title: Judgment of the Court of 20 September 2001 in Case C-390/98 (reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division)): H.J. Banks & Co. Ltd v The Coal Authority, Secretary of State for Trade and Industry (ECSC Treaty — Licences to extract raw coal — Discrimination between producers — Special charges — State aid — Article 4(b) and (c) of the Treaty — Decision No 3632/93/ECSC — Code on aid to the coal industry — Direct effect — Respective powers of the Commission and the national courts)

text:
C 17/2                  EN                     Official Journal of the European Communities                                             19.1.2002
supported by Kingdom of Spain (Agent: N. Dı́az Abad), French              (Civil Division) (United Kingdom), for a preliminary ruling in
Republic (Agents: K. Rispal-Bellanger and C. Chavance), Italian           the proceedings pending before that court between H.J. Banks
Republic (Agents: U. Leanza, assisted by F. Quadri) and the               & Co. Ltd v The Coal Authority, Secretary of State for Trade
Commission of the European Communities (Agents P.J. Kuijper               and Industry — on the interpretation of Article 4(b) and (c) of
and T. van Rijn) — application for the annulment of Council               the ECSC Treaty and of Commission Decision
Regulation (EC) No 1036/97 of 2 June 1997 introducing                     No 3632/93/ECSC of 28 December 1993 establishing Com-
safeguard measures in respect of imports of rice originating in           munity rules for State aid to the coal industry (OJ 1993 L 329,
the overseas countries and territories (OJ 1997 L 151, p. 8) —            p. 12) — the Court, composed of: G.C. Rodriguez Iglesias,
the Court, composed of: G.C. Rodrı́guez Iglesias, President,              President, C. Gulmann, A. La Pergola, M. Wathelet and
P. Jann, F. Macken (Rapporteur) (Presidents of Chambers),                 V. Skouris (Presidents of Chambers), D.A.O. Edward,
C. Gulmann, D.A.O. Edward, A. La Pergola, J.P. Puissochet,                J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen
L. Sevón, M. Wathelet, R. Schintgen and V. Skouris, Judges;              and F. Macken, Judges; N. Fennelly, Advocate General; L. Hew-
P. Léger, Advocate General; H. von Holstein, Deputy Registrar,            lett, Administrator, for the Registrar, has given a judgment on
for the Registrar, has given a judgment on 22 November 2001,              20 September 2001, in which it has ruled:
in which it:
1.    Dismisses the action as unfounded.
2.    Orders the Kingdom of the Netherlands to pay the costs.
                                                                          1.    A situation such as that at issue in the main proceedings from
                                                                                the restructuring date until the transfer to the successful private
3.    Orders the Kingdom of Spain, the French Republic, the Italian             tendering undertakings of the shares of the Crown-owned
      Republic and the Commission of the European Communities to                companies which succeeded British Coal Corporation as operator
      bear their own costs.                                                     implies the existence of aid, within the meaning of Article 4(c)
                                                                                of the ECSC Treaty, but not of special charges within the
                                                                                meaning of that provision. The same situation may constitute
(1) OJ C 318 of 18.10.1997.                                                     discrimination between producers, within the meaning of
                                                                                Article 4(b) of the same Treaty. That would be the case if
                                                                                significant objective differences in situation between, on the one
                                                                                hand, British Coal Corporation and the Crown companies
                                                                                which succeeded it as operator, and, on the other hand, the
                                                                                other operators, did not justify the differentiated treatment
                                                                                applied to the two categories of producers.
                  JUDGMENT OF THE COURT
                                                                                A situation such as that at issue in the main proceedings, as
                                                                                from the time of the transfer of the shares of the Crown-owned
                      of 20 September 2001                                      companies which succeeded British Coal Corporation as operator
                                                                                to the successful private tendering undertakings, does not reveal
in Case C-390/98 (reference for a preliminary ruling from                       the existence of aid or special charges within the meaning of
the Court of Appeal (England & Wales) (Civil Division)):                        Article 4(c) of the Treaty, or discrimination between producers,
H.J. Banks & Co. Ltd v The Coal Authority, Secretary of                         within the meaning of Article 4(b) of the Treaty, since access to
                 State for Trade and Industry (1)                               the various means of acquiring the lease and licence rights was
                                                                                not, and is not, discriminatory.
(ECSC Treaty — Licences to extract raw coal — Discrimi-
nation between producers — Special charges — State aid —
Article 4(b) and (c) of the Treaty — Decision
No 3632/93/ECSC — Code on aid to the coal industry —
Direct effect — Respective powers of the Commission and                   2.    Article 4(b) of the Treaty, in so far as it concerns discrimination
                        the national courts)                                    between producers, and the first sentence of Article 9(4) of
                                                                                Commission Decision No 3632/93/ECSC of 28 December
                                                                                1993 establishing Community rules for State aid to the coal
                          (2002/C 17/03)                                        industry directly confer rights upon individuals which the
                                                                                national courts must protect. On the other hand, Article 4(c) of
                    (Language of the case: English)                             the Treaty, in so far as it concerns the compatibility of aid with
                                                                                the common market, does not itself create such rights. However,
                                                                                the national courts have jurisdiction to interpret the concept of
                                                                                aid for the purposes of Article 4(c) of the Treaty and Article 1
                                                                                of Decision No 3632/93, with a view to drawing the
In Case C-390/98: reference to the Court under Article 41 of                    consequences from any infringement of the first sentence of
the ECSC Treaty from the Court of Appeal (England & Wales)                      Article 9(4) of that decision.
 ---pagebreak--- 19.1.2002                EN                       Official Journal of the European Communities                                              C 17/3
     In a situation such as that in the main proceedings, the finding                          JUDGMENT OF THE COURT
     of the existence of unlawful aid, on the ground that it was not
     authorised by the Commission at the time when it was granted,
     and, as the case may be, of discrimination between producers
     within the meaning of Article 4(b) of the Treaty, in that some                                of 27 September 2001
     producers were subject to the payment of royalties whereas
     others were exempt, cannot lead to producers who have been
     made subject to those royalties being retrospectively exonerated
     from them.                                                              in Case C-63/99 (reference for a preliminary ruling from
                                                                             the High Court of Justice of England and Wales, Queen’s
                                                                             Bench Division (Crown Office)): The Queen v Secretary
3.   A national court is entitled to make a finding of the existence         of State for the Home Department, ex parte: Wieslaw
     of discrimination between producers, within the meaning of                           Gloszczuk and Elzbieta Gloszczuk (1)
     Article 4(b) of the Treaty, or of aid, within the meaning of
     Article 4(c) of the Treaty and Article 1 of Decision
     No 3632/93, by reason of the royalty system at issue in the
     main proceedings, and it may do so despite the adoption by the          (External relations — Association Agreement between the
     Commission                                                              Communities and Poland — Freedom of establishment —
                                                                                Leave to enter obtained fraudulently)
     —     of Decision 94/995/ECSC of 3 November 1994 ruling
           on financial measures by the United Kingdom in respect
           of the coal industry in the 1994/95 and 1995/96                                              (2002/C 17/04)
           financial years,
     —     of the Decision of 21 December 1994 authorising the
                                                                                (Language of the case: English)
           acquisition of Central and Northern Mining Ltd by RJB
           Mining (UK) plc, and
     —     of the decisions contained in the letters of 4 May and
           14 July 1995 sent to the National Association of
           Licensed Opencast Operators in reply to the complaint by
           that association of 19 August 1994.                               In Case C-63/99: reference to the Court under Article 234 EC
                                                                             from the High Court of Justice of England and Wales, Queen’s
                                                                             Bench Division (Crown Office), for a preliminary ruling in the
4.   The fact that H.J. Banks & Co. Ltd or the National Association          proceedings pending before that court between The Queen
     of Licensed Opencast Operators                                          and Secretary of State for the Home Department, ex parte:
                                                                             Wieslaw Gloszczuk et Elzbieta Gloszczuk — on the interpret-
                                                                             ation of Articles 44 and 58 of the Europe Agreement
     —     did not bring an action for annulment under Article 33            establishing an association between the European Communi-
           of the ECSC Treaty against Decision 94/995, the                   ties and their Member States, of the one part, and the Republic
           Decision of 21 December 1994 authorising the acqui-               of Poland, of the other part, concluded and approved on behalf
           sition of Central and Northern Mining Ltd by RJB                  of the Community by Decision 93/743/Euratom, ECSC, EC of
           Mining (UK) plc or the decisions contained in the letters         the Council and the Commission of 13 December 1993 (OJ
           of 4 May and 14 July 1995 sent to the National                    1993 L 348, p. 1) — the Court, composed of: G.C. Rodrı́guez
           Association of Licensed Opencast Operators,                       Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),
                                                                             M. Wathelet and V. Skouris (Presidents of Chambers),
                                                                             D.A.O. Edward, J.- P. Puissochet, P. Jann, L. Sevón, R. Schintgen
     —     did not bring an action under Article 35 of the ECSC              and F. Macken, Judges; S. Alber, Advocate General; H. von
           Treaty to compel the Commission to adopt a position on            Holstein, Deputy Registrar, has given a judgment on 27 Sep-
           alleged infringements of Article 4(b) of the Treaty, in so        tember 2001, the operative part of which is as follows:
           far as it concerns discrimination between producers, or of
           the first sentence of Article 9(4) of Decision No 3632/93,
     does not preclude H.J. Banks & Co. Ltd. from pleading those             1.    Article 44(3) of the Europe Agreement establishing an associ-
     infringements before the national courts.                                     ation between the European Communities and their Member
                                                                                States, of the one part, and the Republic of Poland, of the other
                                                                                part, concluded and approved on behalf of the Community by
                                                                                Decision 93/743/Euratom, ECSC, EC of the Council and the
(1) OJ C 20 of 23.1.1999.                                                          Commission of 13 December 1993 is to be construed as
                                                                                establishing, within the scope of application of that Agreement,
                                                                                a precise and unconditional principle which is sufficiently
                                                                                operational to be applied by a national court and which is
                                                                                therefore capable of governing the legal position of individuals.


