title: Judgment of the Court of First Instance of 5 December 2002 in Case T-130/01: Sykes Enterprises, Incorp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — REAL PEOPLE, REAL SOLUTIONS — Absolute ground for refusal — Distinctive character — Article (7)(1)(b) of Regulation No 40/94)

text:
22.2.2003               EN                         Official Journal of the European Union                                        C 44/27
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               v Office for Harmonisation in the Internal Market (Trade Marks
                                                                           and Designs) (OHIM) (Agents: S. Bonne and G. Schneider):
                      of 12 December 2002                                  Action brought against the decision of the Second Board of
                                                                           Appeal of the Office for Harmonisation in the Internal Market
                                                                           (Trade Marks and Designs) of 20 February 2001 (Case R 538/
in Case T-63/01: The Procter & Gamble Company v Office
                                                                           1999-2) concerning the registration of a figurative mark
for Harmonisation in the Internal Market (Trade Marks
                                                                           containing the abbreviation BioID, the Court of First Instance
                     and Designs) (OHIM) ( 1)
                                                                           (Second Chamber), composed of: R. M. Moura Ramos, Presi-
                                                                           dent, J. Pirrung and A. W. H. Meij, Judges; J. Plingers,
(Community trade mark — Soap bar shape — Compliance                        Administrator, for the Registrar, has given a judgment on
with a judgment of the Court of First Instance — Rights of                 5 December 2002, in which it:
defence — Absolute ground for refusal — Article 7(1)(b) of
                    Regulation (EC) No 40/94)
                                                                           1.     Dismisses the action;
                           (2003/C 44/50)                                  2.     Orders the applicant to pay the costs.
                    (Language of the case: French)
                                                                           (1 ) OJ C 227 of 11.8.2001.
In Case T-63/01, The Procter & Gamble Company, established
in Cincinnatti, Ohio (United States of America), represented
by T. van Innis, lawyer, with an address for service in
Luxembourg, v Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM) (Agents: O. Montalto and                       JUDGMENT OF THE COURT OF FIRST INSTANCE
E. Joly): Action brought against the decision of the Third Board
of Appeal of the Office for Harmonisation in the Internal                                         of 5 December 2002
Market (Trade Marks and Designs) of 14 December 2000
(Case R 74/1998-3), which was notified to the applicant on
11 January 2001, the Court of First Instance (Fourth Chamber),             in Case T-130/01: Sykes Enterprises, Incorp. v Office for
composed of: M. Vilaras, President, V. Tiili and P. Mengozzi,              Harmonisation in the Internal Market (Trade Marks and
Judges; D. Christensen, Administrator, for the Registrar, has                                      Designs) (OHIM) ( 1)
given a judgment on 12 December 2002, in which it:
                                                                           (Community trade mark — REAL PEOPLE, REAL SOL-
1.     Dismisses the action;                                               UTIONS — Absolute ground for refusal — Distinctive
                                                                                character — Article (7)(1)(b) of Regulation No 40/94)
2.     Orders the applicant to pay the costs.
                                                                                (2003/C 44/52)
( 1) OJ C 134 of 5.5.2001.
                                                                                (Language of the case: English)
                                                                           In Case T-130/01, Sykes Enterprises, Incorp., established in
                                                                           Tampa, Florida (United States), represented by E. Körner,
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               lawyer, v Office for Harmonisation in the Internal Market
                                                                           (Trade Marks and Designs) (OHIM) (Agent: J. Crespo Carrillo):
                                                                           Action brought against the decision of the Third Board of
                       of 5 December 2002
                                                                           Appeal of the Office for Harmonisation in the Internal Market
                                                                           (Trade Marks and Designs) of 7 March 2001 (Case R 504/
in Case T-91/01: BioID AG v Office for Harmonisation in                    2000-3), relating to registration of REAL PEOPLE, REAL
the Internal Market (Trade Marks and Designs) (OHIM) (1)                   SOLUTIONS, the Court of First Instance (Second Chamber),
                                                                           composed of: R. M. Moura Ramos, President, J. Pirrung and
(Community trade mark — Figurative mark containing the                     A. W. H. Meij, Judges; D. Christensen, Administrator, for the
abbreviation BioID — Absolute grounds for refusal —                        Registrar, has given a judgment on 5 December 2002, in
          Article 7(1)(b) of Regulation (EC) No 40/94)                     which it:
                           (2003/C 44/51)                                  1.     Dismisses the application;
                   (Language of the case: German)                          2.     Orders the applicant to pay the costs.
                                                                           (1 ) OJ C 245 of 1.9.2001.
In Case T-91/01, BioID AG, established in Berlin (Germany),
in judicial liquidation, represented by A. Nordemann, lawyer,


title: Case T-85/12: Action brought on 21 February 2012 — Lilleborg v OHIM — Hardford (Pierre Robert)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/31

         Action brought on 21 February 2012 — Lilleborg v OHIM — Hardford (Pierre Robert)
   (Case T-85/12)
   2012/C 118/52
   Language in which the application was lodged: English

      Parties

      Applicant: Lilleborg AS (Oslo, Norway) (represented by: E. Ullberg and M. Plogell, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Hardford AB (Limhamn, Sweden)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 December 2011 in case R 2462/2010-1, and consequently order OHIM to evaluate the proof of existence, validity and scope of the earlier mark that the applicant has submitted;

               —

               Or, alternatively, alter the decision of the First Board of Appeal by a decision of its own and refuse the registration of Community trade mark No 8541849 ‘Pierre Robert’; and

               —

               Order the defendant to pay the costs of the proceedings, including those incurred in the proceedings before the Opposition Division and the First Board of Appeal of OHIM.

      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 word mark ‘Pierre Robert’, for goods and services in classes 3, 5 and 44 — Community trade mark application No 8541849

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

      Mark or sign cited in opposition: Swedish trade mark registration No 164251 of the word mark ‘PIERRE ROBERT’, for goods in class 3

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

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Rule 50(1) of Commission Regulation No 2868/95 and Articles 76, 8 and 8(2)(c) of Council Regulation No 207/2009, as the Board of Appeal: (i) has neglected its right to examine the facts of its own motion, and take into consideration facts that are apparently likely to affect the outcome of the opposition; (ii) erred in law when it did not consider that ‘PIERRE ROBERT’ is a well known mark; (iii) failed when not considering the evidence, Annex 1, which was submitted in connection with the filing of the opposition; and (iv) failed when not accepting the certificate from the Swedish Patent and Registration Office filed before the decision of the opposition division.


title: Case T-692/13: Order of the General Court of 2 March 2016 — SACBO v INEA

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/54

         Order of the General Court of 2 March 2016 — SACBO v INEA
   (Case T-692/13) (1)

   (2016/C 156/73)
   Language of the case: Italian
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 45, 15.2.2014.


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 262, 23.10.2004

text:
               6.11.2004

               EN

               Official Journal of the European Union

               C 273/39

         (2004/C 273/74)
   Last publication of the Court of Justice in the
         Official Journal of the European Union

         OJ C 262, 23.10.2004

      Past publications

      OJ C 251, 9.10.2004

      OJ C 239, 25.9.2004

      OJ C 228, 11.9.2004

      OJ C 217, 28.8.2004

      OJ C 201, 7.8.2004

      OJ C 190, 24.7.2004

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex


title: Case T-444/07: Action brought on 5 December 2007 — Centre de Promotion de l'Emploi par la Micro-Entreprise v Commission

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/29

         Action brought on 5 December 2007 — Centre de Promotion de l'Emploi par la Micro-Entreprise v Commission
   (Case T-444/07)
   (2008/C 37/45)
   Language of the case: French
   Parties

      Applicant: Centre de Promotion de l'Emploi par la Micro-Entreprise (CPEM) (Marseilles, France) (represented by: C. Bonnefoi, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annulment of Commission Decision C(2007) 4645 of 4 October 2007, cancelling the assistance granted by the European Social Fund (ESF) to finance an ESF subsidy in France (CPEM) by Decision No C(1999) 2645 of 17 August 1999;

               —

               acknowledgement of a right to damages for public detriment to the reputation of a body acting in the context of a task of general interest (estimated at EUR 100 000);

               —

               acknowledgement of the right of CPEM's staff to individual symbolic damages of one Euro for interference with their peace of mind at work (threat to the future of their employment structure and thus to their jobs, since to pay EUR 1 000 000 would mean the closure of the CPEM and the MSD);

               —

               repayment of lawyers' fees and the costs of legal assistance made necessary, proof of which can be provided.

