title: Case T-343/02: Action brought on 15 November 2002 by Roland Schintgen against Commission of the European Communities

text:
C 19/38               EN                      Official Journal of the European Communities                                       25.1.2003
Pleas in law and main arguments                                                                           —   Violation of Articles 42 and
                                                                                8 of Regulation 40/94.
                                                                                According to the applicant,
                                                                                an opposition can be based
                                                                                on an earlier community tra-
Applicant for the Com-       Moser Grupo Media, S.L.
                                                                                de mark application that is
munity trade mark:
                                                                                not yet registered as a trade
                                                                                mark.
The Community trade          The figurative trade mark ‘Moser
mark concerned:              Grupo Media, s.l.’ for goods and            (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                             services in classes 9, 16, 38, 39                Community trade mark (OJ 11, p. 1).
                             and 41 (application no 409664)
Proprietor of the right to   The applicant, Metro-Goldwin-
the trade mark or sign       Mayer Lion Corporation
asserted by way of oppo-
sition in the opposition
proceedings:                                                             Action brought on 15 November 2002 by Roland Schint-
                                                                           gen against Commission of the European Communities
Trade mark or sign           Several national rights and com-
                                                                                (Case T-343/02)
asserted by way of oppo-     munity trade mark application
sition in the opposition     no 141820 of the word mark
proceedings:                 ‘MGM’ for goods and services in                                        (2003/C 19/73)
                             classes 9, 38 and 41
                                                                                (Language of the case: French)
Decision of the Oppo-        Rejection of the community trade
sition Division:             mark application no 409664 of
                             Moser Grupo Media, disregarding
                             some of the earlier rights and              An action against the Commission of the European Communi-
                             community trade mark appli-                 ties was brought before the Court of First Instance of the
                             cation no 141820 by the applicant           European Communities on 15 November 2002 by Roland
                             in the present case for the word            Schintgen, residing in Keispelt (Luxembourg), represented by
                             mark ‘MGM’                                  Lucas Vogel, lawyer.
Decision of the Board of     Rejection of the appeal by the              The applicant claims that the Court should:
Appeal:                      opponent, applicant in the pre-
                             sent case, as inadmissible                  —     annul the decision adopted by the appointing authority
                                                                               on 16 July 2002 rejecting the complaint lodged by the
                                                                               applicant on 28 February 2002 requesting the annulment
                                                                               of the elections to the local staff committee, the appoint-
Grounds of claim:            —    Infringement of Article 58 of
                                                                               ment of the elected members to the staff committee and
                                  Regulation 40/94 (1)in so far
                                                                               the refusal by the Commission to annul the aforemen-
                                  as the applicant is adversely
                                                                               tioned elections and declare that the local staff committee
                                  affected by the decision of
                                                                               in Luxembourg, formed following the said elections, was
                                  the Opposition Division.
                                                                               not validly constituted;
                                  According to the applicant,
                                  it is still possible for Moser
                                  Grupo Media to convert its             —     annul, in so far as necessary, the abovementioned elec-
                                  community trade mark                         tions to the local staff committee in Luxembourg, together
                                  application         in     other             with the appointment of the elected members consequent
                                  countries with the advantage                 thereupon and annul the refusal by the Commission to
                                  of using the date of its Com-                annul the elections and declare unlawful the composition
                                  munity trade mark appli-                     of the local staff committee in Luxembourg which
                                  cation. This would not have                  resulted therefrom;
                                  been possible if the trade
                                  mark application had been              —     order the defendant to pay the costs of proceedings and
                                  rejected on the grounds of                   the expenses necessarily incurred for the purpose of the
                                  the applicant’s Community                    proceedings, in particular the travel and subsistence
                                  trade mark application.                      expenses and the remuneration of lawyers.
 ---pagebreak--- 25.1.2003             EN                      Official Journal of the European Communities                                        C 19/39
Pleas in law and main arguments                                          The applicant claims that the Court should:
By his application, the applicant seeks the annulment of the             1.     annul the Commission’s (EUROSTAT) decision to elimin-
decision of the appointing authority rejecting his complaint                    ate European Dynamics from the procurement procedure
requesting the annulment of the elections to the local staff                    for the Call for Tenders 2002/S 106-083279 - Lot 1 for
committee in Luxembourg of November 2001.                                       the ‘Further development of the Collaborative Software
                                                                                CIRCA’;
According to the applicant, the list put forward by the                  2.     order the Commission (EUROSTAT) to evaluate the
‘Solidarité Européenne’ union obtained only one of the 20                       tender submitted by European Dynamics in the above
seats to be filled on the local staff committee, whereas the                    mentioned procurement procedure and allow European
number of votes for the members of that union constituted                       Dynamics to participate fully and on the same basis as all
25,523 % of the total votes cast.                                               the other tenderers;
In support of his arguments, the applicant alleges:                      3.     order the Commission to pay European Dynamics’ legal
                                                                                and other fees and expenses incurred in connection with
—     infringement of Article 9(3) of the Staff Regulations,                    this application.
—     infringement of Article 1 of Annex II to the Staff
      Regulations,
—     infringement of Article 6 of the rules on the composition          Pleas in law and main arguments
      and functioning of the staff committee,
—     manifest error of assessment.
                                                                         The applicant is a company involved in the area of information
                                                                         technology and communications. It participated in the Call for
                                                                         Tenders 2002/S 106 -083279, for ‘Eurostat information
The applicant claims that the abovementioned provisions                  systems: information and communication technologies for the
require a faithful representation, on the local staff committee,         Community statistical system’ and, more particularly, Lot 1 of
of all the tendencies expressed through the ballot box. Such             the Call for Tenders, ‘further development of the collaborative
representation is not sufficiently guaranteed where more than            software CIRCA’. The applicant’s tender was rejected by the
a quarter of the total votes cast by officials results in the            defendant because of the absence of details concerning the
appointment of only 1/20th of the members of the staff                   educational and professional qualifications in the curriculum
committee.                                                               vitae of at least one of the experts, in a team of 27 persons.
                                                                         In support of its application, the applicant submits that
                                                                         the decision to reject its tender breaches the principle of
                                                                         proportionality. The tender was rejected because of the
                                                                         absence of details in one curriculum vitae, whereas the tender
Action brought on 21 November 2002 by European                           requirements referred in broad and general terms to the
Dynamics against the Commission of the European Com-                     experience of the team, without any further specification.
                            munities
                        (Case T-345/02)                                  The applicant furthermore alleges that the contested decision
                                                                         is vitiated by a manifest error of assessment. According to the
                                                                         applicant, the defendant failed to exercise its power to seek
                        (2003/C 19/74)                                   clarification on this matter and therefore breached its duty of
                                                                         care and the principle of good administration.
                  (Language of the case: English)
                                                                         The applicant also claims that by not seeking clarification and
                                                                         thereby eliminating the applicant’s tender, the defendant did
An action against the Commission of the European Communi-                not respect the equal treatment of tenderers. According to
ties was brought before the Court of First Instance of the               the applicant, an evaluation committee does not enjoy an
European Communities on 21 November 2002 by European                     unfettered discretion to seek or not to seek clarification
Dynamics (Athens), represented by W. Knapp, Rechtsanwalt,                concerning an individual tender regardless of objective con-
and D. Spanou, Advocate.                                                 siderations and free from judicial supervision.


