title: Case C-2/09: Reference for a preliminary ruling from the Varhoven administrativen Sad (Bulgaria) lodged on 6 January 2009 — Peter Dimitrov Kalinchev v Regionalna Mitnicheska Direktsia — Plovdiv

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/19

         Reference for a preliminary ruling from the Varhoven administrativen Sad (Bulgaria) lodged on 6 January 2009 — Peter Dimitrov Kalinchev v Regionalna Mitnicheska Direktsia — Plovdiv
   (Case C-2/09)
   (2009/C 55/31)
   Language of the case: Bulgarian
   Referring court
   Varhoven administrativen Sad
   Parties to the main proceedings

      Applicant: Peter Dimitrov Kalinchev

      Defendant: Regionalna Mitnicheska Direktsia — Plovdiv
   Questions referred

               1.

               Does Article 3(3) of Council Directive 92/12/EEC (1) of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products allow Member States to lay down a provision that excise duty be levied on the introduction of used motor vehicles into their territory, if that duty is not directly payable on the second-hand purchase of such vehicles which are already in the country and for which on first introduction into the territory of the Member State excise duty is paid?

               2.

               Does the expression ‘similar domestic products’ in the first paragraph of Article 90 EC mean:

                           (a)

                           products which have their origin in the Member State, which lays down specific domestic duties; or

                           (b)

                           products which, independently of their origin, are already in the territory of that Member State?

               3.

               Having regard to the answers to the questions above: Are Article 25 EC and the first paragraph of Article 90 EC to be read as a prohibition on the differing rules on the levying of excise duty on motor vehicles which the Republic of Bulgaria has laid down in Articles 30 and 40 of the ZADS according to the criteria of year of manufacture and mileage?

      (1)  OJ 1992 L 76, p. 1.


title: Case T-325/02: Action brought on 14 October 2002 by Michel Soubies against Commission of the European Communities

text:
C 19/36                 EN                         Official Journal of the European Communities                                     25.1.2003
President of the Court of First Instance made an order on                     In that regard, the applicant takes the view that, having failed
17 October 2002, the operative part of which is as follows:                   to adopt general rules authorising the reversal of management
                                                                              duties, the Secretary General improperly adopted the contested
                                                                              decision. The duties actually carried out by the applicant since
1.    The application for interim relief is rejected.                         the adoption of that decision are moreover manifestly inferior
                                                                              to those normally carried out by an official in Grade A 3.
2.    Costs are reserved.
                                                                              Action brought on 31 October 2002 by the Gestoras Pro
Action brought on 14 October 2002 by Michel Soubies                           Amnistía association, Juan Mari Olano Olano and Julen
    against Commission of the European Communities                              Zelarain Errasti against Council of the European Union
                          (Case T-325/02)                                                             (Case T-333/02)
                          (2003/C 19/69)                                                               (2003/C 19/70)
                    (Language of the case: French)                                               (Language of the case: French)
An action against the Commission of the European Communi-                     An action against the Council of the European Union was
ties was brought before the Court of First Instance of the                    brought before the Court of First Instance of the European
European Communities on 14 October 2002 by Michel                             Communities on 31 October 2002 by the Gestoras Pro
Soubies, residing in Brussels, represented by Albert Coolen,                  Amnistía association, whose offices are in Hernani (Spain),
Jean-Noël Louis and Etienne Marchal, avocats.                                 Juan Mari Olano Olano, residing in Gainza (Spain), and Julen
                                                                              Zelarain Errasti, residing in San Sebastián (Spain), represented
                                                                              by Didier Rouget, lawyer.
The applicant claims that the Court should:
                                                                              The applicants claim that the Court should:
—     annul the decision of 26 November 2001 of the Secretary
      General of the Commission posting the applicant, as A
                                                                              —     order the defendant to pay compensation amounting to
      3 adviser ad personam, to Unit SG/F.2 ‘Institutional
                                                                                EUR 1 000 000 to the Gestoras Pro Amnistía association
      matters’;
                                                                                and EUR 100 000 to each of the other two applicants,
                                                                                Juan Mari Olano Olano and Julen Zelarain Errasti;
—     order the defendant to pay the costs.
                                                                              —     find that those amounts give rise to default interest at the
                                                                                rate of 4.5 % per annum with effect from the date of the
                                                                                judgment of the Court of First Instance and until actual
Pleas in law and main arguments                                                     payment is effected;
                                                                              —     order the defendant to bear its own costs and to pay
The applicant, an official in Grade A 3, is challenging the                         those incurred by the applicants.
decision of the appointing authority to appoint him adviser ad
personam in Unit SG/F.2 ‘Institutional matters’, where the
head of unit was appointed in Grade A 5.
                                                                              Pleas in law and main arguments
In support of his claims, he alleges:
                                                                              The Gestoras Pro Amnistía association and two representatives
—     breach of the obligation to state reasons;                              are seeking compensation for the damage allegedly suffered as
                                                                              a result of the abovementioned association’s name having been
—     breach of the procedure for filling middle-management                   included in the list of terrorist persons, groups and bodies,
      posts, infringement of Articles 4, 5, 27 and 29 of the                  pursuant to Common Position 2001/931/CFSP ( 1), adopted on
      Staff Regulations and breach of the principles of good                  27 December 2001, confirmed by Council Common Position
      management and sound administration and of the prin-                    2002/340/CFSP (2), adopted on 2 May 2001, and Council
      ciple that officials should have reasonable career pros-                Common Position 2002/940/CFSP (3), adopted on 17 June
      pects.                                                                  2002.