title: Case C-468/03: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 29 October 2003, in the case of Overland Footwear Ltd against Commissioners of Customs and Excise

text:
10.1.2004             EN                        Official Journal of the European Union                                            C 7/25
—     order the defendant institution to pay the costs.                 On the basis of the Council Regulation 2913/92 (‘the Customs
                                                                        Code’), in particular Articles 29, 32 and 33 thereof, and the
                                                                        case law of the Court, where, at the time of customs clearance,
                                                                        an importer inadvertently declares as the price paid or payable
Pleas in law and main arguments                                         for the goods an amount inclusive of buying commission and
                                                                        inadvertently fails to show the buying commission separately
                                                                        on the import declaration from the price actually paid or
1. Breach of essential procedural requirements as a result of
                                                                        payable but, after the goods have been released into free
infringement of the Council’s language rules: the Spanish
                                                                        circulation, shows to the satisfaction of the Customs authorities
delegation did not receive an invitation in Spanish to the
                                                                        that the declared price paid or payable for the goods included
meeting of the Management Committee for Fisheries and
                                                                        bona fide buying commission, which could have been properly
Aquaculture at which the proposed regulation was discussed.
                                                                        deducted at importation, and makes a claim for repayment of
Furthermore, during that meeting the Commission put forward
                                                                        the duty paid on the buying commission within three years of
a substantive amendment to its proposal but only in English.
                                                                        the date on which amount of customs duty was communicated:
2. Breach of the hierarchy of norms: Article 7(1) of                    1.     Could the bona fide buying commission be dutiable as
Regulation No 1438/2003 infringes the provisions of:                           part of the price actually paid or payable for the goods
                                                                               under Article 29 of the Customs Code?
—     Article 13 of Regulation No 2371/2002 which does not
      require the Member State to guarantee that the tonnage
      capacity does not exceed certain limits; and                      2.     If the answer to question 1 is negative, could the bona
                                                                               fide buying commission be deductible from the declared
—     Article 11 of Regulation No 2371/2002 which requires                     transaction value bearing in mind the provisions of
      that, when establishing the balance of entries and exits                 Articles 32.3 and 33 of the Customs Code?
      the corresponding capacity of the fleet is not to be taken
      into account.
                                                                        3.     In such circumstances are the customs authorities obliged
                                                                               under the Customs Code, and in particular Article 78.3
3. Breach of the principle of legitimate expectations: the                     thereof, to accept the amendment to the price paid or
retrospective nature of the provision could be detrimental to                  payable for the imported goods and thereby reduced
the interested of the persons concerned.                                       customs value?
4. Arbitrariness: the provision lays down as the period for             4.     Is the importer therefore entitled under the Customs
exits the range of 2000 to 2002 for no technical reason                        Code, and in particular Article 236 thereof, to a refund
whatever.                                                                      of the duty paid on the buying commission?
(1) OJ L 204 of 13.08.2003, p. 21.
Reference for a preliminary ruling by the VAT and Duties
Tribunals, London Tribunal Centre, by direction of that                 Action brought on 17 November 2003 by the Com-
court dated 29 October 2003, in the case of Overland                    mission of the European Communities against the
Footwear Ltd against Commissioners of Customs and                                               Hellenic Republic
                             Excise
                        (Case C-468/03)                                                          (Case C-474/03)
                         (2004/C 7/42)
                                                                                (2004/C 7/43)
Reference has been made to the Court of Justice of the
European Communities by a direction of the VAT and Duties
Tribunals, London Tribunal Centre, dated 29 October 2003,
which was received at the Court Registry on 6 November                  An action against the Hellenic Republic was brought before
2003, for a preliminary ruling in the case of Overland                  the Court of Justice of the European Communities on 17 Nov-
Footwear Ltd and Commissioners of Customs and Excise on                 ember 2003 by the Commission of the European Communi-
the following questions:                                                ties, represented by Maria Patakia, of its Legal Service.


               26.11.2005

               EN

               Official Journal of the European Union

               C 296/19

         Removal from the register of Case C-478/04 (1)

   (2005/C 296/39)

      (Language of the case: Italian)

   By order of 24 June 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-478/04 Commission of the European Communities v Italian Republic.

      (1)  OJ C 31, 5.2.2005.


title: Case T-295/17: Action brought on 15 May 2017 — Danpower Baltic v Commission

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/29

         Action brought on 15 May 2017 — Danpower Baltic v Commission
   (Case T-295/17)
   (2017/C 256/35)
   Language of the case: English

      Parties

      Applicant: Danpower Baltic UAB (Kauno, Lithuania) (represented by: D. Fouquet, J. Nysten and J. Voß, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission’s State aid decision of 19 September 2016 in case SA.41539 (2016/N) — Lithuania, Investment aid for high-efficiency cogeneration power plant in Vilnius, UAB Vilniaus kogeneracinė jėgainė Viniaus Kogeneracinee Jeqaine — C(2016) 5943final;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission decision constitutes a manifest error of assessment as it is based on insufficient, incomplete, insignificant and inconsistent evidence

                           —

                           The Commission decision is based on insufficient, incomplete, insignificant, and inconsistent evidence. This concerns specifically the availability of private investment in combined heat and power plants (CHPs) and other heat plants, the impact of the CHP on the environment, the existing waste incineration capacities in Lithuania, the status quo of the heating market in Vilnius, and the failure of Lietuvos Energija to conduct a viable tender procedure for the selection of a private partner. This information has not been taken into account by the defendant.

               2.

               Second plea in law, alleging that the Commission decision infringes Article 107 TFEU in that it does not respect the individual notification and assessment necessary for large-scale aid and assumes the contribution to an objective of common interest

                           —

                           The Commission decision infringes Article 107 TFEU in that it does not respect the individual notification and assessment necessary for large-scale aid and assumes the contribution to an objective of common interest. The Commission decision fails to assess properly according to paragraph 33 Guidelines on State aid for environmental protection and energy 2014-2020 if the State aid serves for the protection of the environment. The defendant used the wrong assessment standard and did not take into account that the potential CO2-reductions are considerably lower than stated in the decision.