title: Case C-447/01: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen, Vienna, by order of that court of 5 November 2001 in the case of DLD Trading Company Import-Export, spol.s.r.o. v Republic of Austria

text:
6.4.2002               EN                    Official Journal of the European Communities                                       C 84/37
the Bundesverwaltungsgericht (Federal Administrative Court),            Giudice Unico del Tribunale di Beilla (Single-Judge Court of
which was received at the Court Registry on 19 November                 Beilla), which was received at the Court Registry on 19 Novem-
2001, for a preliminary ruling in the case of Stadt Villingen-          ber 2001, for a preliminary ruling in the case of Roberto
Schwenningen v Ophilia Akosua Owusu on the following                    Simoncello and Piera Boerio v Direzione Provinciale del lavoro
questions:                                                              (Vercelli) on the following question:
1.   With regard to the legal position on 16 May 1997, was
     prostitution engaged in on a self-employed basis by a              Are Article 9 bis (2) of Law No 608 of 28 November 1996, in
     national of Member State A in Member State B covered               so far as it provides that an employer is required to notify the
     by freedom of establishment (Article 52 of the EC Treaty)          Sezione Circoscrizionale per l’Impiego of the hiring of every
     and/or freedom to provide services (Article 59 of the              worker, and Article 10 of Legislative Decree No 469 of
     EC Treaty)? Is it in this regard relevant whether prosti-          23 December 1997, in so far as it refers to Article 9 bis of Law
     tution was at that time considered in Member State B to            608/1996 in cases where non-authorised parties have acted as
     be immoral and anti-social?                                        intermediaries, consistent with the principles of Community
                                                                        law laid down by Articles 48, 52 and 90 of the EC Treaty
2.   If the first question is answered in the negative:                 (now, after amendment, Articles 39, 43, and 86 EC).
     With regard to the legal position on 16 May 1997, did
     the national of Member State A derive a right to reside in
     Member State B directly from Article 8a of the EC Treaty?
3.   If the second question is answered in the negative:
     As the law stood on 16 May 1997, did that person have
     a right of residence under the conditions set out in               Reference for a preliminary ruling from the Landesgericht
     Article 1 of Council Directive 90/364/EEC (1) of 28 June           für Zivilrechtssachen, Vienna, by order of that court of
     1990 on the right of residence, even though Member                 5 November 2001 in the case of DLD Trading Company
     State B had not yet at that date implemented that directive               Import-Export, spol.s.r.o. v Republic of Austria
     in its domestic law?
4.   If the third question is answered in the affirmative:                                       (Case C-447/01)
     Was that person required at the time of her entry to have
     sufficient resources and to demonstrate this to the                                          (2002/C 84/64)
     competent authority, or does it suffice if, during her
     period of residence in Member State B, she did not claim
     any social assistance?
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Landesgericht für
(1) OJ L 180, p. 26.
                                                                        Zivilrechtssachen (Regional Court for Civil Matters), Vienna,
                                                                        of 5 November 2001, which was received at the Court Registry
                                                                        on 20 November 2001, for a preliminary ruling in the case of
                                                                        OLD Trading Company Import-Export, spol.s.r.o. v Republic
                                                                        of Austria on the following questions:
                                                                        1.    Was a provision of directly applicable Community law or
                                                                              a directive infringed and, if so, which one, as a result of
Reference for a preliminary ruling by the Giudice Unico                       the government action described in the facts, in particular
del Tribunale di Beilla by order of 18 October 2001 in                        the alteration as from 1 January 1998 of the travellers’
case of Roberto Simoncello and Piera Boerio v Direzione                       duty-free amount to EUR 75 or EUR 100, according to
Provinciale del Lavoro, Vercelli (Principal Labour Admin-                     the case under Paragraph 97a of the customs
                        istration, Vercelli)                                  implementing law [ZollR-DG] in conjunction with Para-
                                                                              graph 19a of the corresponding implementing regulation
                                                                              [ZollR-DV] and the quantitative restriction in regard to
                         (Case C-445/01)
                                                                              the relief from turnover tax and excise duty on tobacco
                                                                              products.
                          (2002/C 84/63)
                                                                        2.    If Question 1 is answered affirmatively:
                                                                              Is the infringed provision of directly applicable Com-
Reference has been made to the Court of Justice of the                        munity law or of that directive one which confers an
European Communities by order of 18 October 2001 of the                       individual right on the plaintiff in the main proceedings?
 ---pagebreak--- C 84/38                EN                     Official Journal of the European Communities                                      6.4.2002
3.   If Question 2 is answered affirmatively:                                  an unlawful decision in review proceedings under
                                                                               Article 1 of Directive 89/665/EEC dependent on proof
     Does the Court of Justice have available to it on the                     that the unlawful decision was material to the outcome
     basis of the reference for a preliminary ruling all the                   of the procurement procedure, where that proof has to
     information needed in order to be able itself to assess                   be achieved by the review body examining whether the
     whether the government body as mentioned in the facts                     ranking of the tenders actually submitted would have
     as set out caused specific injury to the defendant or will                been different had they been re-evaluated disregarding
     it leave the reply to that question to the referring Austrian             the unlawful award criterion?
     court?
                                                                         4.    Do the provisions of Community law relating to the
                                                                               award of public contracts, in particular Article 26 of
                                                                               Directive 93/36/EEC, require the contracting authority to
                                                                               cancel the invitation to tender if it transpires in review
                                                                               proceedings under Article 1 of Directive 89/665/EEC that
                                                                               one of the award criteria it laid down is unlawful?
Reference for a preliminary ruling from the Bundesverga-                 (1) OJ 1993 L 199, p. 1.
beamt (Austria) by order of that tribunal of 13 November                 (2) OJ 1989 L 395, p. 33.
2001 in the case of (1) EVN AG and (2) Wienstrom GmbH
                     v Republic of Austria
                         (Case C-448/01)
                          (2002/C 84/65)
                                                                         Reference for a preliminary ruling by the Court of Appeal
                                                                         (England and Wales) (Civil Division) by order of that
Reference has been made to the Court of Justice of the
                                                                         court dated 11 May 2001, in the case of Abbey Life
European Communities by an order of the Bundesvergabeamt
                                                                              Assurance Company Ltd against Kok Theam Yeap
(Federal Procurement Office) of 13 November 2001, which
was received at the Court Registry on 20 November 2001, for a
preliminary ruling in the case of (1) EVN AG and (2) Wienstrom                                    (Case C-449/01)
GmbH v Republic of Austria on the following questions:
1.   Do the provisions of Community law relating to the                                            (2002/C 84/66)
     award of public contracts, in particular Article 26 of
     Directive 93/36/EEC (1), prohibit a contracting authority
     from laying down an award criterion in relation to the
     supply of electricity which is given a 45 % weighting and
     which requires a tenderer to state, without being bound             Reference has been made to the Court of Justice of the
     to a defined supply period, how much electricity he can             European Communities by an order of the Court of Appeal
     supply from renewable sources to a group of consumers               (England and Wales) (Civil Division) dated 11 May 2001,
     not more closely defined, where the maximum number                  which was received at the Court Registry on 21 November
     of points is given to whichever tenderer states the highest         2001, for a preliminary ruling in the case of Abbey Life
     amount and a supply volume is taken into account only               Assurance Company Ltd and Kok Theam Yeap on the follow-
     to the extent that it exceeds the volume of consumption             ing questions:
     to be expected in the context of the contract to which the
     invitation to tender relates?                                       1)    Can ‘policies for life assurance, annuities, health and
                                                                               pension business, unit trusts, offshore funds business,
2.   Do the provisions of Community law relating to the                        personal equity plans and other contracts offered by
     award of public contracts, in particular Article 2(1)(b) of               Abbey’ or any of them be described as ‘goods’ that fall
     Directive 89/665/EEC (2), prohibit making the setting                     within the provisions of 1993 Regulations and/or in the
     aside of an unlawful decision in review proceedings under                 Directive?
     Article 1 of Directive 89/665/EEC dependent on proof
     that the unlawful decision was material to the outcome              2)    Do ‘policies for life assurance, annuities, health and
     of the procurement procedure?                                             pension business, unit trusts, offshore funds business,
                                                                               personal equity plans and other contracts offered by
                                                                               Abbey’ or any of them have to be:
3.   Do the provisions of Community law relating to the
     award of public contracts, in particular Article 26 of
     Directive 93/36/EEC, prohibit making the setting aside of                 (i)  marketable, and/or


title: Case C-149/05: Reference for a preliminary ruling from the Cour d'appel de Paris by judgment of 23 March 2005 in Harold Price v Conseil des ventes volontaires de meubles aux enchères publiques

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/17

         Reference for a preliminary ruling from the Cour d'appel de Paris by judgment of 23 March 2005 in Harold Price v Conseil des ventes volontaires de meubles aux enchères publiques
   (Case C-149/05)
   (2005/C 132/32)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by judgment of the Cour d'appel de Paris of 23 March 2005, received at the Court Registry on 4 April 2005, for a preliminary ruling in the proceedings pending between Harold Price and the Conseil des ventes volontaires de meubles aux enchères publiques on the following questions:

               1.