         Pleas in law and main arguments
   By this action, the applicant seeks annulment of Commission Decision C(2007) 4645 of 4 October 2007, cancelling, following an OLAF report, the assistance granted by the European Social Fund (1) to finance, by way of a global subsidy, a pilot project carried out by the applicant.
   In support of its action, the applicant relies on two groups of pleas in law, the first concerning the way in which OLAF carried out the investigation and enquiry procedure leading to the contested decision and alleging breach of the rights of the defence and the other pleas in law concerning the substance of the contested decision.
   First, the applicant claims that the form of the enquiry which OLAF carried out was in breach of a number of principles of Community law and of a dispassionate investigation, such as the presumption of innocence and the right to know the actual and specific content of the accusations contained in the complaints on which the proceedings were based. It claims, moreover, that OLAF confused the procedures laid down by Regulation No 2185/96 (2) with those concerning enquiries under Regulation No 2988/95 (3). Second, the applicant alleges that OLAF based the conclusions for which it was responsible on the different and changing editions of the ‘Promoter's Guide’.
   As to substance, the applicant alleges that the Commission based its decision on the conclusions of the OLAF report, which seriously infringed the French law concepts of ‘non-profit making organisations’ and ‘secondment’. Moreover, it claims that OLAF asserted against it the superiority of the ‘Promoter's Guide’ to the content of a Community regulation. It also claims that the Commission was aware of this and even authorised the facts which were alleged against the applicant by OLAF and in the contested decision. Lastly, the applicant relies on a plea in law alleging that Regulation No 1605/2002 (4), on which part of OLAF's reasoning and the contested decision are based, is inapplicable and not capable of being relied on against it.

      (1)  Commission Decision C (1999) 2645 of 17 August 1999 amended by Decision C (2001) 2144 of 18 September 2001.

      (2)  Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (OJ 1996 L 292, p. 2).

      (3)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

      (4)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).


title: Case C-505/99: Action brought on 22 December 1999 by the Commission of the European Communities against the Kingdom of Belgium

text:
C 79/12                EN                     Official Journal of the European Communities                                        18.3.2000
Action brought on 22 December 1999 by the Commission                     In the Commission’s view, the Belgian authorities have failed
of the European Communities against the Kingdom of                       to apply Directive 91/670/EEC in such a way as to achieve
                               Belgium                                   the results provided for therein, and have not chosen the
                                                                         appropriate means and formal arrangements to facilitate,
                                                                         rather than complicate, the free movement of workers which
                         (Case C-504/99)                                 it seeks to secure.
                                                                         (1) Council Directive 91/670/EEC of 16 December 1991 on mutual
                          (2000/C 79/21)                                     acceptance of personnel licences for the exercise of functions in
                                                                             civil aviation (OJ L 373 of 31.12.1991, p. 21).
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
22 December 1999 by the Commission of the European
Communities, represented by Frank Benyon, Legal Adviser,
and Bernard Mongin, of its Legal Service, acting as Agents,
with an address for service in Luxembourg at the office of
Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
                                                                         Action brought on 22 December 1999 by the Commission
                                                                         of the European Communities against the Kingdom of
                                                                                Belgium
The Commission of the European Communities claims that
the Court should:
                                                                                (Case C-505/99)
(1) declare that, by requiring a pilot from another Member
                                                                                (2000/C 79/22)
     State who holds a licence accepted as equivalent to a
     Belgian licence to return to the Member State in which
     his licence was issued in order to obtain additional                An action against the Kingdom of Belgium was brought before
     qualifications which that State is not technically in a             the Court of Justice on 22 December 1999 by the Commission
     position to provide, or to renew his licence, the Kingdom           of the European Communities, represented by Christopher
     of Belgium has misapplied the applicable Community                  Van der Hauwaert, of its Legal Service, acting as Agent, with
     provisions, in particular those of Directive 91/670/EEC (1)         an address for service in Luxembourg at the office of Carlos
     and Articles 10, 39, 43 and 49 of the EC Treaty;                    Gómez de la Cruz, of its Legal Service, Wagner Centre,
                                                                         Kirchberg.
(2) order the Kingdom of Belgium to pay the costs.
                                                                         The Commission of the European Communities claims that
                                                                         the Court should:
                                                                         — declare that, by failing to adopt within the prescribed
Pleas in law and main arguments                                               time-limit the laws, regulations and administrative pro-
                                                                              visions necessary to comply with Council Directive
                                                                              97/61/EC of 20 October 1997 amending the Annex to
The requirement whereby any person applying for renewal of                    Directive 91/492/EEC laying down the health conditions
his licence or for admission to the tests to be passed in order               for the production and placing on the market of live
to exercise higher functions or to obtain a new qualification                 bivalve molluscs (1), the Kingdom of Belgium has failed to
must hold a Belgian licence necessarily places nationals of                   comply with its obligations under the Treaty;
other Member States at a disadvantage and therefore consti-
tutes covert discrimination as prohibited by Article 43 of the           — order the Kingdom of Belgium to pay the costs.
Treaty. In any event, in the context of a fundamental freedom
recognised by the Treaty, the fact that the Belgian requirement
‘inhibits’ the exercise of the right of establishment, or simply         Pleas in law and main arguments
makes it ‘less attractive’, is enough to render that requirement
incompatible with Article 43 EC. The fact that that requirement
likewise applies to Belgian nationals in the same position does          The pleas in law and main arguments are analogous to those
not in any way alter that conclusion.                                    in Case C-495/99 (2); the period prescribed by Article 2 of
                                                                         Directive 97/61/EC expired on 1 July 1998.
The same considerations apply as regards Article 39 EC; the              (1) OJ L 295 of 29.10.1997, p. 35.
conditions to be complied with in order to extend the duration           (2) OJ C 63 of 4.3.2000, p. 16.
of, or the scope of the rights conferred by, a professional licence
are conditions of work within the meaning of Article 39(2) and
(3).


title: Judgment of the Court (Fifth Chamber) of 17 June 1999 in Case C-166/98 (reference for a preliminary ruling from the Tribunal de Grande Instance de Foix): Société Critouridienne de Distribution (Socridis) v Receveur Principal des Douanes (Internal taxation - Article 95 of the EC Treaty (now, after amendment, Article 90 EC) - Directives 92/83/EEC and 92/84/EEC - Different taxation of wine and beer)

