EC.
                                                                                —     deliberately attempted against the appellant’s safety
                                                                                at work, by seriously neglecting safety, assessed at
                                                                                EUR 3 500 000 (ITL 7 000 000 000), by analogy
                                                                                with the amounts ordered in respect of each of the
                                                                                victims (totalling some EUR 500 000 or
                                                                                ITL 1 000 000 000) in the judgment in Case 4840/
Appeal brought on 3 May 2003 by Arnaldo Lucaccioni                                    96 of 5 July 1996 delivered by the Pretura Circondar-
against the judgment delivered on 26 February 2003 by                                 iale di Torino (District Magistrate’s Court, Turin) and
the First Chamber of the Court of First Instance of                                   the compensation ordered for each of the victims of
the European Communities in Case T-164/01 between                                     the ‘Cermis’ cable car disaster, namely
Arnaldo Lucaccioni and the Commission of the European                                 ITL 4 000 000 000.
                           Communities
                                                                          3.    order the defendant to pay the costs incurred at first
                        (Case C-196/03 P)                                       instance and as a result of the appeal.
                         (2003/C 171/16)
                                                                          Pleas in law and main arguments
An appeal against the judgment delivered on 26 February
2003 by the First Chamber of the Court of First Instance of
the European Communities in Case T-164/01 between Arnaldo                 1.     The Court of First Instance found that the applicant had
Lucaccioni and the Commission of the European Communities                 already submitted on 15 May 1994 a request relating to non-
was brought before the Court of Justice of the European                   material damage suffered prior to the onset of the occupational
Communities on 3 May 2003 by Arnaldo Lucaccioni, rep-                     disease. That request was rejected by the appointing authority
resented by Mauro Cimino, with an address for service in                  by decision of 22 September 1994, against which the applicant
Fermo (AP) (Italy).                                                       brought a complaint on 15 December 1994, in which he no
                                                                          longer mentioned the alleged damage, in particular non-
                                                                          material damage, suffered prior to the onset of the occupational
The appellant claims that the Court should:
                                                                          disease; neither did he challenge before the Court of First
                                                                          Instance (Case T-165/95) the rejection of the complaint by
1.   uphold the appeal and, consequently, the application at              the Commission refusing to acknowledge entitlement to
     first instance;                                                      compensation for non-material damage suffered prior to the
                                                                          onset of the occupational disease. Essentially, the applicant
2.   order compensation for biological and non-material                   failed to bring an action within the time-limit for doing so
     damage caused by the defendant between 1967 and                      against the decision of the Commission of 22 September 1994
     1990, under the ordinary law, the Charter of Fundament               refusing to pay compensation for the damage.
     Rights of the European Union and the European Conven-
     tion on Human Rights, irrespective of (or under)
     Article 73 of the Staff Regulations, as a result of the
                                                                          According to the appellant, the reasoning of the Court of First
     inexcusable fault of the institution, which thus incurs
                                                                          Instance is not satisfactory in that it may not be stated with
     liability, inasmuch as it:
                                                                          certainty that the request of 15 May 1994 included a request
                                                                          for compensation for non-material damage suffered prior to
     —      infringed the appellant’s human dignity,                      the onset of the occupational disease. That interpretation is
                                                                          arguable, since what is involved is a letter making a claim and
     —      infringed the appellant’s right to privacy,                   a generic request for compensation following the onset of the
                                                                          illness.
     —      caused continuous and culpable bodily harm to the
            appellant, in that it obliged him to work, giving
            untrue reassurances, in an environment contamin-              2.     The appellant also disputes that the fact that the Court
            ated by asbestos, knowing full well that asbestos is          of First Instance declared inadmissible the request for compen-
            harmful even for persons not at risk,                         sation for biological damage on the ground that a request
                                                                          seeking compensation for damage must contain information
     —      deliberately attempted to harm the appellant, at the          to make it possible to identify the conduct of the institution
            risk of killing him, which is mentioned only to               about which the appellant is complaining and the reasons for
            support the allegation of harm                                which he takes the view that there is a causal link between the
                                                                          conduct and the damage he alleges to have suffered. According
     —      deliberately tortured the appellant over many years           to the appellant, the damage to his health caused by exposure
 ---pagebreak--- C 171/12               EN                       Official Journal of the European Union                                         19.7.2003
to asbestos has resulted in psychological and physical stress;          a renumerative nature, inasmuch as the Italian tax authorities
that damage may be assumed to exist on the basis of                     already levied on registration of such company documents in
information concerning environmental pollution and may                  the years 1985 to 1992 ‘analogous charges which may be
certainly be described as biological and life-threatening dam-          regarded as constituting renumeration for the service provided’.
age. There has in any event been psychological damage
resulting from concern for his life suffered by someone who             The Italian authorities, contrary to the provisions of
fearfully expected to suffer from cancer, that is to say, to die.       Article 11(2) of Law No 448/98, are obliged to reimburse in
                                                                        full to the capital companies who have sought recovery within
                                                                        the periods laid down, the amount of the administrative charge
                                                                        on registration of the instrument of incorporation declared
                                                                        invalid by the Court in Joined Cases C-71/91 and C-178/91
                                                                        Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915,
                                                                        and are not at liberty to reduce that amount by a sum equal to
                                                                        eight times the retroactive annual flat-rate charge provided for
Action brought on 12 May 2003 by the Commission of                      in Article 11(1) of Law No 448/98. The introduction of that
  the European Communities against the Italian Republic                 retroactive annual flat-rate charge constitutes a flagrant breach
                                                                        of the prohibition in Article 10 of Directive 69/335.
                         (Case C-197/03)
                                                                        (b)   The detailed rules for calculating interest on the
                         (2003/C 171/17)                                      amounts to be repaid to the companies
                                                                        The Commission points out that the detailed rules for calculat-
                                                                        ing interest on refunds of the administrative charge on
An action against the Italian Republic was brought before the           registration of a company’s instrument of incorporation
Court of Justice of the European Communities on 12 May                  provided for in Article 11(3) of Law No 448/98 concern only
2003 by the Commission of the European Communities,                     a specific category of actions for restitution, namely those
represented by Enrico Traversa, acting as Agent.                        based on an infringement of Article 10 of Directive 69/335,
                                                                        that is to say a breach of a provision of Community law. Since
                                                                        those detailed rules for calculating interest are manifestly less
The applicant claims that the Court should:                             favourable in contrast to those applicable in the case of
                                                                        analogous actions based on national law, the Commission
—     declare that, by introducing with retroactive effect under        concludes that Article 11(3) of Law No 448/98 constitutes an
      Article 11 of Law No 448/98, an annual flat-rate charge           infringement of the principle of equivalence upheld by the
      on the registration of company documents other than the           Court.
      instrument of incorporation and by providing for rules
      relating to reimbursement of the repealed administrative
      charge on registration of the instrument of incorporation         (c)   Detailed rules for reimbursement of the repealed admin-
      which are discriminatory and restrictive as against com-                istrative charge on registration of the instrument of
      panies entitled to that reimbursement, the Italian Republic             incorporation
      has infringed the obligations imposed on it by
      Article 10(c) of Council Directive 69/335/EEC ( 1) con-
      cerning indirect taxes on the raising of capital and the          In the Commission’s view, the requirements contained in
      principles laid down by the Court of Justice concerning           Article 11(4) and (5) of Law No 448/98 and in implementing
      recovery of charges levied by the Member States in breach         circular No 32/E providing for a commencement date for
      of Community law;                                                 reimbursement procedures, introducing an annual ceiling of
                                                                        amounts earmarked for reimbursement and suspending the
                                                                        reimbursements themselves in cases where proceedings at first
—     order the Italian Republic to pay the costs.
                                                                        instance are still pending, occasion, or are likely to occasion,
                                                                        delays in repayment of the repealed charge on registration of
                                                                        a company’s instrument of incorporation. This deferral of
                                                                        reimbursements and the consequent extension of the duration
Pleas in law and main arguments                                         of judicial proceedings for recovery of the registration charge
                                                                        quite plainly renders excessively difficult the exercise of a right
                                                                        conferred by the Community legal order and, more specifically,
                                                                        the right of capital companies to be subject, on incorporation,
(a)   The annual retroactive flat-rate charge on registration           only to the harmonised tax on contributions and to seek
      of company documents other than the instrument of                 recovery of other non-harmonised indirect taxes prohibited
      incorporation                                                     under Article 10 of Directive 69/335.
The Commission maintains that the retroactive flat-rate charge          The Commission concludes that the Italian legislature, by
on registration of company documents other than the instru-             introducing restrictive rules on reimbursement provided for in
ment of incorporation cannot in any way be deemed to be of              Article 11(4) and (5) of Law No 448/98, has at one and the


