title: Case C-20/08 P: Appeal brought on 22 January 2008 by Enercon GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-71/06 Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/19

         Appeal brought on 22 January 2008 by Enercon GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-71/06 Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-20/08 P)
   (2008/C 79/33)
   Language of the case: German
   Parties

      Appellant: Enercon GmbH (represented by: R. Böhm and U. Sander, Rechtsanwälte)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   Form of order sought

               —

               Set aside the judgment of the Fifth Chamber of the Court of First Instance of 15 November 2007 (Case T-71/06);

               —

               uphold the forms of order sought at first instance;

               —

               in the alternative, refer the case back to the Court of First Instance;

               —

               order OHIM to pay the costs of both instances.

         Grounds of appeal and main arguments
   By its first ground of appeal the appellant claims that there has been an infringement of the duty to give reasons under Article 73 of the Community Trade Mark Regulation. Neither in the decision of the Board of Appeal nor in the judgment under appeal of the Court of First Instance were any findings set out or explanations given regarding the shapes which OHIM or the Court of First Instance recognised as being common on the market and in what ways the shape applied for would have to differ from common shapes on the market to be found to be distinctive. In the absence of such findings or explanations it is not conceivable how OHIM or the Court of First Instance could have come to the conclusion that the shape applied for was not distinctive.
   By its second ground of appeal the appellant alleges that Article 7(1)(b) of the Community Trade Mark Regulation has been infringed by an assessment of distinctiveness which, in the absence of a statement of the factual basis for its decision, could only have come about as a result of a distortion by the Court of First Instance of the facts presented to it, a matter open to review by the Court of Justice. Contrary to the view of the Court of First Instance in the judgment under appeal, the appellant claims that the shape applied for is distinctive since it is significantly different from the normal shapes found on the market and is not merely a variant of such shapes. Among the relevant public the shape applied for can be recognised and indeed is recognisable as an indication of origin irrespective of its use and without further enquiries or thought.


title: Case C-383/05: Judgment of the Court (First Chamber) of 22 March 2007 (reference for a preliminary ruling from the Cour de cassation (Belgium)) — Raffaele Talotta v Belgium State (Freedom of establishment — Article 52 of the EC Treaty (now, after amendment, Article 43 EC) — Non-resident taxpayer carrying out a self-employed activity — Setting of minimum tax bases applicable only to non-resident taxpayers — Justified by requirements of general interest — Effectiveness of fiscal supervision — Not justified)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/12

         Judgment of the Court (First Chamber) of 22 March 2007 (reference for a preliminary ruling from the Cour de cassation (Belgium)) — Raffaele Talotta v Belgium State
   (Case C-383/05) (1)

   (Freedom of establishment - Article 52 of the EC Treaty (now, after amendment, Article 43 EC) - Non-resident taxpayer carrying out a self-employed activity - Setting of minimum tax bases applicable only to non-resident taxpayers - Justified by requirements of general interest - Effectiveness of fiscal supervision - Not justified)
   (2007/C 96/18)
   Language of the case: French
   Referring court
   Cour de cassation (Court of Cassation) (Belgium)
   Parties to the main proceedings

      Applicant: Raffaele Talotta

      Defendant: Belgium State
   Re:
   Reference for a preliminary ruling — Cour de cassation, Belgium — Interpretation of Article 43 of the EC Treaty — National legislation allowing minimum tax bases to be applied only in the case of non-residents
   Operative part of the judgment
   Article 52 of the EC Treaty (now, after amendment, Article 43 EC) precludes legislation of a Member State, such as the rule resulting from Article 342(2) of the Income Tax Code 1992 and Article 182 of the Royal Decree of 27 August 1993 implementing the Income Tax Code 1992, which lays down minimum tax bases only for non-resident taxpayers.

      (1)  OJ C 10, 14.1.2006.


title: Case C-538/13: Judgment of the Court (Fifth Chamber) of 12 March 2015 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos (Reference for a preliminary ruling — Public procurement — Directives 89/665/EEC and 2004/18/EC — Principles of equal treatment and transparency — Connection between the successful tenderer and the contracting authority’s experts — Obligation to take that connection into account — Burden of proving bias on the part of an expert — Such bias having no effect on the final result of the evaluation — Time-limit for instituting proceedings — Challenging the abstract award criteria — Those criteria clarified after the exhaustive reasons for the award of the contract had been communicated — Degree of the tenders’ conformity with the technical specifications as an evaluation criterion)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/3

         Judgment of the Court (Fifth Chamber) of 12 March 2015 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos
   (Case C-538/13) (1)

   ((Reference for a preliminary ruling - Public procurement - Directives 89/665/EEC and 2004/18/EC - Principles of equal treatment and transparency - Connection between the successful tenderer and the contracting authority’s experts - Obligation to take that connection into account - Burden of proving bias on the part of an expert - Such bias having no effect on the final result of the evaluation - Time-limit for instituting proceedings - Challenging the abstract award criteria - Those criteria clarified after the exhaustive reasons for the award of the contract had been communicated - Degree of the tenders’ conformity with the technical specifications as an evaluation criterion))
   (2015/C 146/03)
   Language of the case: Lithuanian

      Referring court

   Lietuvos Aukščiausiasis Teismas

      Parties to the main proceedings

      Applicant: eVigilo Ltd

      Defendant: Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos

      supported by:‘NT Service’ UAB, ‘HNIT-Baltic’ UAB

      Operative part of the judgment

               1.

               The third subparagraph of Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Articles 2, 44(1) and 53(1)(a) of 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, must be interpreted as not precluding a finding that the evaluation of the tenders is unlawful solely on the grounds that the tenderer has had significant connections with experts appointed by the contracting authority who evaluated the tenders. The contracting authority is, at all events, required to determine the existence of possible conflicts of interests and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. In the context of the examination of an action for annulment of an award decision on the ground that the experts were biased, the unsuccessful tenderer may not be required to provide tangible proof of the experts’ bias. It is, in principle, a matter of national law to determine whether, and if so to what extent, the competent administrative and judicial control authorities must take account of the fact that possible bias on the part of experts has had an effect on the decision to award the contract.
               The third subparagraph of Article 1(1) of Directive 89/665, as amended by Directive 2007/66, and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18, must be interpreted as requiring a right to bring an action relating to the lawfulness of the tender procedure to be open, after the expiry of the period prescribed by national law, to reasonably well-informed and normally diligent tenderers who could understand the tender conditions only when the contracting authority, after evaluating the tenders, provided exhaustive information relating to the reasons for its decision. Such a right to bring an action may be exercised until the expiry of the period for bringing proceedings against the decision to award the contract.

               2.

               Articles 2 and 53(1)(a) of Directive 2004/18 must be interpreted as allowing, in principle, a contracting authority to use, as an evaluation criterion of tenders submitted by the tenderers for a public contract, the degree to which they are consistent with the requirements in the tender documentation.

      (1)  OJ C 9, 11.1.2014.


title: Case C-79/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Adige Carni Scrl, in liquidation v Ministero dell' Economia e delle Finanze, Agenzia delle Entrate

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/11

         Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 25 February 2008 — Adige Carni Scrl, in liquidation v Ministero dell' Economia e delle Finanze, Agenzia delle Entrate
   (Case C-79/08)
   (2008/C 116/20)
   Language of the case: Italian
   Referring court
   The Corte Suprema di Cassazione
   Parties to the main proceedings

      Appellant: Adige Carni Scrl, in liquidation

      Respondents: Ministero dell' Economia e delle Finanze, Agenzia delle Entrate
   Questions referred

               1.

               Are the tax relief measures for cooperative societies, pursuant to Articles 10, 11, 12, 13 and 14 of Presidential Decree No 601 of 1973, compatible with the rules on competition and, in particular, are they classifiable as state aid within the meaning of Article 87 EC, especially given that the system of monitoring and for the prevention of abuse provided for under Legislative Decree No 1577 of 1947 is inadequate?

               2.

               In particular, for the purposes of determining whether the tax relief measures at issue are classifiable as state aid, can those measures be regarded as proportionate in relation to the objectives of cooperative undertakings; can the decision on proportionality take into consideration not only the individual measure but also the advantage conferred by the measures as a whole, with the resulting distortion of competition?

               3.