text:
28.8.1999               EN                      Official Journal of the European Communities                                              C 246/3
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                of 22 June 1999
                          (Fifth Chamber)
                                                                           in Case C-342/97 (reference for a preliminary ruling from
                          of 17 June 1999                                  the Landgericht München I): Lloyd Schuhfabrik Meyer &
                                                                                Co. GmbH v Klijsen Handel BV (1)
in Case C-166/98 (reference for a preliminary ruling                       (Directive 89/104/EEC — Trade mark law — Likelihood of
from the Tribunal de Grande Instance de Foix): Société                                       confusion — Aural similarity)
Critouridienne de Distribution (Socridis) v Receveur
                     Principal des Douanes (1)
                                                                                (1999/C 246/05)
(Internal taxation — Article 95 of the EC Treaty (now, after
amendment, Article 90 EC) — Directives 92/83/EEC and                                           (Language of the case: German)
     92/84/EEC — Different taxation of wine and beer)
                                                                           (Provisional translation; the definitive translation will be published
                          (1999/C 246/04)                                                      in the European Court Reports)
                                                                           In Case C-342/97: reference to the Court under Article 234 EC
                    (Language of the case: French)                         (ex Article 177) from the Landgericht München I (Munich I
                                                                           Regional Court), Germany, for a preliminary ruling in the
                                                                           proceedings pending before that court between Lloyd Schuhfa-
                                                                           brik Meyer & Co. GmbH and Klijsen Handel BV — on the
                                                                           interpretation of Article 5(1)(b) of First Council Directive
(Provisional translation; the definitive translation will be published     89/104/EEC of 21 December 1988 to approximate the laws
                   in the European Court Reports)                          of the Member States relating to trade marks (OJ 1989 L 40,
                                                                           p. 1) — the Court, composed of: P.J.G. Kapteyn, President
                                                                           of the Fourth and Sixth Chambers, acting as President,
In Case C-166/98: Reference to the Court under Article 234                 J.-P. Puissochet and P. Jann, Presidents of Chambers, G.F. Man-
EC (ex Article 177) by the Tribunal de Grande Instance de                  cini, J.C. Moitinho de Almeida, C. Gulmann (Rapporteur),
Foix, France, for a preliminary ruling in the proceedings                  D.A.O. Edward, L. Sevón and M. Wathelet, Judges; F.G. Jacobs,
pending before that court between Société Critouridienne de                Advocate General; R. Grass, Registrar, has given a judgment
Distribution (Socridis) and Receveur Principal des Douanes —               on 22 June 1999, in which it has ruled:
on the validity of Council, Directive 92/83/EEC of 19 October
1992 on the harmonisation of the structures of excise duties
on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21)                  It is possible that mere aural similarity between trace marks may
and Council Directive 92/84/EEC of 19 October 1992 on the                  create a likelihood of confusion within the meaning of Article 5(1)(b)
approximation of the rates of excise duty on alcohol and                   of First Council Directive 89/104/EEC of 21 December 1988 to
alcoholic beverages (OJ 1992 L 316, p. 29) — the Court (Fifth              approximate the laws of the Member States relating to trade marks.
Chamber), composed of: J.-P. Puissochet, President of the                  The more similar the goods or services covered and the more distinctive
Chamber, P. Jann, C. Gulmann, D.A.O. Edward and M. Wathe-                  the earlier mark, the greater will be the likelihood of confusion. In
let (Rapporteur), Judges; J. Mischo, Advocate General; H. von              determining the distinctive character of a mark and, accordingly, in
Holstein, Deputy Registrar, for the Registrar, has given a                 assessing whether it is highly distinctive, it is necessary to make a
judgment on 17 June 1999, in which it ruled:                               global assessment of the greater or lesser capacity of the mark to
                                                                           identify the goods or services for which it has been registered as
                                                                           coming from a particular undertaking, and thus to distinguish those
                                                                           goods or services from those of other undertakings. In making that
Consideration of the question referred has disclosed no factor capable     assessment, account should be taken of all relevant factors and, in
of affecting the validity of Council Directive 92/83/EEC of 19             particular, of the inherent characteristics of the mark, including the
October 1992 on the harmonisation of the structures of excise duties       fact that it does or does not contain an element descriptive of the
on alcohol and alcoholic beverages and Council Directive 92/84/EEC         goods or services for which it has been registered. It is not possible to
of 19 October 1992 on the approximation of the rates of excise duty        state in general terms, for example by referring to given percentages
on alcohol and alcoholic beverages.                                        relating to the degree of recognition attained by the mark within the
                                                                           relevant section of the public, when a mark has a strong distinctive
                                                                           character.
(1) OJ C 209 of 4.7.1998.
                                                                           (1) OJ C 357 of 22.11.1997.


title: Case T-430/08: Action brought on 30 September 2008 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/46

         Action brought on 30 September 2008 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)
   (Case T-430/08)
   (2008/C 313/83)
   Language in which the application was lodged: English
   Parties

      Applicant: Grain Millers, Inc. (Eden Prairie, United States) (represented by: L.-E. Ström, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Grain Millers GmbH & Co. KG (Bremen, Germany)
   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 23 July 2008 in case R 478/2007-2; and

               —

               Order the other party to the proceedings before the Board of Appeal to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘GRAIN MILLERS’ for goods in classes 29, 30 and 31 — application No 3 650 256

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

      Mark or sign cited: German ‘business designation’‘GRAIN MILLERS’ and its figurative version

      Decision of the Opposition Division: Partially rejected the opposition

      Decision of the Board of Appeal: Partial dismissal of the appeal

      Pleas in law: Infringement of Article 8(4) of Council Regulation No 40/94 as the Board of Appeal has overestimated the value of the evidence submitted by the other party to the proceedings before the Board of Appeal in order to substantiate prior rights over the earlier trade mark.


