title: Action brought on 18 July 1997 by Eurocoton and others against the Council of the European Union (Case T-213/97)

text:
18 . 10 . 97          EN                  Official Journal of the European Communities                                    C 318/23
Action brought on 16 July 1997 by Agnes Hubert against               Action brought on 18 July 1997 by Eurocoton and others
        the Commission of the European Communities                             against the Council of the European Union
                       ( Case T-212/97)                                                     ( Case T-213/97)
                         ( 97/C 318/45 )                                                      ( 97/C 318/46 )
                 (Language of the case: French)
                                                                                (Language of the case: English)
An action against the Commission of the European
Communities was brought before the Court of First                    An action against the Council of the European Union was
Instance of the European Communities on 16 July 1997                 brought before the Court of First Instance of the European
by Agnes Hubert, resident in Brussels, represented by                Communities on 18 July 1997 by Eurocoton, a Belgian
Marc-Albert Lucas of the Liege Bar, with an address for              association de fait representing the Community producers
service in Luxembourg at the Chambers of Evelyne Korn,               of unbleached cotton fabrics, and 13 Community
21 Rue de Nassau .
                                                                     producers of those fabrics, represented by Clive Stanbrook
                                                                     QC and Professor Alan Dashwood, Barristers of the Inner
The applicant claims that the Court should :                         Temple, London, with an address for service in
                                                                     Luxembourg at the offices of Arsene Kronshagen, Avocat,
— annul the decision of the Director-General of DG V                 12, Boulevard de la Foire .
     definitively adopting her staff report for the period
     1993 to 1995 , notified to her on 16 April 1997,
                                                                     The applicants claim that the Court should:
— order the Commission to pay the costs.
                                                                     — declare void the Council's decision to reject the
Pleas in law and main arguments adduced in support:                       Commission's proposal for a Regulation 1 . imposing
                                                                          definitive anti-dumping duties on imports of
In support of her action for annulment, the applicant                     unbleached cotton fabric from India, Indonesia,
contends primarily that the contested report is vitiated by               Pakistan, Turkey, China and Egypt and 2 . collecting
infringements of formal and procedural requirements,                      the provisional duties imposed by Regulation ( EC )
namely:                                                                   No 2208/96 of 18 November 1996,
— breach of the principles of good administration and of
     legal certainty inasmuch as the report was in fact              — order that the Council make good any damage caused
     drawn up after the date which appears on it,                         to the applicants by its unlawful rejection of the
                                                                          Commission's proposal,
— failure to consult her previous immediate superior in
     due time and in accordance with the procedure laid                   and
     down,
— infringement of the obligation to give reasons for an              — order the Council to pay the costs.
     adverse change in the analytical assessment, laid down
     by the second paragraph of Article 5 of the General
     Provisions for implementing Article 43 of the Staff             Pleas in law and main arguments adduced in support:
     Regulations of 27 July 1979,
                                                                     The Council had no power ultimately to reject the
— breach of the requirement that the report is to relate             Commission's proposal, and in so doing it infringed
     exclusively to the reference period, laid down by the           Articles 6 ( 9 ) and 9 (4 ) of Council Regulation ( EC)
     first paragraph of Article 5 of the said general                No 384/96 ( OJ L 56, 6 . 3 . 1996, p. 1 ). Since the adoption
     provisions.                                                     of mandatory time limits for the conclusion of anti
                                                                     dumping investigations the Council must adopt a proposal
She relies in the alternative on illegalities regarding the          from the Commission before the expiry of the 15-month
content of the report:                                               deadline. All that the Council could do was require that
                                                                     the proposal be amended as to its modalities, while
— infringement of the obligation to make the analytical              remaining within the limits of the findings of fact made by
                                                                     the Commission .
     assessment independently from the general assessment
     and on the basis of the applicable assessment
     definitions,
                                                                     In the alternative, if ( which is not admitted ) the Council
                                                                     did have the power to reject the Commission's proposal
— manifest errors of fact,                                           outright, it did so in this case in wilful disregard of the
                                                                     facts found by the Commission or on the basis of a
— misuse of powers.                                                  manifest error in its assessment of those facts . Moreover,
                                                                     its rejection amounted to a denial of the procedural rights
                                                                     and legitimate expectations of the applicants. Last of all,
 ---pagebreak--- C 318/24               EN                 Official Journal of the European Communities                                 18 . 10 . 97
the Council did not state any reasons for its decision and           linguist with responsibility at the time for automatic
did not publish its Decision as required by Article 14 ( 2 )         translation in Brussels' was not sufficient positively to
of Regulation (EC ) No 384/96 .                                      identify the applicant, and, even if it were, it was not
                                                                     defamatory.
The second to 14th applicants will suffer loss arising
directly out of the Council's Decision. The Commission's             In support of his claims, the applicant argues in particular
definitive findings in the anti-dumping investigation were           that there is nothing in Article 24 of the Staff Regulations
that, if duties were not imposed, the negative trend of the          to the effect that, in the case of damage caused to an
Community industry would continue, with the possibility              official by statements, allusions or allegations concerning
of its disappearance .                                               his character, the duty to provide assistance applies only
                                                                     where it is established that those statements, allusions or
                                                                     allegations are false. Specifically, for defamation to have
                                                                     taken place it is not necessary that the inaccuracy of the
                                                                     alleged fact be proven, but merely that its accuracy be not
                                                                     proven .
Action brought on 17 July 1997 by Bernard Lavorel
                                                                     The applicant also complains that the inquiry procedure
   against the Commission of the European Communities
                                                                     concerning his request for assistance did not give him the
                        ( Case T-214/97 )                            opportunity to state his case .
                          ( 97/C 318/47)
                                                                     Finally, the applicant claims that a parallel file exists in
                                                                     relation to him, and complains of the Commission's
                (Language of the case: French)                       unwillingness to promote him, which, he maintains, is
                                                                     influenced by documents included in that file, of whose
                                                                     existence he was unaware .
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 17 July 1997                 (■) [ 1995 ECR-SC IA, p. 233 .
by Bernard Lavorel, residing in Brussels, represented by
Yves Rosenoer, of the Brussels Bar with an address for
service at 98 , rue J. B. Colyns.
The applicant claims that the Court should:
                                                                     Action brought on 24 July 1997 by Lema SA against the
                                                                               Commission of the European Communities
— annul the Commission's decision of 15 May 1997 on                                           Case T-216/97 )
     the applicant's complaint by registered letter of
     16 December 1996,                                                                        ( 97/C 318/48 )
— order the Commission to assist the applicant,                                       (Language of the case: French)
— order the Commission to make good the damage                       An action against the Commission of the European
                                                                     Communities was brought before the Court of First
     suffered by the applicant.
                                                                     Instance of the European Communities on 24 July 1997
                                                                     by Lema SA, whose registered office is at Gennevilliers
                                                                     ( France ), represented by Fabrice Goguel, of the Paris Bar,
Pleas in law and main arguments adduced in support:                  with an address for service in Luxembourg at the
                                                                     Chambers of Aloyse May, 31 Grand-Rue .
The applicant challenges the refusal of the Commission to            The applicant claims that the Court should:
provide him with assistance, pursuant to Article 24 of the
Staff Regulations, following a number of allegedly
defamatory statements contained in tracts distributed by             — annul the Commission Decision dated 24 April 1997,
the R and D trade union, according to which Mr Lavorel
had directly contributed to the drawing up of a parallel
file concerning another official .                                   — declare the applicant entitled to non-recovery, post
                                                                           clearance, of the duties in dispute,
The Commission maintains that the tracts in question did             — in the alternative, declare the applicant entitled to the
no more than reproduce recitals in the judgment of the                     remission of those duties,
Court of First Instance in Joined Cases T-39/93 and T-553/
93 , Baltsavias v. Commission ('). Moreover, the reference
in the publication in question to a 'French former lawyer           — order the Commission to pay the costs.


title: Case F-2/10: Order of the Civil Service Tribunal (First Chamber) of 6 October 2010 — Marcuccio v Commission (Civil Service — Officials — Social security — Sickness insurance — Applications for payment of medical expenses — No act adversely affecting an official — Action manifestly inadmissible and manifestly lacking any foundation in law — Article 94 of the Rules of Procedure)

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/48

         Order of the Civil Service Tribunal (First Chamber) of 6 October 2010 — Marcuccio v Commission
   (Case F-2/10) (1)

   (Civil Service - Officials - Social security - Sickness insurance - Applications for payment of medical expenses - No act adversely affecting an official - Action manifestly inadmissible and manifestly lacking any foundation in law - Article 94 of the Rules of Procedure)
   2010/C 317/86
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, assisted by A. Del Ferro, lawyer)

      Re:

   Application for annulment of the decision refusing a request for payment of 100 % of the applicant’s medical expenses

      Operative part of the order

               1.