               For the purposes of the answer to the preceding questions, taking account of the fact that the system of monitoring has been seriously and further undermined by the reform of company law, above all in relation to cooperatives that are predominantly rather than fully mutual, under Law No 311 of 2004, and regardless of whether the tax relief measures in question can be classified as state aid, can the use of the legal form of a cooperative society, even in cases not involving fraud or deception, be regarded as an abuse of law, where that form is used solely or predominantly in order to achieve a tax saving?


title: Case T-99/17: Action brought on 16 February 2017 — Eutelsat v GSA

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/48

         Action brought on 16 February 2017 — Eutelsat v GSA
   (Case T-99/17)
   (2017/C 144/67)
   Language of the case: English

      Parties

      Applicant: Eutelsat SA (Paris, France) (represented by: L. de la Brosse, lawyer)

      Defendant: European Global Navigation Satellite Systems Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the application is admissible;

               —

               grant the request for investigative measures put forward by the applicant;

               —

               annul (i) the decision for the rejection of the applicant’s ‘Best and Final Offer’ (‘BAFO’) taken by the GSA in relation to the contract notice No GSA/CD/14/14 — ‘Galileo service operator’, and notified on 29 November 2016, and (ii) the decision to award the contract to another tenderer to operate and maintain the Galileo system;

               —

               order the defendant to bear the expenses.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the tenderer ranked first, modified its candidature during the course of the procedure, in violation of (i) the Tender Specifications and (ii) of the principle of equality of treatment of the tenderers.

               2.

               Second plea in law, alleging that during the course of the procedure, GSA modified the contents of the financial criteria for the selection of the offers.

               3.

               Third plea in law, alleging that the method used by GSA for ranking the price criteria did not enable the choice of the offer that was most economically advantageous.

               4.

               Fourth plea in law, alleging that the composition of the evaluation committee was not in accordance with the rules and its impartiality cannot be guaranteed.

               5.

               Fifth plea in law, alleging that the tenderer ranked first submitted an abnormally low tender.

               6.

               Sixth plea in law, alleging a breach to the rules of transparency and equality of treatment of the candidates, and an advantage in contradiction to the rules concerning conflicts of interest.

               7.

               Seventh plea in law, alleging that the GSA made a number of errors concerning the Qualitative Award Criteria.

               8.

               Eighth plea in law, alleging that the GSA disregarded its obligation to give sufficient reasons for the contested decisions.

               9.

               Ninth plea in law, alleging that the value of the contract is much lower than the total value stated in the contract award notice published by GSA and the BAFO of Eutelsat.


               19.2.2005

               EN

               Official Journal of the European Union

               C 45/18

         Removal from the register of Case C-410/02 (1)

   (2005/C 45/34)

      (Language of the case: English)

   By order of 25 October 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-410/02: Commission of the European Communities v Ireland.

      (1)  OJ C 7 of 11.1.03.


title: Case C-33/10: Order of the President of the Court of 8 December 2010 — European Commission v Kingdom of Denmark

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/25

         Order of the President of the Court of 8 December 2010 — European Commission v Kingdom of Denmark
   (Case C-33/10) (1)

   2011/C 63/47
   Language of the case: Danish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 113, 1.5.2010.


title: Case T-280/14: Action brought on 30 April 2014  — Ineos Manufacturing Deutschland and Others v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/31

         Action brought on 30 April 2014 — Ineos Manufacturing Deutschland and Others v Commission
   (Case T-280/14)
   2014/C 223/36
   Language of the case: German

      Parties

      Applicants: Ineos Manufacturing Deutschland GmbH (Cologne, Germany), Ineos Phenol GmbH (Gladbeck, Germany) and Ineos Vinyls Deutschland GmbH (Wilhelmshaven, Germany) (represented by: C. Arhold, N. Wimmer, F. Wesche, L. Petersen and T. Woltering, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 to open the formal investigation procedure in State aid case SA.33995 (2013/C) (ex 2013/NN) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on four pleas in law.

               1.

               First plea in law: Infringement of Articles 107(1) and 108 TFEU due to erroneous classification of the special compensation regime

                           —

                           The applicants claim that the opening decision infringes Articles 107(1) and 108 TFEU and Article 13(1) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) because the EEG-surcharge provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) did not constitute an allocation of State resources and the reduction of the EEG-surcharge for energy-intensive users did not constitute a waiver of State resources.

                           —

                           The applicants state, in this context, that the Commission based its examination on new delimiting parameters which are incompatible with the principles of previous case-law. In particular, the Commission completely waived the criterion of the specific power of disposal of State authorities, which according to settled case-law is necessary for the classification as State resources, and deemed it to be sufficient for the State legislature to affect cash flows between private parties and for the compliance by the private parties with the legal requirements to be monitored by regulatory authorities.

                           —

                           In addition, the Commission is bound by its decision by which it did not classify the 2000 EEG as aid within the meaning of Article 107(1) TFEU because there was no transfer of State resources, and therefore erred in law by classifying the 2012 EEG as a new, unlawfully implemented aid scheme.

                           —

                           In addition, the Commission did not adequately examine and therefore also did not realise that the exceptions for energy-intensive users are justified according to the aim, nature and scheme of the 2012 EEG and therefore did not constitute a selective advantage.

               2.

               Second plea in law: Infringement of Article 108(1) TFEU and Articles 18 and 19 of Regulation No 659/1999 due to failure to propose appropriate measures

                           —

                           The applicants submit in that regard that, when examining the 2012 EEG, the Commission should in any event have applied the procedure for existing aid in accordance with Article 108(1) TFEU and Articles 17-19 of Regulation No 659/1999 and should have proposed appropriate measures to Germany before opening the formal investigation procedure instead of exposing market participants to considerable economic risks due to the classification of the 2012 EEG as new, non-notified aid.

               3.

               Third plea in law: Infringement of the right to be heard

                           —

                           The applicants argue also that the Commission should have consulted them in any event before adopting a decision with such serious legal effects.

               4.

               Fourth plea in law: Insufficient reasoning

                           —

                           Lastly, the applicants claim that the opening decision is vitiated by a lack of reasoning in the essential passages.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ 1999 L 83, p. 1.


title: Case T-799/16: Action brought on 16 November 2016 — Xiaomi v EUIPO — Dudingen Develops (MI)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/43

         Action brought on 16 November 2016 — Xiaomi v EUIPO — Dudingen Develops (MI)
   (Case T-799/16)
   (2017/C 022/59)
   Language in which the application was lodged: English

      Parties

      Applicant: Xiaomi, Inc. (Beijing, China) (represented by: T. Raab and C. Tenkhoff, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Dudingen Develops, SL (Numancia de la Sagra, Spain)

      Details of the proceedings before EUIPO

      Applicant: Applicant

      Trade mark at issue: figurative mark ‘MI’ — EU trade mark application No 13 498 423

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 5 September 2016 in Case R 337/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision in part, namely in so far as it held that there was no likelihood of confusion as regards:

                           —

                           ‘Electrical cables; Sheaths for electric cables; Cable covers [conduits]; Electrical power extension cords; Enamelled electric wires; Cable locators; Adapter cables (Electric -); Insulated electrical cables; Resistance wires; Thermocouple wires; Metallic cables [electric]; Cable connectors; Measuring cables; Connection cables; Ducting for electric cables; Cable splices for electric cables; Mounting cords [electrical]; Conduit for electric cables; Cable channels (Electric -); Cable boxes (ElectriC -); Cable junctions for electric cables; Wire connectors [electricity}; Heat resistant electric wires; Connection blocks [electric cable]; Helmets for use in spotts; Tags for identifying electric cables; Connections for electric cables; Markers for electric wire; Mineral insulated electric cables; Male connectors for electrical cables; Flexible sheaths for electric cables; Electricity mains (Materials for -) [wires, cables]; Junction sleeves for electric cables; Junction boxes for electric wires; Joint boxes for housing cable joints; Apparatus, instruments and cables for electricity; Electrical power adaptors; Plug adaptors; Adapter connectors (Electric -); Adapters for connecting telephones to hearing aids; Travel adaptors for electric plugs’ in Class 9 and

                           —

                           ‘Rucksacks; small rucksacks; bags for climbers’ in Class 18;

               —

               order EUIPO and the other party to the proceedings before the Board of Appeal of EUIPO to pay the costs of the proceeding.