title: Case T-169/03: Action brought on 12 May 2003 by Sergio Rossi S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
C 171/38               EN                          Official Journal of the European Union                                           19.7.2003
The applicant claims that the Court should:                                The applicant claims that the Court should:
—      order the Commission to make good the damage suffered               —     annul the decision of the Commission of 6 May 2002
       by it as a result of incomplete compliance with the                       definitively recruiting the applicant in Grade A 7 at step 3;
       judgment of the Court of 28 February 2002;
                                                                           —     order the defendant to pay the costs.
—      order the Commission to pay the costs.
                                                                           Pleas in law and main arguments
Pleas in law and main arguments                                            The applicant took up his duties as a probationary official on
                                                                           1 August 2001 and was provisionally recruited at step 1 in
                                                                           grade A 7. The applicant made a request for recruitment at a
                                                                           higher grade. That request was refused.
The applicant has brought this action seeking a declaration
that the Commission is liable for failing to comply entirely
with the judgment of the Court ( 1) reducing the amount of the             In support of his application the applicant submits that there
fine imposed on the applicant by the Commission in decision                was a breach of Article 31(2) of the Staff Regulations in so far
94/601/CE (Plasterboard), relating to a proceeding pursuant to             as the Commission did not take account of the specific
Article 85 of the EC Treaty (IV/C/33.833-Plasterboard) ( 2).               requirements of the service. The applicant also submits that
                                                                           there was a manifest error of assessment.
In the applicant’s view, the Commission should still pay the
interests due on the difference between the sum paid and the
amount of the fine finally fixed by the Court of First Instance
together with the costs, agreed by common accord of the
parties at EUR 50 000. The defendant incurs non-contractual
liability for the damage arising therefrom.                                Action brought on 12 May 2003 by Sergio Rossi S.p.A.
                                                                           against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs) (OHIM)
( 1) Case T-308/94 Cascades SA v Commission [2002] ECR II-0000.
( 2) OJ 1991 L 243, p. 1.
                                                                                (Case T-169/03)
                                                                                (2003/C 171/65)
                                                                                (Language of the case: Italian)
                                                                           An action against the Office for Harmonisation in the Internal
Action brought on 30 April 2003 by Pascal Millot against                   Market (Trade Marks and Designs) (OHIM) was brought before
        the Commission of the European Communities                         the Court of First Instance of the European Communities on
                                                                           12 May 2003 by Sergio Rossi S.p.A., represented by Alessandro
                                                                           Ruo, lawyer.
                          (Case T-162/03)
                                                                           Sissi Rossi s.r.l. was also a party to the proceedings before the
                          (2003/C 171/64)                                  Board of Appeal.
                    (Language of the case: French)                         The applicant claims that the Court should:
                                                                           —     declare that there is a likelihood of confusion between
                                                                                the trade marks in question with regard to all the goods
                                                                                referred to and annul the contested decision at issue; in
An action against the Commission of the European Communi-                        the alternative, declare that the trade marks are inconsist-
ties was brought before the Court of Justice of the European                     ent with each other so far as concerns ‘ladies’ bags’ and
Communities on 30 April 2003 by Pascal Millot, residing in                       ‘ladies’ shoes’ and declare that there is an affinity between
Brussels, represented by Sébastien Orlandi, Albert Coolen,                       such goods;
Jean-Noël Louis and Étienne Marchal, lawyers, with an address
for service in Luxembourg.                                                 —     order the defendant to pay the costs.
 ---pagebreak--- 19.7.2003             EN                          Official Journal of the European Union                                        C 171/39
Pleas in law and main arguments                                           The applicant claims that the Court should:
Applicant for Com-           Sissi Rossi S.r.l.                           —     annul the refusal of the Defendant comprising the failure
munity trade mark:                                                              to give access to certain documentation requested in the
                                                                                Applicant’s confirmatory application of 17 January 2003.
Community trade mark         The trade mark ‘SISSI ROSSI’ -
sought:                      Application No 837.906 for
                             goods in Classes 14, 18, 25 and              —     order the Defendant to pay all the Applicant’s costs
                             26                                                 pursuant to Article 87 of the Rules of Procedure of the
                                                                                Court of First Instance.
Proprietor of mark or        The applicant
sign cited in the oppo-
sition proceedings:
Mark or sign cited in        Italian trade mark No 553.016
opposition:                  and international trade mark
                             No 577.643 ‘MISS ROSSI’, for                 Pleas in law and main arguments
                             goods in Class 25 (ladies’ shoes)
Decision of the Oppo-        Opposition upheld and appli-
sition Division:             cation for registration refused              The applicant in the present case challenges the refusal of the
                                                                          defendant to grant it access to certain documents relating to
Decision of the Board of     Appeal upheld and opposition                 the classification of expanded tobacco for Customs and Excise
Appeal:                      decision dismissed                           duty purposes. Regarding this topic, it points out that it has a
                                                                          vital interest in knowing why a given product — expanded
                                                                          tobacco — is treated as smoking tobacco within the meaning
Pleas in law:                Likelihood of confusion by associ-           of Article 5(1) of Directive 95/59/EC of 27 November
                             ation and similarity between the             1995, on taxes other than turnover taxes which affect the
                             trade mark applied for and the
                                                                          consumption of manufactured tobacco (1), and thus as an
                             trade mark cited in opposition               excisable product. The applicant considers the product an
                             (Article 8(1)(b) of Regulation
                                                                          intermediary product, unsmokable without further processing,
                             No 40/94)                                    and therefore not excisable. It is stressed that there has been
                                                                          no published decision determining the issue and giving the
                                                                          reasons for the classification chosen.
                                                                          As regards two of the sets of requested documents (a complete
                                                                          set of documents of the Customs Cooperation Council on the
                                                                          Classification of expanded tobacco for customs classification
Action brought on 14 May 2003 by British American                         purposes and all the attendance lists of all meetings of the
Tobacco (Investments) Limited against the Commission                      Committee on Excise Duties, or any other relevant Committee,
                of the European Communities                               at which the definition of ‘smoking tobacco’ was debated), the
                                                                          applicant submits that the Commission infringed Article 8(1)
                                                                          and (2) of Regulation(EC) 1049/2001 (2), by not responding
                        (Case T-170/03)                                   within the regulatory time-limits thereof.
                        (2003/C 171/66)
                                                                          In relation to the full minutes of all meetings of Excise duties,
                  (Language of the case: English)                         or any other relevant committee, at which the definition of
                                                                          ‘smoking tobacco’ was debated, including the full minutes of
                                                                          discussions on other agenda points, the applicant claims that
                                                                          the contested refusal:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                —     Misapplied the principle of proportionality. In particular,
European Communities on 14 May 2003 by British American                         the Commission made no attemp to confer informally
Tobacco (Investments) Limited, London, United Kingdom,                          with the applicant with a view to finding a fair solution,
represented by Mr S. Crosby, lawyer.                                            pursuant to Article 6 of Regulation (EC) 1049/2001


title: Judgment of the Court (Fifth Chamber) of 4 December 2003 in Case C-63/01 (Reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division): Samuel Sidney Evans v The Secretary of State for the Environment, Transport and the Regions, and The Motor Insurers' Bureau (Approximation of laws — Directive 84/5/EEC — Compulsory insurance against civil liability in respect of motor vehicles — Damage or injury caused by unidentified or insufficiently insured vehicles — Protection of victims — Defective transposition of the directive — Liability of the Member State concerned)

text:
7.2.2004              EN                          Official Journal of the European Union                                                 C 35/1
                                                                       I
                                                                (Information)
                                                  COURT OF JUSTICE
                                                            COURT OF JUSTICE
                JUDGMENT OF THE COURT                                     1.   Article 1(4) of Second Council Directive 84/5/EEC of
                                                                               30 December 1983 on the approximation of the laws of the
                                                                               Member States relating to insurance against civil liability in
                       (Fifth Chamber)                                         respect of the use of motor vehicles is to be interpreted as
                                                                               meaning that:
                     of 4 December 2003
                                                                               —     A body may be regarded as authorised by a Member State
                                                                                within the meaning of that provision where its obligation
in Case C-63/01 (Reference for a preliminary ruling from                             to provide compensation to victims of damage or injury
the High Court of Justice (England & Wales), Queen’s                                 caused by unidentified or insufficiently insured vehicles
Bench Division): Samuel Sidney Evans v The Secretary of                              derives from an agreement concluded between that body
State for the Environment, Transport and the Regions,                                and a public authority of the Member State, provided that
             and The Motor Insurers’ Bureau (1)                                      the agreement is interpreted and applied as obliging the
                                                                                body to provide victims with the compensation guaranteed
                                                                                to them by Directive 84/5 and provided that victims may
(Approximation of laws — Directive 84/5/EEC — Compul-                                apply directly to that body.
sory insurance against civil liability in respect of motor
vehicles — Damage or injury caused by unidentified or
insufficiently insured vehicles — Protection of victims —                      —     Procedural arrangements such as those adopted in the
Defective transposition of the directive — Liability of the                          United Kingdom are sufficient to provide the protection to
                   Member State concerned)                                           which victims of damage or injury caused by unidentified
                                                                                or insufficiently insured vehicles are entitled under Direc-
                                                                                tive 84/5.
                        (2004/C 35/01)
                                                                               —     The compensation awarded for damage or injuries caused
                  (Language of the case: English)                                    by an unidentified or insufficiently insured vehicle, paid
                                                                                by the body authorised for that purpose, must take account
                                                                                of the effluxion of time until actual payment of the sums
                                                                                awarded in order to guarantee adequate compensation for
                                                                                the victims. It is incumbent on the Member States to lay
In Case C-63/01, Reference to the Court under Article 234 EC                         down the rules to be applied for that purpose.
by the High Court of Justice of England and Wales, Queen’s
Bench Division, for a preliminary ruling in the proceedings
pending before that court between Samuel Sidney Evans and                      —     The compensation awarded for damage or injury caused
The Secretary of State for the Environment, Transport and the                        by an unidentified or insufficiently insured vehicle, paid
Regions, and The Motor Insurers’ Bureau, on the interpretation                       by the body authorised for that purpose, is not required to
of Article 1(4) of the Second Council Directive 84/5/EEC of                          include reimbursement of the costs incurred by victims in
30 December 1983 on the approximation of the laws of the                             connection with the processing of their application for
Member States relating to insurance against civil liability in                       compensation except to the extent to which such reim-
respect of the use of motor vehicles (OJ 1984 L 8, p. 17), the                       bursement is necessary to safeguard the rights derived by
Court (Fifth Chamber), composed of: P. Jann (Rapporteur),                            victims from Directive 84/5 in conformity with the
acting for the President of the Fifth Chamber, D.A.O. Edward                         principles of equivalence and effectiveness. It is for the
and S. von Bahr, Judges; S. Alber, Advocate General; L. Hewlett,                     national court to consider whether that is the case under
Principal Administrator, Registrar, has given a judgment on                          the procedural arrangements adopted in the Member State
4 December 2003, in which it has ruled:                                              concerned.
 ---pagebreak--- C 35/2                  EN                         Official Journal of the European Union                                         7.2.2004
2.    It is incumbent on the national court, if examination of the         Is Article 6(2) of Decision No 1/80 of 19 September 1980 of
      existing compensation system discloses a defect in transposition     the Association Council, set up by the Agreement establishing
      of Directive 84/5 and if that defect has adversely affected Mr       an Association between the European Economic Community
      Evans, to determine whether the breach of that obligation of         and Turkey, on the development of the Association (herein-
      transposition is sufficiently serious.                               after, ‘Decision No 1/80’) to be interpreted as meaning that a
                                                                           Turkish national forfeits the rights acquired under Article 6(1)
                                                                           of Decision No 1/80 if he is held in custody under the
(1) OJ C 118 of 21.4.2001.                                                 enforcement of a prison sentence for a period of three years?
Application for authorisation to serve a garnishee order
on the Commission of the European Communities, lodged
       on 21 November 2003 by Icon Institute GmbH
                          (Case C-1/03 SA)
                                                                           Reference for a preliminary ruling by the Tampereen
                            (2004/C 35/02)                                 käräjäoikeus by order of that Court of 7 November 2003
                                                                           in the case of A.G.M.-COS.MET s.r.l. against Finnish State
                                                                                and Tarmo Lehtinen
An application for authorisation to serve a garnishee order on
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on                                         (Case C-470/03)
21 November 2003 by Icon Institute GmbH, represented by
R. Nathan, with an address for service in Luxembourg. The
applicant claims that the Court should:
                                                                                (2004/C 35/04)
Lift the Commission’s immunity so that a garnishee order
relating to the funds it holds on behalf of a judgment debtor,
in this case CESD-Communautaire a.s.b.l., may take effect,
since there is no argument in law or in fact to prevent the
Commission, the garnishee, from properly releasing to the
applicant the funds it holds provisionally.                                Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Tampereen kärä-
                                                                           jäoikeus (Tampere District Court) of 7 November 2003,
                                                                           received at the Court Registry on 11 November 2003, for a
                                                                           preliminary ruling in the case of A.G.M.-COS.MET s.r.l. against
                                                                           Finnish State and Tarmo Lehtinen on the following questions:
Reference for a preliminary ruling by the Verwaltungsge-                   (1) Is there a measure having equivalent effect to quantitative
richtshof by order of that Court of 4 september 2003 in                          restrictions within the meaning of Article 28 EC, or a
    the complaint proceedings brought by Ergül Dogan                             measure which should be abstained from under the
                                                                                second paragraph of Article 10 EC, if an expert official
                           (Case C-383/03)                                       belonging to the State’s health and safety at work
                                                                                organisation who does not have decision-making power,
                                                                                after a market supervision case has been raised but before
                            (2004/C 35/03)                                       the decision in the case, expresses his opinion on the
                                                                                main news programme of a national TV channel and in
                                                                                daily newspapers with wide circulation and also in
                                                                                commercial and labour market associations, in such a
Reference has been made to the Court of Justice of the                           way that his statements, direct or repeated by others, on
European Communities by order of the Verwaltungsgerichtsh-                       the hazard to health and even to life of the machinery
of (Administrative Court, Austria) of 4 September 2003,                          manufactured and marketed by a specified manufacturer
received at the Court Registry on 12 September 2003, for a                       which is the subject of the market supervision case may
preliminary ruling in the complaint proceedings brought by                       give the machinery negative publicity and affect its
Ergül Dogan on the following question:                                           marketing?