               3.

               Third plea in law, alleging that the Commission decision infringes Article 107 TFEU in that it will result in a circumvention of the waste hierarchy in Lithuania

                           —

                           The Commission decision infringes Article 107 TFEU in that it will result in a circumvention of the waste hierarchy in Lithuania. The State aid will further increase the overcapacity of waste incineration plants in Lithuania and reduce incentives to increase recycling and re-use. This will hinder Lithuania from meeting the 50 % recycling target under Directive 2008/98/EC. The European Commission itself has urged the Lithuanian Government not to incentivize the construction of waste incineration plants.

               4.

               Fourth plea in law, alleging that the Commission decision infringes Article 107 TFEU where it concludes that there would be the need for State intervention in the form of State aid.

                           —

                           The defendant did not look into nor address evidence that the Vilnius district heat market would bring about similar improvements to environmental protection through replacing gas by biomass without the need for State intervention. There is no market failure on the heating market in Vilnius. The heating market is a competitive market with competitive prices that appropriately incentivize investment in CO2-neutral biomass and waste incineration capacities.

               5.

               Fifth plea in law, alleging that the Commission decision infringes Article 107 TFEU where it concludes the aid to be proportionate.

                           —

                           The Commission decision fails to conduct an appropriate assessment of proportionality in that it accepts the information provided by the Lithuanian Government without testing, and uses a wrong counterfactual scenario comparing totally different investment projects (CHP and heat only boiler instead of comparing two CHP projects).

               6.

               Sixth plea in law, alleging that the Commission decision infringes Article 107 TFEU in concluding that the State aid would have an incentive effect.

                           —

                           The defendant relied on the Lithuanian government’s submissions that the beneficiary would not otherwise have built the Vilnius CHP, which is however incorrect, as those activities are exactly within the scope of the normal business of the beneficiary, i.e. would not need to be incentivized any further.

               7.

               Seventh plea in law, alleging that the Commission decision infringes Article 107 TFEU in that it misjudges the impact on competition in the Vilnius heat market.

                           —

                           The defendant had information at hand regarding the competition in the Vilnius heat market, but apparently misjudged it when concluding that there would be no impact. In particular, the threat of crowding out of existing market players as the Plaintiff was not looked at sufficiently and the conclusions of the Defendant are thus wrong. The stated aid will drive out independent heat producers that operate CO2-neutral biomass heat plants. Furthermore, the State aid enables Vilnius KJ to instantly become a dominant market player with a market share of around 51 %.


title: Case T-653/11: Action brought on 26 December 2011 — Jaber v Council

text:
               25.2.2012

               EN

               Official Journal of the European Union

               C 58/12

         Action brought on 26 December 2011 — Jaber v Council
   (Case T-653/11)
   2012/C 58/23
   Language of the case: French

      Parties

      Applicant: Jaber (Lattakia, Syria) (represented by: M. Ponsard, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the General Court should:

               —

               admit this action applying an accelerated procedure;

               —

               annul, in so far as those acts concern the applicant;

                           —

                           Decision 2011/273/CFSP as amended and supplemented up to now, including all the decisions cited in Chapter 12 of the application;

                           —

                           Regulation No 442/2011 as amended and supplemented up to now, including all the regulations cited in Chapter 13 of the application;

                           —

                           Decision 2011/782/CFSP as amended and supplemented up to now;

               —

               order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two plea(s) in law.

               1.

               First plea in law, alleging infringement of fundamental rights and procedural guarantees, in particular the right to be heard, rights of defence, the obligation to state reasons and the principle of effective judicial protection, in so far as the applicant has not received formal notification of his inclusion on the list of persons sanctioned and in so far as the defendant has not responded to the applicant’s questions and has not explained on what grounds the applicant’s name was added to the lists at issue.

               2.

               Second plea in law, alleging infringement of the right to property and the principle of economic freedom, as the contested measures adversely affect the applicant’s commercial activities.


title: Case C-455/05: Judgment of the Court (Third Chamber) of 19 April 2007 (reference for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Velvet & Steel Immobilien und Handels GmbH v Finanzamt Hamburg-Eimsbüttel (Sixth VAT Directive — Exemptions — Article 13B(d)(2) — Concept of assumption of obligations — Assumption of the obligation to renovate a property — Refusal of exemption)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/14

         Judgment of the Court (Third Chamber) of 19 April 2007 (reference for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Velvet & Steel Immobilien und Handels GmbH v Finanzamt Hamburg-Eimsbüttel
   (Case C-455/05) (1)

   (Sixth VAT Directive - Exemptions - Article 13B(d)(2) - Concept of ‘assumption of obligations’ - Assumption of the obligation to renovate a property - Refusal of exemption)
   (2007/C 96/23)
   Language of the case: German
   Referring court
   Finanzgericht Hamburg
   Parties to the main proceedings

      Applicant: Velvet & Steel Immobilien und Handels GmbH

      Defendant: Finanzamt Hamburg-Eimsbüttel
   Re:
   Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 13B(d)(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended — Concept of ‘assumption of obligations ’— Refusal to exempt the assumption of a renovation obligation
   Operative part of the judgment
   Article 13B(d)(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the concept of assumption of obligations excludes from the scope of that provision obligations which are non-pecuniary, such as the obligation to renovate a property.

      (1)  OJ C 60, 11.3.2006.


title: Case F-68/08: Action brought on 6 August 2008 — Sluiter v Europol

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/55

         Action brought on 6 August 2008 — Sluiter v Europol
   (Case F-68/08)
   (2008/C 285/100)
   Language of the case: Dutch
   Parties

      Applicant: Rudolf Sluiter (Hillegom, Netherlands) (represented by: P. de Casparis, lawyer)

      Defendant: European Police Office (Europol)
   Subject-matter and description of the proceedings
   Annulment of the decision of 4 October 2007 whereby Europol informed the applicant that there was no possibility of his being offered a permanent position
   Form of order sought

               —

               Annul the decision of 4 October 2007 whereby the defendant informed the applicant that there was no possibility of his being offered a permanent position, along with the decision of 29 April 2008 rejecting his complaint brought against the first decision and the decision of 12 June 2008 in furtherance of that of the 4 October 2007;

               —

               Order Europol to pay the costs.


title: Case T-251/16: Action brought on 20 May 2016 — Director-General of the European Anti-Fraud Office v Commission

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/45

         Action brought on 20 May 2016 — Director-General of the European Anti-Fraud Office v Commission
   (Case T-251/16)
   (2016/C 260/56)
   Language of the case: French

      Parties

      Applicant: Director-General of the European Anti-Fraud Office (Brussels, Belgium) (represented by: L. Jelínek, staff member, assisted by G.M. Roberti and I. Perego, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Decision C(2016)1449 final of the European Commission of 2 March 2016 concerning an application for waiver of immunity, with the exception of Article 1(2);

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: infringements of law and manifest errors of assessment committed by the European Commission. The contested decision does not comply with the legal requirements governing waiver of immunity from legal proceedings of the Director-General of the European Anti-Fraud Office (OLAF) and is based on a manifestly erroneous reading of the documents in the case-file. Moreover, the contested decision did not correctly assess the EU’s interest and compromises the independence of the Director-General of OLAF.

               2.

               Second plea in law: infringements of law and distortion of the decision-making process.

               3.

               Third plea in law: infringement of the obligation to state reasons.

               4.