               Mr Marcuccio’s action is dismissed, in part as manifestly inadmissible and in part as manifestly lacking any foundation;

               2.

               Mr Marcuccio is ordered to pay the costs;

               3.

               Mr Marcuccio is ordered to pay the Tribunal the sum of EUR 1 500.

      (1)  OJ C 63, 13/03/2010, p. 53.


title: Case T-584/15 R: Order of the President of the General Court of 7 December 2015 — POA v Commission (Application for interim measures — Publication of an application for registration of a protected designation of origin — ‘Halloumi’ or ‘Hellim’ — Application for suspension of operation of a measure — No urgency)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/51

         Order of the President of the General Court of 7 December 2015 — POA v Commission
   (Case T-584/15 R)
   ((Application for interim measures - Publication of an application for registration of a protected designation of origin - ‘Halloumi’ or ‘Hellim’ - Application for suspension of operation of a measure - No urgency))
   (2016/C 048/58)
   Language of the case: English

      Parties

      Applicant: Pagkiprios organismos ageladotrofon Dimosia Ltd (POA) (Latsia, Cyprus) (represented by: N. Korogiannakis, lawyer)

      Defendant: European Commission (represented by: A. Lewis and J. Guillem Carrau, acting as Agents)

      Re:

   Application for suspension of operation of the measure adopted by the Commission dated 28 July 2015 entitled ‘Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs’ (OJ 2015 C 246, p. 9).

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case C-148/16: Order of the President of the Court of 6 December 2016 (request for a preliminary ruling from the Högsta domstolen — Sweden) — Riksåklagaren v Zenon Robert Akarsar

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/21

         Order of the President of the Court of 6 December 2016 (request for a preliminary ruling from the Högsta domstolen — Sweden) — Riksåklagaren v Zenon Robert Akarsar
   (Case C-148/16) (1)

   (2017/C 086/26)
   Language of the case: Swedish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 175, 17.5.2016.


title: Case C-503/13: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 September 2013 — Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt

text:
               30.11.2013

               EN

               Official Journal of the European Union

               C 352/8

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 September 2013 — Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt
   (Case C-503/13)
   2013/C 352/14
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Boston Scientific Medizintechnik GmbH

      Respondent on a point of law: AOK Sachsen-Anhalt

      Questions referred

               1.

               Is Article 6(1) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (1) to be interpreted as meaning that a product in the form of a medical device implanted in the human body (in this case, a pacemaker) is already defective if devices in the same product group have a significantly increased risk of failure, but a defect has not been detected in the device which has been implanted in the specific case in point?

               2.

               If the answer to the first question is in the affirmative:
               Do the costs of the operation to remove the product and implant another pacemaker constitute damage caused by personal injury for the purposes of Article 1 and point (a) of the first sentence of Article 9 of Directive 85/374/EEC?

      (1)  OJ 1985 L 210, p. 29


title: Case T-16/08: Action brought on 11 January 2008 — Perfetti Van Melle v OHIM — Cloetta Fazer (CENTER SHOCK)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/59

         Action brought on 11 January 2008 — Perfetti Van Melle v OHIM — Cloetta Fazer (CENTER SHOCK)
   (Case T-16/08)
   (2008/C 64/96)
   Language in which the application was lodged: English
   Parties

      Applicant: Perfetti Van Melle SpA (Lainate, Italy) (represented by: P. Perani and P. Pozzi, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Cloetta Fazer AB (Ljungsbro, Sweden)
   Form of order sought

               —

               Totally alter the decision of the OHIM Fourth Board of Appeal, Case R 149/2006-4, rendered on 7 November 2007 and notified on 9 November 2007;

               —

               annul the decision of the OHIM Cancellation Division, rendered on 24 November 2005, ruling on cancellation action No 941 C 973 065;

               —

               confirm the validity of Perfetti's CTM registration No 973 065 CENTER SHOCK;

               —

               order the defendants to bear the costs of the present proceeding, as well as those of the OHIM invalidity and appeal proceedings.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘CENTER SHOCK’ for goods in class 30 — Community trade mark No 973 065

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: Cloetta Fazer AB

      Trade mark right of the party requesting the declaration of invalidity: The national word marks ‘CENTER’ and ‘CLOETTA CENTER’ for goods in, inter alia, class 30

      Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 52(1)(a) of Council Regulation No 40/94, as the conflicting trade marks are globally different in sound, meaning and overall impression, although they have a common element. Furthermore, Cloetta and Perfetti operate, according to the applicant, in different markets, since their products address different needs and different consumers.


title: Case C-210/13: Order of the Court (Eighth Chamber) of 14 November 2013 (request for a preliminary ruling from the High Court of Justice (Chancery Division) — United Kingdom) — Glaxosmithkline Biologicals SA, Glaxosmithkline Biologicals, Niederlassung der Smithkline Beecham Pharma GmbH & Co. KG v Comptroller-General of Patents, Designs and Trade Marks (Medicinal products for human use — Supplementary protection certificate — Regulation (EC) No 469/2009 — Concepts of ‘active ingredient’ and ‘combination of active ingredients’  — Adjuvant)

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/10

         Order of the Court (Eighth Chamber) of 14 November 2013 (request for a preliminary ruling from the High Court of Justice (Chancery Division) — United Kingdom) — Glaxosmithkline Biologicals SA, Glaxosmithkline Biologicals, Niederlassung der Smithkline Beecham Pharma GmbH & Co. KG v Comptroller-General of Patents, Designs and Trade Marks
   (Case C-210/13) (1)

   ((Medicinal products for human use - Supplementary protection certificate - Regulation (EC) No 469/2009 - Concepts of ‘active ingredient’ and ‘combination of active ingredients’ - Adjuvant))
   2014/C 102/13
   Language of the case: English

      Referring court

   High Court of Justice (Chancery Division)

      Parties to the main proceedings

      Applicants: Glaxosmithkline Biologicals SA, Glaxosmithkline Biologicals, Niederlassung der Smithkline Beecham Pharma GmbH & Co. KG

      Defendants: Comptroller-General of Patents, Designs and Trade Marks

      Re:

   Request for a preliminary ruling — High Court of Justice (Chancery Division) — Interpretation of Article 1(b) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (OJ 2009 L 152, p. 1) — Concept of ‘active ingredient’ and ‘combination of active ingredients’ — Adjuvant which does not have a therapeutic effect of its own but enhances the therapeutic effect in an antigen.

      Operative part of the order

   Article 1(b) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products must be interpreted as meaning that, just as an adjuvant does not fall within the definition of ‘active ingredient’ within the meaning of that provision, so a combination of two substances, namely an active ingredient having therapeutic effects on its own, and an adjuvant which, while enhancing those therapeutic effects, has no therapeutic effect on its own, does not fall within the definition of ‘combination of active ingredients’ within the meaning of that provision.