title: Case C-467/04: Reference for a preliminary ruling by the Audiencia Provincial de Málaga, Sección Primera, by order of that court of 8 July 2004 in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/31

         Reference for a preliminary ruling by the Audiencia Provincial de Málaga, Sección Primera, by order of that court of 8 July 2004 in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings
   (Case C-467/04)
   (2005/C 6/57)
   Language of the case: Spanish
   Reference has been made to the Court of Justice of the European Communities by order of the Audiencia Provincial de Málaga, Sección Primera, (Provincial Court, Málaga), of 8 July 2004, which was received at the Court Registry on 4 November 2004, for a preliminary ruling in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings.
   The Audiencia Provincial de Málaga asks the Court of Justice to give a preliminary ruling on the following question:

               —

               As regards res judicata in criminal proceedings ('cosa juzgada penal'): this court requests an interpretation of Article 54 of the Schengen Implementing Convention:

                           1.

                           Is a finding by the courts of one Member State that an offence is time-barred binding on the courts of the other Member States?

                           2.

                           Does the acquittal of a defendant on account of the fact that prosecution of the offence is time-barred benefit, by extension, persons being prosecuted in another Member State where the facts are identical? In other words, can persons being prosecuted in another Member State on the basis of the same facts also benefit from a limitation period?

                           3.

                           If the criminal courts of one Member State declare that the extra-Community nature of goods has not been established for the purposes of an offence of smuggling and acquit the defendant, may the courts of another Member State broaden the investigation in order to prove that the introduction of goods without payment of customs duties was from a non-Member State?

               —

               As regards the notion of goods in free circulation, this court requests an interpretation of Article 24 EC as to whether:
               ‘Where a criminal court in a Member State has declared either that it is not established that goods have been unlawfully introduced into the Community or that the offence of smuggling is time-barred’:

                           (a)

                           can the goods be regarded as being in free circulation in the rest of the Community?

                           (b)

                           can the sale of the goods in another Member State following their importation into the Member State where the acquittal was given be regarded as independent conduct which may therefore be punished or, instead, as conduct forming an integral part of the importation?


title: Case T-85/02: Action brought on 23 March 2002 by Pedro Diaz S.A. against the Office for Harmonisation in the Internal Market