title: Case T-339/04: Judgment of the Court of First Instance of 8 March 2007 — France Télécom v Commission (Competition — Decision ordering an inspection — Loyal cooperation with the national courts — Loyal cooperation with the national competition authorities — Article 20(4) of Regulation (EC) No 1/2003 — Commission Notice on Cooperation within the Network of Competition Authorities — Statement of reasons — Proportionality)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/38

         Judgment of the Court of First Instance of 8 March 2007 — France Télécom v Commission
   (Case T-339/04) (1)

   (Competition - Decision ordering an inspection - Loyal cooperation with the national courts - Loyal cooperation with the national competition authorities - Article 20(4) of Regulation (EC) No 1/2003 - Commission Notice on Cooperation within the Network of Competition Authorities - Statement of reasons - Proportionality)
   (2007/C 95/76)
   Language of the case: French
   Parties

      Applicant: France Télécom SA, formerly Wanadoo SA (Paris, France) (represented by: H. Calvet and M.-C. Rameau, lawyers)

      Defendant: Commission of the European Communities (represented by: É. Gippini Fournier and O. Beynet, Agents)
   Re:
   Annulment of Commission Decision C (2004) 1929 of 18 May 2004 in Case COMP/C-1.38.916 ordering French Eélécom SA and all undertakings which it controls directly or indirectly, including Wanadoo SA and all undertakings controlled directly or indirectly by Wanadoo SA, to submit to an inspection pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).
   Operative part of the judgment
   The Court:

               1.

               Dismisses the application;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 262, 23.10.2004.


title: Action brought on 9 June 1995 by Lars Bo Rasmussen against the Commission of the European Communities (Case T-130/95)