      (1)  OJ C 189, 29.6.2013.


title: Case C-210/04: Reference for a preliminary ruling by the Corte Suprema di Cassazione, Sezione Quinta Civile (Supreme Court of Cassation, Fifth Civil Chamber) by order of that court of 18 February 2004 in the case of Ministero dell'Economia e delle Finanze (Ministry of Economic Affairs and Finance) and Agenzia delle Entrate (Revenue Agency) against FCE Bank plc

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/6

         Reference for a preliminary ruling by the Corte Suprema di Cassazione, Sezione Quinta Civile (Supreme Court of Cassation, Fifth Civil Chamber) by order of that court of 18 February 2004 in the case of Ministero dell'Economia e delle Finanze (Ministry of Economic Affairs and Finance) and Agenzia delle Entrate (Revenue Agency) against FCE Bank plc
   (Case C-210/04)
   (2004/C 190/09)
   Reference has been made to the Court of Justice of the European Communities by order of 18 February 2004 of the Corte Suprema di Cassazione, Sezione Quinta Civile, which was received at the Court Registry on 12 May 2004, for a preliminary ruling in the case of Ministero dell'Economia e delle Finanze and Agenzia delle Entrate against FCE Bank plc on the following questions:

               1.

               Must Articles 2(1) and 9(1) of the Sixth Directive be interpreted as meaning that the branch of a company established in another State (belonging to the European Union or otherwise), which has the characteristics of a production unit, may be regarded as an independent person and thus that a legal relationship between the entities can be said to exist with consequent liability for VAT in relation to supplies of services effected by the parent company? Can the ‘arm's length’ standard laid down in Article 7(2) and (3) of the OECD model convention on double taxation and the Convention of 21 October 1988 between Italy and the United Kingdom of Great Britain and Northern Ireland be used to define that relationship? Can a legal relationship be said to exist where there is a cost-sharing agreement concerning the supply of services to the subordinate entity? If so, what conditions must be satisfied for such relationship to be considered to exist? Must the notion of legal relationship be dealt with under national law or Community law?

               2.

               Can the passing on of the costs of such services to the branch concerned be regarded as consideration for the services supplied for the purposes of Article 2 of the Sixth Directive, regardless of the proportion of the costs passed on and the resulting profit to the company, and if so to what extent?

               3.

               If the supply of services between the parent company and the branch are regarded in principle as being exempt from VAT because the recipient is not independent and consequently a legal relationship between the two entities cannot be said to exist, is a national administrative practice which considers that the supply is taxable in such a case contrary to the right of establishment laid down in Article 43 of the EC Treaty where the parent company is established in another Member State of the European Union?


title: Case T-159/05: Order of the Court of First Instance of 29 June 2006 — UNIPOR-Ziegel-Marketing v OHIM-Dörken (DELTA)

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/46

         Order of the Court of First Instance of 29 June 2006 — UNIPOR-Ziegel-Marketing v OHIM-Dörken (DELTA)
   (Case T-159/05) (1)

   (2006/C 212/78)

      Language of the case: German

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

      (1)  OJ C 171, 9.7.2005.


title: Case C-252/11: Order of the Court (First Chamber) of 22 October 2012 (request for a preliminary ruling from the Krajský súd v Prešove — Slovakia) — Erika Šujetová v Rapid life životná poisťovňa as (Reference for a preliminary ruling — No need to adjudicate)

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/2

         Order of the Court (First Chamber) of 22 October 2012 (request for a preliminary ruling from the Krajský súd v Prešove — Slovakia) — Erika Šujetová v Rapid life životná poisťovňa as
   (Case C-252/11) (1)

   (Reference for a preliminary ruling - No need to adjudicate)
   2013/C 101/02
   Language of the case: Slovak

      Referring court

   Krajský súd v Prešove

      Parties to the main proceedings

      Applicant: Erika Šujetová

      Defendant: Rapid life životná poisťovňa as

      Re:

   Request for a preliminary ruling — Krajský súd v Prešove (Slovakia) — Interpretation of Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Provision of national law under which exclusive jurisdiction in relation to an application for annulment of an arbitral award is attributed to the court in whose area of jurisdiction the arbitration proceedings took place — Provision of national law under which that court is under an obligation, upon annulling an arbitral award, to continue the main proceedings without re-examining its territorial jurisdiction — Unfair arbitration agreement or arbitration clause

      Operative part of the order

   It is not necessary to give a ruling on the request for a preliminary ruling submitted by the Krajský súd v Prešove (Slovakia), by decision of 7 April 2011 in Case C-252/11.

      (1)  OJ C 269, 10.9.2011.


title: Case C-92/13: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 25 February 2013 — Gemeente ’s-Hertogenbosch v Staatssecretaris van Financiën

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/11

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 25 February 2013 — Gemeente ’s-Hertogenbosch v Staatssecretaris van Financiën
   (Case C-92/13)
   2013/C 147/19
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Gemeente ’s-Hertogenbosch

      Defendant: Staatssecretaris van Financiën

      Question referred

   Should Article 5(7)(a) of the Sixth Directive (1) be interpreted as meaning that supplies are made for consideration in a situation in which a municipality takes first occupation of a building which it has had built on its own land and which it is to use at the rate of 94 % for its activities as a public authority and at the rate of 6 % for its activities as a taxable person, including 1 % for exempt activities to which no right of deduction applies?

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


title: Case C-394/11: Reference for a preliminary ruling from the Komisia za zashtita ot diskriminatsia (Bulgaria) lodged on 25 July 2011 — Valeri Hariev Belov v ChEZ Elektro Balgaria АD and ChEZ Raspredelenie Balgaria АD

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/14

         Reference for a preliminary ruling from the Komisia za zashtita ot diskriminatsia (Bulgaria) lodged on 25 July 2011 — Valeri Hariev Belov v ChEZ Elektro Balgaria АD and ChEZ Raspredelenie Balgaria АD
   (Case C-394/11)
   2011/C 298/27
   Language of the case: Bulgarian

      Referring court

   Komisia za zashtita ot diskriminatsia

      Parties to the main proceedings

      Applicant: Valeri Hariev Belov

      Defendants: ChEZ Elektro Balgaria АD, ChEZ Raspredelenie Balgaria АD and Darzhavna Komisia po energiyno i vodno regulirane

      Questions referred

               Question 1: Does the case to be considered fall within the scope of Council Directive 2000/43/EC (1) of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (here with respect to Article 3(1)(h))?

               Question 2: What is meant by ‘treated less favourably’ within the meaning of Article 2(2)(a) of Directive 2000/43 and by ‘put persons of a racial or ethnic origin at a particular disadvantage’ within the meaning of Article 2(2)(b) of Directive 2000/43?

                           2.1.

                           For less favourable treatment to qualify as direct discrimination, is it absolutely essential for the treatment to be more unfavourable and for it to infringe, directly or indirectly, rights or interests explicitly defined in law, or is it to be understood as any form of behaviour (relationship) in the wider sense of the word which is less advantageous than behaviour in a similar situation?

                           2.2.

                           For the fact of being put in a particular unfavourable situation to qualify as indirect discrimination, is it also necessary for it to infringe, directly or indirectly, rights or interests explicitly defined in law, or is it to be understood in the wider sense as any form of being placed in a particular unfavourable/disadvantageous situation?

               Question 3: Depending on the answer to the second question: If, for direct or indirect discrimination within the meaning of Article 2(2)(a) and (b) of Directive 2000/43 to be deemed to have occurred, it is necessary for the less favourable treatment or the fact of being put in a particular unfavourable situation to infringe, directly or indirectly, a right or interest defined in law,

                           3.1.