               Fourth plea in law: infringement of the principle of sincere cooperation and of procedural guarantees.


title: Case T-224/14: Action brought on 23 July 2014  — CW v Council

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/9

         Action brought on 23 July 2014 — CW v Council
   (Case T-224/14)
   2014/C 351/11
   Language of the case: French

      Parties

      Applicant: CW (Paris, France) (represented by: A. Tekari, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Implementing Decision 2014/49/CFSP of 30 January 2014 applying Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia in so far as it concerns the applicant;

               —

               order that as a result of the annulment of the contested decision, the applicant shall be deemed never to have been entered in the list of persons covered by the asset freeze and that no measure or decision of the Council may mention his name as being subject to an asset freeze;

               —

               order the Council of the European Union to pay damages in the amount of EUR 1 00  000 as compensation for the non-pecuniary and material harm suffered by the applicant;

               —

               order the Council of the European Union to bear, in addition to its own costs, those incurred by the applicant which must be equitably determined by having regard to the parties’ circumstances and to the workload resulting from the management of such a case.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an absence of legal basis for Decision 2014/49/CFSP (1), inasmuch as it is based on a consideration extraneous to that set out in Article 1 of Decision 2011/72/CFSP (2) and inasmuch as, in any event, Decision 2011/72/CFSP, which constitutes the legal basis for the former decision, is not consistent with EU law governing targeted sanctions.

               2.

               Second plea in law, alleging infringement of the right to property, in so far as the restrictive measures imposed on the applicant amount to an unjustified restriction of his right to property.

      (1)  Council Decision 2014/49/CFSP of 30 January 2014 amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2014 L 28, p. 38).

      (2)  Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62).


title: Case F-23/11: Action brought on 3 March 2011 — ZZ v Council

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/31

         Action brought on 3 March 2011 — ZZ v Council
   (Case F-23/11)
   2011/C 226/61
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: E. Boigelot and S. Woog, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision of the Council not to include the applicant in the list of officials promoted to grade AST 9 under the 2010 promotion procedure and compensation for the non-material harm suffered.

      Form of order sought

               —

               Annul the decision of the Council, published on 21 May 2010 by Staff Note No 82/10, not to include the applicant in the list of officials promoted from grade AST 8 to grade AST 9 under the 2010 promotion procedure;

               —

               As a consequence of that annulment, undertake a fresh comparative examination of the merits of the applicant and of the other candidates for the 2010 promotion procedure and promote the applicant as a supernumerary to grade AST 9 with retroactive effect to 1 January 2010, with payment of interest on the arrears of remuneration at the rate fixed by the European Central Bank for main re-financing operations, with effect from 1 January 2010, increased by two percentage points, without, however, calling into question the promotion of the other officials promoted;

               —

               In the alternative, if the Tribunal were to consider that the applicant’s promotion to grade AST 9 cannot be made retroactively as a supernumerary, annul not only the decision not to include the applicant in the list of officials promoted from grade AST 8 to grade AST 9 under the 2010 promotion procedure but also the promotion decisions which led to the establishment of the list of officials promoted to grade AST 9, published on 21 May 2010;

               —

               In the further alternative, if the Tribunal were to consider that annulment of the promotion decisions sought in the alternative constituted an excessive penalty for the unlawfulness found, order the Council to pay compensation covering the damage to the applicant’s career caused by the delay in promotion between 1 January 2010 and the date on which promotion is granted;

               —

               Order the Council to pay the applicant the sum of EUR 3 500 as compensation for the non-material damage suffered by reason of his not being promoted on 1 January 2010, the right to increase that sum during the proceedings being reserved;

               —

               Order the Council to pay the costs.


title: Case C-477/16 PPU: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Ruslanas Kovalkovas (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(1) — Concept of ‘judicial decision’ — Article 6(1) — Concept of ‘issuing judicial authority’ — European arrest warrant issued by the Ministry of Justice of the Republic of Lithuania with a view to executing a custodial sentence)

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/17

         Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Ruslanas Kovalkovas
   (Case C-477/16 PPU) (1)

   ((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Article 1(1) - Concept of ‘judicial decision’ - Article 6(1) - Concept of ‘issuing judicial authority’ - European arrest warrant issued by the Ministry of Justice of the Republic of Lithuania with a view to executing a custodial sentence))
   (2017/C 014/22)
   Language of the case: Dutch

      Referring court

   Rechtbank Amsterdam

      Parties to the main proceedings

      Applicant: Openbaar Ministerie

      Defendant: Ruslanas Kovalkovas

      Operative part of the judgment

   The term ‘judicial authority’, referred to in Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, is an autonomous concept of EU law and that provision must be interpreted as meaning that it precludes an organ of the executive, such as the Ministry of Justice of the Republic of Lithuania, from being designated as an ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by it with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299.

      (1)  OJ C 383, 17.10.2016.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 18 December 1997 in Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen, the Rechtbank van Eerste Aanleg te Brussel and the Rechtbank van Eerste Aanleg te Brugge): Garage Molenheide BVBA, Peter Schepens, Bureau Rik Decan-Business Research & Development NV (BRD), Sanders BVBA v. Belgian State (Sixth Directive (77/388/EEC) - Scope - Right to deduction of VAT - Retention of balance of VAT due - Principle of proportionality)