text:
12 . 8 . 95              EN                 Official Journal of the European Communities                              No C 208 /35
       Communities, such aid being, moreover, a prerequisite           — order the Commission to pay the costs .
       for their performance .
                                                                       Pleas in law and main arguments adduced in support:
As regards the substance, the applicant puts forward the
following pleas in law :                                               The pleas in law and arguments are identical to those in Case
                                                                       T-126/95 .
( a ) Failure to state reasons : the contested decision does not
       state the reasons on which it is based, as required by
       Article 190 of the EC Treaty.
( b) Infringement of Article 155 of the EC Treaty: by failing
       to act in the present case , the Commission did not             Action brought on 3 June 1995 by Aeroports de Paris (ADP)
       discharge its duty under Article 155 of the Treaty to             against the Commission of the European Communities
       ensure that Greece applied Community law.
                                                                                ( Case T-l 28/95 )
(c ) Error in law or manifest error of assessment: the                                          ( 95/C 208/73 )
       Commission has committed either an error in law, if it
       considered that there was no reason to take further                            (Language of the case: French)
       steps against Greece on the ground that Community
       law had not been infringed, or a manifest error of
                                                                       An action against the Commission of the European
       assessment, if it considered that the infringements in          Communities was brought before the Court of First
       question were not sufficient to justify the initiation of       Instance of the European Communities on 3 June 1995 by
       the infringement procedure against the Hellenic                 Aeroports de Paris (ADP ), whose registered office is in Paris,
       Republic . It can scarcely be disputed , in the applicant's
                                                                       represented by Hugues Calvet of the Paris Bar, with an
       view, that the principle of equal treatment of tenderers        address for service in Luxembourg at the Chambers of
       has been infringed in several respects and that the Greek       Aloyse May, 31 Grand-Rue.
       authorities have manifestly disregarded Articles 30 and
       59 of the EC Treaty and the Council directives on the
       award of public contracts.                                      The applicant claims that the Court should :
                                                                       — annul the Commission 's decision of 29 March 1995
                                                                           refusing to take further steps against the Hellenic
                                                                           Republic for failure to fulfil its obligations under
                                                                           Community law with respect to the award of the public
                                                                           contract for Athens airport,
Action brought on 5 June 1995 by Societe Auxiliaire
                                                                       — in the alternative, declare that the Commission failed to
d'Entreprises ( SAE ) against the Commission of the
                                                                           act,
                       European Communities
                          ( Case T-127/95 )                            — order the Commission to pay the whole of the costs
                            ( 95/C 208/72 )                                incurred by ADP in connection with the present
                                                                           application for annulment.
                   (Language of the case: French)
                                                                       Pleas in law and main arguments adduced in support:
An action against the Commission of the European                       The pleas in law and arguments are similar to those in Case
 Communities was brought before the Court of First                     T-126/95 .
 Instance of the European Communities on 5 June 1995 by
 Societe Auxiliaire d'Entreprises ( SAE ), whose registered
 office is at Issy-les-Moulineaux ( France ), represented by
 Alexandre Carnelutti, of the Paris Bar .
The applicant claims that the Court should :                           Action brought on 9 June 1995 by Lars Bo Rasmussen
                                                                         against the Commission of the European Communities
— annul the Commission's decision of 29 March 1995 ,                                          ( Case T-130/95 )
                                                                                ( 95/C 208/74 )
 — in the alternative, declare that the Commission
      unlawfully omitted to initiate the procedure for failure
      to fulfil its obligations against the Hellenic Republic, on                     (Language of the case: French)
      account of the serious and repeated infringements of
      Community law committed by the Greek Government in               An action against the Commission of the European
      connection with the procedure for awarding the                   Communities was brought before the Court of First
      contract for the new Athens airport,                             Instance of the European Communities on 9 June 1995 by
 ---pagebreak--- No C 208/36           EN                   Official Journal of the European Communities                                   12 . 8 . 95
Lars Bo Rasmussen, residing at Dalheim ( Luxembourg ),                Jean-Noel Louis, Thierry Demaseure and Ariane Tornel, of
represented by Carlo Revoldini , of the Luxembourg Bar,               the Brussels Bar, with an address for service in Luxembourg
with an address for service at the latter 's Chambers, 180            at the offices of Fiduciaire Myson Sari, 1 Rue Glesener.
Route de Longwy.
                                                                      The applicant claims that the Court should :
The applicant claims that the Court should :
                                                                      — annul the decision of the Commission fixing Brussels as
— annul the Commission's decision not to promote him to                    the applicant's place of recruitment, together with all
    grade A 4 in the 1992 promotions exercise and, in so far               subsequent decisions,
    as is necessary, the Commission's rejection, dated
    3 March 1995 , of his complaint and its decision to               — order the defendant to pay the costs.
    promote to grade A 4 the officials on the list published in
    Administrative     Information      Bulletin   No   859   of
                                                                      Pleas in law and main arguments adduced in support:
    8 September 1994 ,
                                                                      The pleas in law and main arguments are the same as those
— order the Commission to pay damages by way of                       in Case T-33/95 (').
    compensation for the material and non-material damage
    suffered by the applicant, further and better particulars
    of which he reserves the right to provide during the              (M OJ No C 101 , 22 . 4 . 1995 .
    proceedings,
— order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:
                                                                      Action brought on 3 July 1995 by Friedrich Engelking
In support of his application, the applicant pleads                   against the Council of the European Union and the
infringement of Article 45 ( 1 ) of the Staff Regulations .                     Commission of the European Communities
                                                                                ( Case T-138/95 )
In that connection he submits that the Commission was                                           ( 95/C 208/76 )
unable to take his merits as an official in grade A 5 into
consideration, since there was no staff report on him for the
                                                                                (Language of the case: German)
period 1991 to 1993 .
Secondly, the applicant points out that the Commission                An action against the Council of the European Union and
compared his merits only with those of officials in                   the Commission of the European Communities was brought
Directorate-General       V     and  not  with    those  of  all      before the Court of First Instance of the European
Commission officials in grade A 5 who were eligible for               Communities on 3 July 1995 by Friedrich Engelking, of
promotion .                                                           Raddestorf, Federal Republic of Germany, represented by
                                                                      Bernd Meisterernst, Mechtild Düsing, Dietrich Manstetten,
Lastly, the applicant claims that promotions to grade A 4 are         Frank Schulze and Winfried Haneklaus , Rechtsanwälte,
not made on the basis of consideration of the comparative             Münster, with an address for service in Luxembourg at the
merits of the officials eligible for promotion but on the basis       Chambers of Dupong & Associés, 14a Rue des Bains .
of priority points which each Directorate-General has at its
disposal according to the number of officials eligible for            The applicant claims that the Court should :
promotion and which it may allocate as it wishes .
                                                                       1 . order the defendants to pay the applicant SLOM-II
                                                                            compensation for the period from 2 April 1984 to
                                                                            13 June 1991 in the amount of DM 110 021,93 together
                                                                            with interest at 8 % for the period from 19 May 1992,
                                                                            and order the defendants to pay the costs of the
                                                                            proceedings;
Action brought on 19 June 1995 by Peter Gammeltoft
  against the Commission of the European Communities
                                                                      2 . join the present application with the pending Case
                        ( Case T-132/95 )                                   T-77/93 Hülseberg and Others v. Council and
                          ( 95 /C 208/75                                    Commission and likewise stay the proceedings .
               (Language of the case: French)                         Pleas in law and main arguments adduced in support:
                                                                      The pleas in law and main arguments are similar to those in
An action against the Commission of the European                       Case T-20/94 .
Communities was brought before the Court of First
Instance of the European Communities on 19 June 1995 by
 Peter Gammeltoft, residing in Brussels, represented by


title: Case T-349/02: Action brought on 22 November 2002 by the company Sephora against Office for Harmonization in the Internal Market (trade marks and designs) (OHIM)