text:
15.6.2002             EN                     Official Journal of the European Communities                                      C 144/51
The pleas and arguments invoked in the present case are                 written reprimands within the meaning of Article 43(i) of the
largely similar to those raised in case T-45/02, DOW Agro-              Conditions of Employment by a valid decision of the Executive
Sciences and DOW AgroSciences -v- European Parliament and               Board.
Council of the European Union (not yet published in the OJ).
(1) Directive 2000/60/EC of the European Parliament and of the
    Council of 23 October 2000 establishing a framework for
    Community action in the field of water policy (OJ L 327,
    22.12.2000, p. 1)                                                   Action brought on 23 March 2002 by Pedro Diaz S.A.
                                                                        against the Office for Harmonisation in the Internal
                                                                                Market
                                                                                (Case T-85/02)
                                                                                (2002/C 144/103)
Action brought on 19 March 2002 by Stephan-Harald                                          (Language of the case: Spanish)
           Voigt against the European Central Bank
                         (Case T-78/02)                                 An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 23 March 2002 by Pedro Diaz S.A.
                       (2002/C 144/102)                                 of Carretera de Cartagena-La Palma, Km 2,4, Cartagena (Spain),
                                                                        represented by Patricia Koch Moreno.
                  (Language of the case: German)
                                                                        The applicant claims that the Court should:
                                                                        —     annul the decision of 16 January 2002 of the Third Board
An action against the European Central Bank was brought                       of Appeal rejecting application number 199 265 for
before the Court of First Instance of the European Communities                registration of a Community trade mark CASTILLO to
on 19 March 2002 by Stephan-Harald Voigt, residing in                         describe ‘cheeses’ falling within Class 29;
Langenselbold (Germany), represented by N. Pflüger, lawyer.
                                                                        —     declare that application number 199 265 for registration
                                                                              of a Community trade mark CASTILLO to describe
                                                                              ‘cheeses’ falling within Class 29 should be allowed;
The applicant claims that the Court should:
                                                                        —     order the defendant and, where appropriate, the inter-
—     annul the written reprimand issued to the applicant by                  vener, to pay the costs of the proceedings.
      the defendant pursuant to Article 43(i) of the Conditions
      of Employment by letter of 1 March 2002;
                                                                        Pleas in law and main arguments
—     order the defendant to pay the costs.
                                                                        Applicant for the Com-          Pedro Diaz S.A.
                                                                        munity trade mark
Pleas in law and main arguments                                         Community trade mark            CASTILLO — application no 199
                                                                        applied for Word mark:          265 for products falling within
                                                                                Classes 29 and 30
In support of his application, the applicant claims that the            Proprietor of the trade         Granja Castello S.A.
written reprimand is invalid on the ground that general                 mark or sign invoked in
procedural principles were not respected. The reprimand is              the opposition pro-
based on incorrect assumptions and the applicant was, inter             cedure:
alia, not granted an adequate hearing in the procedure.
Moreover, the defendant’s conduct infringes European data-              Trade mark or sign being        Word mark with graphic elements
protection rules.                                                       opposed:                        ‘EL CASTILLO’ registered for
                                                                                products in Class 29 and word
                                                                                mark with graphic elements ‘EL
The applicant also disputes that the Vice-President of the                                              CASTILLO NADO 1’ for products
defendant had been granted the general authority to decide on                                           in Class 30
 ---pagebreak--- C 144/52                EN                     Official Journal of the European Communities                                        15.6.2002
Decision of the oppo-           Refusal of registration in respect        1993 of 5 July 1993 on urgent fiscal provisions to promote
sition division:                of certain products                       investment and economic activity (Boletı́n Oficial del Territorio
                                                                          Histórico de Alava No 79 of 16 July 1993), which provides
Decision of the Board of        Partial annulment of the decision         for exemption from company tax for undertakings created
Appeal:                         of the Opposition Division and            between the entry into force of that Law and 31 December
                                refusal of registration in respect        1994, provided that they invest more than PTA 80 million
                                of an additional product (‘cheeses’)      (EUR 480 810), create more than 10 new jobs and have
                                                                          disbursed capital amounting to more than PTA 20 million
Pleas in law:                   —     Infringement       of    Arti-      (EUR 120 202).
                                      cle 8(1)(b) of Regulation
                                      No 40/94
                                —     Incorrect interpretation of
                                      the concept of risk of con-
                                      fusion                              The applicants put forward essentially 5 pleas in law:
                                                                          a.    infringement of the first paragraph of Article 87 EC
                                                                                inasmuch as the Commission committed a manifest error
                                                                                of assessment by considering that the fiscal measure at
                                                                                issue is prima facie State aid within the meaning of the
Action brought on 26 March 2002 by Territorio Histórico                        aforementioned article. In the applicant’s view, the pre-
de Alava — Diputación Foral de Alava against Com-                              sent case does not involve selective advantage, which is
            mission of the European Communities                                 typical of State aid within the meaning of that provision,
                                                                                since it is a measure which is established on the basis of
                           (Case T-86/02)                                       objective criteria and affects all economic operators (both
                                                                                natural and legal persons) in the same way.
                         (2002/C 144/104)
                    (Language of the case: Spanish)                       b.    in the alternative, with regard to the first plea in law,
                                                                                misinterpretation by the Commission of the concept of
                                                                                ‘State aid’. The applicants state that, should the Court take
                                                                                the view that the measure at issue is indeed State aid, it
                                                                                would in any event be as an existing aid scheme either
An action against the Commission of the European Communi-                       within the meaning of Article 1(b)(v) of Regulation (EC)
ties was brought before the Court of First Instance of the                      No 659/1999 since, when it was implemented, the
European Communities on 26 March 2002 by the Territorio                         measure was not ‘aid’, or within the meaning of 1(b)(ii) as
Histórico de Alava — Diputación Foral de Alava, Alava (Spain),                aid which, at the time, was impliedly authorised by the
represented by Ignacio Saenz-Cortabarria and Marta Morales                      Commission.
Isasi.
The applicants claim that the Court should:
                                                                          c.    in the further alternative to the first plea in law, failure to
                                                                                observe the procedures laid down by law. According to
—      annul the Commission Decision of 20 December 2001                        Article 88(1) EC and Regulation (EC) No 659/1999, the
       on the system of aid implemented by Spain in 1993 in                     proper procedure for the review of systems of existing
       favour of a number of newly-created undertakings in                      aid is as provided for in Articles 17 to 19 of that
       Alava;                                                                   regulation, not that followed by the Commission in the
                                                                                present case, which is the procedure to be applied to
—      in the alternative, annul Article 3 of that decision;                    unlawful aid.
—      order the Commission to pay the costs.
                                                                          d.    in the alternative with regard to the first three pleas in
                                                                                law, abuse by the Commission of its power to authorise
Pleas in law and main arguments                                                 aid under Article 87(3)(c) EC by considering the disputed
                                                                                fiscal measure to be operating aid and to declare, as a
                                                                                consequence, that it is aid incompatible with the common
The applicants contest Commission Decision C(2001) 4475                         market. The Commission improperly equates what is
final of 20 December 2001 declaring State aid incompatible                      nothing more than a means of assessing the element of
with the common market the exemption from company tax                           aid with the genuine concept of aid to investment or for
arising from Article 14 of Norma Foral (Regional Law) No 18/                    job creation. The fact that the amount of the aid as a


title: Case T-429/11: Action brought on 4 August 2011 — Banco Bilbao Vizcaya Argentaria v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/46

         Action brought on 4 August 2011 — Banco Bilbao Vizcaya Argentaria v Commission
   (Case T-429/11)
   2011/C 282/85
   Language of the case: Spanish

      Parties

      Applicant: Banco Bilbao Vizcaya Argentaria, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado, M. Núñez-Müller and J. Domínguez Pérez, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Article 1(1) of the decision;

               —

               in the alternative, annul Article 1(4) and (5) of the decision;

               —

               in the further alternative, annul Article 4 of the decision, or amend its scope as appropriate; and

               —

               order the Commission to pay all the costs of the proceedings.

      Pleas in law and main arguments

   This action has been brought against Article 1(1) of the decision of the European Commission of 12 January 2011 in Case No C 45/2007 (ex NN 51/2007, ex CP 9/2007) on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain (‘the decision’).
   In support of its action, the applicant relies on seven pleas in law.

               1.

               By its first plea in law, the applicant claims that the Commission infringed Articles 107 and 108 TFEU in finding, in the decision, that Article 12(5) of the consolidated version of the Spanish Corporate Tax Act (Ley del Impuesto sobre Sociedades español; ‘TRLIS’) constitutes State aid in so far as it provides for tax amortisation of goodwill for acquisitions of shareholdings in non-EU companies (extra-EU acquisitions).

               2.

               By its second plea in law, the applicant submits that the Commission committed an error of law and of procedure in finding that, for there to be State aid which is unlawful in its entirety, it is sufficient that the implementation of the scheme leads to situations which qualify as aid.

               3.

               By its third plea in law, the applicant claims that the principle of proportionality has been infringed in so far as it was found in the decision that: (i) the scheme constitutes unlawful aid in its entirety, including in relation to countries such as China and India and in other countries in which it has been shown or could be shown that there are explicit legal obstacles to cross-border business combinations, and that (ii) the scheme also constitutes State aid which is incompatible in its entirety in so far as it permits the deduction of financial goodwill in relation to acquisitions of majority shareholding in foreign companies outside of the EU.

               4.

               By its fourth plea in law, the applicant claims that the Commission infringed the principles of legitimate expectations and equal treatment in departing from the guidelines on direct taxation and from its administrative practice.

               5.

               By its fifth plea in law, the applicant claims that the Commission infringed the principle of good administration by having failed to examine the precise scope of the practical obstacles to company mergers outside of the EU (extra-EU mergers).

               6.

               By its sixth plea in law, the applicant submits that there were errors of law and errors of assessment in the determination of legitimate expectations in the decision.

               7.

               By its seventh plea in law, the applicant argues that insufficient grounds were given for the decision.


title: Case T-489/15: Order of the General Court of 28 March 2017 — LG Electronics v EUIPO — Cyrus Wellness Consulting (VIEWTY SNAP) (EU trade mark — Opposition proceedings — Withdrawal of the application for registration — No need to adjudicate)

text:
               6.6.2017

               EN

               Official Journal of the European Union

               C 178/16

         Order of the General Court of 28 March 2017 — LG Electronics v EUIPO — Cyrus Wellness Consulting (VIEWTY SNAP)
   (Case T-489/15) (1)

   ((EU trade mark - Opposition proceedings - Withdrawal of the application for registration - No need to adjudicate))
   (2017/C 178/20)
   Language of the case: English

      Parties

      Applicant: LG Electronics, Inc. (Seoul, Republic of Korea) (represented by: M. Graf, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: L. Rampini, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO intervening before the General Court: Cyrus Wellness Consulting GmbH (Berlin, Germany) (represented by: A. Wulff and U. Hildebrandt, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 12 June 2015 (Case R 1938/2014-2), relating to opposition proceedings between Cyrus Wellness Consulting GmbH and LG Electronics, Inc.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               LG Electronics, Inc., is ordered to bear its own costs and those incurred by the European Union Intellectual Property Office (EUIPO) and Cyrus Wellness Consulting GmbH.