text:
7.3.98               EN                  Official Journal of the European Communities                                        C 72/1
                                                                 I
                                                           (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
              JUDGMENT OF THE COURT                                  Almeida,   P. Jann (Rapporteur) and L. Sevón, Judges; N.
                                                                     Fennelly,    Advocate General; D. Louterman-Hubeau,
                      (Fifth Chamber)
                                                                     Principal   Administrator, for the Registrar, has given a
                   of 18 December 1997                               judgment   on 18 December 1997, in which it has ruled:
in Joined Cases C-286/94, C-340/95, C-401/95 and
C-47/96 (reference for a preliminary ruling from the Hof             1. Article 18(4) of the Sixth Council Directive 77/388/
van Beroep te Antwerpen, the Rechtbank van Eerste                        EEC of 17 May 1977 on the harmonisation of the
Aanleg te Brussel and the Rechtbank van Eerste Aanleg te                 laws of the Member States relating to turnover taxes
Brugge): Garage Molenheide BVBA, Peter Schepens,                         Ð Common system of value added tax: uniform basis
Bureau Rik Decan-Business Research & Development NV                      of assessment does not in principle preclude measures
         (BRD), Sanders BVBA v. Belgian State (1)                        of the kind at issue in the main proceedings.
(Sixth Directive (77/388/EEC) Ð Scope Ð Right to
deduction of VAT Ð Retention of balance of VAT due Ð
                Principle of proportionality)                        2. However, the principle of proportionality is applicable
                                                                         to national measures which, like those at issue in the
                        (98/C 72/01)                                     main proceedings, are adopted by a Member State in
                                                                         the exercise of its powers relating to VAT, in that, if
                                                                         they went further than was necessary in order to attain
               (Language of the case: Dutch)                             their objective, they would undermine the principles of
                                                                         the common system of VAT, in particular the
                                                                         conditions governing deductions, which are an
                                                                         essential component of that system.
 (Provisional translation; the definitive translation will be
         published in the European Court Reports)
                                                                         It is for the national court to examine whether or not
                                                                         the measures in question and the manner in which
In Joined Cases C-286/94, C-340/95, C-401/95 and                         they are applied by the competent administrative
C-47/96: reference to the Court under Article 177 of the                 authority are proportionate. In the context of that
EC Treaty from the Hof van Beroep te Antwerpen                           examination, if the national provisions or a particular
(Belgium) (C-286/94 and C-340/95), the Rechtbank van                     construction of them would constitute a bar to
Eerste Aanleg te Brussel (C-401/95) and the Rechtbank                    effective judicial review, in particular review of the
van Eerste Aanleg te Brugge (Belgium) (C-47/96) for a                    urgency and necessity of retaining the refundable VAT
preliminary ruling in the proceedings pending before those               balance, and would prevent the taxable person from
courts between Garage Molenheide BVBA (C-286/94),                        applying to a court for replacement of the retention by
Peter Schepens (C-340/95), Bureau Rik Decan-Business                     another guarantee sufficient to protect the interests of
Research & Development NV (BRD) (C-401/95), Sanders                      the Treasury but less onerous for the taxable person,
BVBA (C-47/96) and Belgian State Ð on the                                or would prevent an order from being made, at any
interpretation of Article 18(4) of the Sixth Council                     stage of the procedure, for the total or partial lifting of
Directive 77/388/EEC of 17 May 1977 on the                               the retention, the national court should disapply those
harmonization of the laws of the Member States relating                  provisions or refrain from placing such a construction
to turnover taxes Ð Common system of value added tax:                    on them. Moreover, in the event of the retention being
uniform basis of assessment (OJ L 145, 13.6.1977, p. 1)                  lifted, calculation of the interest payable by the
Ð the Court (Fifth Chamber), composed of: C. Gulmann,                    Treasury which did not take as its starting point the
President of the Chamber, M. Wathelet, J. C. Moitinho de                 date on which the VAT balance in question would
 ---pagebreak--- C 72/2               EN                   Official Journal of the European Communities                                       7.3.98
     have had to be repaid in the normal course of events                          JUDGMENT OF THE COURT
     would be contrary to the principle of proportionality.
                                                                                (Second Chamber)
(1) OJ C 370, 24.12.1994.                                                                 of 15 January 1998
    OJ C 333, 9.12.1995.
    OJ C 46, 17.2.1996.                                              in Case C-113/97 (reference for a preliminary ruling from
    OJ C 95, 30.3.1996.
                                                                     the Tribunal du Travail, Charleroi): Henia Babahenini v.
                                                                                The Belgian State (1)
                                                                     (EEC-Algeria Cooperation Agreement Ð Article 39(1) Ð
                                                                     Principle of non-discrimination in the field of social
                                                                      security Ð Direct effect Ð Scope Ð Disability allowance)
              JUDGMENT OF THE COURT
                                                                                (98/C 72/03)
                      (Second Chamber)
                     of 15 January 1998
in Case C-125/96 (reference for a preliminary ruling from                           (Language of the case: French)
the Hessisches Finanzgericht, Kassel): Hartmut Simon v.
            Hauptzollamt Frankfurt am Main (1)
(Additional milk levy Ð Date on which it becomes
payable Ð Article 15(4) of Regulation (EEC) No 1546/88
                                                                       (Provisional translation; the definitive translation will be
           Ð Meaning of any levy amount due')
                                                                              published in the European Court Reports)
                         (98/C 72/02)
               (Language of the case: German)
                                                                     In Case C-113/97: reference to the Court under Article 177
                                                                     of the EC Treaty from the Tribunal du Travail (Labour
  (Provisional translation; the definitive translation will be       Court), Charleroi (Belgium), for a preliminary ruling in
         published in the European Court Reports)                    the proceedings pending before that court between Henia
                                                                     Babahenini and The Belgian State Ð on the interpretation
In Case C-125/96: reference to the Court under Article 177           of Article 39(1) of the Cooperation Agreement between
of the EC Treaty from the Hessisches Finanzgericht                   the European Economic Community and the People's
(Finance Court, Hesse), Kassel (Germany), for a                      Democratic Republic of Algeria, signed in Algiers on
preliminary ruling in the proceedings pending before that            26 April 1976 and concluded on behalf of the Community
court between Hartmut Simon and Hauptzollamt                         by Council Regulation (EEC) No 2210/78 of 26 September
Frankfurt am Main Ð on the interpretation of                         1978 (OJ L 263, 27.9.1978, p. 1) Ð the Court (Second
Article 15(4) of Commission Regulation (EEC) No 1546/                Chamber), composed of: R. Schintgen (Rapporteur),
88 of 3 June 1988 laying down detailed rules for the                 President of the Chamber, G. F. Mancini and G. Hirsch,
application of the additional levy referred to in Article 5c         Judges; F. G. Jacobs, Advocate General; R. Grass,
of Regulation (EEC) No 804/68 (OJ L 139, 4.6.1988,                   Registrar, has given a judgment on 15 January 1998, in
p. 12) Ð the Court (Second Chamber), composed of: R.                 which it has ruled:
Schintgen, President of the Chamber, H. Ragnemalm and
G. F. Mancini (Rapporteur), Judges; M. B. Elmer,
Advocate General; H. von Holstein, Deputy Registrar, for
the Registrar, has given a judgment on 15 January 1998,              Article 39(1) of the Cooperation Agreement between the
in which it has ruled:                                               European Economic Community and the People's
                                                                     Democratic Republic of Algeria, signed in Algiers on
Article 15(4) of Commission Regulation (EEC) No 1546/                26 April 1976 and concluded on behalf of the Community
88 of 3 June 1988 laying down detailed rules for the                 by Council Regulation (EEC) No 2210/78 of 26 September
application of the additional levy referred to in Article 5c         1978, is to be interpreted as precluding a Member State
of Regulation (EEC) No 804/68 must be construed as                   from refusing to grant a benefit, such as disability
meaning that the amount of levy due refers, within the               allowance, provided for under its legislation in favour of
context of Formula A, to the amount objectively payable              nationals resident in that State and irrespective of whether
by a milk producer by reason of the fact that he has                 they have been working in an employed capacity, to the
actually exceeded his reference quantity even where the              disabled spouse of a retired Algerian worker who lives
exact amount can be established only after verification of           with her husband in the Member State in question, on the
the quantities delivered, and becomes payable on the date            ground that she is of Algerian nationality and has never
laid down in that provision, that is to say, not more than           been engaged in a trade or profession.
three months following the end of each 12-month period,
namely on the following 30 June.
                                                                     (1) OJ C 142, 10.5.1997.
(1) OJ C 158, 1.6.1996.


title: Judgment of the Court (Sixth Chamber) of 15 June 2000 in Case C-470/98: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil its obligations — Incomplete transposition of Directive 90/675/EEC)