      Plea(s) in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-235/04: Judgment of the Court (Second Chamber) of 28 June 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Conservation of wild birds — Special protection areas — IBA 98 — Value — Quality of the data — Criteria — Margin of discretion — Manifest inadequacy as to number and size of areas classified)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/2

         Judgment of the Court (Second Chamber) of 28 June 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-235/04) (1)

   (Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Conservation of wild birds - Special protection areas - IBA 98 - Value - Quality of the data - Criteria - Margin of discretion - Manifest inadequacy as to number and size of areas classified)
   (2007/C 199/03)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek and G. Valero Jordana, acting as Agents)

      Defendant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Failure to classify as special protection areas the areas most appropriate for conservation of the species listed in Annex I to the Directive and migratory species
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to classify as special protection areas for birds territories of adequate size in the Autonomous Communities of Andalusia, the Balearics and the Canaries, and territories of sufficient number in the Autonomous Communities of Andalusia, the Balearics, the Canaries, Castilla-La Mancha, Catalonia, Galicia and Valencia to provide protection for all the species of birds listed in Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended, inter alia, by Commission Directive 97/49/EC of 29 July 1997, and the migratory species not covered by that annex, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409, as amended;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 201, 7.8.2004.


title: Reference for a preliminary ruling by the First Chamber of the Efetio Athinon (Court of Appeal, Athens), by a judgment of that court of 6 June 1996 in the case of Alexandros Kefalas and Others v. Greek State and Organismos Ikonomikis Anasinkrotisis Epikhirseon AE and Others - Interveners: Athinaiki Khartopiia AE and Others (Case C-367/96)

text:
8 . 2 . 97             I r,N                   Official Journal of the European Communities                                     No C 40 7
on 17 September 1996 by Giorgio Bernardi , represented                    2 . If the reply to Question 1 is in the negative, if, that is,
by Giancarlo Lattanzi, of the Massa-Carrara Bar, with an                       the Court of Justice reserves such competence for
address for service in Luxembourg at 22 Rue Godchaux.                          itself, for reasons relating, for instance, to the uniform
                                                                               application of Community provisions, may the specific
The appellant claims that the Court should :                                   circumstances as formulated by the defendant
                                                                               respondent State as an objection, which constituted
— find and declare the present appeal (') admissible and                       the issue of proof in Judgment No 5943/ 1994 of this
      well-founded,
                                                                               Court, and which were set out succinctly in the
— set aside the judgment appealed against,                                     previous paragraph of this Judgment, or certain of
                                                                               them and if so which, prevent an action founded on
— dispose of the case and allow the claims made therein,                       infringement of Article 25 ( 1 ) of the Second Council
                                                                               Directive 77/91 /EEC (') from succeeding ?
— refer the case back, as appropriate .
                                                                          (') OJ No L26 , 30 . 1 . 1977, p . 1 .
Pleas in law and main arguments adduced in support:
— lack of jurisdiction of the Court of First Instance to
       consider the action on the basis of Article 173 of the
       EC Treaty: In the present case, the action concerns the            Reference for a preliminary ruling by the High Court of
       procedure for appointing the European Ombudsman,                   Justice, Queen's Bench Division, by order of that Court of
       and is therefore a new subject matter, hence the                   10 October 1996, in the case of the Queen against
       application either of Article 43 of the ECSC Treaty                Medicines Control Agency, Ex parte: Generics ( UK )
       ( according to which 'the Court shall have jurisdiction                          Limited, E. R. Squibb & Sons, Intervener
       in any other case provided for by a provision
                                                                                Case C-368/96
       supplementing this Treaty'), or of a general principle
       of jurisdiction 'according to subject matter' ( since the                                       ( 97/C 40/ 15 )
       oath was taken by the European Ombudsman before
       the Court of Justice ),                                            Reference has been made to the Court of Justice of the
— ( In the alternative ) breach of Community law.                         European Communities by an order of the High Court of
                                                                          Justice, Queen 's Bench Division, of 10 October 1996 ,
                                                                          which was received at the Court Registry on 22 November
(') Appeal directed against the judgment published in OJ No
     C 247, 24 . 8 . 1996 , p. 15 .
                                                                          1996 , for a preliminary ruling in the case of the Queen
                                                                          against Medicines Control Agency, Ex parte : Generics
                                                                          ( UK ) Limited, E. R. Squibb & Sons, Intervener, on the
                                                                          following questions:
Reference for a preliminary ruling by the First Chamber of                1 . ( a ) What is meant by 'essentially similar' for the
the Efetio Athinon ( Court of Appeal, Athens ), by a                                   purposes of Article 4.8 ( a ) ( iii ) of Council
judgment of that court of 6 June 1996 in the case of                                   Directive 65/65/EEC (^ of 26 January 1965 on the
Alexandros Kefalas            and Others v.     Greek State     and                    approximation of provisions laid down by law,
Organismos Ikonomikis Anasinkrotisis Epikhirseon AE                                    regulation or administrative action relating to
and Others — Interveners: Athinaiki Khartopiia AE and                                  proprietary medicinal products ( as amended )? In
                                    Others                                             particular, when seeking to establish for that
                                                                                purpose that a medicinal product (product B ) is
                            ( Case C-367/96 )                                          essentially similar to a medicinal product which
                               ( 97/C 40/ 14 )                                         has been authorized within the Community for
                                                                                6/ 10 years in accordance with the Community
Reference has been made to the Court of Justice of the                                 provisions in force ( product A ), by reference to
European Communities by a judgment of the First                                        which physical or other characteristics or
Chamber of the Court of Appeal, Athens, of 6 June 1996 ,                               attributes of the medicinal products in question
                                                                                should this be determined ?
which was received at the Court Registry on 21 November
 1996 , for a preliminary ruling in the case of Alexandros                      ( b) Does the competent authority of a Member State
Kefalas and Others v. Greek State and Organismos                                       have a margin of discretion in determining the
 Ikonomikis Anasinkrotisis Epikhiriseon AE — Interveners :                             criteria in accordance with which the question of
 Athinaiki Khartopiia AE and Others — on the following                                 whether product B is essentially similar to
 questions:                                                                            product A is to be judged, and if so to what
                                                                                extent ?
 1 . Is the national court recognized as having the
        possibility of applying a provision of national law ( in           2 . May product B be authorized in accordance with
        this case Article 281 of the Greek Civil Code ) in order                Article 4.8 ( a ) ( iii ) of Directive 65/65/EEC ( as
        to assess whether a right granted by the Community                      amended ) in respect of:
        provisions at issue is being exercised by the party
        possessing the right in abuse of rights, or are there                    ( a ) all indications for which product A is currently
        other Community law principles, and if so which , to                           authorized in the relevant Member State at the
         be found in legislation or settled case-law, on which                          date of the application made in relation to
        the national court may, if need be, base itself?                               product B; or


title: Case T-357/14: Action brought on 23 May 2014 — Experience Hendrix v OHIM — JH Licence (Jimi Hendrix)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/43

         Action brought on 23 May 2014 — Experience Hendrix v OHIM — JH Licence (Jimi Hendrix)
   (Case T-357/14)
   2014/C 253/57
   Language in which the application was lodged: English

      Parties

      Applicant: Experience Hendrix LLC (Tukwila, USA) (represented by: M. Vanhegan, Barrister, and P. Gardiner, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: JH Licence GmbH (Pommelsbrunn, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 March 2014 in Case R 782/2012-4;

               —

               declare that the contested community trade mark is invalid;

               —

               order that the community trade mark proprietor pays the applicant its costs incurred before the Cancellation Division;

               —

               order that the defendant pays the applicant its costs incurred before the Board of Appeal and the General Court

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘Jimi Hendrix’ for goods and services in Classes 9 and 15 — Community trade mark registration No 4 6 26  685

      Proprietor of the Community trade mark: JH Licence GmbH

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

      Grounds for the application for a declaration of invalidity: Violation of Articles 52(1)(b) and 53(2)(a) of Regulation No 207/2009

      Decision of the Cancellation Division: The community trade mark was declared invalid

      Decision of the Board of Appeal: The decision of the Cancellation Division was annulled and the request for declaration of invalidity rejected

      Pleas in law:

               —

               Violation of Article 52(1)(b) of Regulation No 207/2009;

               —

               Violation of Article 53(2)(a) and Article 78 of Regulation No 207/2009;

               —

               Violation of Article 53(2)(a) of Regulation No 207/2009.