               Does Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (1) apply to the activity of director of voluntary sales of chattels by public auction which is governed by Articles L.321-1 to L.321-3, L.321-8 and L.321-9 of the Code de commerce?

               2.

               If so, can the host Member State avail itself of the derogation in the second indent of Article 4(1)(b) as provided for by the sixth (2) indent of Article 4(1)(b) of the Directive?

      (1)  OJ L 209 of 24.07.1992, p. 25.

      (2)  Tr. : Scil. the third indent.


C 211/16              EN                Official Journal of the European Communities                                   22.7.2000
       Removal from the register of Case C-33/98 (1)               European Communities v United Kingdom of Great Britain
                                                                   and Northern Ireland.
                       (2000/C 211/27)
                                                                   (1) OJ C 34 of 5.2.2000.
By order of 26 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal
from the register of Case C-33/98: Commission of the
European Communities v Federal Republic of Germany.
(1) OJ C 94 of 28.3.1998.                                                 Removal from the register of Case C-60/99 (1)
                                                                                (2000/C 211/31)
                                                                   By order of 20 March 2000 the President of the Court of
                                                                   Justice of the European Communities has ordered the removal
       Removal from the register of Case C-386/99 (1)              from the register of Case C-60/99 (reference for a preliminary
                                                                   ruling from the Supreme Court of Dublin): Carmen Proetta v
                       (2000/C 211/28)                             Andrew Neil.
By order of 29 February 2000 the President of the Court of         (1) OJ C 121 of 1.5.1999.
Justice of the European Communities has ordered the removal
from the register of Case C-386/99: Commission of the
European Communities v Federal Republic of Germany.
(1) OJ C 366 of 18.12.1999.
                                                                          Removal from the register of Case C-48/99 (1)
                                                                                (2000/C 211/32)
                                                                   By order of 30 March 2000 the President of the Sixth Chamber
       Removal from the register of Case C-385/98 (1)              of the Court of Justice of the European Communities has
                                                                   ordered the removal from the register of Case C-48/99:
                       (2000/C 211/29)                             Commission of the European Communities v Grand Duchy of
                                                                   Luxembourg.
By order of 15 March 2000 the President of the Fifth Chamber
of the Court of Justice of the European Communities has            (1) OJ C 100 of 10.4.1999.
ordered the removal from the register of Case C-385/98:
Commission of the European Communities v Italian Republic.
(1) OJ C 378 of 5.12.1998.
                                                                          Removal from the register of Case C-287/99 (1)
                                                                                (2000/C 211/33)
       Removal from the register of Case C-455/99 (1)              By order of 30 March 2000 the President of the Sixth Chamber
                                                                   of the Court of Justice of the European Communities has
                       (2000/C 211/30)                             ordered the removal from the register of Case C-287/99:
                                                                   Commission of the European Communities v Kingdom of
By order of 15 March 2000 the President of the Court of            Belgium.
Justice of the European Communities has ordered the removal
from the register of Case C-455/99: Commission of the              (1) OJ C 281 of 2.10.1999.


title: Case C-476/07: Order of the President of the Court of 3 June 2008 (reference for a preliminary ruling from the Landgericht Berlin — Germany) — M.C.O. Congres v Suxess GmbH

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/11

         Order of the President of the Court of 3 June 2008 (reference for a preliminary ruling from the Landgericht Berlin — Germany) — M.C.O. Congres v Suxess GmbH
   (Case C-476/07) (1)

   (2008/C 247/21)

      Language of the case: German

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

      (1)  OJ C 22, 26.1.2008.


title: Case C-286/07: Action brought on 13 June 2007 — Commission v Grand Duchy of Luxembourg

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/17

         Action brought on 13 June 2007 — Commission v Grand Duchy of Luxembourg
   (Case C-286/07)
   (2007/C 211/32)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Stromsky, Agent)

      Defendant: Grand Duchy of Luxembourg
   Form of order sought

               —

               declare that, by requiring the submission of an excerpt from the seller's entry on the commercial register for the purpose of registering vehicles which have previously been registered in another Member State, where no such excerpt is required for vehicles which have previously been registered in Luxembourg, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 28 EC;

               —

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   By its action, the Commission criticises the conditions imposed by the defendant for the registration of second-hand vehicles which have previously been registered in another Member State.
   By making the registration of these vehicles in Luxembourg subject to additional document checks and, in particular, the submission of an official excerpt from the entry on the commercial register of the vehicle's seller, the defendant has effectively made it less attractive to import vehicles which had previously been registered in another Member State and is therefore hindering the free movement of these goods.
   This barrier to trade, prohibited by Article 28 EC, is all the more serious as it predominantly affects imported vehicles, with second-hand vehicles that had previously been registered in Luxembourg not apparently subject to the same document checks.
   Besides, the reasons that the defendant has given for this barrier to trade are not very convincing, particular in so far as the defendant already has important means of control at its disposal to ensure that the vehicles at issue have not been stolen and, in any event, less radical measures than an outright refusal to register the vehicle can be envisaged if the requisite excerpt from the commercial register is unavailable, such as, for example, suspension of the registration procedure for the time required by the administrative authorities to run checks.


title: Case T-99/10: Action brought on 2 March 2010 — Meica v OHIM — Tofutown.com (TOFUKING)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/66

         Action brought on 2 March 2010 — Meica v OHIM — Tofutown.com (TOFUKING)
   (Case T-99/10)
   2010/C 113/99
   Language in which the application was lodged: German

      Parties

      Applicant: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG (Edewecht, Germany) (represented by: S. Russlies, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Tofutown.com GmbH (Wiesbaum/Vulkaneifel, Germany)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 January 2010 (Case R 63/2009-4);

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Tofutown.com GmbH

      Community trade mark concerned: the word mark ‘TOFUKING’ for goods in Classes 29, 30 and 32 (Application No 5 027 016)

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

      Mark or sign cited in opposition: the German word mark ‘King’ (trade mark No 30 404 434), the Community word mark ‘Curry King’ (trade mark No 2 885 077) and the German word mark ‘Curry King’ (trade mark No 39 902 969), all three of which were registered for goods in Classes 29 and 30

      Decision of the Opposition Division: rejection of the opposition

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1) as there is a likelihood of confusion between the marks at issue

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case C-81/06: Action brought on  8 February 2006  by the Commission of the European Communities against the Italian Republic

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/17

         Action brought on 8 February 2006 by the Commission of the European Communities against the Italian Republic
   (Case C-81/06)
   (2006/C 86/31)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 8 February 2006 by the Commission of the European Communities, represented by F. Simonetti and D. Recchia, acting as Agents.
   The Commission claims that the Court should:

               1.

               declare that failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC (1) of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment or, in any event, by failing to notify the Commission of such measures, the Italian Republic has failed to fulfil its obligations under Article 13(1) of that directive;

               2.

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The prescribed period for implementing the directive expired on 21 July 2004.