text:
25.1.2003               EN                      Official Journal of the European Communities                                      C 19/41
The applicants claim that the Court should:                                Pleas in law and main arguments
—     annul the decision of the Commission of 14 August 2002
      referring Case COMP/M.2845 - Sogecable/Canalsatélite                 Applicant for the Com-        INTER SERVICE S.r.l.
      Digital/Vía Digital to the competent authorities in the              munity trade mark:
      Kingdom of Spain pursuant to Article 9 of Council
      Regulation (EEC) No 4064/89;                                         The Community trade           SEPHORA (registration appli-
                                                                           mark concerned:               cation No 593.806 for goods in
—     order the Commission to pay the costs.                                                             Classes 9, 18 and 25
                                                                           Proprietor of the right to    The applicant
                                                                           the trade mark or sign
Pleas in law and main arguments                                            asserted by way of oppo-
                                                                           sition in the opposition
                                                                           proceedings:
The pleas in law and main arguments are essentially those
previously put forward in Case T-346/02 CABLEUROPA and                     Trade mark or sign            French word mark SEPHORA for
Others v Commission.                                                       asserted by way of oppo-      goods in Classes 35 and 42
                                                                           sition in the opposition
                                                                           proceedings:
The applicants allege, in particular, breach of the principle of
good administration, inasmuch as the Commission not only
abandoned a practice and a consolidated policy in decisions to             Decision of the Oppo-         Opposition rejected
refer cases to the market affected by the operation in question,           sition Division:
it also failed to take into account a case which is closely linked
to the concentration operation and involving the same parties.             Decision of the Board of      Appeal rejected
In any event, the Commission is better placed than the national            Appeal:
authorities to analyse the abovementioned operation for,
among other reasons, the overriding questions of Community                 Grounds of claim:             Misapplication of Article 8(4) of
interest which the later raises.                                                                         Regulation No 40/94
Action brought on 22 November 2002 by the company
Sephora against Office for Harmonization in the Internal                   Action brought on 26 November 2002 by Ikegami Elec-
          Market (trade marks and designs) (OHIM)                          tronics (Europe) GmbH against the Council of the Euro-
                                                                                pean Union
                          (Case T-349/02)
                                                                                (Case T-350/02)
                          (2003/C 19/77)
                                                                                (2003/C 19/78)
                    (Language of the case: French)
                                                                                (Language of the case: English)
An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on                 An action against the Council of the European Union was
22 November 2002 by Sephora, whose registered office is in                 brought before the Court of First Instance of the European
Levallois-Perret (France), represented by Michel-Paul Escande,             Communities on 26 November 2002 by Ikegami Electronics
lawyer.                                                                    (Europe) GmbH, Neuss, Germany, represented by Mr Laurent
                                                                           Ruessmann, lawyer with an address for service in Luxembourg.
The applicant claims that the Court should:
—     annul the decision of the Second Board of Appeal of the              The applicant claims that the Court should:
      Office for Harmonization in the Internal Market (trade
      marks and designs) of 9 September 2002 (Case R 425/                  —     annul Article 2 of Council Regulation (EC) No 1696/
      2000-2);                                                                   2002;
—     order the defendant to pay the costs.                                —     order the Council to pay the costs.


title: Judgment of the Court (Sixth Chamber) of 8 March 2001 in Case C-68/99: Commission of the European Communities v Federal Republic of Germany (Failure to fulfil obligations — Freedom of establishment — Freedom to provide services — Social security — Regulation (EEC) No 1408/71 — Funding of the social insurance scheme for self-employed artists and journalists — Contribution collected from undertakings which market the work of artists and journalists, calculated on the basis of the remuneration paid to the authors — Account taken of remuneration paid to artists and journalists subject to the social security legislation of another Member State)