2.8.2003              EN                       Official Journal of the European Union                                   C 184/29
       Removal from the register of Case C-405/00 (1)                         Removal from the register of Case C-345/01 (1)
                         (2003/C 184/54)                                                        (2003/C 184/58)
By order of 9 April 2003 the President of the Court of Justice
of the European Communities ordered the removal from the               By order of 14 April 2003 the President of the Court of
register of Case C-405/00 (Reference for a preliminary ruling          Justice of the European Communities ordered the removal
by the Consiglio di Stato): Coopsette Scrl v ANAS, Impresa             from the register of Case C-345/01: Commission of the
Mambrini Costruzioni srl.                                              European Communities v Republic of Austria.
(1) OJ C 372 of 23.12.2000.                                            (1) OJ C 331 of 24.11.2001.
       Removal from the register of Case C-432/00 (1)
                                                                              Removal from the register of Case C-466/01 (1)
                         (2003/C 184/55)
                                                                                (2003/C 184/59)
By order of 13 May 2003 the President of the Court of Justice
of the European Communities ordered the removal from the               By order of 6 May 2003 the President of the Court of Justice
register of Case C-432/00 (Reference for a preliminary ruling          of the European Communities ordered the removal from the
by the Tribunale Amminstrativo Regionale per la Lombardia):            register of Case C-466/01: Commission of the European
Europetrol SpA v Azienda Lombarda Edilizia Residenziale                Communities v Hellenic Republic.
Milano (A.L.E.R.), Orion SCRL.
                                                                       (1) OJ C 84 of 06.04.2002.
(1) OJ C 28 of 27.01.2001.
Removal from the register of Joined Cases C-66/01 and
                            C-74/01 (1)                                       Removal from the register of Case C-146/02 (1)
                         (2003/C 184/56)                                                        (2003/C 184/60)
By order of 19 March 2003 the President of the Court of                By order of 6 May 2003 the President of the Court of Justice
Justice of the European Communities ordered the removal                of the European Communities ordered the removal from the
from the register of Joined Cases C-66/01 and C-74/01 (Refer-          register of Case C-146/02: Commission of the European
ence for a preliminary ruling by the Unabhängiger Verwal-              Communities v Republic of Austria.
tungssenat): Dr Manfred Hückel.
                                                                       (1) OJ C 131 of 01.06.2002.
(1) OJ C 118 of 21.04.2001.
       Removal from the register of Case C-179/01 (1)                         Removal from the register of Case C-267/02 (1)
                         (2003/C 184/57)
                                                                                (2003/C 184/61)
By order of 9 April 2003 the President of the Court of Justice
of the European Communities ordered the removal from the               By order of 16 April 2003 the President of the Court of
register of Case C-179/01 (Reference for a preliminary ruling          Justice of the European Communities ordered the removal
by the Consiglio di Stato): Impresa Binda & C. s.p.a. v Comune         from the register of Case C-267/02: Commission of the
di Torino, ED.ART. s.r.l.                                              European Communities v Italian Republic.
(1) OJ C 200 of 14.07.2001.                                            (1) OJ C 219 of 14.09.2002.


title: Case T-487/12: Action brought on 9 November 2012 — Eckes-Granini v OHIM — Panini (PANINI)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/54

         Action brought on 9 November 2012 — Eckes-Granini v OHIM — Panini (PANINI)
   (Case T-487/12)
   2013/C 26/110
   Language in which the application was lodged: English

      Parties

      Applicant: Eckes-Granini Group GmbH (Nieder-Olm, Germany) (represented by: W. Berlit, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Panini SpA (Modena, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 2393/2011-2; and

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘PANINI’, for goods in class 32 — Community trade mark application No 8721987

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: Community trade mark registration No 121780 of the word mark ‘GRANINI’, for inter alia goods in class 32; German trade mark registration No 30315871 of the word mark ‘GRANINI’ for inter alia goods in class 32

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

      Decision of the Board of Appeal: Dismissed the appeal

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


title: JUDGMENT OF THE COURT (Fifth Chamber) of 28 January 1999 in Case C-77/97 (reference for a preliminary ruling from the Handelsgericht Wien): Österreichische Unilever GmbH v. Smithkline Beecham Markenartikel GmbH (Interpretation of Article 30 of the EC Treaty and Council Directive 76/768/EEC - Cosmetic products - National legislation imposing advertising restrictions)

text:
27.3.1999              EN                 Official Journal of the European Communities                                       C 86/5
                JUDGMENT OF THE COURT                                              JUDGMENT OF THE COURT
                        (Fifth Chamber)                                                      (Fifth Chamber)
                      of 28 January 1999                                                   of 28 January 1999
                                                                     in Case C-181/97 (reference for a preliminary ruling from
in Case C-77/97 (reference for a preliminary ruling from             the Hoge Raad der Nederlanden): A. J. van der Kooy v.
the Handelsgericht Wien): Österreichische Unilever GmbH                            Staatssecretaris van FinancieÈn (1)
      v. Smithkline Beecham Markenartikel GmbH (1)
                                                                     (Part Four of the EC Treaty Ð Article 227 of the EC
(Interpretation of Article 30 of the EC Treaty and Council           Treaty Ð Article 7(1)(a) of Sixth Directive 77/388/EEC Ð
Directive 76/768/EEC Ð Cosmetic products Ð National                  Goods in free circulation in overseas countries and
         legislation imposing advertising restrictions)                                         territories)
                         (1999/C 86/08)                                                       (1999/C 86/09)
                                                                                (Language of the case: Dutch)
                (Language of the case: German)
                                                                       (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                     In Case C-181/97: reference to the Court under Article 177
                                                                     of the EC Treaty from the Hoge Raad der Nederlanden
                                                                     (Supreme Court of the Netherlands) for a preliminary
                                                                     ruling in the proceedings pending before that court
In Case C-77/97: reference to the Court under Article 177
                                                                     between A. J. van der Kooy and Staatssecretaris van
of the EC Treaty from the Handelsgericht Wien (Austria)
                                                                     FinancieÈn Ð on the interpretation of Articles 132(1) and
for a preliminary ruling in the proceedings pending before
                                                                     227 of the EC Treaty and of Article 7(1)(a) of Sixth
that court between Österreichische Unilever GmbH and
                                                                     Council Directive 77/388/EEC of 17 May 1977 on the
Smithkline Beecham Markenartikel GmbH Ð on the
                                                                     harmonisation of the laws of the Member States relating
interpretation of Article 30 of the EC Treaty and Council
                                                                     to turnover taxes Ð Common system of value added tax:
Directive 76/768/EEC of 27 July 1976 on the
                                                                     uniform basis of assessment (OJ L 145, 13.6.1977, p. 1),
approximation of the laws of the Member States relating
                                                                     as amended by Council Directive 91/680/EEC of
to cosmetic products (OJ L 262, 27.9.1976, p. 169) Ð the
                                                                     16 December 1991 supplementing the common system of
Court (Fifth Chamber), composed of: J. P. Puissochet,
                                                                     value added tax and amending Directive 77/388/EEC with
President of the Chamber, J. C. Moitinho de Almeida
                                                                     a view to the abolition of fiscal frontiers (OJ L 376,
(Rapporteur), C. Gulmann, D. A. O. Edward and M.
                                                                     31.12.1991, p. 1) Ð the Court (Fifth Chamber),
Wathelet, Judges; G. Cosmas, Advocate-General; D.
                                                                     composed of: J.-P. Puissochet, President of the Chamber,
Louterman-Hubeau, Principal Administrator, for the
                                                                     J. C. Moitinho de Almeida, C. Gulmann, D. A. O.
Registrar, has given a judgment on 28 January 1999, in
                                                                     Edward (Rapporteur) and M. Wathelet, Judges; D.
which it has ruled:
                                                                     Ruiz-Jarabo Colomer, Advocate-General; H. von Holstein,
                                                                     Deputy Registrar, for the Registrar, has given a judgment
                                                                     on 28 January 1999, in which it has ruled:
Article 6(3) of Council Directive 76/768/EEC of 27 July
1976 on the approximation of the laws of the Member
                                                                     The entry into a Member State of goods coming from the
States relating to cosmetic products precludes the
                                                                     Netherlands Antilles must be regarded as entry into the
application of national rules which prohibit the
                                                                     Community for the purposes of applying Article 7(1) of
advertising of cosmetic products intended to come into
                                                                     Sixth Council Directive 77/388/EEC of 17 May 1977 on
contact with mucous membranes, where the product in
                                                                     the harmonisation of the laws of the Member States
question is claimed to prevent the formation of tartar and
                                                                     relating to turnover taxes Ð Common system of value
parodontosis but is not in fact composed of any of the
                                                                     added tax: uniform basis of assessment, as amended by
active substances listed in those rules as capable of
                                                                     Council Directive 91/680/EEC of 16 December 1991
achieving such a result and the party concerned has not
                                                                     supplementing the common system of value added tax and
obtained authorisation for the use of other substances.
                                                                     amending Directive 77/388/EEC with a view to the
                                                                     abolition of fiscal frontiers.
(1) OJ C 108, 5.4.1997.
                                                                     (1) OJ C 212, 12.7.1997.