      (1)  Official Journal L 197 of 21/07/2001, p. 30.


title: Case T-138/07: Action brought on 4 May 2007 — Schindler Holding and Others v Commission

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/27

         Action brought on 4 May 2007 — Schindler Holding and Others v Commission
   (Case T-138/07)
   (2007/C 155/52)
   Language of the case: German
   Parties

      Applicants: Schindler Holding Ltd (Hergiswil, Switzerland), Schindler Management AG (Ebikon, Switzerland), S.A. Schindler N.V. (Brussels, Belgium), Schindler Sàrl (Luxembourg, Luxembourg), Schindler Liften B.V. (The Hague, Netherlands) and Schindler Deutschland Holding GmbH (Berlin, Germany) (represented by: R. Bechtold, W. Bosch, U. Soltész and S. Hirsbrunner, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision of 21 February 2007 in Case COMP/E-1/38.823 — PO/Elevators and Escalators, pursuant to the first paragraph of Article 231 EC;

               —

               in the alternative, reduce the fines imposed in that decision;

               —

               order the Commission to pay the costs of the applicants, in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

         Pleas in law and main arguments
   The applicants are challenging Commission Decision C(2007) 512 final of 21 February 2007 in Case COMP/E-1/38.823 — PO/Elevators and Escalators. In the contested decision, fines were imposed on the applicants and other undertakings on the ground of their participation in cartels relating to the installation and maintenance of lifts and escalators in Belgium, Germany, Luxembourg and the Netherlands. In the view of the Commission, the undertakings concerned acted in breach of Article 81 EC.
   In support of their action, the applicants put forward the following pleas in law:

               —

               Infringement of the principle of legal certainty by Article 23(2) of Regulation (EC) No 1/2003 (1) inasmuch as that provision confers on the Commission unlimited discretion in setting fines;

               —

               Breach of the prohibition of retroactive effect by the fine imposed by the Commission;

               —

               Lack of effectiveness of the Guidelines on the method of setting fines (‘the 1998 Guidelines’) (2) in that they fail adequately to take account of individual circumstances in connecting the basic amounts of fines with the respective infringements and confer too great a discretion on the Commission in determining fines;

               —

               Illegality of the evidence adduced by cooperative undertakings on the basis of the Notice on immunity from fines and reduction of fines (3) by reason of the infringement of the nemo tenetur principle, of the right against self-incrimination, of the in dubio pro reo principle and the principle of proportionality, and by reason of the manner in which the Commission exceeded its competence by adopting that rule;

               —

               Infringement of the principle of the division of powers and of the requirements of due process;

               —

               Illegality of the contested decision under international law by reason of the expropriatory nature of the fines imposed;

               —

               Infringement of the 1998 Guidelines on the ground that the basic amounts used to calculate the fines were unduly high in the light of the specific offences;

               —

               Infringement of the 1998 Guidelines on the ground that inadequate account/no account was taken of extenuating circumstances;

               —

               Infringement of the 2002 rules relating to cooperative undertakings on grounds of unduly low cooperation discounts or unjustified refusal of such discounts;

               —

               Disproportionate nature of the level of the fines;

               —

               Illegality of the contested decision in so far as it is addressed to Schindler Holding Ltd and Schindler Management AG on the ground that, in the absence of an international-law agreement with Switzerland, it was not effectively notified to those companies;

               —

               Absence of conditions for the joint and several liability of Schindler Holding Ltd;

               —

               Breach of Article 23(2) of Regulation No 1/2003 on the ground that the maximum limits for fines were exceeded.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

      (2)  Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).

      (3)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).


title: Case T-133/01: Action brought on 12 June 2001 by Jörg Riedemann, Rechtsanwalt, as liquidator of ZEMAG GmbH, against the Commission of the European Communities

text:
C 259/12                EN                      Official Journal of the European Communities                                      15.9.2001
D. López Garido, lawyer, with an address for service in                   ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Luxembourg against the Council of the European Union                                                    INSTANCE
(Agents: F. Anton and G. Ramos Ruano) and the European
Parliament (Agents: M. Gómez Leal and F. de Wachter) —                                              of 8 May 2001
application for annulment of the guide for candidates and the
notice of competition aimed at drawing up reserve lists for
Spanish-language adminstrators and Spanish-language assist-                in Case T-95/01 R: Gérard Coget and Others v Court of
ant administrators (EUR/A/159/2000 and PE/90/A — the                                  Auditors of the European Communities
Court of First Instance (Second Chamber), composed of
A.W.H. Meij (President), A. Potocki and J. Pirrung, Judges;                (Applications for interim measures — Officials — Internal
H. Jung, Registrar, made an order on 2 May 2001, the operative                              competition — Admissibility)
part of which is as follows:
                                                                                (2001/C 259/21)
1.    The application is dismissed as inadmissible;
2.    The parties shall bear their own costs, including costs relating                        (Language of the case: French)
      to proceedings on the application for interim measures.
                                                                           In Case T-95/01 R: Gérard Coget, an official of the Court of
                                                                           Auditors of the European Communities, Hettange-Grande,
(1) OJ C 316 of 4.11.00.                                                   France, Pierre Hugé, an official of the Court of Auditors of the
                                                                           European Communities, residing in Bonnevoie, Grand Duchy
                                                                           of Luxembourg, and Emmanuel Gabolde, an official of the
                                                                           Court of Auditors of the European Communities, residing in
                                                                           Metz, France, represented by André Soulier, lawyer, against
                                                                           Court of Auditors of the European Communities — application
                                                                           for suspension of operation of the decision of the Court of
                                                                           Auditors of 22 February 2001 filling, with effect from 1 July
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               2001, the post of Secretary General — the President of the
                              INSTANCE                                     Court of First Instance made an order on 8 May 2001, the
                                                                           operative part of which is as follows:
                          of 21 May 2001
                                                                           1.   The application for interim measures is dismissed as inadmis-
                                                                                sible.
in Case T-52/01 R: Jürgen Schaefer v the Commission of
                  the European Communities                                 2.   The costs are reserved.
(Applications for interim measures — Officials — Reassign-
    ment — Admissibility — Prima facie case — Urgency)
                          (2001/C 259/20)
                                                                           Action brought on 12 June 2001 by Jörg Riedemann,
                                                                           Rechtsanwalt, as liquidator of ZEMAG GmbH, against the
                                                                                Commission of the European Communities
                   (Language of the case: Spanish)
                                                                                (Case T-133/01)
In Case T-52/01 R: Jürgen Schaefer, an official of the Com-
mission of the European Communities, represented by
                                                                                (2001/C 259/22)
J. R. Iturriagagoitia, lawyer, against Commission of the Euro-
pean Communities (Agents: J. Currall and E. Gippini-Fournier)
— application for first, suspension of operation of the decision
                                                                                (Language of the case: German)
of the Commission of 12 February 2001 transferring the
applicant to Brussels and, secondly, suspension of any pro-
cedure initiated with a view to filling the vacancy arising from           An action against the Commission of the European Communi-
the order transferring the applicant — the President of the                ties was brought before the Court of First Instance of the
Court of First Instance made an order on 21 May 2001, the                  European Communities on 12 June 2001 by Jörg Riedemann,
operative part of which is as follows:                                     Rechtsanwalt, as liquidator of ZEMAG GmbH, Zeitz, Germany,
                                                                           represented by Ulrich Vahlhaus, Rechtsanwalt.
1.    The application for interim measures is dismissed.
                                                                           The applicant claims that the Court should annul Commission
2.    The costs are reserved.
                                                                           decision K(2201)1028 of 28 March 2001 on state aid granted
                                                                           by Germany to EFBE Verwaltungs GmbH & Co Management
                                                                           KG (now Lintra Beteiligungs Holdings GmbH, together with
 ---pagebreak--- 15.9.2001             EN                   Official Journal of the European Communities                                       C 259/13
Zeitzer Maschinen, Anlagen Geräte GmbH, LandTechnik                   Action brought on 19 June 2001 by F against the Court of
Schlüter GmbH, ILKA MAFA Kältetechnik GmbH, SKL Motore-                           Auditors of the European Communities
n- und Systembautechnik GmbH, SKL Spezialapparatebau
GmbH, Magdeburger Eisengießerei GmbH, Saxonia Edelmetal-
le GmbH and Gothaer Fahrzeugwerk GmbH) (State aid                                              (Case T-138/01)
No C 41/99 (EXN49/95) Germany) in so far as it affects
ZEMAG (Zeitzer Maschinen, Anlagen Geräte) GmbH.
                                                                                (2001/C 259/23)
Pleas in law and main arguments
                                                                                (Language of the case: French)
By the contested decision, the Commission required Germany
to demand repayment of aid totalling DEM 34 978 million               An action against the Court of Auditors of the European
from Lintra Beteiligungsholding GmbH and its subsidiary               Community was brought before the Court of First Instance of
companies. A total sum of DEM 6 496 271 was filed against             the European Communities on 19 June 2001 by F, domiciled
ZEMAG GmbH in the context of that company’s insolvency                in Luxembourg, represented by Patrick Goergen, Lawyer, with
proceedings. The Commission claims that the aid to the ‘Lintra        an address for service in Luxembourg.
Group’ was unlawful and used in contravention of what was
laid down by the approved restructuring plan.
                                                                      The applicant claims that the Court should:
The applicant claims that the Commission made its decision
on the basis of false premisses. Also, the Commission did not         —     Annul the Decision of 4 December 2000.
consider itself required to examine to what extent individual
undertakings within the group profited from the aid, liability
being assumed on grounds of convenience without any more              —     Order the Court of Auditors of the European Communi-
searching enquiries of subsidiary companies such as ZEMAG                   ties to pay the applicant the sum of EUR 100 000 in
GmbH.                                                                       compensation for non-material damage suffered.
The applicant argues that the Commission misused its discre-          —     Order the Court of Auditors of the European Communi-
tion. It demands the repayment of aid directly from the debtor              ties to pay the costs.
on insolvency, although the aid was not paid to the latter but
to the holding company.
The applicant further argues that the procedure under                 Pleas in law and main arguments
Article 88(2) EC has been partially circumvented. The contested
measure was thus in breach of discretion, since, if the
Commission had investigated the matter carefully, it would
have been better able to judge the specific situation. It would       The applicant challenges the decision to reassign her to the
then also have been able to determine specifically what amount        translation service as a principal revisor translator responsible
of aid might under certain circumstances have been actually           for unrevised Italian translations and under the direct authority
reclaimable from the applicant.                                       of head of division but not attached to the Italian section.
Irrespective of an obligation to demand repayment of the aid          In support of her action, the applicant pleads infringement of
in question, such an obligation would affect ZEMAG GmbH               procedural requirements in so far as the contested decision
only if the former company members remained members of                contains no grounds and infringement of the rights of the
the company after the second privatisation in 1997, which             defence, a manifest error of assessment, infringement of the
was not the case. Direct personal liability of members thus           principle of the protection of legitimate expectations and
ceased to exist, at least after the second privatisation. Nor,        infringement of the principle of proper administration and the
finally, was there any legal basis for demanding repayment            duty to have regard for the welfare of officials. The applicant
from the subsidiary companies in accordance with a formula,           further claims misuse of power.
as laid down in the contested decision.