text:
30.6.2001               EN                      Official Journal of the European Communities                                              C 186/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       Community as amended and updated by Council Regulation
                                                                             (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) —
                         (Sixth Chamber)                                     the Court (Sixth Chamber), composed of: C. Gulmann, Presi-
                                                                             dent of the Chamber, V. Skouris, J.-P. Puissochet (Rapporteur),
                         of 8 March 2001                                     R. Schintgen and F. Macken, Judges; D. Ruiz-Jarabo Colomer,
                                                                             Advocate General; R. Grass, Registrar, has given a judgment
in Case C-68/99: Commission of the European Communi-                         on 8 March 2001, in which it:
            ties v Federal Republic of Germany(1)
                                                                             1.    Dismisses the application;
(Failure to fulfil obligations — Freedom of establishment —                  2.    Orders the Commission of the European Communities to pay
Freedom to provide services — Social security — Regulation                         the costs.
(EEC) No 1408/71 — Funding of the social insurance scheme
for self-employed artists and journalists — Contribution                     (1) OJ C 121 of 1.5.1999.
collected from undertakings which market the work of artists
and journalists, calculated on the basis of the remuneration
paid to the authors — Account taken of remuneration paid
to artists and journalists subject to the social security
              legislation of another Member State)
                          (2001/C 186/01)                                                     JUDGMENT OF THE COURT
                   (Language of the case: German)                                                      (First Chamber)
                                                                                of 8 March 2001
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                            in Case C-240/99 (reference for a preliminary ruling from
                                                                             the Regeringsrätten): proceedings brought by Försäkring-
In Case C-68/99: Commission of the European Communities                                       saktiebolaget Skandia (publ) (1)
(Agents: P. Hillenkamp and A. Buschmann) v Federal Republic
of Germany (Agents: W.-D. Plessing and C.-D. Quassowski) —                   (Sixth VAT Directive — Exemptions — Insurance and
application for a declaration that, by applying Paragraph 23 et                                  reinsurance transactions)
seq. of the Künstlersozialversicherungsgesetz (Law on social
insurance for artists) to artists and journalists who reside in                                        (2001/C 186/02)
another EU Member State and normally pursue a self-employed
activity both in that other Member State and in the Federal
Republic of Germany, and who are thus exclusively subject, as                                   (Language of the case: Swedish)
regards the social security system, to the legislation of the
Member State in the territory of which they reside, the Federal
Republic of Germany has failed to fulfil its obligations under               (Provisional translation; the definitive translation will be published
Articles 51, 52 and/or 59 of the EC Treaty (now, after                                          in the European Court Reports)
amendment, Articles 42 EC and 43 EC and/or 49 EC) and
Title II, specifically the first sentence of Article 14a(2) in               In Case C-240/99: reference to the Court under Article 234
conjunction with Article 13(1) and (2)(b), of Council Regu-                  EC from the Regeringsrätten (Supreme Administrative Court)
lation No 1408/71 of 14 June 1971 on the application of                      Sweden for a preliminary ruling in the proceedings pending
social security schemes to employed persons, to self-employed                before that court brought by Försäkringsaktiebolaget Skandia
persons and to members of their families moving within the                   (publ) — on the interpretation of Article 13B(a) of Sixth


title: Case T-742/14: Action brought on 3 November 2014 — Alpha Calcit v OHIM — Materis Paints Italia (CALCILITE)

text:
               22.12.2014

               EN

               Official Journal of the European Union

               C 462/29

         Action brought on 3 November 2014 — Alpha Calcit v OHIM — Materis Paints Italia (CALCILITE)
   (Case T-742/14)
   (2014/C 462/42)
   Language in which the application was lodged: English

      Parties

      Applicant: Alpha Calcit Füllstoffgesellschaft mbH (Cologne, Germany) (represented by: F. Hauck, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Materis Paints Italia SpA (Novate Milanese, Italy)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: The other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community figurative mark ‘CALCILITE’ — Community trade mark No 5 0 74  745

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 4 September 2014 in Case R 753/2013-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision with regard to the following goods: paints, varnishes, lacquers, preservatives against rust and against deterioration of wood, colorants, mordants, raw natural resins (class 2); pargets (class 19);

               —

               order OHIM to pay the costs.

      Pleas in law

               —

               Infringement of Articles 53(1)(a) and 8(1)(b) of Regulation No 207/2009.


title: Case C-138/05: Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands ) — Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit (Authorisation for the placing of plant protection and biocidal products on the market — Directive 91/414/EEC — Article 8 — Directive 98/8/EC — Article 16 — Power of Member States during the transitional period)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/13

         Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands ) — Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit
   (Case C-138/05) (1)

   (Authorisation for the placing of plant protection and biocidal products on the market - Directive 91/414/EEC - Article 8 - Directive 98/8/EC - Article 16 - Power of Member States during the transitional period)
   (2006/C 281/21)
   Language of the case: Dutch
   Referring court
   College van Beroep voor het bedrijfsleven
   Parties to the main proceedings

      Applicant: Stichting Zuid-Hollandse Milieufederatie

      Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

      Intervener: LTO Nederland
   Re:
   Reference for a preliminary ruling — College van Beroep voor het Bedrijfsleven — Interpretation of Articles 4, 8(2) and (3) and 23 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) — Interpretation of Article 16 of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1) — Prior authorisation of placing on the market — Period prescribed for transposition elapsed — Application by the national court — Authorisation for placing on the market products already there two years after the directive was notified — Re-examination of the products
   Operative part of the judgment

               1.

               Article 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market has the same meaning as Article 8(2) of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market.

               2.

               Article 8(2) of Directive 91/414 does not constitute a ‘standstill’ obligation. However, the second paragraph of Article 10 EC and the third paragraph of Article 249 EC, and Directive 91/414, require that during the transitional period prescribed in Article 8(2) of that directive the Member States refrain from adopting any measures liable seriously to compromise the result prescribed by that directive. More specifically, Member States may not, during that transitional period, amend the legislation applicable in such a manner as to allow themselves to authorise a plant protection product which comes within the scope of that provision, without duly considering the effects which that product might have on human and animal health and on the environment. Likewise, a decision relating to an authorisation may be taken only on the basis of a dossier comprising all necessary information enabling a genuine assessment of those effects to be made.

               3.