text:
9.9.2000                  EN                      Official Journal of the European Communities                                             C 259/3
                   JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Sixth Chamber)                                                               (Sixth Chamber)
                            of 15 June 2000
                                                                                of 15 June 2000
in Case C-365/98 (reference for a preliminary ruling from
the Finanzgericht Düsseldorf): Brinkmann Tabakfabriken                       in Case C-470/98: Commission of the European Communi-
                GmbH v Hauptzollamt Bielefeld (1)                                                 ties v Hellenic Republic (1)
(Directive 92/80/EEC — National tax consisting either in a                   (Failure of a Member State to fulfil its obligations —
specific duty for products which are not above a certain price,                    Incomplete transposition of Directive 90/675/EEC)
or in an ad valorem duty for products which are above that
                                  price)
                                                                                (2000/C 259/05)
                            (2000/C 259/04)
                                                                                (Language of the case: Greek)
                     (Language of the case: German)
                                                                             (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                            in the European Court Reports)
                     in the European Court Reports)
In Case C-365/98: reference to the Court under Article 177 of                In Case C-470/98: Commission of the European Communities
the EC Treaty (now Article 234 EC) from the Finanzgericht                    (Agent: M. Condou Durande) v Hellenic Republic (Agents:
Düsseldorf (Finance Court, Düsseldorf) for a preliminary                     I.-K. Khalkias and N. Dafniou) — application for a declaration
ruling in the proceedings pending before that court between                  that by failing, except as regards fresh meat and poultrymeat,
Brinkmann Tabakfabriken GmbH and Hauptzollamt Bielefeld                      to adopt within the prescribed period the necessary measures
— on the interpretation of Council Directive 92/80/EEC                       to ensure that the costs of the veterinary and administrative
of 19 October 1992 on the approximation of taxes on                          cheeks in respect of products of agricultural origin from third
manufactured tobacco other than cigarettes (OJ 1992 L 316,                   countries, required by Articles 3(ii) and 4 of Council Directive
p. 10) — the Court (Sixth Chamber), composed of: J.C. Moitin-                90/675/EEC of 10 December 1990 laying down the principles
ho de Almeida, President of the Chamber, C. Gulmann,                         governing the organisation of veterinary checks on products
J.-P. Puissochet, V. Skouris (Rapporteur) and F. Macken, Judges;             entering the Community from third countries (OJ 1990 L 373
J. Mischo, Advocate General; H. von Holstein, Deputy Regis-                  p. 1), are met by the consignor, the consignee or their agent
trar, for the Registrar, has given a judgment on 15 June 2000,               without reimbursement by the State, the Hellenic Republic has
in which it has ruled:                                                       failed to fulfil its obligations under the EC Treaty and
                                                                             that directive — the Court (Sixth Chamber), composed of:
1.     Article 3(1) of Council Directive 92/80/EEC of 19 October             J.C. Moitinho de Almeida, President of the Chamber,
       1992 on the approximation of taxes on manufactured tobacco            R. Schintgen (Rapporteur), C. Gulmann, J.-R Puissochet and
       other than cigarettes must be interpreted as meaning that it          F. Macken, Judges; N. Fennelly, Advocate General; R. Grass,
       precludes the levying on cigars or cigarillos of a tax which is       Registrar, has given a judgment on 15 June 2000, in which it:
       calculated ad valorem without being able to be below a
       minimum amount.                                                       1.    Declares that by failing, except as regards fresh meat and
                                                                                poultrymeat, to adopt within the prescribed period the necessary
2.     Article 3(1) of Directive 92/80 does not confer on persons                  measures to ensure that the costs of the veterinary and
       chargeable to a tax on cigars or cigarillos, which is calculated            administrative checks in respect of products of agricultural
       ad valorem without being able to be below a minimum amount,                 origin from third countries, required by Articles 3(ii) and 4 of
       the right to rely on it before a national court in order to avoid           Council Directive 90/675/EEC of 10 December 1990 laying
       the application to them solely of the element of the tax formula            down the principles governing the organisation of veterinary
       relating to the levying of the minimum specific duty and,                   checks on products entering the Community from third
       consequently, to have solely an ad valorem tax levied.                      countries, are met by the consignor, the consignee or their agent
                                                                                without reimbursement by the State, the Hellenic Republic has
       However, the national court, where it applies provisions of                 failed to fulfil its obligations under that directive;
       national law adopted either before or after a directive, must
       interpret them, as far as possible, in the light of the wording       2.    Orders the Hellenic Republic to pay the costs.
       and the purpose of the Directive.
                                                                             (1) OJ C 48 of 20.2.1999.
(1) OJ C 378 of 5.12.1998.


title: Case T-40/15: Action brought on 27 January 2015  — ASPLA and Armando Álvarez v Court of Justice of the European Union

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/42

         Action brought on 27 January 2015 — ASPLA and Armando Álvarez v Court of Justice of the European Union
   (Case T-40/15)
   (2015/C 089/51)
   Language of the case: Spanish

      Parties

      Applicants: Plásticos Españoles, SA (ASPLA) (Torrelavega, Spain) and Armando Álvarez, SA (Madrid, Spain) (represented by: M. Troncoso Ferrer, C. Ruixó Claramunt and S. Moya Izquierdo, lawyers)

      Defendant: Court of Justice of the European Union

      Form of order sought

   The applicants claim that the General Court should:

               —

               primarily, order the Court of Justice of the European Union to pay compensation in the amount of EUR 3 4 95  038,66 for the damage caused to the applicants by the General Court’s infringement of Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union, to which amount must be added compensatory and default interest applied by the European Central Bank to its main refinancing operations, to which two basis points have been added, from the date the application was lodged;

               —

               consequently order the Court of Justice of the European Union to pay the costs of the proceedings;

               —

               in the alternative, order the European Commission to pay compensation in the amount of EUR 3 4 95  038,66 for the damage caused to the applicants by the General Court’s infringement of Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union, to which amount must be added compensatory and default interest applied by the European Central Bank to its main refinancing operations, to which two basis points have been added, from the date the application was lodged; and

               —

               consequently order the European Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The plaintiffs complain of the Court’s delay in giving judgment on the actions brought by them in Cases T-76/06 ASPLA v Commission and T-78/06 Armando Álvarez v Commission in which judgment was delivered on 16 December 2011, and, on appeal, on 22 May 2014.
   In support of their application, the applicants allege infringement of Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union, which in their opinion is a reaffirmation of the principle of effective judicial protection, a general principle of EU law.
   In their view, the existence of conduct contrary to the above provision and, accordingly, the infringement of the principle of effective judicial protection are demonstrated sufficiently clearly by the judgments of the Court in Cases C-58/12 P Groupe Gascogne v Commission and C-50/12 P Kendrion NV v Commission. It should be noted in that regard that both companies were subject to the same decision imposing penalties as Kendrion and Groupe Gascogne. Like both those companies, they brought an action against the decision imposing penalties and, in proceedings before the General Court which are very similar, if not virtually identical, to those in respect of which the Court of Justice gave judgment in the two cases cited above, were faced with a failure on the part of the General Court to observe a reasonable time for adjudication.


title: Case C-243/06: Order of the President of the Court of 25 November 2008 (reference for a preliminary ruling from the Tribunal de commerce de Charleroi — Belgium) — SA Sporting du Pays de Charleroi, G-14 Groupement des clubs de football européens v Fédération Internationale de Football Association (FIFA)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/30

         Order of the President of the Court of 25 November 2008 (reference for a preliminary ruling from the Tribunal de commerce de Charleroi — Belgium) — SA Sporting du Pays de Charleroi, G-14 Groupement des clubs de football européens v Fédération Internationale de Football Association (FIFA)
   (Case C-243/06) (1)

   (2009/C 69/56)

      Language of the case: French

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

      (1)  OJ C 212, 2.9.2006.


title: Case C-129/02: Action brought on 8 April 2002 by the Commission of the European Communities against the French Republic