                           do the provisions of Article 38 of the Charter of Fundamental Rights of the European Union, Directive 2006/32/EC (2) (Recital 29, Article 1 and Article 13(1)), Directive 2003/54/EC (3) (Article 3(5)) and Directive 2009/72/EC (4) (Article 3(7)) define, to the benefit of the final consumer of electricity, a right or interest entitling him to check meter readings regularly and capable of being relied on before the national courts in proceedings such as the main proceedings,
                           and

                           3.2.

                           is national legislation and/or administrative practice approved by the State energy regulatory authority granting a distribution undertaking the freedom to install electricity meters in places to which it is difficult or impossible to gain access, preventing consumers from checking and monitoring meter readings, compatible with those provisions?

               Question 4: Depending on the answer to the second question: If, for direct or indirect discrimination to be deemed to have occurred, it is not absolutely necessary for a right or interest defined in law to have been directly or indirectly infringed,

                           —

                           is, pursuant to Article 2(2)(a) and (b) of Directive 2000/43, national legislation or case-law, as at issue in the main proceedings, admissible if it requires, for discrimination to be deemed to have occurred, that the more unfavourable treatment and the fact of being put in a more unfavourable position infringe, directly or indirectly, rights or interests defined in law;

                           —

                           if they are not admissible, is the national court then obliged not to apply them and to refer to the definitions given in the directive?

               Question 5: Is Article 8(1) of Directive 2000/43 to be interpreted

                           5.1.

                           as meaning that it requires the victim to establish facts which impose an unambiguous, incontestable and certain conclusion or inference that direct or indirect discrimination has occurred, or is it sufficient for the facts to justify only an assumption/presumption of such discrimination?

                           5.2.

                           Do the facts that

                                       (a)

                                       only in the two parts of the city known as Roma districts are electricity meters attached to electricity poles in the streets at a height at which consumers cannot read them, with known exceptions in some parts of those two urban districts, and

                                       (b)

                                       in all other districts of the city the electricity meters are placed at a different height (up to 1.7 m) at which they can be read, usually in the consumer’s home, on the outside of the building or on surrounding fences,

                                 lead to a shift in the burden of proof to the defendant?

                           5.3.

                           Do the facts that

                                       (a)

                                       not only Roma but also people of a different ethnic origin live in the two parts of the city known as Roma districts and/or

                                       (b)

                                       accordingly, not all the inhabitants of those two districts actually regard themselves as Roma, and/or

                                       (c)

                                       the reasons for placing the electricity meters in those two urban districts at a height of 7 m are described by the distribution undertaking as being generally known,

                                 preclude a shift in the burden of proof to the defendant?

               Question 6: Depending on the answer to Question 5:

                           6.1.

                           If Article 8(1) of Directive 2000/43 is to be interpreted as meaning that an assumption/presumption of the occurrence of discrimination is necessary and if the aforementioned facts lead to a shift in the burden of proof to the defendant, what form of discrimination can be presumed from those facts — direct or indirect discrimination and/or harassment?

                           6.2.

                           Do the provisions of Directive 2000/43 enable direct discrimination and/or harassment to be justified by the pursuit of a legal objective by necessary and suitable means?

                           6.3.

                           In view of the legal objectives which the distribution undertaking emphasises it is pursuing, can the measure taken in the two urban districts be justified in a situation in which

                                       (a)

                                       the measure is taken because of the increasing incidence of unpaid bills in the two urban districts and the frequent offences committed by consumers which impair or threaten the safety, quality and continuous and secure operation of the electrical installations
                                       and
                                       the measure is taken across the board, irrespective of whether the individual consumer pays his bills for the distribution and supply of electricity and whether the individual consumer has been found to have committed any offence (manipulation of meter readings, illegal connection and/or extraction and/or consumption of electricity without payment, or any other interference with the network which impairs or threatens its safe, high-quality, continuous and secure operation);

                                       (b)

                                       provision is made in legislation and the General Conditions of the Contract on Distribution (‘Distribution Contract’) for liability for any similar offence in civil, administrative and criminal law;

                                       (c)

                                       the clause contained in Article 27(2) of the General Conditions of the Distribution Contract — whereby the distribution undertaking gives an assurance that, if explicitly requested by a consumer in writing, it will enable him to make a visual check of the meter readings — does not in fact enable the consumer to check the readings personally and regularly;

                                       (d)

                                       it is possible for an inspection meter to be installed in the consumer’s home at his explicit written request, although a fee is payable;

                                       (e)

                                       the measure is a distinctive and visible reference to the dishonesty of the consumer in one or other form in view of what the distribution undertaking refers to as the generally known reasons for the measure being taken;

                                       (f)

                                       other technical methods and means can be used to protect electricity meters against interference;

                                       (g)

                                       the legal representative of the distribution undertaking claims that a similar measure taken in a Roma district of another city was in fact unable to prevent interference;

                                       (h)

                                       it is not assumed that an electrical installation in one of these urban districts, a transformer station, will need to undergo measures similar to those taken to protect electricity meters?

      (1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

      (2)  Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (Text with EEA relevance) (OJ 2006 L 114, p. 64).

      (3)  Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37).

      (4)  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (Text with EEA relevance) (OJ 2009 L 211, p. 55).


title: Case T-266/14: Action brought on 28 April 2014  — Argus Security Projects v Commission

text:
               28.7.2014

               EN

               Official Journal of the European Union

               C 245/19

         Action brought on 28 April 2014 — Argus Security Projects v Commission
   (Case T-266/14)
   2014/C 245/26
   Language of the case: French

      Parties

      Applicant: Argus Security Projects Ltd (Limassol, Cyprus) (represented by: T. Bontinck and E. van Nuffel d'Heynsbroeck, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annulment of the decision of the EUBAM Libya not to accept the tender submitted by Argus in the a call for tender negotiated procedure concerning the supply of security services as part of the European Union Integrated Border Management Assistance Mission in Libya (contract EUBAM-13-020), and the decision to award the contract to Garda;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on 3 pleas in law.

               1.

               First plea in law, alleging an infringement of Article 110 of the Financial Regulation (1), of the rules laid down in the specifications for the award of the contract, in particular points 4.1 and 12.1 of the instructions to tenderers, and of the principles of equal treatment of tenderers and non-discrimination, in so far as the EUBAM did not check the abilities of the successful tenderer to perform the contract in accordance with the requirements of the contract or failed to exercise its discretion as regards the expected technical qualities of the successful tender with the minimum rigour reasonably to be expected.
               The applicant submits that the serious failings by the successful tenderer and its inability to carry out the contract awarded to it show that the tender was unrealistic and ought not to have been accepted by the adjudicating authority.

               2.

               Second plea in law, alleging a substantive amendment to the initial conditions of the contract liable to distort the result of the call for tenders.
               The applicant submits that the relation between the points awarded to the successful tenderer and to the applicant for all the assessment criteria would have been reversed if the successful tender had been assessed taking into account the conditions in which the successful tenderer performs the contract.

               3.

               Third plea in law, alleging an infringement of the duty to state reasons, in so far as the adjudicating authority failed to comply with Article 113 of the Financial Regulation and Article 161(2) of the Delegated Regulation (2), since the characteristics and relative advantages of the successful tender were not communicated within 15 calendar days following the applicant’s request.

      (1)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).

      (2)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1).


title: Case C-304/08: Judgment of the Court (First Chamber) of 14 January 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH (Directive 2005/29/EC — Unfair commercial practices — National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/3

         Judgment of the Court (First Chamber) of 14 January 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH
   (Case C-304/08) (1)

   (Directive 2005/29/EC - Unfair commercial practices - National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services)
   2010/C 179/03
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

      Defendant: Plus Warenhandelsgesellschaft mbH

      Re:

   Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(2) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22) — Commercial practice coupling the sale of goods with a lottery which permits the customer to participate in the draws of a national lottery when he has accumulated a certain number of bonus points obtained when purchasing goods — National legislation under which a commercial practice whereby the participation of consumers in a prize competition or lottery is conditional on the purchase of goods or the supply of services is in principle unlawful, irrespective of whether the advertising in question affects consumers’ interests

      Operative part of the judgment

   Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for a prohibition in principle, without taking account of the specific circumstances of individual cases, of commercial practices under which the participation of consumers in a prize competition or lottery is made conditional on the purchase of goods or the use of services.