C 211/26              EN                      Official Journal of the European Communities                                  22.7.2000
       Removal from the register of Case T-194/98 (1)                    ordered the removal from the register of Case T-180/99,
                                                                         Vassilios Tsarnavas v Commission of the European Communi-
                        (2000/C 211/54)                                  ties.
                   (Language of the case: French)                        (1) OJ C 281 of 2.10.99.
By order of 16 May 2000, the President of the Second
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of
Case T-194/98: Scan Office Design S.A. v Commission of the
European Communities.
                                                                                Removal from the register of Case T-221/99 (1)
(1) OJ C 48 of 20.2.1999.
                                                                                (2000/C 211/57)
                                                                                (Language of the case: French)
        Removal from the register of Case T-4/99 (1)                     By order of 16 May 2000, the President of the Fifth Chamber
                                                                         of the Court of First Instance of the European Communities
                        (2000/C 211/55)                                  has ordered the removal from the register of Case T-221/99:
                                                                         Gitte Rassmussen v Council of the European Union.
                  (Language of the case: German)
                                                                         (1) OJ C 366 of 18.12.1999.
By order of 13 April 2000 the President of the Fifth Chamber
of the Court of First Instance of the European Communities
has ordered the removal from the register of Case T-4/99,
OGT-Fruchthandelgesellschaft mbH v Commission of the
European Communities.
(1) OJ C 71 of 13.3.1999.                                                       Removal from the register of Case T-21/00 (1)
                                                                                (2000/C 211/58)
                                                                                (Language of the case: French)
       Removal from the register of Case        T-180/99 (1)
                                                                         By order of 3 May 2000 the President of the Fifth Chamber of
                        (2000/C 211/56)                                  the Court of First Instance of the European Communities has
                                                                         ordered the removal from the register of Case T-21/00 David
                                                                         Crabbe v Centre Européen pour le Développement de la
                   (Language of the case: French)                        Formation Professionnelle (CEDEFOP).
By order of 13 April 2000 the Court of First Instance of the
European Communites (single judge: R.M. Moura Ramos) has                 (1) OJ C 79 of 18.3.2000.


title: Case T-578/13: Action brought on 6 November 2013 — Luxembourg Pamol (Cyprus) and Luxembourg Industries v Commission

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/35

         Action brought on 6 November 2013 — Luxembourg Pamol (Cyprus) and Luxembourg Industries v Commission
   (Case T-578/13)
   2014/C 45/60
   Language of the case: English

      Parties

      Applicants: Luxembourg Pamol (Cyprus) Ltd (Nicosia, Cyprus); and Luxembourg Industries Ltd (Tel-Aviv, Israel) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendants: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Declare the application admissible and well-founded;

               —

               Annul the contested decision; and

               —

               Order the defendant to pay the costs and expenses of these proceedings.

      Pleas in law and main arguments

   The applicants seek the annulment of Commission Decision of 8 October 2013, notified to the applicants on 9 October 2013, concerning the publication of certain parts of the Peer Review Report and Final Addendum on Potassium Phosphonates in respect of which the Applicants claimed confidentiality pursuant to Council Directive 91/414/EEC (1) and Commission Regulation (EU) No 188/2011 (2) (the ‘Contested Decision’).
   In support of their action, the applicants rely on two pleas in law.

               1.

               First plea in law, alleging that the Commission infringed Article 14 of Council Directive 91/414/EEC and the fundamental right to the protection of business secrets enshrined in Article 339 of the Treaty on the Functioning of the European Union, Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms, following a misinterpretation of the above provisions and an erroneous assessment of the applicants’ claims for confidentiality.

               2.

               Second plea in law, alleging that the Commission breaches the fundamental principles of EU law, the principle of sound administration and the applicants’ right of defence, by failing to give the applicants sufficient opportunity to defend and clarify the rationale behind their confidentiality claims.

      (1)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, p.1)

      (2)  Commission Regulation (EU) No 188/2011 of 25 February 2011 laying down detailed rules for the implementation of Council Directive 91/414/EEC as regards the procedure for the assessment of active substances which were not on the market 2 years after the date of notification of that Directive (OJ L 53, p.51)


title: Case C-26/12: Judgment of the Court (Fourth Chamber) of 18 July 2013 (request for a preliminary ruling from the Gerechtshof te Leeuwarden — Netherlands) — Fiscale eenheid PPG Holdings BV cs te Hoogezand v Inspecteur van de Belastingdienst/Noord/kantoor Groningen (Value added tax — Sixth Directive 77/388/EEC — Articles 17 and 13B(d)(6) — Exemptions — Deduction of input tax — Pension fund — Concept of ‘management of special investment funds’ )

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/10

         Judgment of the Court (Fourth Chamber) of 18 July 2013 (request for a preliminary ruling from the Gerechtshof te Leeuwarden — Netherlands) — Fiscale eenheid PPG Holdings BV cs te Hoogezand v Inspecteur van de Belastingdienst/Noord/kantoor Groningen
   (Case C-26/12) (1)

   (Value added tax - Sixth Directive 77/388/EEC - Articles 17 and 13B(d)(6) - Exemptions - Deduction of input tax - Pension fund - Concept of ‘management of special investment funds’)
   2013/C 260/18
   Language of the case: Dutch

      Referring court

   Gerechtshof te Leeuwarden

      Parties to the main proceedings

      Applicant: Fiscale eenheid PPG Holdings BV cs te Hoogezand

      Defendant: Inspecteur van de Belastingdienst/Noord/kantoor Groningen

      Re:

   Request for a preliminary ruling — Gerechtshof te Leeuwarden — Interpretation of Articles 13B(d)(6) and 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and of Articles 135(1)(g), 168 and 169 of Council Directive 2006/112/EC of 28 November 2006 concerning the common system of value added tax (OJ 2006 L 347, p. 1) — Deduction of input tax — Taxable person having, under national legislation on pensions, set up a pension fund in order to safeguard the pension rights of his employees as members of that fund — Deduction of input tax on services supplied to him for the purposes of the management of the pension fund

      Operative part of the judgment

   Article 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that a taxable person who has set up a pension fund in the form of a legally and fiscally separate entity, such as that at issue in the main proceedings, in order to safeguard the pension rights of his employees and former employees, is entitled to deduct the value added tax he has paid on services relating to the management and operation of that fund, provided that the existence of a direct and immediate link is apparent from all the circumstances of the transactions in question.

      (1)  OJ C 98, 31.3.2012.