title: Case C-188/07: Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 3 April 2007 — Commune de Mesquer v Total France, SA, Total International Ltd.

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/9

         Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 3 April 2007 — Commune de Mesquer v Total France, SA, Total International Ltd.
   (Case C-188/07)
   (2007/C 129/16)
   Language of the case: French
   Referring court
   Cour de Cassation
   Parties to the main proceedings

      Appellant: Commune de Mesquer

      Respondents: Total France, SA, formerly known as Total Raffinage Distribution, Total International Ltd.
   Questions referred

               1.

               Can heavy fuel oil, as the product of a refining process, meeting the user's specifications and intended by the producer to be sold as a combustible fuel, and referred to in Directive 68/414/EEC of 20 December 1968 (1) as amended by Directive 98/93/EC of 14 December 1998 (2) relating to strategic resources to which a stock-holding obligation attaches, be treated as waste within the meaning of Article 1 of Directive 75/442/EEC of 15 July 1975 (3) as amended by Directive 91/156/EEC of 18 March 1991 (4) and codified by Directive 2006/12/EC (5)?

               2.

               Does a cargo of heavy fuel oil, transported by a ship and accidentally spilled into the sea, constitute — either in itself or on account of being mixed with water and sediment — waste falling within Category Q4 in Annex I to Directive 2006/12/EC?

               3.

               Where the first question is answered in the negative and the second in the affirmative, can the producer of heavy fuel oil (Total Raffinage) and/or the seller and carrier (Total International Ltd) be regarded as the producer and/or holder of waste within the meaning of Article 1(b) and (c) of Directive 2006/12/EC and for the purposes of applying Article 15 of that Directive, even though at the time of the accident which transformed it into waste the product was being transported by a third party?

      (1)  Council Directive 68/414/EEC of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products (OJ, English Special Edition 1968(II), p. 586).

      (2)  Council Directive 98/93/EC of 14 December 1998 amending Directive 68/414/EEC imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products (OJ 1998 L 358, p. 100).

      (3)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

      (4)  Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

      (5)  Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9).


title: Notice of an open competition

text:
C 236/6        EN                      Official Journal of the European Communities                                 18.8.2000
                                                              III
                                                            (Notices)
                                           COURT OF JUSTICE
                                        NOTICE OF AN OPEN COMPETITION
                                                      (2000/C 236/06)
        The Court of Justice of the European Communities will be publishing in the Official Journal of the European
        Communities C 236 A of 18 August 2000 the following Notice of open competition:
        Danish edition:
        CJ/LA/6 (lawyer-linguists of Danish mother-tongue)
        To obtain a copy of this Official Journal please apply to the Personnel Division of the Court of Justice of
        the European Communities, L-2925 Luxembourg.
        Closing date for application: 22 September 2000.


title: Case T-398/03: Action brought on 12 December 2003 by Jean-Pierre Castets against the Commission of the European Communities