title: Case C-16/05: Reference for a preliminary ruling by the House of Lords, by order of that court dated 2 December 2004, in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/8

         Reference for a preliminary ruling by the House of Lords, by order of that court dated 2 December 2004, in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department
   (Case C-16/05)
   (2005/C 69/17)
   Language of procedure: English
   Reference has been made to the Court of Justice of the European Communities by order of the House of Lords, dated 2 December 2004, which was received at the Court Registry on 19 January 2005, for a preliminary ruling in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department on the following question:
   Is Article 41(1) of the Additional Protocol to the Association Agreement signed at Brussels on 23 November 1970 to be interpreted as prohibiting a Member State from introducing new restrictions, as from the date on which that Protocol entered into force in that Member State, on the conditions of and procedure for entry to its territory for a Turkish national seeking to establish himself in business in that Member State?


title: Case F-95/10: Order of the Civil Service Tribunal of 10 February 2012 — Bömcke v EIB

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/39

         Order of the Civil Service Tribunal of 10 February 2012 — Bömcke v EIB
   (Case F-95/10) (1)

   2012/C 138/97
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 328, 4.12.2010, p. 62.


title: Case F-72/10: Judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2011 — da Silva Tenreiro v Commission (Civil service — Officials — Recruitment — Article 7(1) of the Staff Regulations — Article 29(1)(a) and (b) of the Staff Regulations — Manifest error of assessment — Misuse of powers — Statement of reasons)

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/24

         Judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2011 — da Silva Tenreiro v Commission
   (Case F-72/10) (1)

   (Civil service - Officials - Recruitment - Article 7(1) of the Staff Regulations - Article 29(1)(a) and (b) of the Staff Regulations - Manifest error of assessment - Misuse of powers - Statement of reasons)
   2012/C 138/46
   Language of the case: French

      Parties

      Applicant: da Silva Tenreiro (Kraiinem, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: European Commission (represented by: B. Eggers and P. Pecho, Agents)

      Re:

   (1) Application for annulment of the decision rejecting the applicant’s candidature for the post of Director of Directorate E ‘Justice’ of the DG ‘Justice, Freedom and Security’ and the decision appointing the new Director; (2) Application for annulment of the decision to terminate the procedure for filling the post of Director of DG JLS.F ‘Security’ and the decision to appoint the new Director.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action.

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 317, 20.11.2010, p. 49.


title: Order of the Court (Sixth Chamber) of 14 October 2004 in Case C-238/03 P: Maja Srl v Commission of the European Communities (Appeal — Community financial aid — Discontinuation of aid granted for the modernisation of an agricultural production unit)

text:
               19.2.2005

               EN

               Official Journal of the European Union

               C 45/12

      ORDER OF THE COURT

   (Sixth Chamber)
   of 14 October 2004
   in Case C-238/03 P: Maja Srl v Commission of the European Communities (1)

   (Appeal - Community financial aid - Discontinuation of aid granted for the modernisation of an agricultural production unit)
   (2005/C 45/23)
   Language of the case: Italian
   In Case C-238/03 P: Maja Srl, formerly Ca' Pasta Srl (lawyers: P. Piva, R. Mastroianni and G. Arendt ) v Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio, assisted by A. Dal Ferro, lawyer) – appeal under Article 56 of the Statute of the Court of Justice, the Court (Sixth Chamber), composed of A. Borg Barthet (Rapporteur), President of the Chamber, J. Malenovský and U. Lõhmus, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 14 October 2004, the operative part of which is as follows:

               1.

               The appeal is dismissed.

               2.

               Maja Srl is ordered to pay the costs.

      (1)  OJ C 213 of 06.09.2003.


title: Case T-6/10: Action brought on 11 January 2010 — Sviluppo Globale v Commission

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/47

         Action brought on 11 January 2010 — Sviluppo Globale v Commission
   (Case T-6/10)
   2010/C 51/85
   Language of the case: Italian

      Parties

      Applicant: Sviluppo Globale GEIE (Rome, Italy) (represented by: F. Sciaudone, R. Sciaudone and A. Neri, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decisions of 10 November 2009 and 26 November 2009.

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action is brought, first, against the Commission’s decision of 10 November 2009 by which the Commission rejected the tender submitted by the ITAK consortium (of which the applicant was a member, being responsible for the whole of the management and administration of the consortium itself) in call for tenders EUROPEAID/127843/D/SER/KOS for the provision of support services to the customs and tax authorities in Kosovo, and, second, against the Commission’s decision of 26 November 2009 concerning ITAK’s application for access to documents relating to the call for tenders in question.
   In support of its application for annulment of the decision of 10 November 2010, the applicant makes the following pleas:

               —

               Infringement of the duty to state reasons, insofar as the Commission never provided information on the characteristics and relative advantages of the successful tender.

               —

               Infringement of the Commission’s obligations under point 2.4.15 of the ‘Practical Guide to contract procedures for EU external actions’ of the European Community and of the Commission’s duty to exercise due care in administrative procedure. It is submitted in this connection that the defendant failed to reply to the complaints lodged in accordance with the procedure laid down in point 2.4.15 of the Practical Guide.

               —

               Manifest error of assessment of the quality of the technical proposal submitted by the ITAK consortium, insofar as the evaluation committee considered that a proposal submitted by three administrations (tax and customs) of as many as three EU Member States was insufficient and technically inadequate.

               —

               Manifest error of assessment of the quality of the technical proposal of the successful bid. It is submitted in this connection that the evaluation committee awarded an extremely high number of points to a bid submitted a consortium of computer experts with a team leader who, in the past, had been assessed as mediocre by the Commission.

         In support of its application for annulment of the decision of 26 November 2009, the applicant makes the following pleas:

               —

               Infringement of Article 7 of Regulation No 1049/2001, (1) insofar as the Commission failed to handle promptly the application for access, failed to send an acknowledgement of receipt, and took the view that it could simply disregard the application.

               —

               Infringement of Article 8 of Regulation No 1049/2001, insofar as the Commission failed to handle promptly the confirmatory application submitted by the ITAK consortium, failed to send, even in those circumstances, an acknowledgment of receipt and, lastly, took the view that it was entitled to reply to the application after the period prescribed for its reply had expired.

               —

               Infringement of the general principles relating to access to documents established in Regulation No 1049/2001 and the case-law pertaining thereto. In particular, the Commission went so far as to fail even to provide information which had previously sent to the applicant.

               —

               Lastly, the applicant submits that the Commission infringed Article 4(2), (3) and (6) of Regulation No 1049/2001.

      (1)  Regulation (EC) NO 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Order of the Court (Fourth Chamber) of 6 July 2000 in Case C-399/99 P: Fratelli Murri SpA v Commission of the European Communities (Appeals — Non-contractual liability — Expiry of limitation period)