C 348/22              EN                 Official Journal of the European Communities                                8.12.2001
       Removal from the register of Case C-249/00 (1)                      Removal from the register of Case C-443/00 (1)
                       (2001/C 348/39)                                                     (2001/C 348/42)
By order of 2 August 2001 the President of the Court of Justice     By order of 13 September 2001 the President of the Court of
of the European Communities has ordered the removal from            Justice of the European Communities has ordered the removal
the register of Case C-249/00: Commission of the European           from the register of Case C-443/00: Commission of the
Communities v Hellenic Republic.                                    European Communities v Federal Republic of Germany.
(1) OJ C 247 of 26.8.2000.                                          (1) OJ C 45 of 10.2.2001.
       Removal from the register of Case C-272/00 (1)                      Removal from the register of Case C-132/01 (1)
                       (2001/C 348/40)                                                     (2001/C 348/43)
By order of 4 September 2001 the President of the Court of          By order of 8 October 2001 the President of the Court of
Justice of the European Communities has ordered the removal         Justice of the European Communities has ordered the removal
from the register of Case C-272/00: Commission of the               from the register of Case C-132/01: Commission of the
European Communities v Hellenic Republic.                           European Communities v Republic of Austria.
(1) OJ C 259 of 9.9.2000.                                           (1) OJ C 161 of 2.6.2001.
       Removal from the register of Case C-354/00 (1)                      Removal from the register of Case C-133/01 (1)
                       (2001/C 348/41)                                                     (2001/C 348/44)
By order of 4 October 2001 the President of the Court of            By order of 8 October 2001 the President of the Court of
Justice of the European Communities has ordered the removal         Justice of the European Communities has ordered the removal
from the register of Case C-354/00: Commission of the               from the register of Case C-133/01: Commission of the
European Communities v Kingdom of Spain.                            European Communities v Republic of Austria.
(1) OJ C 316 of 4.11.2000.                                          (1) OJ C 161 of 2.6.2001.


title: Case T-409/06: Action brought on 21 December 2006 — Sun Sang Kong Yuen Shoes Factory v Council

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/39

         Action brought on 21 December 2006 — Sun Sang Kong Yuen Shoes Factory v Council
   (Case T-409/06)
   (2007/C 42/69)
   Language of the case: English
   Parties

      Applicant: Sun Sang Kong Yuen Shoes Factory (Hui Yang) Co., Ltd (Xin Xu, China) (represented by: I. MacVay, solicitor, R. Thompson, QC, and K. Beal, barrister)

      Defendant: Council of the European Union
   Form of order sought

               —

               The contested regulation be annulled in so far as it applies to the applicant;

               —

               the defendant meet the applicant's costs of these proceedings.

         Pleas in law and main arguments
   The applicant, who is a Chinese producer and exporter of leather footwear, seeks the annulment of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam (1).
   In support of its application, the applicant invokes six pleas in law claming that:

               —

               the contested regulation is vitiated by a manifest error of assessment or infringes essential procedural requirements and the principle of equal treatment in failing to conclude that the applicant operated under market economy conditions (2);

               —

               by refusing the applicant market economy treatment, the Commission breached Article 3 of the Basic Regulation and made a manifest error of assessment in failing to take account of relevant information concerning the structure of the market and in particular the important role played by independent intermediaries in the supply of products manufactured by the applicant;

               —

               the Commission acted outside the scope of Article 18(1) of the Basic Regulation and breached the applicant's rights of defence;

               —

               the Commission infringed Article 20 of the Basic Regulation in failing to give proper disclosure to the applicant in respect of the radical change of the definitive measures proposed by the Commission between 7 July and 28 July 2006;

               —

               the contested regulation is vitiated by a manifest error of assessment in respect of the extent and duration of the injury relied on to justify the imposition of duties on the applicant; and

               —

               the contested regulation infringes Article 2(10) of the Basic Regulation in respect of the need to make a ‘fair comparison’ between the export price and the normal value when assessing the dumping margin.

      (1)  OJ 2006 L 275, p. 1.

      (2)  See Article 2(7)(b) and (c) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).


title: Case C-284/02: Reference for a preliminary ruling by the Bundesarbeitsgericht by order of that Court of 21 March 2002 in the case of the Land of Brandenburg against Ursula Sass

text:
26.10.2002             EN                      Official Journal of the European Communities                                        C 261/3
The Applicant claims that the Court should:                               Reference for a preliminary ruling by the Bundesarbeits-
                                                                          gericht by order of that Court of 21 March 2002 in the
                                                                               case of the Land of Brandenburg against Ursula Sass
—     declare that, in failing to take all the measures necessary                                 (Case C-284/02)
      to ensure a correct transposition and application of
      Council Directive 76/464/EEC (1) of 4 May 1976 on                                           (2002/C 261/04)
      pollution caused by certain dangerous substances dis-
      charged into the aquatic environment of the Community,
      Ireland has failed to comply with Directive 76/464/EEC              Reference has been made to the Court of Justice of the
      and in particular Articles 7 and 9 thereof and with its             European Communities by order of the Bundesarbeitsgericht
      obligations under the EC Treaty;                                    of 21 March 2002, received at the Court Registry on 2 August
                                                                          2002, for a preliminary ruling in the case of the Land of
                                                                          Brandenburg against Ursula Sass on the following question:
—     order Ireland to pay the costs.
                                                                          Do Article 119 of the EC Treaty (now Article 141 EC) and
                                                                          Directive 76/207/EEC ( 1) prohibit, in a provision of a collective
                                                                          agreement under which periods during which an employment
                                                                          relationship is in abeyance do not count towards the qualifying
                                                                          period, the exclusion of the period during which the employ-
                                                                          ment relationship was in abeyance because the employee
                                                                          concerned, on the expiry of the eligible eight-week period of
                                                                          protection pursuant to Paragraph 6 of the Mutterschutzgesetz
                                                                          (Maternity Protection Law), claimed maternity leave pursuant
Pleas in law and main arguments                                           to Paragraph 244(1) of the Labour Code of the German
                                                                          Democratic Republic (AGB-DDR) of 16 June 1977 (GBl. I,
                                                                          p. 185) until the end of the 20th week after confinement?
                                                                          (1 ) OJ L 39, p. 40.
The Commission submits that, contrary to Articles 7 and 9 of
the Directive, Ireland has generally failed to reduce pollution
caused by phosphorus where this was already evident at the
time of adoption of the Directive and to prevent its emergence
and increase elsewhere. Furthermore, in the Commission’s
view, Ireland’s quality objectives for phosphorus, introduced             Reference for a preliminary ruling by the Oberlandesge-
in 1998, and Irish measures with regard to authorisation of               richt München by order of that Court of 25 July 2002 in
discharges do not comply with the requirements of Articles 7              the case of A.M.O.K. Verlags GmbH against A & R
and 9 of the Directive. In addition, the Commission considers                                   Gastronomie GmbH
that Ireland’s adopted programmes for the reduction of
phosphorous pollution suffer from significant shortcomings.                                       (Case C-289/02)
                                                                                (2002/C 261/05)
                                                                          Reference has been made to the Court of Justice of the
The Commission also submits that Ireland has failed to finalise           European Communities by order of the Oberlandesgericht
and adequately implement pollution reduction programmes                   München (Munich Higher Regional Court) of 25 July 2002,
for List II substances other than phosphorus and/or to                    received at the Court Registry on 9 August 2002, for a
communicate programme summary results for these sub-                      preliminary ruling in the case of A.M.O.K. Verlags GmbH
stances.                                                                  against A & R Gastronomie GmbH on the following question:
                                                                          Are Articles 49 and 12 EC to be interpreted as precluding a
                                                                          decision of a national court in accordance with which, in a
                                                                          Member State (domestic territory), the maximum amount of a
( 1) OJ L 129, 18.5.1976, p. 23.                                          claim for reimbursement of the costs of the services of a lawyer
                                                                          of a different Member State in domestic proceedings and of an
                                                                          Einvernehmensanwalt (domestic lawyer acting in conjunction
                                                                          with the foreign lawyer) is the sum of the costs including VAT
                                                                          which would have been incurred in the case of representation
                                                                          by a domestic lawyer?