text:
7.2.2004                EN                            Official Journal of the European Union                                           C 35/15
Pleas in law and main arguments                                               Action brought on 12 December 2003 by Jean-Pierre
                                                                              Castets against the Commission of the European Com-
                                                                                munities
Regione Siciliana has brought an action before the Court of
First Instance of the European Communities challenging Order                                           (Case T-398/03)
BUDG/C5/ME/jlsD(2003)358046 of 6 October 2003 of the
Commission of the European Communities on the detailed
rules for the recovery of the contribution of the European                                              (2004/C 35/24)
Regional Development Fund (ERDF), ERDF ‘Gibbesi Dam’
cancelled by Commission Decision C(2002)4905 of
11 December 2002 and of the acts resulting from it (1).                                          (Language of the case: French)
In support of its application Regione Siciliana alleges:
                                                                              An action against the Commission of the European Communi-
1.    infringement and/or misapplication of Articles 73 and                   ties was brought before the Court of First Instance of the
      186 of Council Regulation No 1605/2002 of 25 June                       European Communities on 12 December 2003 by Jean-Pierre
      2002 (2) and of Article 83 of the implementing Com-                     Castets, residing in Saint Victor Des Oules (France), represented
      mission Regulation No 2342/2002 of 23 December                          by Grégory Crétin, lawyer.
      2002 (3), in that the contested order provided for the
      recovery of the Community contribution which had been
      revoked, and refused to allow Regione Siciliana to offset               The applicant claims that the Court should:
      the contribution against claims that it itself has on the
      Commission, and therefore applied default interest to it;
                                                                              —     Annul the decision of 4 September 2003 by which the
                                                                                appointing authority rejected complaint R/311/03 made
2.    infringement and misapplication of Article 24 of Council                      by the applicant on 16 June 2003;
      Regulation No 4253/88 as amended by Council Regu-
      lation (EEC) No 2083/93 of 20 July 1993 (4) in that the
      contested order did not find that the principle of offsetting           —     Order the Office for administration and payment of
      was immediately applicable to the circumstances of this                       individual entitlements to recalculate the amount of the
      case;                                                                         invalidity pension to be paid to the applicant on the basis
                                                                                of the old-age pension which would have been paid to
                                                                                him at the age of 65 if he had remained in service until
3.    misuse of powers because of inconsistency between                             that age, and to apply that calculation retroactively from
      various acts and infringement of the principle of the                         1 May 2003;
      protection of legitimate expectations, in that the Com-
      mission has contradicted its own earlier decisions which
                                                                              —     Order the Commission to pay the costs.
      were also adopted in respect of Regione Siciliana, in
      relation to the admissibility of the action seeking offset-
      ting through discharge of the pecuniary obligations in
      this case.
                                                                              Pleas in law and main arguments
(1) Decision already contested in Case T-60/03 Regione Siciliana v
    Commission (OJ 2003 C 101, p. 50).
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June
                                                                              The applicant was retired and granted an invalidity pension
    2002 on the Financial Regulation applicable to the general budget         with effect from 1 May 2003.
    of the European Communities (OJ 2002 L 248, p. 1).
(3) Commission Regulation (EC, Euratom) No 2342/2002 of
    23 December 2002 laying down detailed rules for the implemen-             According to the applicant, when the Commission calculated
    tation of Council Regulation (EC, Euratom) No 1605/2002 on the
    Financial Regulation applicable to the general budget of the
                                                                              his invalidity pension, it manifestly misinterpreted Article 78
    European Communities (OJ 2002 L 357, p. 1).                               of the Staff Regulations in taking as the rate of the invalidity
(4) Council Regulation (EEC) No 2082/93 of 20 July 1993 amending              pension the rate of the old-age pension to which the applicant
    Regulation (EEC) No 4253/88 laying down provisions for                    would have been entitled at the age of 65 if he had remained
    implementing Regulation (EEC) No 2052/88 as regards coordi-               in service until that age and, as his basic salary, the salary he
    nation of the activities of the different Structural Funds between        would receive if he were still in service. The applicant claims
    themselves and with the operations of the European Investment             that the pension should, rather, be calculated on the basis of
    Bank and the other existing financial instruments (OJ 1993 L 193,         the old-age pension which would have been paid to him if he
    p. 20).                                                                   had remained in service until the age of 65.


title: Case C-589/14: Action brought on 19 December 2014 — European Commission v Kingdom of Belgium

text:
               2.3.2015

               EN

               Official Journal of the European Union

               C 73/15

      Action brought on 19 December 2014 — European Commission v Kingdom of Belgium
      (Case C-589/14)
      (2015/C 073/21)
      Language of the case: French

         Parties

         Applicant: European Commission (represented by: J.-F. Brakeland and W. Roels, acting as Agents)

         Defendant: Kingdom of Belgium

         Form of order sought

      The applicant claims that the Court should:

                  —

                  Declare that in maintaining provisions under which:

                              —

                              as regards interest payable on unsecured debts, an investment company established in another Member State of the European Union or a State belonging to the European Economic Area (EEA) is subject to the payment of withholding tax on that interest, whereas an investment company established in Belgium benefits from an exemption from that tax, and

                              —

                              as regards interest payable on debts backed by Belgian securities, the interest is subject to the payment of withholding tax when the securities are deposited or registered in an account in a financial institution established in another Member State of the European Union or a State belonging to the EEA, whereas that interest is exempt from withholding tax when the securities are deposited or registered in an account in a financial institution in Belgium,
                              the Kingdom of Belgium has failed to comply with its obligations under Articles 56 and 63 of the Treaty on the Functioning of the European Union and with Articles 36 and 40 of the Agreement on the EEA.

                  —

                  order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments

      The Commission considers that various provisions of the Royal Decree implementing the Belgian Income Tax Code 1992 make possible exemptions from withholding tax payable on interest subject to conditions that are not compatible with the fundamental freedoms guaranteed by the Treaties, namely Articles 56 and 63 TFEU.
      First, as regards the interest payable on unsecured debts, an investment company established in another Member State of the European Union or a State belonging to the EEA would be subject the payment of withholding tax on that interest, whereas an investment company established in Belgium would benefit from an exemption from that tax.
      Second, as regards the interest payable on debts backed by Belgian securities, that interest would be subject to the payment of withholding tax when the securities are deposited or registered in an account in a financial institution established in another Member State of the Union or a State belonging to the EEA, whereas such interest would be exempt from withholding tax when the securities are deposited or registered in an investment company in Belgium.


title: Action brought on 19 December 1997 by Cointra Transport and Trade Co. Srl against the Commission of the European Communities (Case T-604/97)

text:
7.3.98                EN                 Official Journal of the European Communities                                  C 72/19
Ð in the alternative, annul Article 5 of that Decision              Pleas in law and main arguments adduced in support:
     inasmuch as it requires the Member State to recover
     the aid (granted as from 1 July 1990), together with
     the interest accrued as from the date on which the aid         The pleas in law and main arguments are similar to those
     was paid,                                                      relied upon in Case T-288/97 Regione Friuli-Venezia
                                                                    Giulia v. Commission (1).
Ð in any event, order the Commission of the European                (1) OJ C 7, 10.1.1998, p. 25.
     Communities to pay the costs.
Pleas in law and main arguments adduced in support:
The pleas in law and main arguments are similar to those            Action brought on 19 December 1997 by Cointra
relied upon in Case T-288/97 Regione Friuli-Venezia                 Transport and Trade Co. Srl against the Commission of
Giulia v. Commission (1).                                                             the European Communities
                                                                                (Case T-604/97)
(1) OJ C 7, 10.1.1998, p. 25.
                                                                                (98/C 72/44)
                                                                                (Language of the case: Italian)
                                                                    An action against the Commission of the European
Action brought on 19 December 1997 by Ditta Giuseppe                Communities was brought before the Court of First
Camaur against the Commission of the European                       Instance of the European Communities on 19 December
                         Communities                                1997 by Cointra Transport and Trade Co. Srl, represented
                                                                    by Marcello Clarich and Alessandro Giadrossi, of the Bars
                       (Case T-603/97)
                                                                    of Florence and Trieste, with an address for service at the
                          (98/C 72/43)                              latter's Chambers at 17 Via XXX Ottobre, Trieste.
                (Language of the case: Italian)                     The applicant claims that the Court should:
                                                                    Ð annul Commission Decision C(97) 2735 final of
An action against the Commission of the European                         30 July 1997,
Communities was brought before the Court of First
Instance of the European Communities on 19 December
1997 by Ditta Giuseppe Camaur, represented by Marcello
                                                                    Ð in the alternative, annul Article 5 of that Decision
Clarich and Alessandro Giadrossi, of the Bars of Florence
                                                                         inasmuch as it requires the Member State to recover
and Trieste, with an address for service at the latter's
                                                                         the aid (granted as from 1 July 1990), together with
Chambers at 17 Via XXX Ottobre, Trieste.
                                                                         the interest accrued as from the date on which the aid
                                                                         was paid,
The applicant claims that the Court should:
                                                                    Ð in any event, order the Commission of the European
                                                                         Communities to pay the costs.
Ð annul Commission Decision C(97) 2735 final of
     30 July 1997,
                                                                    Pleas in law and main arguments adduced in support:
Ð in the alternative, annul Article 5 of that Decision
     inasmuch as it requires the Member State to recover            The pleas in law and main arguments are similar to those
     the aid (granted as from 1 July 1990), together with           relied upon in Case T-288/97 Regione Friuli-Venezia
     the interest accrued as from the date on which the aid         Giulia v. Commission (1).
     was paid,
                                                                    (1) OJ C 7, 10.1.1998, p. 25.
Ð in any event, order the Commission of the European
     Communities to pay the costs.