text:
25.11.2000              EN                      Official Journal of the European Communities                                           C 335/23
Directive 91/156/EEC of 18 March 1991 amending Directive                   1.    The appeal is dismissed.
75/442/EEC on waste (OJ L 78, p. 32) and Directive 94/62/EC
of the European Parliament and the Council of 20 December                  2.    Fratelli Murri SpA is ordered to pay the costs.
1994 on packaging and packaging waste (OJ L 365, p. 10) —
the Court, composed of: G.C. Rodrı́guez Iglesias, President,
J.C. Moitinho de Almeida, D.A.O. Edward, L. Sevón (Rappor-                (1) OJ C 20 of 22.1.2000.
teur) and R. Schintgen, Presidents of Chambers, P.J.G. Kapteyn,
C. Gulmann, A. La Pergola, J.-P. Puissochet, G. Hirsch, P. Jann,
H. Ragnemalm, M. Wathelet, V. Skouris, and F. Macken, Judg-
es; F.G. Jacob, Advocate General; R. Grass, Registrar, has made
an order on 28 June 2000, in which it has ruled:
The request for a preliminary ruling submitted by the Cour d’Appel,
Paris, by decision received at the Court on 27 March 2000, is                                  ORDER OF THE COURT
inadmissible.
                                                                                (Second Chamber)
( 1) OJ C 163 of 10.6.2000.
                                                                                of 13 July 2000
                                                                           in Case C-8/99 P: Carmen Gómez de Enterrı́a y Sanchez v
                                                                                European Parliament (1)
                                                                           (Appeal manifestly inadmissible in part and manifestly ill-
                    ORDER OF THE COURT                                                               founded in part)
                        (Fourth Chamber)                                                             (2000/C 335/43)
                           of 6 July 2000                                                      (Language of the case: French)
in Case C-399/99 P: Fratelli Murri SpA v Commission of
                 the European Communities (1)                              (Provisional translation: the definitive translation will be published
                                                                                in the European Court Reports)
(Appeals — Non-contractual liability — Expiry of limitation
                               period)                                     In Case C-8/99 P: Carmen Gómez de Enterrı́a y Sanchez,
                                                                           a former official of the European Parliament, residing in
                          (2000/C 335/42)                                  Luxembourg (Luxembourg), represented by E. Boigelot, of the
                                                                           Brussels Bar, with an address for service in Luxembourg at the
                                                                           Chambers of L. Schiltz, 2 Rue du Fort Reinsheim — appeal
                   (Language of the case: German)                          against the judgment of the Court of First Instance of the
                                                                           European Communities (First Chamber) of 17 November 1998
                                                                           in Case T-131/97 Gómez de Enterrı́a y Sanchez v Parliament
                                                                           [1998] ECR-SC I-A-613 and II-1855, seeking to have that
(Provisional translation: the definitive translation will be published     judgment set aside, the other party to the proceedings being:
                   in the European Court Reports)                          European Parliament (Agents: M. Peter and J. Sant’Anna,
                                                                           assisted by D. Waelbroeck) — the Court (Second Chamber),
In Case C-399/99 P: Fratelli Murri SpA, established in Rome,               composed of R. Schintgen, President of the Chamber, G. Hirsch
represented by K.-G. von Luschka, Rechtsanwalt Chieming,                   (Rapporteur) and V. Skouris, Judges, N. Fennelly, Advocate
with an address for service in Luxembourg at the Chambers of               General: R. Grass, Registrar, has made an order on 13 July
C. Medernach, 8-10 Rue Mathias Hardt — appeal against the                  2000, in which it:
judgment of the Court of First Instance of the European
Communities, First Chamber, of 4 August 1999 in Case                       1.    Dismisses the appeal;
T-106/98 Fratelli Muni v Commission (not yet published)
seeking to have that judgment set aside, the other party to                2.    Orders Mrs Carmen Gómez de Enterrı́a y Sanchez to pay the
the proceedings being the Commission of the European                             costs.
Communities (Agents: B. Brandtner and B. Martenczuk) —
the Court (Fourth Chamber), composed of D.A.O. Edward,
Presidents of the Chamber, P.J.G. Kapteyn (Rapporteur) and                 (1) OJ C 71, 13.3.1999.
A. La Pergola, Judges; F.G. Jacobs, Advocate General; R. Grass,
Registrar, made an order on 6 July 2000, the operative part of
which is as follows:


title: Case T-220/06: Order of the Court of First Instance of 5 September 2007 — JAKO-O v OHIM — P.I. Fashion (JAKO-O)

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/41

         Order of the Court of First Instance of 5 September 2007 — JAKO-O v OHIM — P.I. Fashion (JAKO-O)
   (Case T-220/06) (1)

   (2007/C 247/68)

      Language of the case: English

   The President of the Court of First Instance (First Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 249, 14.10.2006.


title: Case T-305/08: Action brought on 11 August 2008 — Italian Republic v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/31

         Action brought on 11 August 2008 — Italian Republic v Commission
   (Case T-305/08)
   (2008/C 272/58)
   Language of the case: Italian
   Parties

      Applicant: Italian Republic (represented by: F. Arena, Avvocato dello Stato)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Article 1 of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea, published in Official Journal L 155 of 13 June 2008, in so far as it bans, as from 16 June 2008, fishing for bluefin tuna in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea by vessels flying the Italian flag and prohibits those vessels from retaining on board, placing in cages for fattening or farming, transhipping, transferring or landing bluefin tuna stock.

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The Italian Government challenges before the Court of First Instance of the European Communities Article 1 of Commission Regulation (EC) No 530/2008 of 12 June 2008, published in Official Journal L 155 of 13 June 2008, which establishes emergency measures as regards fishing for bluefin tuna by purse seiners in the Atlantic Ocean, east of longitude 48° W, and in the Mediterranean Sea.
   The challenge is based on five grounds:
   By its first ground, the applicant submits that no adequate reasons whatsoever are given for the contested regulation, in so far as the statement that fishing opportunities for the Italian fleet would be exhausted on 16 June 2008 is not supported any argument other than a simple reference to a number of unspecified data in the Commission's possession and to the content (equally unknown) of reports by its own inspectors.
   By its second ground, the applicant alleges misuse of power, contending that the Commission adopted the emergency measure provided for in Article 7 of Council Regulation (EC) No 2371/2002, not because the conditions set out in that provision were satisfied but for the different purpose of taking action in relation to an alleged failure on the part of the Member State to fulfil a number of its obligations under Council Regulation (EC) No 1559/2007.
   The third ground alleges infringement of Articles 7 and 26 of Regulation No 2371/2002 in so far as, according to the applicant, the facts as alleged by the Commission would have permitted, at most, measures to be adopted pursuant to Article 26 of that regulation (in compliance with the procedure laid down in that provision) but not Article 7.
   By its fourth ground, the applicant submits that the contested measure is vitiated on account of a distortion of the facts in that it is apparent from information forwarded by the Italian authorities to the Commission that, even after the date on which the contested regulation was adopted, the quantity of bluefin tuna fished by vessels flying the Italian flag was less than 50 % of the quota allocated, so that the alleged factual circumstances on which the disputed measure is based (the fishing opportunities for the Italian fishing fleet had been exhausted) have no basis.
   By its fifth and final ground, the applicant complains of failure to state the reasons for the alleged infringements of Regulation No 1559/2007, which are also stated to have occurred in general terms in the contested measure, without any indication being given as to the precise nature of those infringements or any evidence on the basis of which it is claimed that the applicant Member State failed to fulfil its obligations under that regulation.


title: Action brought on 11 April 1995 by the Enosi Tsimentoviomichanion Ellados against the Commission of the European Communities (Case T-103/95)