      (1)  OJ C 337, 12.10.2015.


title: Case C-375/12: Reference for a preliminary ruling from the Tribunal administratif de Grenoble (France) lodged on 6 August 2012 — Margaretha Bouanich v Direction départementale des finances publiques de la Drôme

text:
               20.10.2012

               EN

               Official Journal of the European Union

               C 319/3

         Reference for a preliminary ruling from the Tribunal administratif de Grenoble (France) lodged on 6 August 2012 — Margaretha Bouanich v Direction départementale des finances publiques de la Drôme
   (Case C-375/12)
   2012/C 319/03
   Language of the case: French

      Referring court

   Tribunal administratif de Grenoble

      Parties to the main proceedings

      Applicant: Margaretha Bouanich

      Defendant: Direction départementale des finances publiques de la Drôme

      Questions referred

               1.

               Do Articles 43, 56 and 58 of the Treaty establishing the European Community (now Articles 49, 63 and 65 of the Treaty on the Functioning of the European Union) preclude legislation, such as that at issue in the main proceedings, under which, where a resident of a Member State of the European Union who is a shareholder of a company established in another Member State of the European Union receives dividends taxed in the two Member States and the double taxation is regulated by the imputation in the Member State of residence of a tax credit for the same amount as the tax paid in the State of the distributing company, the tax capping mechanism of up to 60 % or 50 % of income received during a year does not take into account, or takes only partially into account, the tax paid in the other State;

               2.

               If that is the case, may such a restriction be justified by the need to maintain the cohesion of the tax system, by a balanced allocation of taxing powers between the Member States, or by any other overriding reason in the public interest?


title: Judgment of the Court of First Instance 28 February 2002 in Case T-308/94: Cascades SA v Commission of the European Communities (Competition — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Liability for the infringement — Fine — Appeal — Referral back to Court of First Instance — Equal treatment — Principle of res judicata)

text:
15.6.2002               EN                      Official Journal of the European Communities                                      C 144/33
                                                          COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                         28 February 2002
                                                                                28 February 2002
in Case T-308/94: Cascades SA v Commission of the
                    European Communities (1)                               in Case T-395/94: Atlantic Container Line AB e.a. v
                                                                                Commission of the European Communities (1)
(Competition — Article 85(1) of the EC Treaty (now
Article 81(1) EC) — Liability for the infringement — Fine
— Appeal — Referral back to Court of First Instance —                      (Competition — Liner conferences — Regulation (EEC)
          Equal treatment — Principle of res judicata)                     No 4056/86 — Scope — Block exemption — Regulation
                                                                                (EEC) No 1017/68 — Individual exemption)
                          (2002/C 144/71)
                                                                                (2002/C 144/72)
                    (Language of the case: French)
                                                                                (Language of the case: English)
In Case T-308/94, Cascades SA, established in Bagnolet
(France), represented by J.-Y. Art, lawyer, with an address for
service in Luxembourg, v Commission of the European
Communities (Agents: R. Lyal and É. Gippini Fournier):                    In Case T-395/94, Atlantic Container Line AB, established in
Application for annulment of Commission Decision 94/601/                   Gothenburg (Sweden), Cho Yang Shipping Co. Ltd, established
EC of 13 July 1994 relating to a proceeding under Article 85               in Seoul (South Korea), DSR-Senator Lines GmbH, established
of the EC Treaty (IV/C/33.833 — Cartonboard) (OJ 1994                      in Bremen (Germany), Hapag Lloyd AG, established in Ham-
L 243, p. 1), Court of First Instance (First Chamber, Extended             burg (Germany), Mediterranean Shipping Company SA, estab-
Composition), composed of: B. Vesterdorf, President, K. Le-                lished in Geneva (Switzerland), A. P. Møller-Mærsk Line,
naerts, J. Pirrung, M. Vilaras and N. J. Forwood, Judges;                  established in Copenhagen (Denmark), Nedlloyd Lijnen BV,
D. Christensen, Administrator, for the Registrar, has given a              established in Rotterdam (Netherlands), Neptune Orient Lines
judgment on 28 February 2002, in which it:                                 Ltd, established in Singapore (Singapore), Nippon Yusen Kaisha
                                                                           (NYK Line), established in Tokyo (Japan), Orient Overseas
                                                                           Container Line (UK) Ltd, established in Levington (United
1.    Sets the amount of the fine imposed on the applicant by              Kingdom), P & O Containers Ltd, established in London
      Article 3 of Commission Decision 94/601/EC of 13 July                (United Kingdom), Polish Ocean Lines (POL), established in
      1994 relating to a proceeding under Article 85 of the EC             Gdynia (Poland), Sea-Land Service Inc., established in Jersey
      Treaty (IV/C/33.833 — Cartonboard) at EUR 13 538 000;                City, New Jersey (United States of America), Tecomar SA de
                                                                           CV, established in Mexico City (Mexico), Transportación
                                                                           Marı́tima Mexicana SA de CV, established in Mexico City,
2.    Orders the applicant to bear five sixths of its own costs and of     represented by J. Pheasant, N. Bromfield and, initially, S. Kim
      the Commission’s costs, incurred before the Court of Justice and     and, subsequently, M. Levitt, solicitors, with an address for
      the Court of First Instance, including those relating to the         service in Luxembourg, supported by The European Com-
      interlocutory proceedings;                                           munity Shipowners’ Associations ASBL, established in Brussels,
                                                                           represented by D. Waelbroeck, lawyer, and The Japanese
3.    Orders the Commission to bear one sixth of the applicant’s           Shipowners’ Association, established in Tokyo, represented
      costs and of its own costs, incurred before the Court of Justice     initially by N. Forwood, QC, and P. Rutley, solicitor, and
      and the Court of First Instance, including those relating to the     subsequently by F. Murphy, lawyer, with an address for service
      interlocutory proceedings.                                           in Luxembourg, v Commission of the European Communities
                                                                           (Agents: B. Langeheine and R. Lyal), supported by The Freight
                                                                           Transport Association Ltd, established in Tunbridge Wells
                                                                           (United Kingdom), including The British Shipping Council,
(1) OJ C 351 of 10.12.1994.                                                Association des utilisateurs de transport de fret, established in
                                                                           Paris, incorperating Conseil des chargeurs français, and by The
                                                                           European Council of Transport Users ASBL, established in
                                                                           Brussels, including The European Shippers Council, represent-


title: Case T-22/07: Action brought on 1 February 2007 — US Steel Košice v Commission

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/38

         Action brought on 1 February 2007 — US Steel Košice v Commission
   (Case T-22/07)
   (2007/C 56/71)
   Language of the case: English
   Parties

      Applicant: US Steel Košice s.r.o. (Košice, Slovak Republic) (represented by: E. Vermulst, S. Van Cutsem, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission's Decision D/59829 of 22 November 2006 concerning the application of the sales cap to Bulgaria and Romania; and

               —

               order the Commission to pay the applicants costs.