title: Case F-63/08: Order of the Civil Service Tribunal (2nd Chamber) of 14 March 2013 — Christoph and Others v Commission (Civil Service — Non-permanent staff — Articles 2, 3a and 3b of the Conditions of employment of other servants (COS) — Temporary staff — Contractual staff — Auxiliary contractual staff — Duration of contract — Article 8 and 88 of the COS — Decision of the Commission of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services — Directive 1999/70/EC — Applicability to the institutions)

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/28

         Order of the Civil Service Tribunal (2nd Chamber) of 14 March 2013 — Christoph and Others v Commission
   (Case F-63/08) (1)

   (Civil Service - Non-permanent staff - Articles 2, 3a and 3b of the Conditions of employment of other servants (COS) - Temporary staff - Contractual staff - Auxiliary contractual staff - Duration of contract - Article 8 and 88 of the COS - Decision of the Commission of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services - Directive 1999/70/EC - Applicability to the institutions)
   2013/C 123/50
   Language of the case: French

      Parties

      Applicants: Eugen Christoph and Others (Leggiuno, Italy) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: European Commission (represented by: J. Curral and D. Martin, Agents)

      Intervener in support of the defendant: Council of the European Union (represented: initially by M. Bauer and K. Zieleśkiewicz, Agents, and subsequently by M. Bauer and J. Hermann, Agents)

      Re:

   Annulment of the decisions fixing the conditions of employment of the applicants in so far as the duration of their contract or the extension thereof is limited to a fixed period

      Operative part of the order

               1.

               The action is dismissed as manifestly lacking any legal foundation.

               2.

               The applicants shall bear their own costs and are ordered to pay the costs incurred by the European Commission.

               3.

               The Council of the European Union is ordered to bear its own costs.

      (1)  OJ C 247, 27.9.2008, p. 25.


title: Case T-379/14: Action brought on 3 June 2014  — Universal Music v OHIM — Yello Strom (Yellow Lounge)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/46

         Action brought on 3 June 2014 — Universal Music v OHIM — Yello Strom (Yellow Lounge)
   (Case T-379/14)
   2014/C 292/56
   Language in which the application was lodged: German

      Parties

      Applicant: Universal Music GmbH (Berlin, Germany) (represented by: M. Viefhues, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Yello Strom GmbH (Cologne, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 March 2014 in Case R 274/2013-4; and

               —

               order the defendant, and where appropriate the other party to the proceedings, to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Universal Music GmbH

      Community trade mark concerned: Word mark ‘Yellow Lounge’ for goods and services in Classes 9, 16, 35, 38, 41, 42 and 45 — Community trade mark application No 1 0 0 33  421

      Proprietor of the mark or sign cited in the opposition proceedings: Yello Strom GmbH

      Mark or sign cited in opposition: National word mark ‘Yello’ for goods and services in Classes 4, 7, 9, 16, 35, 38, 41, 42 and 45

      Decision of the Opposition Division: The opposition was upheld

      Decision of the Board of Appeal: The appeal was dismissed

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


title: Action brought on 20 January 1998 by Colette Jemaa against Council of the European Union (Case T-20/98)

text:
28.3.98               EN                  Official Journal of the European Communities                                  C 94/35
Communities on 19 January 1998 by Peter Reichert, of                 Action brought on 20 January 1998 by Colette Jemaa
Overijse (Belgium), represented by Dr Dieter Rogalla,                           against Council of the European Union
Rechtsanwalt, Sprockhövel (Germany), with an address                                        (Case T-20/98)
for service in Luxembourg at the Chambers of Decker,
Braun & Wagner, 16 Avenue Marie-TheÂreÁse.                                                   (98/C 94/83)
                                                                                (Language of the case: French)
The applicant claims that the Court should:
                                                                     An action against Council of the European Union was
Ð annul Decision No 029945 of 21 October 1997                        brought before the Court of First Instance of the European
    rejecting     his   complaint,     together     with   the       Communities on 20 January 1998 by Colette Jemaa,
    determinations of salary in the individual monthly               residing at PreÂvessin-Moens (France), represented by Jean-
    statements from 1 June 1996, in so far as they do not            NoeÈl Louis, Ariane Tornel and FrancËoise Parmentier, of
    contain any expatriation allowance,                              the Brussels Bar, with an address for service in
                                                                     Luxembourg at Fiduciaire Myson SARL, 30 Rue de
                                                                     Cessange.
Ð order the European Parliament or its competent
    appointing authority to pay the applicant the                    The applicant claims that the Court should:
    expatriation allowance in accordance with the relevant
    provisions from his entering the service of the
                                                                     Ð annul the decision of the Council of 12 March 1997
    European Parliament, with interest at the usual rate,
                                                                          ordering the applicant to repay the sum of CHF
    from 1 June 1996,
                                                                          274 350 and that of 13 June 1997 withholding during
                                                                          59 months CHF 4 650 per month from the applicant's
Ð order the Parliament to pay the costs.                                  remuneration,
                                                                     Ð order the Council to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                     Pleas in law and main arguments adduced in support:
The applicant, a German national, has worked since June
1996 in the press office of the Socialist Group in the               The applicant, an official in Grade B 3, was assigned from
European Parliament in Brussels.                                     September 1976 to the Council's Bureau de Liaison in
                                                                     Geneva. She claimed to be renting from 1 April 1992 a
                                                                     flat in Geneva at a monthly rent of CHF 4 450 plus CHF
By the contested decision the applicant's complaint against          200 for the right to a reserved parking space for her car.
the refusal to pay an expatriation allowance under the               Pursuant to Annex X to the Staff Regulations, she was
second indent of Article 4 (1) (a) of Annex VII to the Staff         reimbursed the expense incurred by way of rent as
Regulations was rejected. The rejection was founded                  declared from 1 April 1992 to 28 February 1997.
essentially on the fact that in the applicant's case there
were already permanent links with the country of service
                                                                     The applicant's statements in respect of her rent are false
when he entered the service, and he was thus at that time
                                                                     inasmuch as she had acquired ownership of the flat in
not in a situation which could establish that there was an
                                                                     question.
actual change of residence and/or transfer abroad within
the meaning of the Staff Regulations'.
                                                                     By decision of 12 March 1997 the appointing authority
                                                                     ordered the applicant to reimburse, as soon as possible,
The applicant submits that before the transfer of his                the rent overpaid amounting to CHF 274 350. By decision
present family residence to Belgium in July 1993 he lived            of 13 June 1997 it proceeded to implement the
in various places in the Federal Republic of Germany.                aforementioned decision by withholding, with effect from
Contrary to the view taken by the defendant, however, in             June 1997, CHF 4 650 per month from the applicant's
the period material for the grant of the expatriation                remuneration.
allowance he consistently neither carried on his main
occupation nor habitually resided in Belgium. He did                 In support of her action, the applicant relies on a single
indeed work for the German media inter alia in Brussels              ground of action of infringement of the provisions of
and was registered with the local authority as resident              Annex X to the Staff Regulations, unlawfulness of the
there, but his activity as a journalist frequently required          Council internal directives of 19 December 1988, adopted
on-the-spot work in places other than Brussels. His clear            pursuant to Annex X to the Staff Regulations, and breach
ties to the sending State, Germany, until July 1993 are              of the general principle of equal treatment and non-
manifested inter alia by the transfer of his salary in               discrimination.
German currency to a German account, by the German
social insurance he then had, and on the basis of the clear
centre of life of his family until that date.                        According to the applicant, the contested decisions are
                                                                     unlawful inasmuch as they require the repayment of cost
                                                                     of accommodation which, pursuant to the provisions of
                                                                     Annex X to the Staff Regulations and the case-law of the
 ---pagebreak--- C 94/36               EN                   Official Journal of the European Communities                                       28.3.98
Court of Justice, must not be borne by an official assigned           In contesting that rejection, the applicant pleads, first,
to a non-member State. The result of the contested                    infringement of Article 25(2) of the Staff Regulations,
decisions is to unjustly enrich the institutions whereas the          stating that the defendant did not provide him with the
applicant actually incurred costs for accommodation for               means to enable him to assess whether the contested
which she was reimbursed. The fact that she owns the                  decision was well-founded.
building which she occupies is of no effect on the
genuineness of the cost of accommodation incurred.
                                                                      The applicant also alleges infringement of Article 12 of
                                                                      the Conditions of employment of other servants and that
Moreover, there is no provision of the Staff Regulations or
                                                                      the vacancy notice is unlawful inasmuch as the exclusion
of Annex X to the Staff Regulations which authorises an
                                                                      criterion relied on by the APCC to justify rejecting his
institution to refuse to reimburse the cost of
                                                                      candidature, which in any event is not expressly stated in
accommodation of an official assigned to a non-member
                                                                      the vacancy notice, does not constitute a proper means for
State who owns the accommodation which he or she
                                                                      achieving the objective pursued by the abovementioned
occupies in the place where the institution has sent him or
                                                                      provisions, namely, securing for the institution the services
her solely in the interest of the service.
                                                                      of officials of the highest standard of ability, efficiency and
Finally, the contested decisions breach the general                   integrity.
principle that all officials must be treated equally
inasmuch as they are based on internal directives which               Finally, the applicant argues that the APCC committed a
do not taken into consideration the accommodation factor              manifest error of assessment when it considered that his
when determining the weighting where an official becomes              candidature could not be taken into consideration for the
the owner of the flat or building which he occupies.                  post for which he had applied, whereas his qualifications,
                                                                      training and experience perfectly match the job profile for
                                                                      the post.
Action brought on 19 January 1998 by Carlos Alberto
Leite Mateus against the Commission of the European
                         Communities
                        (Case T-21/98)                                Action brought on 21 January 1998 by the Scottish Soft
                                                                      Fruit Growers Limited against the Commission of the
                         (98/C 94/84)                                                     European Communities
               (Language of the case: French)                                                 (Case T-22/98)
                                                                                (98/C 94/85)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 19 January                                    (Language of the case: English)
1998 by Carlos Alberto Leite Mateus, residing at
Zaventem (Belgium), represented by Jean-NoeÈl Louis,                  An action against the Commission of the European
Ariane Tornel and FrancËoise Parmentier, of the Brussels              Communities was brought before the Court of First
Bar, with an address for service in Luxembourg at Fidu-               Instance of the European Communities on 21 January
ciaire Myson SARL, 30 Rue de Cessange.                                1998 by the Scottish Soft Fruit Growers Limited,
                                                                      represented by Fergus Randolph, with an address for
The applicant claims that the Court should:                           service in Luxembourg at the offices of Arendt &
                                                                      Medernach, 8Ð10, rue Matthias Hardt.
Ð annul the decision of the Commission of 11 March
    1997 to reject the applicant's candidature for post
    NPPR/2002/96,                                                     The applicant claims that the Court should:
Ð order the defendant to pay the costs.                               Ð annul the decision of the Commission, received by the
                                                                          applicant on 12 November 1997, refusing to accede to
Pleas in law and main arguments adduced in support:
                                                                          a request made by the Scottish Office concerning the
                                                                          repayment of start-up grant by the applicant, and
The applicant, an official in Grade B at the Commission
since 1988, put forward his candidature in response to a
call for expressions of interest published on 14 October              Ð order the Commission to pay the costs.
1996 with a view to employing temporary staff in
Research' budgetary posts. By memorandum of 11 March
                                                                      Pleas in law and main arguments adduced in support:
1997 he was informed that his candidature had been
rejected. Following the complaint lodged against that
decision, the authority with the power to conclude                    The applicant explains that it was formed in 1992 to carry
contracts (APCC) stated that the rejection of the                     on business as the producers' organisation for raspberries
applicant's candidature was based on the fact that he                 in the United Kingdom. As such, under Article 2(2) of
could not participate in a selection procedure for                    Council Regulation (EEC) 1991/92, establishing a special
temporary staff members since he was already an official.             scheme for raspberries intended for processing (OJ L 199,