text:
No C 208/26           EN                      Official Journal of the European Communities                                     12 . 8 . 95
Instance of the European Communities on 16 March 1995                    Action brought on 17 March 1995 by Jean-Pierre Landuyt
by Bernard Laga , who runs a farm as part of the                            against the Commission of the European Communities
Landuyt-Laga farmers ' association ( GAEC ), whose                                                ( Case T-94/95 )
registered office is at Grisolles ( France ), represented by
Jean-Francois Le Petit, of the Rennes Bar, with an address                                          ( 95/C 208/58 )
for service in Luxembourg at the Chambers of Aloyse Mai,
31 Grand'Rue .                                                                            (Language of the case: French)
                                                                         An action against the Commission of the European
The applicant claims that the Court should :                             Communities was brought before the Court of First
                                                                         Instance of the European Communities on 16 March 1995
— order the Commission of the European Communities to                    by Jean-Pierre Landuyt, who runs a farm as part of the
     pay the compensation provided for by the proposal for a             Landuyt-Laga        farmers '    association ( GAEC ),    whose
     Council Regulation COM(93 ) final submitted on                      registered office is at Grisolles ( France ), represented by
     13 May 1993 ( x ) and accordingly should determine the              Jean-Francois Le Petit, of the Rennes Bar, with an address
     amount pursuant to that proposal for a Regulation,                  for service in Luxembourg at the Chambers of Aloyse May,
                                                                         31 Grand'Rue .
— order payment of default interest thereon of 8 % from                  The applicant claims that the Court should :
     19 May 1992 in accordance with Article 12 of that
     proposal for a Regulation,                                          — order the Commission of the European Communities to
                                                                              pay the compensation provided for by the proposal for a
— order the Commission of the European Communities to                         Council Regulation COM(93 ) final submitted on
     pay the sum of fifty thousand French francs ( FF 50 000 )                13 May 1993 (^ and accordingly should determine the
     for irrecoverable costs, or the equivalent in ecus, and all              amount pursuant to that proposal for a Regulation,
     the costs .
                                                                         — order payment of default interest thereon of 8 % from
                                                                              19 May 1992 in accordance with Article 12 of that
Pleas in law and main arguments adduced in support:                           proposal for a Regulation,
The applicant is a farmer who, having given an undertaking               — order the Commission of the European Communities to
not to market milk pursuant to Council Regulation ( EEC )                     pay the sum of fifty thousand French francs ( FF50 000 )
No 1078/77, was allocated a provisional specific reference                    for irrecoverable costs, or the equivalent in ecus, and all
                                                                              the costs .
 quantity in 1989 and offered compensation under
 Regulation ( EEC ) No 2187/93 ; his action centres around
 the decision of the Office National Interprofessionnel du               Pleas in law and main arguments adduced in support:
 Lait ( National Milk Trades Board , ONILAIT) refusing to                The pleas in law and main arguments are the same as those
 pay him that compensation on the ground that his specific                in Case T-93/95 Laga v. Commission .
 reference quantity cannot be regarded as being definitive,
 since he has never personally resumed milk production,                   (') OJ No C 157, 9 . 6 . 1993 , p . 11 .
 contrary to Article 3 ( 3 ) of Regulation ( EEC )
 No 857/ 84 .
                                          tor
 The applicant considers that the contested decision is the
 result of a mistaken assessment of the facts of the matter by            Action brought on 11 April 1995 by the Enosi
 the competent authority. He points out in particular that                Tsimentoviomichanion Ellados against the Commission of
 because the prefectural decision allocating him a provisional                              the European Communities
 specific reference quantity was taken unduly late, he had                                        ( Case T-103/95 )
 already rotated the crops on an area of 188 hectares 20
 centares which he farmed within the Landuyt-Laga farmers '                                           95/C 208/59 )
 association ( GAEC ), planting wheat and colza, whereas a
 maize crop would have been needed in order to feed cattle .                               (Language of the case: Greek)
 That was why the applicant found himself obliged to rent
 cows, which he had to do because he was unable to replenish              An action against the Commission of the European
 a herd in time . Temporary rental of that sort is not in any             Communities was brought before the Court of First
 way contrary to custom and practice, whereas it has been                 Instance of the European Communities on 11 April 1995 by
 established that he possessed the necessary plant for milk               the Enosi Tsimentoviomichanion Ellados ( ETE ), established
 production, and the schedule of analyses performed by                    in Athens , represented by Ioannis Yeorgakis and Maria
 Uriane demonstrates that those cows formed part of the                   Golfinopoulou, of the Athens Bar, with an address for
 applicant's farming operation as a whole .                               service in Luxembourg at the Chambers of Tom Loesch,
                                                                          Avocat, 11 Rue Goethe, L-1011 Luxembourg.
  (M OJ No C 157, 9 . 6 . 1993 , p . 11 .                                 The applicant claims that the Court should :
                                                                          — annul the Commission Decision of 30 November 1994
                                                                               in connection with a proceeding under Article 85 of the
 ---pagebreak--- 12 . 8 . 95         1 EN                Official Journal of the European Communities                                No C 208/27
    EC Treaty ( IV-33.126 and 33.322 — Cement) to the              knowledge — exclusively in their own interests in order,
    extent to which it concerns the applicant,                     inter alia, to divert exports of Greek cement into other
                                                                   Community markets .
— in the alternative, reduce the fine imposed on the
    applicant under the abovementioned decision,                   The applicant also alleges that the Commission used
                                                                   inconsistent criteria in order to determine which of the
                                                                   participants in a meeting of the representative board at
— order the Commission to pay the applicant's costs                which the alleged infringements are said to have been
    including the fees of his appointed lawyers,                   decided upon, were to be deemed to have taken part in the
                                                                   unlawful agreement, and that it determined in an entirely
— make such further provision as may be required by the            arbitrary manner the duration of the infringement alleged
    law.                                                           against ETE.
                                                                   The applicant goes on to allege that the exchange of
Pleas in law and main arguments adduced in support:                information in connection with pricing in the framework of
                                                                   Cembureau was of no commercial utility and was not
In the contested Decision the Commission found that the            capable of influencing and indeed did not influence
applicant which during the relevant period of time                 intra-Community trade .
comprised the totality of Greek undertakings producing
cement, in common with other national associations of              Moreover, the applicant considers that its participation in
cement industries and undertakings producing cement, had           the ECEC is in no way reprehensible and it refutes as
infringed the provisions of Article 85 ( 1 ) of the EC Treaty.     lawfully and factually unfounded the reasoning by which
That infringement consisted in its participation in ( a ) an       the Commission makes allegations against the ECEC solely
agreement whose purpose was to respect domestic markets            and exclusively because its members are at the same time
and to regulate transfers of cement from one country to            members of Cembureau and of the EPC ( European Policy
another, ( b ) agreements for the exchange of information in       Committee ), whilst it considers the criteria for determining
connection with pricing and concerted practices in order to        the date of commencement and termination of the alleged
facilitate the agreement referred to at ( a ) above, and in        infringements by ECEC to be unclear and erroneous .
meetings of the representative board and executive board of
the Cembureau ( European Cement Association ), and .(c ) in        In the applicant's view the Commission has not given
concerted practices in the framework of the ECEC                   evidence of its allegations against the applicant, nor did it
( European Cement Export Committee ) for the purpose of            provide sufficient reasons for its Decision, at the same time,
exchanging information as regards the situation both in the        moreover, it has prevented ETE from obtaining access to the
Community markets and in the markets of non-member                 complete file on the matter, inasmuch as only a part of the
countries with a few to preventing market penetration of           statement of complaints was communicated to ETE.
competitor undertakings in the Community in other
internal markets of the Community. In respect of those             Finally, the applicant maintains that the Commission
infringements the Commission imposed on the applicant a            imposed on it a fine of the same amount as was imposed on
fine in the amount of ECU 100 000 .
                                                                   other associations which took part in much more frequent
                                                                   and more serious infringements, thereby infringing both the
The applicant maintains at the outset that, as moreover            principles of equal treatment and proportionality and the
expressly acknowledged by the Commission, the traditional          provisions of Article 15 ( 2 ) of Regulation No 17.
markets for Greek cement until 1985 were the markets of
the Middle East and North Africa with the consequence that
the participation up until then of ETE in Cembureau cannot
be associated with the agreement to 'respect domestic
markets ' since the members of ETE had no reason to be
present and indeed no interest in the Community markets.
But when, following the collapse of the Arab and North             Action brought on 12 April 1995 by Tsimenta Xalkidos AE
African markets in 1986 , the Greek cement manufacturers             against the Commission of the European Communities
turned to the intra-Community market, the rapid increase in                              ( Case T-104/95 )
sales of Greek cement in Community markets demonstrates                                    ( 95/C 208/60 )
that ETE was the only member of Cembureau to express its
disagreement with the rule on respecting domestic
markets .                                                                         (Language of the case: Greek)
Furthermore , the applicant considers that it is illogical of the  An action against the Commission of the European
Commission to rely on the mere fact of ETE's membership            Communities was brought before the Court of First
of Cembureau in order to assimilate its conduct to that of         Instance of the European Communities on 12 April 1995 by
the other members of Cembureau which are alleged on the            Tsimenta Xalkidos AE, established in Athens , represented
basis of undisclosed documents to have engaged in unlawful         by Panayiotis Bernitsa, of the Athens Bar, with an address
conduct. The applicant maintains that the leading European         for service in Luxembourg at the Chambers of Philippe
industrial concerns in the sector operated within the              Dupont, of Messrs Arendt & Medernach, 8—10 Rue
framework of Cembureau — and always without ETE's                  Mathias Hardt, B. P. 39 , L-2010 Luxembourg.


title: Case C-295/17: Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 22 May 2017 — MEO — Serviços de Comunicações e Multimédia SA v Autoridade Tributária e Aduaneira

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/13

         Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 22 May 2017 — MEO — Serviços de Comunicações e Multimédia SA v Autoridade Tributária e Aduaneira
   (Case C-295/17)
   (2017/C 256/10)
   Language of the case: Portuguese

      Referring court

   Tribunal Arbitral Tributário

      Parties to the main proceedings

      Applicant: MEO — Serviços de Comunicações e Multimédia SA

      Defendant: Autoridade Tributária e Aduaneira

      Questions referred

               1.