title: Case C-424/07: Action brought on 13 September 2007 — Commission of the European Communities v Federal Republic of Germany

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/19

         Action brought on 13 September 2007 — Commission of the European Communities v Federal Republic of Germany
   (Case C-424/07)
   (2007/C 283/35)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: G. Braun and A. Nijenhuis, acting as Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               declare that, with the provisions made in paragraphs 3 No 12(b) and 9(a) of the German Law on Telecommunications (Telekommunikationsgesetz — ‘TKG’), newly inserted into the TKG by the Law amending the laws governing telecommunications of 18 February 2007, the Federal Republic of Germany has infringed Articles 6, 7, 15(3), 16 and 8(1) and (2) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (1), Article 8(4) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (2), as well as Article 17(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (3);

               —

               order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments
   The common regulatory framework for electronic communications networks introduced in 2002 sets out aims for the actions of national regulatory authorities and lists the measures that national regulatory authorities can take to achieve those aims. By providing room for the exercise of discretion, this regulatory framework allows national regulatory authorities to proceed — following careful analysis of the market — in a manner that takes into careful consideration the particular features of each individual case. According to the provisions of Community law, national regulatory authorities shall define the relevant markets appropriate to national circumstances, in accordance with the principles of competition law, taking the utmost account of the Commission's recommendation and the guidelines. Therefore, it is the national regulatory authorities that define the relevant markets, and not the national legislator or another national institution. In view of the independence of national regulatory authorities, which are under an obligation to exercise their powers in a manner that is impartial and transparent, this is a central structural element in the procedure leading to the definition of the market, which is not within the legislator's discretion. In addition, if necessary, national regulatory authorities undertake an analysis of the markets and determine whether — and, if required, which — remedies have to be imposed. There is a mechanism for consultation as regards definition and analysis of the market.
   In contrast to the market definition and market analysis procedures under Community law, the German legislator lays down the definition of ‘new markets’ and establishes in advance the conditions under which the regulatory authority is entitled, exceptionally, to regulate new markets, instead of leaving it to the regulatory authority to conduct this assessment. In addition, the German legislator imposes on the regulatory authority a regulatory aim to which it must pay particular attention. Those provisions of the German Law on Telecommunications infringe the provisions of Directives 2002/19/EC, 2002/21/EC and 2002/22/EC, by circumventing the rules on the regulation of the market provided for in those directives and unduly limiting the regulatory authority's discretion.
   The German rules in issue make it impossible for the national regulatory authority to define all markets in accordance with the principles of competition law and — by including a global provision that, by law, certain markets cannot be regulated — to take decisions on the merits that take into consideration each individual case. The regulatory authority is only obliged to follow the procedures for consultation and cooperation provided for in the Community regulatory framework, and to inform market participants, European regulatory authorities and the Commission of the result of its analysis of a ‘new market’, if, at the same time, it reaches the conclusion that additional conditions are fulfilled and it therefore considers that regulation is required. The provisions of the German Law on Telecommunications in issue could cause the German regulatory authority to define and analyse a market and take the decision not to regulate it without following the intended procedures for consultation and cooperation.
   Therefore, in the Commission's view, there is a danger that those provisions would significantly undermine the liberalisation of the markets for electronic communication, as well as the opening of those markets to competition, that have been achieved because of the common regulatory framework. There is a threat that some markets, such as, for example, broadband markets — which use the fixed line networks of the former monopoly operators and which are particularly important for technological development — could be re-monopolised, which would be a reversal of what has been achieved so far, also partly thanks to the common regulatory framework.

      (1)  OJ L 108, 24.4.2002, p. 33.

      (2)  OJ L 108, 24.4.2002, p. 7.

      (3)  OJ L 108, 24.4.2002, p. 51.


title: Case T-379/12: Action brought on 21 August 2012 — Electric Bike World v OHIM — Brunswick (LIFECYCLE)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/28

         Action brought on 21 August 2012 — Electric Bike World v OHIM — Brunswick (LIFECYCLE)
   (Case T-379/12)
   2012/C 355/61
   Language in which the application was lodged: English

      Parties

      Applicant: Electric Bike World Ltd (Southampton, United Kingdom) (represented by: S. Malynicz, Barrister)

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

      Other party to the proceedings before the Board of Appeal: Brunswick Corp. (Lake Forest, United States)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 May 2012 in case R 2308/2011-1; and

               —

               Order the Office and the other party to bear their own costs and pay those of the applicant.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘LIFECYCLE’ for goods in classes 12, 18 and 25 — Community trade mark application No 8546401

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

      Mark or sign cited in opposition: Spanish trade mark registration No 1271758 of the word mark ‘LIFECYCLE’, for goods in class 28

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

      Decision of the Board of Appeal: Annulled the contested decision to the extent that it rejected the opposition for goods in class 12; rejected the CTM application for these goods; and dismissed the appeal for the remaining goods in class 12

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


title: Case C-57/17: Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 3 February 2017 — Eva Soraya Checa Honrado v Fondo de Garantía Salarial

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/16

         Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 3 February 2017 — Eva Soraya Checa Honrado v Fondo de Garantía Salarial
   (Case C-57/17)
   (2017/C 121/22)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de la Comunidad Valenciana

      Parties to the main proceedings

      Appellant: Eva Soraya Checa Honrado

      Respondent: Fondo de Garantía Salarial

      Question referred

   May statutory severance pay payable by a company to a worker, on termination of the employment relationship as a consequence of a change to a fundamental element of the contract of employment, such as geographic mobility obliging the worker to change residence, be understood to constitute ‘severance pay on termination of employment relationships’, as referred to in the first paragraph of Article 3 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer? (1)

      (1)  OJ 2008 L 283, p. 36.


title: Case T-65/08: Order of the General Court of 1 June 2010 — Spain v Commission

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/51

         Order of the General Court of 1 June 2010 — Spain v Commission
   (Case T-65/08) (1)

   ()
   2010/C 209/78
   Language of the case: Spanish
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 92, 12.4.2008.


title: Action brought on 29 March 1995 by Lieve De Nil and Christiane Impens against the Council of the European Union (Case T-91/95)