text:
1.6.2002                 EN                   Official Journal of the European Communities                                    C 131/11
The applicant claims that the Court should:                              Action brought on 5 April 2002 by the Commission
                                                                         of the European Communities against the Kingdom of
                                                                                Belgium
(a)   declare that, by failing to take the necessary measures to
      comply with the judgment delivered by the Court of                                         (Case C-122/02)
      Justice on 16 December 1999 in the case of Commission
      v Luxembourg (1), the Grand Duchy of Luxembourg has
      failed to fulfil its obligations under Article 228(1) of the                               (2002/C 131/20)
      EC Treaty;
(b) order the Grand Duchy of Luxembourg to pay to the                    An action against the Kingdom of Belgium was brought before
      Commission a periodic penalty of 9 000 euros per day for           the Court of Justice of the European Communities on 5 April
      each day that it fails to comply with the aforementioned           2002 by the Commission of the European Communities,
      obligations, running from the date of notification of the          represented by Gregorio Valero Jordana and Joelle Adda, acting
      judgment, that being the date of commencement of its               as Agents, with an address for service in Luxembourg.
      non-compliance with its obligations in the present case;
                                                                         The applicant claims that the Court should:
(c)   order the Grand Duchy of Luxembourg to pay the costs.
                                                                         —     declare that, by failing hitherto to adopt all the laws,
                                                                               regulations and administrative measures necessary in
                                                                               order to comply fully with Council Directive 1998/83/
                                                                               EC of 3 November 1998 on the quality of water intended
                                                                               for human consumption (1), or at any rate by failing fully
                                                                               to inform the Commission thereof, the Kingdom of
Pleas in law and main arguments                                                Belgium has failed to fulfil its obligations under that
                                                                               directive;
                                                                         —     order the Kingdom of Belgium to pay the costs.
Although Article 228 EC does not indicate the period of time
allowed to a Member State to comply with its obligations, the
fact remains that compliance with a judgment delivered against
is must be commenced forthwith and completed as rapidly as               Pleas in law and main arguments
possible. In the present case, all the provisions and measures
necessary in order for the Grand Duchy of Luxembourg to
bring its legislation into conformity with the Court’s judgment          The time-limit for transposition expired on 25 December
should have been adopted and brought into force long ago; at             2000 but the Kingdom of Belgium has not adopted the
the time when the Commission issued its reasoned opinion,                measures required.
over a year had already elapsed since delivery of the judgment
of the Court.
                                                                         (1) OJ L 330 of 5.12.1998, p. 32.
In the Commission’s view, a periodic penalty of 9 000 euros
per day is appropriate, having regard to the seriousness and
duration of the non-compliance and the need to impose an
effective penalty. The Commission has calculated the amount
of the periodic penalty which it was required to indicate to             Action brought on 8 April 2002 by the Commission of
the Court by using the calculation method defined in its                  the European Communities against the French Republic
communication of 8 January 1997 (2). It has applied a weight-
ing of 10 to take account of the seriousness of the non-
compliance, and a weighting of 1.8 in respect of the duration                                    (Case C-129/02)
thereof.
                                                                                (2002/C 131/21)
(1) Case C-138/99, OJ C 63 of 4.3.2000, p. 8.
(2) OJ C 63 of 28.2.1997, p. 2.                                          An action against the French Republic was brought before the
                                                                         Court of Justice of the European Communities on 8 April
                                                                         2002 by the Commission of the European Communities,
                                                                         represented by Gregorio Valero Jordana and Joelle Adda, acting
                                                                         as Agents, with an address for service in Luxembourg.
 ---pagebreak--- C 131/12               EN                     Official Journal of the European Communities                                        1.6.2002
The Commission of the European Communities claims that                   The Commission claims that the Court should:
the Court should:
                                                                         1.    Declare that, by failing to adopt the laws, regulations
—     declare that, by failing to communicate to the Com-                      and administrative provisions necessary to comply with
      mission any information concerning the quality of bath-                  Commission Directive 2000/24/EC (1) of 28 April 2000
      ing waters in France for the 1999 bathing season, the                    amending the Annexes to Council Directives 76/895/
      French Republic has failed to fulfil its obligations under               EEC, 86/362/EEC, 86/363/EEC and 90/642/EEC on the
      Article 13 of Council Directive 76/160/EEC of 8 Decem-                   fixing of maximum levels for pesticide residues in and on
      ber 1975 concerning the quality of bathing water (1);                    cereals, foodstuffs of animal origin and certain products
                                                                               of plant origin, including fruit and vegetables respectively,
                                                                               the Republic of Austria has failed to fulfil its obligations
—     order the French Republic to pay the costs.                              under the EC Treaty;
                                                                         2.    Order the defendant to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
The Commission considers that the social conflict giving rise
to the omission which has been established cannot justify that           In view of the binding nature of the provisions of the third
omission. Although, according to a general principle common              paragraph of Article 249 EC and of the first paragraph of
to the laws of the Member States, force majeure is deemed to             Article 10 EC, the Member States to which a directive is
arise in the event of an occurrence possessing, simultaneously,          addressed are obliged to transpose it into national law in such
the characteristics of being beyond the control of the State,            a way that it becomes fully effective on expiry of the period
being unforeseeable and being irresistible in its effects, the           for transposition. The period prescribed in Article 5(2) of the
social conflict in issue here does not fulfil those criteria. The        directive expired on 31 December 2000 without the Republic
fact that checks continued to be carried out on the ground, in           of Austria having adopted the necessary provisions.
accordance with the requirements of the directive, cannot
absolve France of its obligations under Article 13 of the
directive, which has its own particular purpose. The Com-                (1) OJ L 107, 2000, p. 28.
mission further notes that, as at the expiry of the period stated
in the reasoned opinion, the French authorities had not sent
the Commission any information concerning the quality of
bathing waters in France for the 1999 bathing season, and that
it had still not done so as at the date of the present application.
                                                                         Action brought on 9 April 2002 by the Commission
(1) OJ L 31 of 5.2.1976, p. 1.                                           of the European Communities against the Kingdom of
                                                                                Belgium
                                                                                (Case C-132/02)
                                                                                (2002/C 131/23)
Action brought on 9 April 2002 by the Commission
of the European Communities against the Republic of                      An action against the Kingdom of Belgium was brought before
                               Austria                                   the Court of Justice of the European Communities on 9 April
                                                                         2002 by the Commission of the European Communities,
                                                                         represented by M. Patakia, acting as Agent, with an address for
                         (Case C-131/02)                                 service in Luxembourg.
                         (2002/C 131/22)                                 The Commission of the European Communities claims that
                                                                         the Court should:
                                                                         (1) declare that, by failing to adopt all the laws, regulations
An action against the Republic of Austria was brought before                   and administrative measures necessary in order to comply
the Court of Justice of the European Communities on 9 April                    with Directive 98/5/EC of the European Parliament and
2002 by the Commission of the European Communities,                            of the Council of 16 February 1998 to facilitate practice
represented by Gerald Braun, of the Legal Service of the                       of the profession of lawyer on a permanent basis in a
Commission of the European Communities, with an address                        Member State other than that in which the qualification
for service in Luxembourg at the office of Luis Escobar                        was obtained (1), the Kingdom of Belgium has failed to
Guerrero, of its Legal Service, Wagner Centre C 254, Kirchberg.                fulfil its obligations under that directive;


title: Judgment of the Court of First Instance of 8 January 2003 in Joined Cases T-94/01, T-152/01 and T-286/01: Astrid Hirsch and Others v European Central Bank (Officials — Members of staff of the European Central Bank — Article 19 of the Conditions of Employment — Education allowance — Refusal to grant it to members of staff not entitled to the expatriation allowance under Article 17 of those conditions — Principle of non-discrimination)

text:
C 55/24               EN                          Official Journal of the European Union                                           8.3.2003
                                                       COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                      —    Orders the European Central Bank to pay the costs;
                                                                          3.     In Case T-152/01:
                       of 8 January 2003
                                                                                —    Annuls the decision of the European Central Bank of
                                                                                15 February 2001;
in Joined Cases T-94/01, T-152/01 and T-286/01: Astrid
       Hirsch and Others v European Central Bank ( 1)
                                                                                —    Dismisses the remainder of the action;
(Officials — Members of staff of the European Central Bank                       —    Orders the European Central Bank to pay the costs;
— Article 19 of the Conditions of Employment — Education
allowance — Refusal to grant it to members of staff not                   4.     In Case T-286/01:
entitled to the expatriation allowance under Article 17 of
     those conditions — Principle of non-discrimination)                         —    Annuls the decision of the European Central Bank of
                                                                                6 June 2001;
                         (2003/C 55/69)                                          —    Dismisses the remainder of the action;
                                                                                —    Orders the European Central Bank to pay the costs.
            (Language of the case: German and English)
                                                                          (1 ) OJ C 186 of 30.06.2001, C 275 of 29.09.2001 and C 31 of
                                                                               02.02.2002.
In Joined Cases T-94/01, T-152/01 and T-286/01, Astrid
Hirsch, member of staff of the European Central Bank,
resident in Eppstein-Niederjosbach, Germany, represented by
G. Vandersanden and L. Levi, lawyers, Emanuele Nicastro,
member of staff of the European Central Bank, resident in
Frankfurt on Main, Germany, represented by N. Pflüger,
R. Steiner and S. Mittländer, lawyers, and Johannes Priesemann,                JUDGMENT OF THE COURT OF FIRST INSTANCE
member of staff of the European Central Bank, resident in
Frankfurt on Main, Germany, represented by N. Pflüger, lawyer,                                   of 22 October 2002
v European Central Bank (Agents: V. Saintot, T. Gilliams and
B. Wägenbaur): Application for annulment, in Case T-94/01,
of the decision of the European Central Bank of 25 September              in Case T-310/01: Schneider Electric SA v Commission of
2000 refusing to grant the applicant an education allowance                                the European Communities (1)
to cover the costs of attendance by her son at the International
School Frankfurt, in Case T-152/01, of the decision of the                (Competition — Regulation (EEC) No 4064/89 — Decision
European Central Bank of 15 February 2001 refusing to grant               declaring a concentration to be incompatible with the com-
the applicant an education allowance in respect of his two                             mon market — Action for annulment)
sons and, in Case T-286/01, of the decision of the European
Central Bank of 6 June 2001 refusing to grant the applicant
an education allowance in respect of his children, the Court of                                     (2003/C 55/70)
First Instance (Third Chamber), composed of: K. Lenaerts,
President, J. Azizi and M. Jaeger, Judges; D. Christensen,                                   (Language of the case: French)
Administrator, for the Registrar, has given a judgment on
8 January 2003, in which it:
                                                                          In Case T-310/01: Schneider Electric SA, established in Rueil-
1.    Joins Cases T-94/01, T-152/01 and T-286/01 for the                  Malmaison (France), represented by F. Herbert, J. Steenbergen
      purposes of judgment;                                               and M. Pittie, lawyers, supported by French Republic (Agents:
                                                                          G. de Bergues and F. Million), against Commission of the
2.    In Case T-94/01:                                                    European Communities (Agents: P. Oliver, P. Hellström and
                                                                          F. Lelièvre), supported by Comité Central d’Entreprise de la SA
                                                                          Legrand, Comité Européen du Groupe Legrand, established in
      —    Annuls the decision of the European Central Bank of            Limoges, represented by H. Masse-Dessen, lawyer — appli-
           25 September 2000;                                             cation for annulment of Commission Decision C(2001)3014
                                                                          final declaring a concentration to be incompatible with the
      —    Dismisses the remainder of the action;                         common market and the EEA Agreement (Case COMP/M.2283