title: Case T-240/11: Action brought on 4 May 2011 — L'Oréal v OHIM — United Global Media Group (MyBeauty)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/27

         Action brought on 4 May 2011 — L'Oréal v OHIM — United Global Media Group (MyBeauty)
   (Case T-240/11)
   2011/C 204/48
   Language in which the application was lodged: English

      Parties

      Applicant: L'Oréal (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

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

      Other party to the proceedings before the Board of Appeal: United Global Media Group, Inc. (El Segundo, U.S.A.)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2011 in case R 898/2010-1;

               —

               Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; or

               —

               Alternatively order the other party to the proceedings before the Board of Appeal should it become an intervener before the General Court, to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘MyBeauty TV’, for goods in classes 3, 35 and 41 — Community trade mark application No 6406755

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

      Grounds for the opposition: The other party to the proceedings based its opposition on Article 8(4) CTMR, by claiming to be the proprietor of a number of earlier unregistered marks which were similar to the applicant’s mark.

      Decision of the Opposition Division: Rejected the opposition. Regarding the costs, the Opposition Division noted that the opponent, as losing party, would normally have to bear the costs incurred by the applicant’s representation, but as the latter did not appoint a representative within the meaning of Article 93 CTMR, it did not incur such costs.

      Decision of the Board of Appeal: Dismissed the appeal and ordered the applicant to bear the costs of the opponent.

      Pleas in law: The applicant claims that the contested decision must be annulled because it violates Article 85(1) of Council Regulation No 207/2009. According to that provision, the losing party in an opposition provision must pay the costs incurred by the prevailing party essential to the proceedings. Article 85(1) of CTMR does not limit that obligation to the costs incurred by instructing a professional representative within the meaning of Article 93(1) of CTMR. Rule 94 of CTMIR also does not contain a provision to the effect that only the costs of professional representation may be recovered. Rather, Rule 94 CTMIR merely places a ‘cap’ on the costs recoverable in case a professional representative was acting on behalf of the prevailing party. To the extent that Rule 94 of CTMIR is to be interpreted as precluding any recovery of costs in case like the present one, this rule would be in plain contradiction to Article 85(1) of CTMR and thus void or inapplicable.


title: Case C-198/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 13 April 2017 — Ivan Wallmann v TUIfly GmbH

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/10

         Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 13 April 2017 — Ivan Wallmann v TUIfly GmbH
   (Case C-198/17)
   (2017/C 231/12)
   Language of the case: German

      Referring court

   Amtsgericht Hannover

      Parties to the main proceedings

      Applicant: Ivan Wallmann

      Defendant: TUIfly GmbH

      Question referred

               1.

               Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               2.

               In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               3.

               In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

               4.

               In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ 2004 L 46, p. 1.


title: Case F-19/13: Action brought on 19 February 2013 — ZZ v Commission

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/30

         Action brought on 19 February 2013 — ZZ v Commission
   (Case F-19/13)
   2013/C 123/54
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Commission

      Subject-matter and description of the proceedings

   Application for the annulment of the decision to calculate accredited pension rights acquired before entry into service on the basis of the new General Implementing Provisions.

      Form of order sought

               —

               Annul the decision of 2 July 2012 concerning the calculation of accredited pension rights acquired by the applicant before his entry into service with the Commission;

               —

               in so far as necessary, annul the decision of 7 December 2012 rejecting his complaint requesting application of the General Implementing Provisions and the actuarial rates in force at the time of his request to transfer his pension rights;

               —

               order the Commission to pay the costs.