text:
3 . 6 . 95              EN                   Official Journal of the European Communities                                No C 137/35
     prices prevailing at the time and the fact that it was             — order the defendant to pay the costs .
     impossible for a forwarding agent to verify the accuracy
     of answers given in declarations,                                  Pleas in law and main arguments adduced in support:
— breach of the principle of proportionality. The                       The applicant, a former Commission official suffering total
     obligation deemed by the decision to be incumbent on               permanent invalidity, criticizes the Commission for failing
     the forwarding agent, requiring him to examine the                 to disclose to him certain detail concerning his state of
     accuracy of the information supplied by the client for the         health, in particular for not advising him in due time of the
     purposes of the declaration and to ensure that the client          illness diagnosed by its doctors, and for keeping him in a
     is not acting fraudulently, is disproportionate,                   post incompatible with his state of health .
— infringement of Article 6 of the European Convention
                                                                        He states that, being afflicted with an obstructive
     on Human Rights .
                                                                        bronco-pneumopathic condition, the applicant applied for
(M OJ No L 175 , 12 . 7. 1979 , p . 1 .
                                                                        retirement on grounds of invalidity under the second
                                                                        paragraph of Article 78 of the Staff Regulations and it was
                                                                        not until 27 March 1987, nearly six years after being lodged,
                                                                        that that application was examined by the Invalidity
                                                                        Committee, which concluded that he was not suffering from
Action brought on 29 March 1995 by Walter Gill against                  an occupational illness . It was only during that procedure
        the Commission of the European Communities                      that the applicant learned that the Commission's medical
                                                                        officers had , in particular when examining him prior to
                          ( Case T-90/95 )                              recruitment, diagnosed a chronic pulmonary illness .
                            ( 95/C 137/76 )
                                                                        He claims in particular, in that regard, that, by failing to
                 (Language of the case: French)                         inform him or his doctor of the results of the examinations
                                                                        carried out by its doctors, the Commission unlawfully
An action against the Commission of the European                        deprived him of the opportunity of deciding, in full
Communities was brought before the Court of First                       knowledge of the facts , whether or not to accept
Instance of the European Communities on 29 March 1995                   employment of a kind which might aggravate his state of
by Walter Gill, of Sudbury (United Kingdom ), represented               health .
by Jean-Noel Louis , Thierry Demaseure and Ariane Tornel,
of the Brussels Bar, with an address for service in                     Furthermore, in view of the incoherence of the statement of
                                                                        the reasons on which the successive decisions of the
Luxembourg at the office of Fiduciaire Myson Sari, 1 Rue
Glesener .                                                              appointing authority were based and the changes in the
                                                                        versions thereof occurring in the course of the various
The applicant claims that the Court should :                            procedures, there was what in reality amounted to a total
                                                                        lack of any statement of reasons .
— annul the Commission decision of 26 September 1994
     expressly rejecting his claim for compensation of                  Finally, since the appointing authority did not supply to the
     10 May 1994 under Article 90 ( 1 ) of the Staff                    applicant, despite an express request from his adviser,
     Regulations,                                                       specific information regarding the measures adopted by it in
                                                                        order to preserve his anonymity, and having regard to the
— annul, so far as necessary, the Commission decision of                documents     disclosed     to  him  in  the  course   of the
     28 December 1994 expressly rejecting his complaint and             pre-litigation procedure , the applicant can but conclude that
     his more detailed complaint,                                       no proper measure was taken and that his right to respect of
                                                                        his private life was scornfully disregarded by the
— order the defendant:                                                  administration .
     — to pay, by way of compensation for material and
          non-material          damage      suffered      through
          non-disclosure of information as to his state of
          health, a sum equal to eight years ' remuneration to
          which he would have been entitled if he had not been
                                                                        Action brought on 29 March 1995 by Lieve De Nil and
          obliged , as a result of the successive wrongful acts         Christiane Impens against the Council of the European
          committed , to apply for retirement on grounds of                                            Union
          invalidity,
                                                                                ( Case T-91/95 )
     — to pay compensatory interest on that sum at the rate                                      ( 95/C 137/77 )
          of 8 % per annum as from the date of his
          application,
                                                                                (Language of the case: French)
     — to pay the applicant the sum of ECU 10 000 , by way
          of redress for the non-material damage suffered as a          An action against the Council of the European Union was
          result of the fact that, without reservation and              brought before the Court of First Instance of the European
          against his will, his application and complaint were          Communities on 29 March 1995 by Lieve De Nil and
          made public,                                                  Christiane Impens, of Wolvertem and Brussels (Belgium ),
 ---pagebreak--- No C 137/36         f EN                   Official Journal of the European Communities                                       3 . 6 . 95
respectively, represented by Jean-Noel Louis, Thierry                 the list of successful candidates in competition B/228 , for
Demaseure and Ariane Tornel , of the Brussels Bar, with an            which no remedy was provided by the decisions taken by the
address for service in Luxembourg at the office of Fiduciaire         Council .
Myson Sari, 1 Rue Glesener .
                                                                      Finally, they claim that the decisions of the appointing
                                                                      authority rejecting their request of 15 March 1994 and their
The applicants claim that the Court should :                          complaint of 4 January 1995 seeking compensation for the
                                                                      damage resulting from the unlawful act annulled by the
— annul the Council decision of 15 June 1994 expressly                Court of First Instance constitute breaches of Article 176 of
    rejecting their claim for compensation for additional             the EC Treaty and therefore further instances of
    harm suffered ,                                                   maladministration for which they seek compensation.
— annul, so far as necessary, the Council decisions of
    9 June 1994 and 4 January 1995 ,
— order the defendant:
                                                                      Action brought on 5 April 1995 by Sebastien
                                                                      Rozand-Lambiotte against the Commission of the
    — to pay the sum of Bfrs 500 000 ( five hundred                                      European Communities
        thousand ) to each applicant, by way of
        compensation for material damage suffered,                                           ( Case T-96/95 )
                                                                                ( 95/C 137/78 )
    — to pay the symbolic sum of ECU 1 to each applicant
         by way of compensation for the non-material                                 (Language of the case: French)
         damage sufferd by them,
                                                                      An action against the Commission of the European
    — to pay the costs .                                              Communities was brought before the Court of First
                                                                      Instance of the European Communities on 5 April 1995 by
                                                                      Sebastien Rozand-Lambiotte, residing at La Javie ( France ),
Pleas in law and main arguments adduced in support:                   represented by Jean-Noel Louis, Thierry Demaseure and
                                                                      Ariane Tornel, of the Brussels Bar, with an address for
The applicants state that they were admitted to the tests in          service in Luxembourg at the offices of Fiduciaire Myson
internal Council competition B/228 (a competition designed            Sari, 1 Rue Glesener.
to enable officials in grade CI to have their posts reclassified
as B5 ), but the selection board decided not to include them          The applicant claims that the Court should :
on the list of successful candidates . Following an action for
annulment brought against that decision, the Court of First           — annul the decision of the Commission of 12 July 1994
Instance gave a judgment on 11 February 1993 annulling                    dismissing the applicant on the expiry of his
the action taken following the decisions concerning                       probationary period,
admission to the tests . In order to comply with the
judgment, the Council organized competition B/228 bis,                — order the defendant to pay the costs .
which was of the same kind and involved the same
procedures for marking the tests as competition B/228 . The
selection board included the applicants on the list of                Pleas in law and main arguments adduced in support:
successful candidates and their posts were reclassified as B5
with effect from 1 January 1994 .                                     The applicant maintains, first, that the contested decision
                                                                      was adopted in contravention of his right to a fair hearing
                                                                      and of Articles 26 and 43 of the Staff Regulations, and that it
The applicants maintain that the irregularities committed by          did not satisfy the obligation to provide a statement of
the selection board for competition B/228 prevented them              reasons . He considers that the facts brought to his
from being included on the list of successful candidates and          knowledge, such as they were, were incapable of
therefore from having their posts reclassified as B5 in 1990          constituting the legal basis for a decision as serious as one of
or, at the latest, in 1991 ; as a result, they lost three years'      dismissal .
seniority in grade B5 . Moreover, their chances of securing
rapid promotion to grade B4 and then to grade B3 have been            He also pleads infringement of Article 34 of the Staff
considerably diminished by the budgetary restrictions                 Regulations, claiming that the work carried out in the
imposed since 1991 . They conclude that the effects of the            matter by the Reports Committee followed a course which
irregularities committed by the selection board were                  blatantly disregarded the rules in force within the
perpetuated as far as they were concerned, despite the                Commission, those rules having been laid down in order to
measures taken by the Council to comply with the judgment             ensure the impartiality of the members of the various
of the Court of Justice and seek redress for the material             committees and the objectivity of the work done by them.
damage suffered .                                                     He concludes from the foregoing that the opinion arrived at
                                                                      by the Committee was adopted following an improper
The applicants also maintain that they suffered                       procedure and that the contested decision is unlawful
non-material damage through not having been entered on                inasmuch as it is based, in particular, on that opinion.