         Pleas in law and main arguments
   By means of its application, the applicant seeks annulment of Commission Decision D/59829 of 22 November 2006 extending the application of the sales cap provided in Title 4, point 2(a)(i) of Annex XIV to the Act of Accession so as to include Bulgaria and Romania. The contested decision determined that the sales cap for 2007 and subsequent years had to be recalculated taking into account 2001 sales data for Romania and Bulgaria. To this end, it required the Slovak Republic to provide the applicant's 2001 sales data for these countries.
   The applicant benefits from aid in the form of tax exemption, on the basis of transitional measures in the field of state aid that the Slovak Republic is permitted to apply to one beneficiary in the steel sector.
   In support of its claims, the applicant argues that the contested decision is illegal insofar as it requires the applicant to modify its sales policy and cap its sales of certain steel products to customers in Bulgaria and Romania in order to benefit from aid authorized under Community law.
   The applicant submits that the contested decision imposes an additional condition that did not exist when the Act of Accession entered into force and, thus, contradicts the wording, the spirit and the general scheme of the Act of Accession. According to the applicant the term ‘enlarged EU’ referred to in Annex XIV, Title 4, point 2(a)(i) does not include Romania and Bulgaria.
   In addition, the applicant claims that the contested decision must be annulled since the Commission acted where it had no competence, violated the applicant's legitimate expectations and failed to respect the principle of proportionality.


title: Case C-419/15: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 30 July 2015 — Thomas Philipps GmbH & Co. KG v Grüne Welle Vertriebs GmbH

text:
               19.10.2015

               EN

               Official Journal of the European Union

               C 346/8

         Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 30 July 2015 — Thomas Philipps GmbH & Co. KG v Grüne Welle Vertriebs GmbH
   (Case C-419/15)
   (2015/C 346/09)
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Thomas Philipps GmbH & Co. KG

      Defendant: Grüne Welle Vertriebs GmbH

      Questions referred

               1.

               Does the first sentence of Article 33(2) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (1) preclude a licensee who has not been entered in the register of Community designs from bringing claims for the infringement of a registered Community design?

               2.

               In the event that the first question is answered in the negative: may the exclusive licensee of a Community design, with the consent of the right holder, bring an action on its own claiming damages for its own loss under Article 32(3) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs or can the licensee only intervene in an action brought by the right holder for an infringement of its Community design under Article 32(4) of that regulation?

      (1)  OJ 2002 L 3, p. 1.


title: Case C-307/06: Action brought on 14 July 2006 — Commission of the European Communities v Federal Republic of Germany

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/24

         Action brought on 14 July 2006 — Commission of the European Communities v Federal Republic of Germany
   (Case C-307/06)
   (2006/C 224/45)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by V. Kreuschitz and I. Kaufmann-Bühler, acting as Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               declare that, by granting Erziehungsgeld (child-raising allowance), on the basis of the national provisions of the Bundeserziehungsgeldgesetz, to workers resident in another Member State only if they are in an employment relationship involving non-minor employment, with that condition having to be satisfied by frontier workers only, the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC and Article 7(2) of Regulation (EEC) No 1612/68 (1);

               —

               order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments
   Under Article 7(2) of Regulation (EEC) No 1612/68, a worker who is a national of a Member State is to enjoy, in the territory of another Member State, the same social and tax advantages as national workers.
   Erziehungsgeld (child-raising allowance) is granted in Germany to workers resident in another Member State, in accordance with Paragraph 1(7) of the Bundeserziehungsgeldgesetz, only if they are in an employment relationship involving non-minor employment. That condition has to be satisfied by frontier workers only, workers resident in Germany not being affected by the rule: the latter are entitled to child-raising allowance irrespective of the number of weekly hours of work performed or the amount of pay. The German legislature thus assumes that, in the case of persons living in Germany, the minor nature of their employment does not preclude classifying them as workers.
   That requirement is incompatible with Article 39 EC and Article 7(2) of Regulation (EEC) No 1612/68 of the Council.
   Even if workers in minor employment do not fall within the personal scope of Regulation (EEC) No 1408/71 if the conditions stated for Germany in Annex I C (now D) are not satisfied in their case, that does not allow the conclusion that Regulation (EEC) No 1612/68 is not material. The Court of Justice has emphasised in its case-law that the exclusion of benefits from the scope of Regulation (EEC) No 1408/71 does not free the Member States from the obligation to make sure that no other provision of Community law, in particular of Regulation (EEC) No 1612/68, precludes the imposition of a residence condition. With respect to child-raising allowance, the Court of Justice has even expressly held that it constitutes a social advantage within the meaning of Article 7(2) of Regulation (EEC) No 1612/68.
   A person in minor employment can fall within the concept of worker within the meaning of Article 39 EC. According to settled case-law of the Court of Justice, the concept of worker in Article 39 EC and Regulation (EEC) No 1612/68 has a Community law meaning and must not be interpreted narrowly. The objective characteristic of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. The Court of Justice concludes that part-time employment is not excluded from the scope of the provisions on freedom of movement for workers.
   A rule of national law which is not objectively justified and proportionate to the aim pursued constitutes indirect discrimination if by its nature it is liable to affect migrant workers rather than national workers and there is therefore a risk that migrant workers will be particularly disadvantaged by it. In the Commission's view, a requirement making payment of German child-raising allowance to workers in minor employment dependent on their being resident in Germany is not objectively justified and not proportionate, and thus infringes Article 39 EC and Article 7(2) of Regulation (EEC) No 1612/68.

      (1)  OJ, English Special Edition 1968 (II), p. 475.


title: Case T-581/13: Judgment of the General Court of 26 March 2015 — Royal County of Berkshire Polo Club v OHIM — Lifestyle Equities (Royal County of Berkshire POLO CLUB) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Royal County of Berkshire POLO CLUB — Earlier Community figurative trade marks BEVERLY HILLS POLO CLUB — Relative ground for refusal — Likelihood of confusion — Duty to state reasons — Article 75 of Regulation (EC) No 207/2009 — Article 8(1)(b) of Regulation No 207/2009)

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/25

         Judgment of the General Court of 26 March 2015 — Royal County of Berkshire Polo Club v OHIM — Lifestyle Equities (Royal County of Berkshire POLO CLUB)
   (Case T-581/13) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark Royal County of Berkshire POLO CLUB - Earlier Community figurative trade marks BEVERLY HILLS POLO CLUB - Relative ground for refusal - Likelihood of confusion - Duty to state reasons - Article 75 of Regulation (EC) No 207/2009 - Article 8(1)(b) of Regulation No 207/2009))
   (2015/C 155/29)
   Language of the case: English

      Parties

      Applicant: The Royal County of Berkshire Polo Club Ltd (London, United Kingdom) (represented by: J. Maitland-Walker, Solicitor)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: P. Bullock and N. Bambara, Agents)

      The other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Lifestyle Equities CV (Amsterdam, Netherlands) (represented by D. Russo, lawyer)

      Re:

   ACTION brought against the decision of the Second Board of Appeal of OHIM of 25 July 2013 (Case R 1374/2012-2), relating to opposition proceedings between Lifestyle Equities CV and Royal County of Berkshire Polo Club Ltd.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 25 July 2013 (Case R 1374/2012-2) to the extent that it refused Community trade mark application No 9642621 in respect of ‘whips, harness, and saddlery’;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 24, 25.1.2014.


title: Case C-470/08: Reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands), lodged on 3 November 2008 — K. van Dijk v Gemeente Kampen

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/15

         Reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands), lodged on 3 November 2008 — K. van Dijk v Gemeente Kampen
   (Case C-470/08)
   (2009/C 6/24)
   Language of the case: Dutch
   Referring court
   Gerechtshof te Arnhem
   Parties to the main proceedings

      Appellant: K. van Dijk

      Respondent: Gemeente Kampen
   Questions referred

               1.

               Do Regulation No 1782/2003 (1) and Regulation No 795/2004 (2), or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to deliver the leased land, including the payment entitlements accumulated thereon or relating thereto, to the lessor on the expiry of the lease?

               2.

               If the answer to Question 1 is in the affirmative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessor, in the absence of national rules in this respect, to pay to the lessee compensation for the payment entitlements transferred to the lessor, and if so, should the lessor compensate the lessee for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion?

               3.

               If the answer to Question 1 is in the negative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to pay to the lessor compensation for the payment entitlements retained by the lessee, and if so, should the lessee compensate the lessor for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion?

      (1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

      (2)  Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 1).