title: Case C-560/07: Judgment of the Court (Third Chamber) of 4 June 2009 (reference for a preliminary ruling from the Tallinna Halduskohus (Republic of Estonia)) — Balbiino AS v Põllumajandusminister, Maksu- ja Tolliameti Põhja maksu- ja tollikeskus (Accession of Estonia — Transitional measures — Agricultural products — Sugar — Surplus stocks — Regulations (EC) Nos 1972/2003, 60/2004 and 832/2005)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/9

         Judgment of the Court (Third Chamber) of 4 June 2009 (reference for a preliminary ruling from the Tallinna Halduskohus (Republic of Estonia)) — Balbiino AS v Põllumajandusminister, Maksu- ja Tolliameti Põhja maksu- ja tollikeskus
   (Case C-560/07) (1)

   (Accession of Estonia - Transitional measures - Agricultural products - Sugar - Surplus stocks - Regulations (EC) Nos 1972/2003, 60/2004 and 832/2005)
   2009/C 180/14
   Language of the case: Estonian

      Referring court

   Tallinna Halduskohus

      Parties to the main proceedings

      Applicant: Balbiino AS

      Defendants: Põllumajandusminister, Maksu- ja Tolliameti Põhja maksu- ja tollikeskus

      Re:

   Reference for a preliminary ruling — Tallinna Halduskohus (Estonia) — Interpretation of Article 6 of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 9, p. 8), Article 4 of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3), and Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3) — Charge on surplus stocks of agricultural products held by operators — Method of determining the amount of the transitional stock and surplus stock for the purpose of that charge

      Operative part of the judgment

               1.

               Article 4(1) and (2) of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, Article 6(3) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia do not preclude a national measure, such as the Law on the surplus stock charge (Üleliigse laovaru tasu seadus) of 7 April 2004, as amended on 25 January 2007, under which an operator’s surplus stock is determined by deducting from the stock actually held on 1 May 2004 the transitional stock defined as the average stock on 1 May of the previous four years of activity multiplied by a coefficient of 1.2 corresponding to the growth of agricultural production observed in the Member State in question during that period.

               2.

               Regulation No 1972/2003 does not preclude the entire stock held by an operator on 1 May 2004 from being regarded as surplus stock if it is shown, on the basis of consistent evidence, that that stock is not normal in relation to the operator’s activity and has been built up for speculative purposes.

               3.

               Article 4 of Regulation No 1972/2003 and Article 6 of Regulation No 60/2004 do not preclude a national measure under which an operator who has commenced an activity less than one year before 1 May 2004 is required to prove that the amount of stock he held at that date corresponds to the stock normally produced, sold, transferred or acquired for payment or without payment.

               4.

               Regulations Nos 1972/2003 and 60/2004 do not preclude the levying of a charge on an operator’s surplus stock even if he is able to prove that he obtained no advantage when marketing that stock after 1 May 2004.

               5.

               Article 6(3) of Regulation No 60/2004 cannot be interpreted as meaning that an increase in an operator’s storage capacity in the year preceding accession justifies a reduction of the surplus stock, regardless of the subsequent development of the economic activity of the holder of the stock, the volume processed and the amount of the stock.

               6.

               Article 10 of Regulation No 1972/2003 does not preclude the validity of a tax notice received by an operator who is liable to pay the surplus stock charge after 30 April 2007, where it is shown that the notice was issued by the national authorities on or before that date.

      (1)  OJ C 64, 08.03.2008.


title: Case T-200/08: Action brought on 22 May 2008 — Interflon v OHIM — Illinois Tool Works (FOODLUBE)

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/29

         Action brought on 22 May 2008 — Interflon v OHIM — Illinois Tool Works (FOODLUBE)
   (Case T-200/08)
   (2008/C 183/54)
   Language in which the application was lodged: English
   Parties

      Applicant: Interflon BV (Roosendaal, Netherlands) (represented by: S. M. Wertwijn, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Illinois Tool Works Inc. (Glenview, United States)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 March 2008 in case R 638/2007-2; and

               —

               grant applicant's request for the cancellation of the Community trade mark concerned.

         Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘FOODLUBE’ for goods in classes 1 and 4 — registration No 1 647 734

      Decision of the Cancellation Division: Refusal of the request for the declaration of invalidity

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the trade mark concerned is devoid of any distinctive character; infringement of Article 7(1)(c) of Council Regulation 40/94 as the trade mark concerned is not capable of distinguishing the indicated goods in terms of their origin.


title: Case F-85/15: Action brought on 8 June 2015 — ZZ and Others v Commission

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/42

         Action brought on 8 June 2015 — ZZ and Others v Commission
   (Case F-85/15)
   (2015/C 262/58)
   Language of the case: French

      Parties

      Applicants: ZZ and Others (represented by: C. Mourato, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision not to admit the applicants to the assessment stage of the competition EPSO/AD/204/10, after reopening of that competition by EPSO following annulment by the Civil Service Tribunal of the original decision not to admit the applicants to the assessment stage of the competition and compensation for the applicants for the material and non-material damage allegedly suffered.

      Form of order sought

               —

               Annul the decisions of 25 July 2014 of the selection board for competition EPSO/AD/204/10, sent to each of the applicants;

               —

               grant to each of the applicants a provisional award of EUR 1  000 in respect of non-material damage, and a second provisional award of EUR 2 27  899,50 in respect of financial damage;

               —

               order the Commission to pay the costs.


title: Case T-662/13: Action brought on 12 December 2013 — dm-drogerie markt v OHIM — Diseños Mireia (D and M)

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/12

         Action brought on 12 December 2013 — dm-drogerie markt v OHIM — Diseños Mireia (D and M)
   (Case T-662/13)
   2014/C 61/21
   Language in which the application was lodged: English

      Parties

      Applicant: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany) (represented by: O. Bludovsky and C. Mellein, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Diseños Mireia, SL (Barcelona, Spain)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 11 September 2013 given in Case R 911/2012-1 and cancel the contested trade mark;

               —

               Alternatively: Annul the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 11 September 2013 given in Case R 911/2012-1 and remit the case;

               —

               Alternatively: Annul the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 11 September 2013 given in Case R 911/2012-1.

      Pleas in law and main arguments

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

      Community trade mark concerned: The figurative mark consisting of the letters ‘D’ and ‘M’ for goods in Class 14 — Community trade mark application No 9 737 917

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

      Mark or sign cited in opposition: The Community trade mark registration No 3 984 044 for the word mark ‘dm’ for goods in Class 14

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8 (1) (b) CTMR