      (1)  OJ C 247, 27.9.2008.


title: Case C-213/13: Judgment of the Court (Second Chamber) of 10 July 2014 (request for a preliminary ruling from the Consiglio di Stato (Italy)) — Impresa Pizzarotti & C. SpA v Comune di Bari, Giunta comunale di Bari and Consiglio comunale di Bari (Reference for a preliminary ruling — Public works contracts — Directive 93/37/EEC — ‘Undertaking to let’ buildings which have not yet been constructed — Decision of a national court having the authority of res judicata — Scope of the principle of res judicata in the event of a situation which is incompatible with EU law)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/14

         Judgment of the Court (Second Chamber) of 10 July 2014 (request for a preliminary ruling from the Consiglio di Stato (Italy)) — Impresa Pizzarotti & C. SpA v Comune di Bari, Giunta comunale di Bari and Consiglio comunale di Bari
   (Case C-213/13) (1)

   ((Reference for a preliminary ruling - Public works contracts - Directive 93/37/EEC - ‘Undertaking to let’ buildings which have not yet been constructed - Decision of a national court having the authority of res judicata - Scope of the principle of res judicata in the event of a situation which is incompatible with EU law))
   2014/C 315/20
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Impresa Pizzarotti & C. SpA

      Defendants: Comune di Bari, Giunta comunale di Bari and Consiglio comunale di Bari

      Intervening parties: Complesso Residenziale Bari 2 Srl, Commissione di manutenzione della Corte d’appello di Bari, Giuseppe Albenzio, acting as Commissario ad acta, Ministero della Giustizia and Regione Puglia

      Operative part of the judgment

               1.

               On a proper construction of Article 1(a) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, where the main object of a contract is the execution of a work corresponding to the requirements expressed by the contracting authority, that contract constitutes a public works contract and is not, therefore, covered by the exclusion referred to in Article 1(a)(iii) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, even if it contains an undertaking to let the work in question.

               2.

               To the extent that it is authorised to do so by the applicable domestic rules of procedure, a national court — such as the referring court — which has given a ruling at last instance, without a reference having first been made to the Court of Justice of the European Union under Article 267 TFEU, that has led to a situation which is incompatible with the EU legislation on public works contracts must either supplement or go back on that definitive ruling so as to take into account any interpretation of that legislation provided by the Court subsequently.

      (1)  OJ C 207, 20.7.2013.


title: Case C-382/06 P: Appeal brought on 14 September 2006 by Ocean Trawlers Ltd against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/26

         Appeal brought on 14 September 2006 by Ocean Trawlers Ltd against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities
   (Case C-382/06 P)
   (2006/C 294/44)
   Language of the case: English
   Parties

      Appellant: Ocean Trawlers Ltd (represented by: P. Gallagher SC, A. Collins SC, D. Barry, Solicitor)

      Other parties to the proceedings: Ireland, Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               Set aside the judgment of the Court of First Instance of June 13, 2006 in so far as it dismissed the application in Case T-226/03, Ocean Trawlers Ltd. V. Commission for the annulment of Commission Decision 2003/245/EC (1) of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for proposed new RSW vessel MFV Golden Rose and ordered Ocean Trawlers Ltd. to bear its own costs.

               —

               Annul Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel MFV Golden Rose.

               —

               Order the Commission to pay the costs of the entirety of these proceedings.

         Pleas in law and main arguments
   The appellant submits that the judgment of the Court of First Instance should be set aside on the following grounds:
   By determining the appellant's interest in bringing the proceedings by reference to the date of the adoption of decision 2003/245 and not the date on which the application was lodged the Court of First Instance applied an incorrect legal test;
   The Court made a substantive error apparent from the documents submitted to it, namely as to the appellant's ownership of the MFV ‘Golden Rose’ at all times material to the application;
   The finding that the appellant was not individually concerned by decision 2003/245 ‘since the vessels in question are fictitious’ has no basis in law and is, moreover, contradicted by the reasoning of the Court of First Instance in its judgment;
   The appellant is, and at all material times has been, the owner of the MFV ‘Golden Rose’. It therefore cannot be said to have lost the interest it unquestionably had at the commencement of its action for the annulment of decision 2003/245 in so far as it impacted upon its application for safety tonnage in respect of the proposed MFV ‘Golden Rose’;
   The Court of First Instance erred in finding that the appellant was deprived of standing to seek the annulment of decision 2003/245 by reason of the steps it took to mitigate the loss and damage sustained as a result of that measure.

      (1)  OJ L 90, P. 48


title: Case T-225/14: Judgment of the General Court of 3 September 2015 — iNET24 Holding v OHIM (IDIRECT24) (Community trade mark — International registration designating the European Community — Word mark IDIRECT24 — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

text:
               19.10.2015

               EN

               Official Journal of the European Union

               C 346/26

         Judgment of the General Court of 3 September 2015 — iNET24 Holding v OHIM (IDIRECT24)
   (Case T-225/14) (1)

   ((Community trade mark - International registration designating the European Community - Word mark IDIRECT24 - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009))
   (2015/C 346/30)
   Language of the case: German

      Parties

      Applicant: iNET24 Holding AG (Feusisberg, Switzerland) (represented by: S. Kirschstein-Freund, B. Breitinger and V. Dalichau, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (trade marks and designs) (represented by: initially by A. Pohlmann and S. Hanne, acting as Agents)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 4 February 2014 (Case R 1867/2013-5), concerning the international registration designating the European Community of word mark IDIRECT24.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders iNET24 Holding AG to pay the costs.

      (1)  OJ C 184, 16.6.2014.


title: Case T-173/04: Action brought on 14 May 2004 by Jürgen Carius against Commission of the European Communities

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/16

         Action brought on 14 May 2004 by Jürgen Carius against Commission of the European Communities
   (Case T-173/04)
   (2004/C 179/31)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 14 May 2004 by Jürgen Carius, residing at Brussels, represented by N. Lhoëst, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Annul the decision of the Director General of DG ADMIN of 21 May 2003 which confirms, without amendment, the applicant's career development review for the period from 1 July 2001 to 31 December 2002;

               —

               Annul, so far as necessary, the Commission's Decision of 23 December 2003, rejecting the applicant's complaint;

               —

               Order the defendant to pay all the costs of the proceedings.

         Pleas in law and main arguments:
   In support of his action, the applicant pleads the illegality of the new appraisal system based on non-objective criteria which do not enable the subject to ascertain, in sufficient time, the contents of his appraisal report in order to be able, if appropriate, to submit observations to the appraiser.
   The applicant also pleads infringement of the duty to state reasons, in that the significant decline in the appraisal of his merits was not properly explained, and a manifest error of assessment.


title: Case C-314/14: Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 1 July 2014  — Sanoma Media Finland Oy/Nelonen Media, Helsinki

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/21

         Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 1 July 2014 — Sanoma Media Finland Oy/Nelonen Media, Helsinki
   (Case C-314/14)
   2014/C 292/25
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

      Applicant: Sanoma Media Finland Oy/Nelonen Media, Helsinki

      Other party: Viestintävirasto

      Questions referred

               1.

               In circumstances such as those at issue in the main proceedings, is Article 19(1) of Directive 2010/13/EU (1) to be interpreted as precluding an interpretation of national legal provisions to the effect that screen splitting is not regarded as a break bumper that keeps the audiovisual programme distinct from television advertising, where one part of the screen is reserved for the programme’s closing credits and the other part to a schedule menu presenting the upcoming programmes on a broadcaster’s channel and no acoustic or optical device expressly announcing the start of an advertising break is broadcast either in the split screen or thereafter?