               Must Articles 2(1)(c), 64(1), 66(a) and 73 of Directive 2006/112/EC (1) be interpreted as meaning that a telecommunications operator (television, internet, mobile network and fixed network) is liable for value added tax as a result of charging its customers –– in a case of termination, for reasons attributable to the customer, of a contract containing an obligation to be bound by the contract for a defined term (tie-in period) before the end of that period –– a pre-determined amount, corresponding to the basic monthly amount payable by the customer under the contract, multiplied by the number of monthly payments that are still to be made before the end of the tie-in period, the operator having, at the time when that amount is invoiced and independently of its actual payment, already ceased to provide the services, where:

                           (a)

                           the contractual purpose of the amount invoiced is to deter the customer from disregarding the tie-in period which he has undertaken to observe and to make good the damage sustained by the operator as a result of the failure to complete the tie-in period –– in particular, on account of loss of the profit the operator would have obtained if the contract had continued until the end of the period, as well as on account of the agreement to charge lower tariffs, the supply of equipment or other offers, free of charge or at discounted prices, and the costs of advertising and of acquiring customers;

                           (b)

                           contracts negotiated with a tie-in period entail higher remuneration for the commercial intermediaries who obtained them than contracts obtained by them without a tie-in period and that remuneration is calculated, in each case (that is, as regards contracts with or without a tie-in), on the basis of the amount set for monthly payments in the contracts obtained;

                           (c)

                           the amount invoiced may be classified, under national law, as a penalty clause?

               2.

               Is the answer to the first question liable to change in the event that one or more of the situations described in points (a), (b) and (c) of that question does not apply?

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


title: Case C-265/09 P: Appeal brought on 15 July 2009 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 29 April 2009 in Case T-23/07 Borco-Marken-Import Matthiesen GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/7

         Appeal brought on 15 July 2009 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 29 April 2009 in Case T-23/07 Borco-Marken-Import Matthiesen GmbH & Co KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-265/09 P)
   2009/C 233/11
   Language of the case: German

      Parties

      Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider)

      Other party to the proceedings: Borco-Marken-Import Matthiesen GmbH & Co KG

      Form of order sought

               —

               Set aside the judgment appealed against;

               —

               Dismiss the action brought against the decision of the Fourth Board of Appeal of the Office of 30 November 2006 in Case R 808/2006-4; in the alternative, refer the case back to the Court of First Instance;

               —

               Order the other parties to the proceedings to pay the costs both of the proceedings at first instance and of the appeal proceedings.

      Pleas in law and main arguments

   The present appeal is brought against the judgment of the Court of First Instance, by which the decision of the Fourth Board of Appeal of the Office of 30 November 2006 concerning the rejection of the respondent’s application for registration of the sign ‘α’ as a Community trade mark was annulled. The Court of First Instance took the view that the Board of Appeal misapplied Article 7(1)(b) of Council Regulation (EC) No 40/94 (‘Regulation No 40/94’) by finding that the sign applied for lacked distinctive character solely because of its lack of graphical modifications or ornamentations in relation to the Times New Roman character font, without carrying out an examination as to whether, on the facts, that sign is capable of distinguishing, in the mind of the reference public, the goods at issue from those of the applicant’s competitors.
   The plea in law claims that Article 7(1)(b) of Regulation No 40/94 has been infringed. The Office takes the view that the Court of First Instance misinterpreted that provision in three respects.
   First, contrary to the view of the Court of First Instance, it is not always necessary when assessing the applicability of Article 7(1) of Regulation No 40/94 to determine the distinctive character of a sign by means of a specific examination focusing on the individual goods. For individual categories of signs (for example three-dimensional signs, colour marks, slogans, domain names) the case-law has allowed an examination of the actual distinctive character under Article 7(1)(b) of Regulation No 40/94 on the basis of general statements concerning consumers perceptions and how they are conditioned and has thereby often forgone a specific examination of the goods and services covered by the application for registration. The case-law has also acknowledged that in relation to some categories of signs actual distinctive character can as a rule only be achieved on the basis of ‘implantation’.
   Second, the Court of First Instance failed to understand that the assessment of distinctive character is a decision based on a prediction and therefore always has a conjectural character.
   Third, the Court of First Instance misunderstood the apportionment of the duties to provide evidence in the context of the assessment of the applicability of Article 7(1)(b) of Regulation No 40/94, in so far as it assumed that it was always necessary for the Office to prove the lack of distinctive character of a sign applied for by reference to specific facts. The registration procedure was an administrative procedure, not an adversarial one in which the Office was obliged to prove the obstacles to registration to the applicant. Where an applicant claims that, in contrast to the assessment made by the Office, a mark applied for has a distinctive character, it is therefore for the applicant to prove, by means of specific and well-founded information, that the mark applied for has distinctive character by nature or has acquired it in consequence of use.


title: Case C-437/01: Action brought on 12 November 2001 by the Commission of the European Communities against the Italian Republic

text:
C 31/4                 EN                   Official Journal of the European Communities                                       2.2.2002
Action brought on 12 November 2001 by the Com-                         exempted from tax should result in zero tax, Italian excise duty
mission of the European Communities against the Italian                is at a high rate of LIT 1 260 000 per 1 000 kg of lubricating
                             Republic                                  oil. This is clearly contrary to Article 3(2) of Directive 92/12
                                                                       in conjunction with Article 8(1)(a) of Directive 92/81.
                         (Case C-437/01)
                                                                       (1) OJ L 76, 23.3.1992, p. 1.
                                                                       (2) OJ L 316, 31.10.1992, p. 12.
                          (2002/C 31/07)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 Novem-
ber 2001 by the Commission of the European Communities,                Reference for a preliminary ruling by the Unabhängiger
represented by Enrico Traversa and Kilian Gross, acting as             Verwaltungssenat im Land Niederösterreich, Aussenstelle
Agents.                                                                Mistelbach, by order of that court of 6 November 2001 in
                                                                       the case of Libor Cipra and Vlastimil Kvasnicka against
                                                                                Bezirkshauptmannschaft Mistelbach.
The applicant claims that the Court should:                                                     (Case C-439/01)
—     declare that, by maintaining in force a tax on lubricating                                 (2002/C 31/08)
      oils the Italian Republic has breached its obligations
      under Article 3(2) of Council Directive 92/12/EEC (1) of
      25 February 1992 on the general arrangements for
      products subject to excise duty and Article 8(1)(a) of
      Council Directive 92/81/EEC (2) of 19 October 1992 on            Reference has been made to the Court of Justice of the
      the harmonisation of the structures of excise duties on          European Communities by order of the Unabhängiger Verwal-
      mineral oils;                                                    tungssenat im Land Niederösterreich, Aussenstelle Mistelbach,
                                                                       (Independent Administrative Chamber in the Land of Lower
                                                                       Austria, Mistelbach Branch) of 6 November 2001, received at
—     order the Italian Republic to pay the costs.                     the Court Registry on 13 November 2001, for a preliminary
                                                                       ruling in the case of Libor Cipra and Vlastimil Kvasnicka
                                                                       against Bezirkshauptmannschaft Mistelbach, on the following
                                                                       questions:
Pleas in law and main arguments
                                                                       1.    Do drivers falling within the scope of Council Regulation
                                                                             No 3820/85 of 20 December 1985 on the harmonisation
                                                                             of certain social legislation relating to road transport (1)
                                                                             have to satisfy the requirements set out in Article 8(1)
The Commission submits that allowing Italy to impose a                       and (2) of that regulation cumulatively where there are
national tax on lubricating oils which it is bound to exempt                 two drivers or is Article 8(2) a special rule that prevails
from harmonised excise duty under Article 8(1)(a) of Directive               over Article 8(1)?
92/81 would deprive that article of any practical effect.
                                                                       2.    Where there are two drivers falling within the scope of
                                                                             Council Regulation No 3820/85 of 20 December 1985
                                                                             on the harmonisation of certain social legislation relating
For the purposes of the application of Article 3(2) of Directive             to road transport, is Article 8(1) of that regulation, or
92/12 exemptions are covered either by the rules on determin-                possibly Article 8(1) and (2), inapplicable because of
ing the tax base or by the rules concerning the arrangements                 incompatibility with superior Community law?
for the calculation of harmonised excise duty. It follows
that the Italian tax on lubricating oils is incompatible with
Article 3(2) of that directive since a tax of that sort is not
consistent with the general scheme of rules relating to excise         (1) OJ L 370, p. 1.
duty on mineral oils as far as calculation of the tax and
determination of the tax base are concerned. Whereas the
application of harmonised excise duty to a taxable subject