               Article 8(2) of Council Directive 91/414 is to be interpreted as meaning that, where a Member State authorises the placing on the market on its territory of plant protection products containing active substances not referred to in Annex I to that directive that were already on the market two years after the date of notification of the directive, it is not required to comply with the provisions of Article 4 or Article 8(3) of that directive.

               4.

               It is for the national court to assess whether the evaluation carried out pursuant to Article 16aa of the Law on pesticides of 1962 (Bestrijdingsmiddelenwet), as amended by the Law of 6 February 2003, corresponds to all the characteristics of a ‘review’ within the meaning of Article 8(3) of Directive 91/414, in particular those referred to in paragraphs 53 and 54 of the present judgment.

               5.

               Article 8(3) of Directive 91/414 is to be interpreted as meaning that it contains only provisions relating to the provision of data prior to a review.

      (1)  OJ C 143, 11.06.2005.


title: Case C-413/08 P: Judgment of the Court (Second Chamber) of 17 June 2010 — Lafarge SA v European Commission, Council of the European Union (Appeal — Agreements, decisions and concerted practices — Plasterboard — Distortion of the clear sense of the evidence — Burden of proof — No proper statement of reasons — Regulation No 17 — Article 15(2) — Penalty — Repeated infringement — Stage at which the deterrent effect of the fine is to be taken into account)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/5

         Judgment of the Court (Second Chamber) of 17 June 2010 — Lafarge SA v European Commission, Council of the European Union
   (Case C-413/08 P) (1)

   (Appeal - Agreements, decisions and concerted practices - Plasterboard - Distortion of the clear sense of the evidence - Burden of proof - No proper statement of reasons - Regulation No 17 - Article 15(2) - Penalty - Repeated infringement - Stage at which the deterrent effect of the fine is to be taken into account)
   2010/C 221/07
   Language of the case: French

      Parties

      Appellant: Lafarge SA (represented by: A. Winckler, F. Brunet, E. Paroche, H. Kanellopoulos and C. Medina, avocats)

      Other parties to the proceedings: European Commission (represented by: F. Castillo de la Torre and N. von Lingen, Agents), Council of the European Union

      Re:

   Appeal against the judgment of the Court of First Instance (Third Chamber) of 8 July 2008 in Case T-54/03 Lafarge SA v Commission rejecting the appellant’s action for the annulment of the Commission’s decision of 27 November 2002, which imposed a fine on the appellant pursuant to Article 81 EC — Cartel fixing prices in the plasterboard sector — Infringement of the obligation to state adequate grounds and the rules governing the burden of proof — Infringement of the principles of equal treatment and proportionality as regards the calculation of the fine — Concept of ‘repeated infringement’

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Lafarge SA to pay the costs.

      (1)  OJ C 327, 20.12.2008.


title: Case C-575/15 P: Appeal brought on 9 November 2015 by Industria de Diseño Textil, S.A. (Inditex) against the judgment of the General Court (Third Chamber) delivered on 9 September 2015 in Case T-584/14 INDITEX v OHIM — ANSELL (ZARA)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/27

         Appeal brought on 9 November 2015 by Industria de Diseño Textil, S.A. (Inditex) against the judgment of the General Court (Third Chamber) delivered on 9 September 2015 in Case T-584/14 INDITEX v OHIM — ANSELL (ZARA)
   (Case C-575/15 P)
   (2016/C 038/40)
   Language of the case: Spanish

      Parties

      Appellant: Industria de Diseño Textil, S.A. (Inditex) (represented by: C. Duch Fonoll, lawyer)

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

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of the European Union dismissing the action brought by the appellant against the decision of the Second Board of Appeal of OHIM of 19 May 2014 (Case R 1118/2013-2) and, consequently, annul the contested decision and the earlier decision of the Cancellation Division of OHIM of 30 April 2013 granting the application for revocation of the Community trade mark ZARA No 112 755 for services in Class 39;

               —

               order OHIM to pay the costs.

      Grounds of appeal and main arguments

               1.

               By its appeal, which comprises six grounds of appeal, Inditex contests the grounds set out in paragraphs 32 to 37 of the judgment under appeal.

               2.

               In the first ground of appeal, Inditex argues that the General Court infringed Article 65(3) CTMR (1) in that, in paragraph 37 of the judgment under appeal, it went beyond the limits of the action before it by calling into question the use in itself of the trade mark ZARA No 112 755 for services in Class 39, whereas that was an undisputed issue which did not form part of the action.

               3.

               The subject matter of the action before the Board of Appeal was limited to determining whether or not Inditex’s use of the trade mark ZARA for the services of transport and product distribution provided by that company to its franchisees could be regarded as external use, as opposed to internal use within the company, and, consequently, whether or not it could be regarded as genuine use. Accordingly, the use in itself of the trade mark ZARA in respect of the transport and distribution services provided by the holder of the mark was an undisputed fact and was not in question before OHIM.

               4.

               By the second ground of appeal, Inditex argues that General Court, in paragraphs 32 and 33 of the judgment under appeal, committed an error of law in the application of Article 51(1)(a) CTMR by confusing the concepts of ‘commercial integration’, which is characteristic of a franchisee company integrated in the commercial system of the franchisor, with the concept of ‘economic integration’ or ‘economic unity’, in the sense of the level of economic dependence.