               2.

               Taking into account the fact that Directive 2010/13 is in the nature of a minimum standard, in circumstances such as those at issue in the main proceedings, is Article 23(2) of that directive to be interpreted as meaning that it is not compatible with that provision to classify sponsor idents broadcast in connection with programmes other than the sponsored programmes as ‘advertising spots’ within the meaning of Article 23(1) of the Directive which must be included in the maximum permissible advertising time?

               3.

               Taking into account the fact that Directive 2010/13 is in the nature of a minimum standard, in circumstances such as those at issue in the main proceedings, is the term ‘advertising spots’ in Article 23(1) of that directive in conjunction with the description of the maximum permissible advertising time (‘the proportion ... within a given clock hour shall not exceed 20 %’) to be interpreted as meaning that it is not compatible with that provision to count the ‘black seconds’ between individual advertising spots and at the end of an advertising break as advertising time?

      (1)  Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1).


title: Case F-111/13: Order of the Civil Service Tribunal (3rd Chamber) of 4 September 2014 — Prigent v Commission (Civil service — Open competition — Notice of open competitions EPSO/AD/230/12 (AD 5) and EPSO/AD/231/12 (AD 7) — Professional experience eligibility condition of Competition EPSO/AD/231/12 (AD 7) not fulfilled — Reassignment to Competition EPSO/AD/230/12 (AD 5) — Interest in bringing proceedings — Lateness of complaint — Successive requests for reconsideration)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/67

      Order of the Civil Service Tribunal (3rd Chamber) of 4 September 2014 — Prigent v Commission
      (Case F-111/13) (1)

      ((Civil service - Open competition - Notice of open competitions EPSO/AD/230/12 (AD 5) and EPSO/AD/231/12 (AD 7) - Professional experience eligibility condition of Competition EPSO/AD/231/12 (AD 7) not fulfilled - Reassignment to Competition EPSO/AD/230/12 (AD 5) - Interest in bringing proceedings - Lateness of complaint - Successive requests for reconsideration))
      (2014/C 395/82)
      Language of the case: French

         Parties

         Applicant: Oliver Prigent (Fentange, Luxembourg) (represented by: F. Moyse, lawyer)

         Defendant: European Commission (represented by: J. Currall and G. Gattinara, lawyers)

         Re:

      Application for annulment, first, of the EPSO decision not to admit the applicant to the selection phase of Competition EPSO/AD/231/12 (AD 7) and to reclassify him in Competition EPSO/AD/230/12 (AD 5) and, secondly, of the decision to include him on the reserve list for the abovementioned AD 5 competition, as well as damages for material and non-pecuniary damage allegedly suffered.

         Operative part of the order

                  1.

                  The action is dismissed as being, in part, clearly inadmissible and, in part, clearly unfounded.

                  2.

                  Mr Prigent is to bear his own costs and shall pay the costs incurred by the European Commission.

         (1)  OJ C 31, 01/02/2014, p. 22.


Avis juridique important

|

E1997P0002

Request for an Advisory Opinion from the EFTA Court by Fredrikstad byrett by decision of that court of 16 May 1997 in the case of Mag Instrument Inc. v California Trading Company Norway, Ulsteen (Case E-2/97)

Official Journal 209 , 10/07/1997 P. 0024 - 0024

Request for an Advisory Opinion from the EFTA Court by Fredrikstad byrett by decision of that court of 16 May 1997 in the case of Mag Instrument Inc. v California Trading Company Norway, Ulsteen (Case E-2/97) (97/C 209/06)A request has been made to the EFTA Court by decision of 16 May 1997 of Fredrikstad byrett (Fredrikstad City Court), Norway, which was received at the Court Registry on 21 May 1997, for an Advisory Opinion in the case of Mag Instrument Inc. v California Trading Company Norway, Ulsteen, on the following questions:1) Is Article 7, paragraph 1 of Council Directive 89/104/EEC to be understood as conferring a right on a trade mark proprietor to prevent an import from a third country outside the EEA, when the said import takes place without the consent of the trade mark proprietor?2) In other words, is the same provision to be understood to the effect that exhaustion of the trade mark right may neither be limited to national exhaustion nor expanded to include international


title: Case T-401/03: Action brought on 12 December by Deirdre McCabe against the Commission of the European Communities

text:
C 35/16                 EN                         Official Journal of the European Union                                         7.2.2004
Action brought on 8 December 2003 by Sophie Bachotet                       —     Breach of the duty to state reasons and a manifest error
  against the Commission of the European Communities                             of assessment.
                          (Case T-400/03)                                  (1) Not yet published in the ECR.
                           (2004/C 35/25)
                    (Language of the case: French)
                                                                           Action brought on 12 December by Deirdre McCabe
                                                                             against the Commission of the European Communities
An action against the Commission of the European Communi-                                            (Case T-401/03)
ties was brought before the Court of First Instance of the
European Communities on 8 December 2003 by Sophie                                                     (2004/C 35/26)
Bachotet, residing in Brussels, represented by Sébastien Orlan-
di, Albert Coolen, Jean-Noël Louis and Étienne Marchal,
lawyers, with an address for service in Luxembourg.                                           (Language of the case: French)
The applicant claims that the Court should:                                An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
—     Annul the decision of the Research selection committee               European Communities on 12 December 2003 by Deirdre
      in COM/R/A/01/1999 not to include the name of the                    McCabe, residing in Mondorf-Les-Bains (Luxembourg), rep-
      applicant on the reserve list;                                       resented by Mario Spandre, lawyer.
—     Order the defendant to pay the costs.                                The applicant claims that the Court should:
                                                                           —     Annul the decision to dismiss Mrs McCabe;
                                                                           —     Order the Commission of the European Communities to
Pleas in law and main arguments                                                  pay compensation for wrongful dismissal;
                                                                           —     Order the Commission of the European Communities to
Following the judgment of the Court of First Instance of                         pay all the expenses and costs.
24 September 2002 in Case T-182/01 (1), annulling the
decision of the selection board not to enter the applicant’s
name on the reserve list resulting from selection procedure
COM/R/A/01/1999 held in order to create a reserve list of                  Pleas in law and main arguments
temporary agents, the applicant was invited to another oral
test. The applicant contests the final decision not to enter her
name on the list of suitable candidates following that second              The applicant, a former probationary official at Eurostat,
oral test.                                                                 contests the decision of the appointing authority not to
                                                                           establish her at the end of her probationary period.
In support of her claims the applicant relies on the following             In support of her claims, she submits that her dismissal was
pleas:                                                                     manifestly wrongful and, therefore, contrary to Article 34(3)
                                                                           of the Staff Regulations. She claims in that connection that her
                                                                           incompetence was alleged merely to prevent her from
—     Breach of Article 233 EC, in so far as the selection board
                                                                           reporting anomalies in the management of Eurostat which
      organised the oral test without taking account of the
                                                                           were revealed subsequently.
      grounds and the operative part of the above judgment of
      the Court of First Instance of 24 September 2002;
                                                                           The decision to dismiss her is based on the various intermediate
—     Breach of the principle of equal treatment for candidates,           probationary reports drawn up on her over 18 months and, in
      in so far as the selection board did not establish, before           particular, on the final report at the end of her probationary
      the oral test, the criteria necessary to enable it to make an        period. The grounds stated in that report were cursory, vague
      assessment, more than two years after the first tests were           and ambiguous and based on allegations wholly without
      held, of the comparative merits of the applicant and the             substance.
      successful candidates placed on the reserve list bearing in
      mind the principle of equal treatment;


title: Case C-440/13: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 August 2013 — Croce Amica One Italia Srl v Azienda Regionale Emergenza Urgenza (AREU)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/39

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 August 2013 — Croce Amica One Italia Srl v Azienda Regionale Emergenza Urgenza (AREU)
   (Case C-440/13)
   2013/C 344/68
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Lombardia

      Parties to the main proceedings

      Applicant: Croce Amica One Italia Srl

      Defendant: Azienda Regionale Emergenza Urgenza (AREU)

      Questions referred

               1.