4.11.2000              EN                     Official Journal of the European Communities                                    C 316/37
Action brought on 7 September 2000 by Dr Gabriele                        and the European Commission with regard to relations
Stauner and 21 other Members of the European Parlia-                     between the two institutions. In particular, the claim for
ment against the European Parliament and the Com-                        annulment is directed against the rules and procedural pro-
            mission of the European Communities                          visions laid down in the contested agreement concerning the
                                                                         transmission of confidential information by the Commission
                                                                         and the treatment of that information in the Parliament. Those
                         (Case T-236/00)
                                                                         rules and procedural provisions are laid down in point 17 of
                                                                         the contested agreement and, pursuant to point 29, in
                         (2000/C 316/69)                                 Annex III thereto.
                                                                         The applicants maintain that the contested agreement imposes
                   (Language of the case: German)                        impermissible restrictions on their status as members of the
                                                                         Parliament, particularly as regards the powers of control
                                                                         enjoyed by them in that connection vis-à-vis the Commission.
An action against the European Parliament and the Com-                   In particular, the contested agreement and Annex III thereto
mission of the European Communities was brought before the               make no provision for any possible legal protection against
Court of First Instance of the European Communities on                   measures whereby the Commission and Parliament restrict the
7 September 2000 by Dr Gabriele Stauner and 21 other                     rights to information enjoyed by members of the Parliament.
Members of the European Parliament, represented by Jochim                In addition, the framework agreement imposes obligations on
Sedemund, Rechtsanwalt, of Messrs Freshfields Bruckhaus                  the applicants compliance with which would infringe the
Deringer, Berlin.                                                        Treaty and provisions of the Financial Regulation of the
                                                                         European Community and of the Parliament’s Rules of Pro-
                                                                         cedure.
The applicants claim that the Court should:
—     annul the ‘Framework Agreement on Relations between
      the European Parliament and the Commission’ (Docu-
      ment No C5-0349/2000) concluded on 5 July 2000
      between the European Parliament and the Commission                        Removal from the register of Case T-150/98 (1)
      of the European Communities, together with all annexes
      thereto, in particular Annex III;                                                          (2000/C 316/70)
—     order the defendants to pay the costs.                                                (Language of the case: Dutch)
                                                                         By order of 6 July 2000, the President of the Third Chamber,
Pleas in law and main arguments                                          of the Court of First Instance of the European Communities
                                                                         has ordered the removal from the register of Case T-150/98: De
The present action for annulment, brought pursuant to                    Haan Beheer BV v Commission of the European Communities.
Article 230 EC, is directed against the Framework Agreement
concluded on 5 July 2000 between the European Parliament                 (1) OJ C 378 of 5.12.1998.


title: Case C-448/12: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 8 October 2012 — M. Roest; other party: Burgemeester van Amsterdam

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/17

         Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 8 October 2012 — M. Roest; other party: Burgemeester van Amsterdam
   (Case C-448/12)
   2013/C 26/30
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Appellant: M. Roest

      Other party: Burgemeester van Amsterdam

      Questions referred

               1.

               Is Article 1(2) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), valid in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms?

               2.

               If the answer to Question 1 is to the effect that Article 1(2) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 28 May 2009 amending Regulation (EC) No 2252/2004 (OJ 2009 L 142, p. 1), is valid, must Article 4(3) of the Regulation, in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 7(f) of the Privacy Directive, (1) read in conjunction with Article 6(1)(b) of the Privacy Directive, be interpreted to mean that, when the Member States give effect to Regulation No 2252/2004, there should be a statutory guarantee that the biometric data collected and stored pursuant to that Regulation may not be collected, processed and used for any purposes other than the issuing of the document?

      (1)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).


title: Case T-155/15 R: Order of the President of the General Court of 20 May 2015 — Kaddour v Council (Application for interim measures — Restrictive measures taken against Syria — Freezing of funds and restriction on entry into and transit through the territory of the European Union — Application for suspension of operation of a measure — Failure to comply with the procedural requirements — Inadmissibility)

text:
               6.7.2015

               EN

               Official Journal of the European Union

               C 221/21

         Order of the President of the General Court of 20 May 2015 — Kaddour v Council
   (Case T-155/15 R)
   ((Application for interim measures - Restrictive measures taken against Syria - Freezing of funds and restriction on entry into and transit through the territory of the European Union - Application for suspension of operation of a measure - Failure to comply with the procedural requirements - Inadmissibility))
   (2015/C 221/30)
   Language of the case: French

      Parties

      Applicant: Khaled Kaddour (Damascus, Syria) (represented by: A. Boesch, D. Amaudruz and M. Ponsard, lawyers)

      Defendant: Council of the European Union

      Re:

   Application for suspension of operation of the measures imposed on the applicant under Council Implementing Regulation (EU) 2015/108 of 26 January 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015 L 20, p. 2), and of Council Implementing Decision (CFSP) 2015/117 of 26 January 2015 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015 L 20, p. 85).

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Case C-364/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the intervener ‘Sindesmos Teknikon Etaireion Anoteron Taxeon’ (STEAT)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/7

         Reference for a preliminary ruling by the Simvoulio tis Epikratias — by order of that court of 30 July 2004 in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works supported by the intervener ‘Sindesmos Teknikon Etaireion Anoteron Taxeon’ (STEAT)
   (Case C-364/04)
   (2004/C 284/15)
   Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, 4th Section, Greece) of 30 July 2004, received at the Court Registry on 20 August 2004, for a preliminary ruling in the case of Mikaniki AE against the Ministry of the Environment, Planning and Public Works and against the intervener ‘Sindesmos Teknikon Etaireion Anoteron Taxeon’ (STEAT) on the following questions:

               (1)

               Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order?

               (2)

               If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works?


title: Case T-281/11 P: Judgment of the General Court of 16 May 2013 — Canga Fano v Council (Appeal — Civil service — Officials — Promotion — 2009 promotion procedure — Decision not to promote the applicant to grade AD 13 — Comparison of merits — Review by the court of the manifest error of assessment)

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/19

         Judgment of the General Court of 16 May 2013 — Canga Fano v Council
   (Case T-281/11 P) (1)

   (Appeal - Civil service - Officials - Promotion - 2009 promotion procedure - Decision not to promote the applicant to grade AD 13 - Comparison of merits - Review by the court of the manifest error of assessment)
   2013/C 189/36
   Language of the case: French

      Parties

      Appellant: Diego Canga Fano (Brussels, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Other party to the proceedings: Council of the European Union (represented by: M. Bauer and J. Herrmann, Agents)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (First Chamber) of 24 March 2011 in Case F-104/09 Canga Fano v Council, not yet published in the ECR, and seeking that that judgment be set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Diego Canga Fano to bear his own costs and to pay those incurred by the Council of the European Union in these proceedings.