               5.

               The General Court considered, in paragraph 33 of the judgment under appeal, that because the franchisees of Inditex follow a business model that is integrated in the business model of the franchisor, those franchisees lose their status as independent economic units, that is to say, as third parties separated from the internal organisation of the franchisor. According to Inditex, that assessment is incorrect because it is inconsistent with the law.

               6.

               By the third ground of appeal, Inditex submits that the General Court, in paragraph 33 of the judgment under appeal, distorted the terms of the sworn declaration of 7 May 2012 of Mr Antonio Abril (Annex 4 to the appeal), by partially transcribing part of the declarations actually made by the latter, which led the General Court to interpret that document incorrectly and affected the General Court’s conclusion as regards the external use of the trade mark ZARA.

               7.

               By the fourth ground of appeal Inditex submits that the General Court erred in law in the application of Article 51(1)(a) CTMR in that it infringed, in paragraph 35 of the judgment under appeal, the rules according to which the assessment of whether the use of a mark is genuine must take into consideration all of the relevant facts and circumstances in order to determine the reality of its commercial exploitation. Specifically, the General Court considered that Inditex was not present on the market for freight transport services under its trade mark ZARA because that company did not have turnover generated by the provision of the services in Class 39.

               8.

               The General Court considered that Inditex offered freight transport services to third parties separate from its economic unit because it is a company whose business consists of the manufacture and sale of fashion products and not a transport company. According to Inditex, the General Court’s position is incorrect and infringes EU law and case-law as cited in the ground of appeal.

               9.

               In the fifth ground of appeal, Inditex submits that the General Court, in paragraph 35 of the judgment under appeal, distorted the terms of the sworn declaration of 7 May 2012 of Mr Antonio Abril, by interpreting the figures in paragraph 18 of the declaration as attesting to the reality of the commercial exploitation of the mark at issue for the marketing of the products, whereas, in reality, the figures set out in that document refer solely to the amounts received by Inditex from its franchisees for the provision of transport services by Inditex to those franchisees.

               10.

               Lastly, the sixth ground of appeal alleges an error of law resulting from the infringement of Article 51(1)(a) CTMR, in conjunction with Rule 22 of Regulation No 2868/1995, (2) in that, in paragraph 36 of the judgment under appeal, the General Court required Inditex to produce a probatio diabolica by denying that evidence on the turnover had been submitted to it because no invoices had been produced, despite the fact that the General Court was aware that Inditex could not produce such invoices since no such documents existed for the reasons set out in the ground of appeal.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1)

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1)


title: Case C-95/15 P: Judgment of the Court (Fifth Chamber) of 16 February 2017 — H&R ChemPharm GmbH v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — European market for paraffin wax and the German market for slack wax — Price-fixing and market-sharing — Obligation to state reasons — Distortion of the evidence — Regulation (EC) No 1/2003 — Article 23(3) — Calculation of the amount of the fine — The 2006 Guidelines on the method of setting fines — Principle of proportionality)

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/5

         Judgment of the Court (Fifth Chamber) of 16 February 2017 — H&R ChemPharm GmbH v European Commission
   (Case C-95/15 P) (1)

   ((Appeal - Competition - Agreements, decisions and concerted practices - European market for paraffin wax and the German market for slack wax - Price-fixing and market-sharing - Obligation to state reasons - Distortion of the evidence - Regulation (EC) No 1/2003 - Article 23(3) - Calculation of the amount of the fine - The 2006 Guidelines on the method of setting fines - Principle of proportionality))
   (2017/C 112/07)
   Language of the case: German

      Parties

      Appellant: H&R ChemPharm GmbH (represented by: M. Klusmann, lawyer and S. Thomas, Professor)

      Other party to the proceedings: European Commission (represented by: R. Sauer, C. Vollrath and L. Wildpanner, acting as Agents, and by A. Böhlke, lawyer)

      Operative part of the judgment

   The Court:

               1.

               Dimsisses the appeal;

               2.

               Orders H&R ChemPharm GmbH to pay the costs.

      (1)  OJ C 138, 27.4.2015.


title: Case C-205/14: Action brought on 24 April 2014  — European Commission v Portuguese Republic

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/18

         Action brought on 24 April 2014 — European Commission v Portuguese Republic
   (Case C-205/14)
   2014/C 212/20
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: P. Guerra Andrade and F. Wilman, acting as Agents)

      Defendant: Portuguese Republic

      Form of order sought

               —

               Declare that, by failing to ensure the operational and financial independence of the body responsible for coordinating the allocation of slots, the Portuguese Republic has failed to fulfil its obligations under Article 4(2)(b) of Regulation (EEC) No 95/93; (1)

               —

               order the Portuguese Republic to pay the costs.