               Is it consistent with Community law for it to be permissible for a contracting authority, in the exercise of its power to withdraw a decision in relation to a public procurement procedure pursuant to Article 21d of Law No 241/1990, to decide not to proceed with the final award of the contract merely because criminal investigations are pending vis-à-vis the legal representative of the company to which the provisional award was made?

               2.

               Is it consistent with Community law for there to be a derogation from the principle of the finality of findings of criminal liability, as expressed in Article 45 of Directive 2004/18/EC, (1) on grounds of administrative expediency, relating to an area of administrative autonomy?

               3.

               Is it consistent with Community law for there to be a derogation from the principle of the finality of findings of criminal liability, as expressed in Article 45 of Directive 2004/18/EC, where pending criminal investigations concern offences relating to the tendering procedure covered by the administrative decision adopted by way of self-protection?

               4.

               Is it consistent with Community law for the decisions adopted by a contracting authority in matters of public procurement to be open to unlimited review by a national administrative court, in exercise of the jurisdiction conferred in matters relating to public procurement, covering the reliability and the suitability of the tender, and thus going above and beyond the limited cases of clear absurdity, irrationality, failure to state adequate reasons or error as to the facts?’

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).


title: Case F-137/11: Order of the Civil Service Tribunal of 4 June 2012 — Dergam v European Commission

text:
               14.7.2012

               EN

               Official Journal of the European Union

               C 209/14

         Order of the Civil Service Tribunal of 4 June 2012 — Dergam v European Commission
   (Case F-137/11)
   2012/C 209/25
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register.


title: Order of the Court (Sixth Chamber) of 12 October 2004 in Case C-352/03 P: Pietro Del Vaglio against the Commission of the European Communities (Appeal — Community officials — Pensions — Change of country of residence — Applicable corrective coefficient — Appeal partly manifestly inadmissible and partly manifestly unfounded)

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/22

      ORDER OF THE COURT

   (Sixth Chamber)
   of 12 October 2004
   in Case C-352/03 P: Pietro Del Vaglio against the Commission of the European Communities (1)

   (Appeal - Community officials - Pensions - Change of country of residence - Applicable corrective coefficient - Appeal partly manifestly inadmissible and partly manifestly unfounded)
   (2005/C 6/42)
   Language of the case: French
   In Case C-352/03P: Pietro Del Vaglio, former official of the Commission of the European Communities, residing in London (United Kingdom) (lawyers: M. Famchon and B. Desrez), the other party to the proceedings being the Commission of the European Communities (Agent: J. Currall, assisted by D. Waelbroeck) – appeal under Article 56 of the Statute of the Court of Justice, brought on 11 August 2003 – the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and S. von Bahr (Rapporteur), Judges; Advocate General: J. Kokott, Registrar: R. Grass, has given an order on 12 October 2004, in which it:

               1)

               Dismisses the action;

               2)

               Orders Mr Del Vaglio to pay the costs.

      (1)  OJ C 251 of 18.10.2003.


title: Case T-210/16: Action brought on 5 May 2016 — Lukash v Council

text:
               4.7.2016

               EN

               Official Journal of the European Union

               C 243/39

         Action brought on 5 May 2016 — Lukash v Council
   (Case T-210/16)
   (2016/C 243/43)
   Language of the case: French

      Parties

      Applicant: Olena Lukash (Kiev, Ukraine) (represented by: M. Cessieux, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               declare Ms Olena Lukash’s action to be admissible;

               —

               annul, in so far as it concerns the applicant, Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine;

               —

               annul, in so far as it concerns the applicant, Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine;

               —

               annul the subsequent decisions and regulations extending the restrictive measures laid down by Council Decision 2014/119/CFSP of 5 March 2014 and updating the grounds, namely:

                           —

                           Council Decision 2015/364/CFSP of 5 March 2015;

                           —

                           Council Regulation (EU) 2015/357 of 5 March 2015;

                           —

                           Council Decision 2015/876/CFSP of 5 June 2015;

                           —

                           Council Regulation (EU) 2015/869 of 5 June 2015;

                           —

                           Council Decision 2016/318/CFSP of 4 March 2016;

                           —

                           Council Regulation (EU) No 208/2014 of 4 March 2016;

               —

               order the Council of the European Union to pay the costs in accordance with Articles 87 and 91 of the Rules of Procedure of the General Court.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an infringement of the rights of defence and of the right to an effective remedy.

               2.

               Second plea in law, alleging a breach of the obligation to state reasons.

               3.

               Third plea in law, alleging a failure to observe the criteria set out in Article 1 of Decision 2014/119/CFSP, reiterated in recital 4 of Regulation (EU) No 208/2014, in recital 3 of Decision 2015/364/CFSP, reiterated in recital 2 of Regulation (EU) 2015/357, in recital 4 of Decision 2015/876/CFSP, reiterated in recital 3 of Regulation (EU) 2015/357, and in recital 4 of Decision 2016/318/CFSP, reiterated in recital 2 of Regulation (EU) 2015/357.

               4.

               Fourth plea in law, alleging an error of fact by the Council.

               5.

               Fifth plea in law, alleging a clear breach of the applicant’s right to property.


title: Judgment of the Court (Fifth Chamber) 21 March 2002 in Case C-298/99: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Directive 85/384/EEC — Mutual recognition of formal qualifications in architecture — Access to the profession of architect — Article 59 of the EC Treaty (now, afteramendment, Article 49 EC))