      (1)  OJ C 238, 13.8.2011.


title: ORDER OF THE COURT (Third Chamber) of 14 July 1998 in Case C-399/97: Glasoltherm SARL v. Commission of the European Communities, Électricité de France and HLM 'Colomiers Habitat SA' (Inadmissibility of the application)

text:
C 312/2                EN                 Official Journal of the European Communities                                     10.10.98
a declaration that, by failing to adopt, within the                  Smanor and Others v. Commission [1997] ECR II-1081,
prescribed      periods,     the    laws,   regulations     and      seeking to have that order set aside, the other party to the
administrative provisions necessary to comply with Ð                 proceedings being Commission of the European
Commission Directive 94/15/EC of 15 April 1994                       Communities (Agents: Richard B. Wainwright and Olivier
adapting to technical progress for the first time Council            Couvert-CasteÂra) Ð the Court (Fourth Chamber),
Directive 90/220/EEC on the deliberate release into the              composed of: H. Ragnemalm, President of the Chamber,
environment of genetically modified organisms (OJ L 103,             P. J. G. Kapteyn and K. M. Ioannou (Rapporteur), Judges;
22.4.1994, p. 20) and Ð Commission Directive 94/51/EC                A. Saggio, Advocate-General; R. Grass, Registrar, made an
of 7 November 1994 adapting to technical progress                    order on 9 July 1998, the operative part of which is as
Council Directive 90/219/EEC on the contained use of                 follows:
genetically modified micro-organisms (OJ L 297,
18.11.1994, p. 29), the Grand Duchy of Luxembourg has                1. The appeal is dismissed.
failed to fulfil its obligations under those Directives Ð the
Court (Sixth Chamber), composed of: H. Ragnemalm
(Rapporteur), President of the Chamber, R. Schintgen,                2. The appellants shall pay the costs.
P. J. G. Kapteyn, J. L. Murray and K. M. Ioannou, Judges;
A. La Pergola, Advocate-General; R. Grass, Registrar, has            (1) OJ C 357, 22.11.1997.
given a judgment on 16 July 1998, in which it:
1. declares that, by failing to adopt, within the prescribed
     period, the laws, regulations and administrative
     provisions necessary to comply with Commission
     Directive 94/51/EC of 7 November 1994 adapting to                                 ORDER OF THE COURT
     technical progress Council Directive 90/219/EEC on
     the contained use of genetically modified micro-                                       (Third Chamber)
     organisms, the Grand Duchy of Luxembourg has                                            of 14 July 1998
     failed to fulfil its obligations under Article 2 of that
     Directive;                                                      in Case C-399/97: Glasoltherm SARL v. Commission of
                                                                     the European Communities, EÂlectriciteÂ de France and
2. orders the Grand Duchy of Luxembourg to pay the                                  HLM Colomiers Habitat SA' (1)
     costs.                                                                        (Inadmissibility of the application)
                                                                                (98/C 312/04)
(1) OJ C 331, 1.11.1997.
                                                                                (Language of the case: French)
                                                                       (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
                   ORDER OF THE COURT
                       (Fourth Chamber)
                                                                     In Case C-399/97: Glasoltherm SARL, in liquidation,
                          of 9 July 1998                             established at Orsay (France), represented by Pascal
in Case C-317/97 P: Smanor SA and Hubert SeÂgaud                     Penciolelli, of the EÂvry Bar, whose address is at 18 Avenue
and Monique SeÂgaud v. Commission of the European                    de la LibeÂration, 91130 Ris-Orangis (France), v.
                         Communities (1)                             Commission of the European Communities (Agents:
                                                                     Richard B. Wainwright and Olivier Couvert-Castera,
(Order of the Court of First Instance Ð Failure to initiate          assisted by Nicole Coutrelis), EÂlectriciteÂ de France,
infringement proceedings Ð Action for a declaration of               established in Paris, and HLM Colomiers Habitat SA',
failure to act and for damages Ð Appeal Ð Manifest                   established at Colomiers (France) Ð the Court (Third
                         inadmissibility)                            Chamber), composed of: C. Gulmann (Rapporteur),
                          (98/C 312/03)                              President of Chamber, J. C. Moitinho de Almeida and J.-P.
                                                                     Puissochet, Judges; J. Mischo, Advocate-General; R.
                (Language of the case: French)                       Grass, Registrar, has made an order on 14 July 1998, the
                                                                     operative part of which is as follows:
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                   1. The action is inadmissible.
In Case C-317/97 P: Smanor SA, a company incorporated                2. The application for legal aid is dismissed.
under French law, established at Saint-Martin-d'EÂcublei,
France, and Hubert SeÂgaud and Monique SeÂgaud, residing
at Saint-Martin-d'EÂcublei, represented by Laurence                  3. Glasoltherm SARL in liquidation shall pay the costs.
Roques, of the Val-de-Marne Bar, 7-9 Rue du GeÂneÂral de
Larminat, CreÂteil, France Ð appeal against the order of             (1) OJ C 55, 20.2.1998.
the Court of First Instance of the European Communities
(Second Chamber) of 3 July 1997 in Case T-201/96


title: Case F-6/15: Action brought on 21 January 2015 — ZZ v EASA

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/40

      Action brought on 21 January 2015 — ZZ v EASA
      (Case F-6/15)
      (2015/C 107/53)
      Language of the case: English

         Parties

         Applicant: ZZ (represented by: E. Asenov, lawyer)

         Defendant: European Aviation Safety Agency (EASA)

         Subject-matter and description of the proceedings

      Annulment of the decision of the European Aviation Safety Agency terminating the applicant’s fixed-term contract before the expiry date laid down in the contract and application for damages with interest in respect of the material and non-material damage arising from the early termination of his contract.

         Form of order sought

                  —

                  Annul the contested Decision No 2014/039/E of 16 April 2014, which terminates prematurely the applicant’s contract, upheld by EASA Decision No SR 14-005 of 27 October 2014;

                  —

                  Award compensation for the moral damages suffered by the applicant in the form of humiliation, insult, broken reputation and deteriorating health, caused by the decision. The applicant’s estimation of these moral damages is EUR 100 000;

                  —

                  Award compensation for the material damages suffered by the applicant as a result of the early termination of his contract. They are equal to the difference between the applicant’s full salary and the compensation under Article 47(b)(ii) CEOS for the period between the early termination of the applicant’s contract and the day of its re-establishment or the date when the contract expires at 1 November 2015. The estimation of the difference amounts to around EUR 75 000, but more precise calculations can be made by the EASA accountant’s office;

                  —

                  Restore the normal execution of the applicant’s contract and the applicant’s professional relationship with the European Aviation Safety Agency;

                  —

                  As to evidence:

                              —

                              one witness to be summoned for the oral part of the proceedings in order to testify about the applicant’s reputation amongst the civil aviation community before the illegal suspension.

                              —

                              one witness to be summoned for the oral part of the proceedings in order to testify about the applicant’s mental and health state during and after the illegal suspension and termination of his contract.

                              —

                              EASA to be ordered to submit the list of its sensitive posts.

                  —

                  As to costs, the defendant to be ordered to bear its own judicial costs incurred as well as those of the applicant, including the costs of the lawyer representing the applicant before the Civil Service Tribunal, witnesses’ costs and any other costs incurred in relation to the proceedings.


title: Case T-19/06: Judgment of the General Court of 5 October 2011 — Mindo v Commission (Competition — Agreements, decisions and concerted practices — Italian market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Payment of the fine by the jointly and severally liable debtor — Applicant involved in an insolvency procedure in the course of the proceedings — No longer any interest in bringing proceedings — No need to adjudicate)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/15

         Judgment of the General Court of 5 October 2011 — Mindo v Commission
   (Case T-19/06) (1)

   (Competition - Agreements, decisions and concerted practices - Italian market for the purchase and first processing of raw tobacco - Decision finding an infringement of Article 81 EC - Price-fixing and market-sharing - Payment of the fine by the jointly and severally liable debtor - Applicant involved in an insolvency procedure in the course of the proceedings - No longer any interest in bringing proceedings - No need to adjudicate)
   2011/C 340/28
   Language of the case: English

      Parties

      Applicant: Mindo Srl (Rome, Italy) (represented by: J. Folguera Crespo and P. Vidal Martínez, lawyers)

      Defendant: European Commission (represented initially by É. Gippini Fournier, N. Khan and F. Amato, and subsequently by É. Gippini Fournier, N. Khan and L. Malferrari, Agents)

      Re:

   Application for partial annulment of Commission Decision C(2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 — Raw tobacco — Italy) and, in the alternative, application for a reduction in the fine imposed on Mindo Srl.

      Operative part of the judgment

   The Court:

               1.

               Declares that there is no need to adjudicate on the action;

               2.