text:
C 118/4                 EN                      Official Journal of the European Communities                                      18.5.2002
1.    Dismisses the application;                                           (1) by failing to adopt all the measures necessary to
                                                                                implement Articles 4(1), second subparagraph, 4(2), 7,
                                                                                11 and 14 of Council Directive 85/384/EEC of 10 June
2.    Orders the Kingdom of the Netherlands to pay the costs;                   1985 on the mutual recognition of diplomas, certificates
                                                                                and other evidence of formal qualifications in architec-
                                                                                ture, including measures to facilitate the effective exercise
3.    Orders the Kingdom of Spain to bear its own costs.                        of the right of establishment and freedom to provide
                                                                                services (OJ 1985 L 223, p. 15), as amended by Council
                                                                                Directive 86/17/EEC of 27 January 1986 amending, on
                                                                                account of the accession of Portugal, Directive 85/384
(1) OJ C 226 of 7.8.1999.                                                       (OJ 1986 L 27, p. 71, and — corrigendum — L 87,
                                                                                p. 36);
                                                                           (2) by adopting
                                                                                —     Article 4(2)(a) of Legislative Decree No 129 of the
                                                                                President of the Republic of 27 January 1992
                                                                                (GURI No 41 of 19 February 1992, p. 18) and
                                                                                Article 4(1)(a) of Decree No 776 of the Minister
                                                                                for Universities and Scientific and Technological
                                                                                Research of 10 June 1994 (GURI No 234 of
                                                                                6 October 1995, p. 3), which impose a general
                 JUDGMENT OF THE COURT                                                obligation to produce the original diploma or a
                                                                                certified copy thereof,
                          (Fifth Chamber)                                       —     Article 4(2)(c) of Decree No 129/92 and
                                                                                Article 4(1)(c) of Decree No 776/94, which impose
                                                                                a general obligation to produce a certificate of
                                                                                nationality,
                           21 March 2002
                                                                                —     Article 4(3) of Decree No 129/92 and Article 10 of
                                                                                Decree No 776/94, which require as a matter of
in Case C-298/99: Commission of the European Communi-                                 course an official translation of documents,
                     ties v Italian Republic (1)
                                                                                —     Article 11(1)(c) and (d) of Decree No 129/92, which
                                                                                extends the validity of certificates beyond 5 August
(Failure by a Member State to fulfil its obligations —                                1987;
Directive 85/384/EEC — Mutual recognition of formal
qualifications in architecture — Access to the profession of
architect — Article 59 of the EC Treaty (now, afteramend-                  (3) by prohibiting architects providing services in Italy from
                       ment, Article 49 EC))                                    having an infrastructure in Italy (Article 9(1) of Decree
                                                                                No 129/92);
                                                                           (4) by requiring architects providing services to register with
                          (2002/C 118/06)
                                                                                the local provincial council of the professional body for
                                                                                architects (Article 9(3) of Decree No 129/92 and
                                                                                Articles 7 and 8 of Decree No 776/94) in a manner
                    (Language of the case: Italian)                             contrary to Article 22 of Directive 85/384, and
                                                                           (5) by applying Article 4(6) to 4(8) of Decree No 129/92 in
(Provisional translation; the definitive translation will be published          a manner contrary to Article 20(1) of Directive 85/384,
                   in the European Court Reports)                               the Italian Republic has failed to fulfil its obligations
                                                                                under Articles 12, 20, 22, 27 and 31 of Directive 85/384
                                                                                and, in respect of point 3 above, under Article 59 of the
                                                                                EC Treaty (now, after amendment, Article 49 EC),
                                                                           the Court (Fifth Chamber), composed of: P. Jann, President of
In Case C-298/99, Commission of the European Communities                   the Chamber, S. von Bahr, D.A.O. Edward (Rapporteur), A. La
(Agents: E. Traversa and E. Montaguti) v Italian Republic                  Pergola and C.W.A. Timmermans, Judges; S. Alber, Advocate
(Agent: U. Leanza, assisted by G. Aiello): Application for a               General; L. Hewlett, Administrator, for the Registrar, has given
declaration that:                                                          a judgment on 21 March 2002, in which it:
 ---pagebreak--- 18.5.2002              EN                      Official Journal of the European Communities                                                C 118/5
1.   Declares that:                                                             —     by requiring, under Article 9(3) of Decree No 129/92
                                                                                and Articles 7 and 8 of Decree No 776/94, architects
                                                                                established in other Member States who wish to provide
                                                                                services in Italy to register with the local provincial council
     —    by failing to adopt all the measures necessary to implement                 of the professional body for architects and by delaying, by
          Articles 4(1), second subparagraph, 4(2), 11(k), seventh                    that formality, in breach of Article 22 of Directive 85/
          indent, and 14 of Council Directive 85/384/EEC of                           384, the provision by architects of their first services in
          10 June 1985 on the mutual recognition of diplomas,                         Italy,
          certificates and other evidence of formal qualifications in
          architecture, including measures to facilitate the effective          the Italian Republic has failed to fulfil its obligations under
          exercise of the right of establishment and freedom to                 Articles 12, 22, 27 and 31 of Directive 85/384 and, in
          provide services, as amended by Council Directive 86/17/              respect of the prohibition under Article 9(1) of Decree No 129/
          EEC of 27 January 1986 amending, on account of the                    92, under Article 59 of the Treaty;
          accession of Portugal, Directive 85/384,
                                                                          2.    Dismisses the application as to the remainder;
                                                                          3.    Orders the Italian Republic to pay the costs.
     —    by failing to adopt all the measures necessary to implement
          the automatic recognition of diplomas, certificates and
          other evidence of formal qualifications in accordance with      (1) OJ C 299 of 16.10.1999.
          Articles 2, 3, 7, 8 and 9 of Directive 85/384,
     —    by adopting Article 4(2)(a) of Legislative Decree No 129
          of the President of the Republic of 27 January 1992
          which, in breach of Articles 52 and 59 of the EC Treaty
                                                                                JUDGMENT OF THE COURT
          (now, after amendment, Articles 43 EC and 49 EC), lays
          down a general requirement that the application for
          recognition of a qualification be accompanied by the                                         19 March 2002
          original diploma or a certified copy thereof,
                                                                          in Joined Cases C-393/99 and C-394/99 (Reference for a
                                                                          preliminary ruling from the Tribunal du travail de Tour-
                                                                          nai): Institut national d’assurances sociales pour travail-
     —    by adopting Article 4(2)(c) of Decree No 129/92 and             leurs indépendants (Inasti) v Claude Hervein, Hervillier
          Article 4(1)(c) of Decree No 776 of the Minister for            SA (C-393/99), Guy Lorthiois, Comtexbel SA (C-394/
          Universities and Scientific and Technological Research of                                          99) (1)
          10 June 1994 which, in breach of Article 52 of the
          Treaty, lay down a general requirement that the appli-
          cation for recognition of a qualification be accompanied        (Freedom of movement for workers and freedom of establish-
          by a certificate of nationality,                                ment — Social security — Determination of the legislation
                                                                          applicable — Persons who are simultaneously employed and
                                                                          self-employed in the territory of different Member States —
                                                                          Cover by the social security legislation of each of those States
     —    by adopting Article 4(3) of Decree No 129/92 and                — Validity of Article 14c(1)(b), now Article 14c(b), of and
          Article 10 of Decree No 776/94 which, in breach of                       Annex VII to Regulation (EEC) No 1408/71)
          Article 52 of the Treaty, require as a matter of course an
          official translation of all documents attached to an                                        (2002/C 118/07)
          application for recognition of a qualification,
                                                                                (Language of the case: French)
     —    by adopting Article 11(1)(c) and (d) of Decree No 129/          (Provisional translation; the definitive translation will be published
          92 which, in breach of Article 12 of Directive 85/384,                               in the European Court Reports)
          provides for the recognition of qualifications acquired after
          5 August 1987,
                                                                          In Joined Cases C-393/99 and C-394/99: Reference to the
                                                                          Court under Article 234 EC by the Tribunal du travail, Tournai
     —    by retaining Article 9(1) of Decree No 129/92 which, in         (Belgium), for a preliminary ruling in the proceedings pending
          breach of Article 59 of the Treaty, imposes a general           before that court between Institut national d’assurances socia-
          prohibition on architects established in other Member           les pour travailleurs indépendants (Inasti) and Claude Hervein,
          States who wish to provide services in Italy from creating      Hervillier SA (C-393/99), Guy Lorthiois, Comtexbel SA
          on Italian territory a principal or secondary place of          (C-394/99), on the validity of Article 14c(1)b, now
          business,                                                       Article 14c(b), of and Annex VII to Regulation (EEC)


title: Case C-354/08: Action brought on 30 July 2008 — Commission of the European Communities v French Republic

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/18

         Action brought on 30 July 2008 — Commission of the European Communities v French Republic
   (Case C-354/08)
   (2008/C 285/31)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa and J. Sénéchal, Agents)

      Defendant: French Republic
   Form of order sought

               —

               declare that, by providing for priority to the outgoing licensee in the course of putting out to competitive tender licences in respect of works using hydraulic energy, in particular by adopting the provisions of Article 29(3) of decree No 99/225 of 22 March 1999 relating to the licence and the declaration of public use of works using hydraulic energy, the French Republic has failed to fulfil its obligations under Article 43 EC;

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The Commission claims that granting priority to the outgoing licensee, upon renewal and granting of licences in respect of works using hydraulic energy, infringes the principle of non-discrimination and hinders freedom of establishment. By favouring companies which have a licence and which are therefore established in France, French legislation makes the establishment of companies set up in other Member States more difficult.
   Moreover, the French authorities did not rely on the derogations provided for in Articles 45 and 46 of the Treaty or overriding reasons in the public interest in order to justify the measure in question which was, in any event, disproportionate in the light of the objective pursued. Accordingly, financial charges borne by the outgoing licensee may, for example, be offset by other obligations imposed on all new competitors.