               Orders Mindo Srl to pay the costs.

      (1)  OJ C 60, 11.3.2006.


title: Case C-336/17 P: Appeal brought on 6 June 2017 by HB and Others against the judgment of the General Court (First Chamber) delivered on 5 April 2017 in Case T-361/14, HB and Others v European Commission

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/22

         Appeal brought on 6 June 2017 by HB and Others against the judgment of the General Court (First Chamber) delivered on 5 April 2017 in Case T-361/14, HB and Others v European Commission
   (Case C-336/17 P)
   (2017/C 283/31)
   Language of the case: German

      Parties

      Appellants: HB and Others (represented by: P. Brockmann, Rechtsanwalt)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               1.

               set aside the judgment of the General Court of the European Union of 5 April 2017 in Case T-361/14, HB and Others v Commission, by which their action was dismissed as unfounded and they were ordered to pay the costs, and refer the case back to the General Court of the European Union so that a new hearing can be held;
               in the alternative,

               2.

               should the Court take the view that it has sufficient information before it for that purpose, itself give a ruling on the merits and confirm that the psychological interaction between humans and animals is a matter that comes within the competence of the European Union;

               3.

               in any event, order the European Commission to pay the costs.

      Grounds of appeal and main arguments

      First ground of appeal: Procedural defects consisting in an infringement of the right to be heard, in that:

               —

               the acknowledgment by counsel and the judges of the timely appearance of the first appellant at the hearing on 27 September 2016 was prevented because a court official prohibited the admission of the first appellant’s young daughter, her child carer having been delayed. The first appellant was consequently refused entry and, contrary to the statement of that official, no information was passed on to the judges or to her counsel with regard to her presence; and

               —

               the information that they must actively signify their presence in the court room in order to be noted as being present was also not passed on to the other appellants, since, although they arrived before the start of the proceedings, they did so after the time indicated on the formal document requesting their appearance in court.

         In this respect, the hearing of the parties, which had been applied for in writing, was precluded and this, in the appellants’ view, led to an erroneous legal assessment, namely that their action was unfounded.

      Second ground of appeal: Procedural defects resulting from an assessment of the probative nature of evidence before its production was ordered, in that:

               —

               all offers to adduce evidence were improperly rejected and without any reason being given;

               —

               in particular, with regard to issues of an interdisciplinary nature, no discussion by experts was permitted; and

               —

               no written or oral questions were submitted to the parties.

         This, in the appellants’ view, led to an erroneous legal assessment, namely that their action was unfounded.

      Third ground of appeal: In the event that the Court of Justice should take the view that ethics are a matter involving human rights and an important requirement for integration, it would be possible for it to give a decision on the merits in the light of the case file.


title: Case T-3/07: Action brought on 2 January 2007 — Spain v Commission

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/31

         Action brought on 2 January 2007 — Spain v Commission
   (Case T-3/07)
   (2007/C 56/62)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: J.M. Rodríguez Cárcamo)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Decision C(2006) 5103 in full, which seeks to apply financial corrections to five projects carried out in Andalucia:

                           —

                           when the Court considers the first of the pleas alleged, it must annul the decision in part, reducing the amount of the corrections by 1 136 320 EUR,

                           —

                           when the Court considers the second of the pleas alleged, it must annul the decision in part, reducing the amount of the corrections by 267 746 EUR, or, in the alternative and because of an error of calculation, by 90 186 EUR

                           —

                           when the Court considers the third of the pleas alleged, it must annul the decision in part, reducing the amount of the corrections by 76,369 EUR,

                           —

                           when the Court considers the fourth of the pleas alleged, it must annul the decision in part, reducing the amount of the corrections by 3 264 849 EUR.

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The present action is directed at Commission Decision C(2006) 5103 of 20 October 2006, in that it reduces the assistance from the Cohesion Fund to five projects carried out in the Comunidad Autónoma de Andalucia, and namely:

               —

               N. 2000.ES.16.C.PE.012 (Measures to be undertaken for the management of waste by the Comunidad Autónoma de Andalucia).

               —

               N. 2000.ES.16.C.PE.066 (Clearance and treatment measures in the Guadalquivir basin).

               —

               N. 2001.ES.16.C.PE.004 (Clerance and treatment measures in the Southern basin: Phase I).

               —

               N. 2000.ES-16.C.PE.025 (Enlargement of municipal solid waste (MSW) treatment facilities in the Comunidad Autónoma de Andalucia).

               —

               N. 2000.ES.16.C.PE.138 (Measures to be undertaken for the management of waste by the Comunidad Autónoma de Andalucia).

         In the contested decision, whose primary purpose was to examine project 012, the Commission applies a correction of EUR 4 735 284, on the basis of considerations relating to the sufficiency of controls in respect of the eligibility of expenditure and observance of certain rules on tendering procedures (direct award of two contracts, use of experience as a criterion of the award and alleged irregularities in the publication of certain contracts).
   In support of its claims, the applicant alleges:

               —

               Infringement of the principles of legitimate expectations, legal certainty and proportionality in relation to the eligibility of certain expenditure inasmuch as the impugned measure was adopted even before expiry of the prescribed period requested in order to disqualify non-eligible expenditure and replace it with other eligible expenditure.

               —

               Incorrect interpretation of Article 11(3)(b) and (e) of Directive 92/50/EEC (1) in relation to the alleged irregularities detected in the direct award of two service contracts. As part of that plea, in the alternative, error of calculation.

               —

               Breach of the directives on public contracts regarding the inclusion of the ‘criterion of experience’ as one of the criteria for the contract award. It is submitted in this regard that, while that criterion is not expressly provided for in the applicable rules, Community case-law allows for this possibility, and the use of that criterion can in no way constitute a grave and manifest infringement of the Community rules, or, in any event, can only amount to an excusable error of law on account of lack of clarity of the applicable rule.

               —

               Lack of grave and manifest breach, and, therefore, of a sufficiently serious breach of Community law in relation to the irregularities stemming from the failure to publish certain contracts.

      (1)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ L 209, 24.7.1992, p. 1).


title: Case T-203/15: Order of the General Court of 20 November 2015 — Zitro IP v OHIM (WORLD OF BINGO) (Community trade mark — Application for the Community word mark WORLD OF BINGO — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/60

         Order of the General Court of 20 November 2015 — Zitro IP v OHIM (WORLD OF BINGO)
   (Case T-203/15) (1)

   ((Community trade mark - Application for the Community word mark WORLD OF BINGO - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Action manifestly lacking any foundation in law))
   (2016/C 038/80)
   Language of the case: Spanish

      Parties

      Applicant: Zitro IP Sàrl (Luxembourg, Luxembourg) (represented by: A. Canela Giménez, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: V. Melgar and J. Crespo Carrillo, acting as Agents)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 23 February 2015 (Case R 1900/2014-4) concerning an application for registration of the word sign WORLD OF BINGO as a Community trade mark.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Zitro IP Sàrl shall pay the costs.

      (1)  OJ C 198, 15.6.2015.


title: Case C-530/08: Order of the President of the Sixth Chamber of the Court of 12 November 2009 — Commission of the European Communities v Republic of Hungary

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/43

         Order of the President of the Sixth Chamber of the Court of 12 November 2009 — Commission of the European Communities v Republic of Hungary
   (Case C-530/08) (1)

   2010/C 63/70

      Language of the case: Hungarian

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

      (1)  OJ C 19, 24.1.2009.


               30.4.2005

               EN

               Official Journal of the European Union

               C 106/21

         Removal from the register of Case C-246/03 (1)

   (2005/C 106/45)

      (Language of the case: Greek)

   By order of 19 November 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-246/03: Commission of the European Communities v Hellenic Republic.

      (1)  OJ C 184 of 02.08.2003.