      Pleas in law and main arguments

   In Portugal, the body responsible for coordinating the allocation of slots is the ANA, a private commercial company which manages airports, and therefore does not satisfy the requirements relating to independence laid down in Regulation No 95/93.
   Since the Divisão de Coordenação Nacional de Slots forms an integral part of the ANA and is entirely dependant on the ANA, there is neither a situation of operational independence nor one of financial independence, contrary to what is required under EU law.

      (1)  Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1).


title: Case C-480/12: Judgment of the Court (First Chamber) of 15 May 2014 (request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Minister van Financiën v X BV (Community Customs Code — Scope of Articles 203 and 204(1)(a) of Regulation (EEC) No 2913/92 — External transit procedure — Customs debt incurred through non-fulfilment of an obligation — Belated presentation of the goods at the office of destination — Sixth VAT Directive — Article 10(3) — Link between the incurring of customs debt and the incurring of VAT debt — Concept of taxable transactions)

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/6

         Judgment of the Court (First Chamber) of 15 May 2014 (request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Minister van Financiën v X BV
   (Case C-480/12) (1)

   ((Community Customs Code - Scope of Articles 203 and 204(1)(a) of Regulation (EEC) No 2913/92 - External transit procedure - Customs debt incurred through non-fulfilment of an obligation - Belated presentation of the goods at the office of destination - Sixth VAT Directive - Article 10(3) - Link between the incurring of customs debt and the incurring of VAT debt - Concept of taxable transactions))
   2014/C 212/06
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Minister van Financiën

      Respondent: X BV

      Re:

   Request for a preliminary ruling — Hoge Raad der Nederlanden (Netherlands) — Interpretation of Articles 203 and 204 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), of Articles 356(1) and 859(2)(c) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), and of Article 7 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exceeding of the time-limit laid down by the office of departure for presenting goods at the office of destination, involving the conditional creation of a customs debt on imports and not the automatic creation thereof — Common system of value added tax — Taxable transactions — Concept of imports

      Operative part of the judgment

               1.

               Articles 203 and 204 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005, read in conjunction with Article 859(2)(c) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 444/2002 of 11 March 2002, must be interpreted as meaning that merely exceeding the time-limit for presentation, set under Article 356(1) of Regulation No 2454/93, as amended by Regulation No 444/2002, does not lead to a customs debt being incurred for removal from customs supervision of the goods in question within the meaning of Article 203 of Regulation No 2913/92, as amended by Regulation No 648/2005, but to a customs debt being incurred on the basis of Article 204 of that regulation and that it is not necessary, for a customs debt to be incurred under Article 204 of that regulation, that the interested parties supply to the customs authorities information on the reasons for exceeding the time-limit set under Article 356 of Regulation No 2454/93, as amended by Article No 444/2002, or on the location of the goods during the time which elapsed between that time-limit and the time at which they were actually presented at the customs office of destination.

               2.

               The first paragraph of Article 7(3) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2004/66/EC of 26 April 2004 must be interpreted as meaning that value added tax is due where the goods in question are not covered by the arrangements provided for in that article, even where a customs debt is incurred exclusively on the basis of Article 204 of Regulation No 2913/92, as amended by Regulation No 648/2005.

      (1)  OJ C 26, 26.1.2013.


title: Removal from the register of C-377/95

text:
28 . 6 . 97            EN                   Official Journal of the European Communities                               No C 199/ 19
          Removal from the register of C-187/95 (*)                             Removal from the register of C-363/95 0 )
                           ( 97/C 199/39                                                           ( 97/C 199/43 )
By order of 7 March 1997, the President of the Court of                By order of 7 March 1997, the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-187/95 ( Reference for a                   from the register of Case C-363/95 ( Reference for a
preliminary ruling from the Pretura Circondariale di                   preliminary ruling from the Pretura Circondariale di
Roma, Sezione Distaccata di Tivoli ( Rome District                     Roma,     Sezione Distaccata di Tivoli       ( Rome District
Magistrates' Court, Tivoli Division)): criminal proceedings            Magistrates' Court, Tivoli Division )): criminal proceedings
against Angelo Deodati and Aldo Luchini .                              against Giuseppe Tancredi .
O OJ No C 208 , 12 . 8 . 1995 .
                                                                       (') OJ No C 16 , 20 . 1 . 1996 .
          Removal from the register of C-331/95 (')
                           ( 97/C 199/40 )                                      Removal from the register of C-3 77/95 (')
                                                                                ( 97/C 199/44 )
By order of 7 March 1997, the President of the Court of
Justice of the European Communities ordered the removal                By order of 7 March 1997, the President of the Court of
from the register of Case C-331 /95 ( Reference for a                  Justice of the European Communities ordered the removal
preliminary ruling from the Pretura Circondariale di                   from the register of Case C-377/95 ( Reference for a
Roma , Sezione Distaccata di Tivoli ( Rome District                    preliminary ruling from the Pretura Circondariale di
Magistrates' Court, Tivoli Division )): criminal proceedings           Roma, Sezione Distaccata di Tivoli ( Rome District
against Giuseppe Piccolo.                                              Magistrates ' Court, Tivoli Division )): criminal proceedings
                                                                       against Tersilio Onorati .
H OJ No C 333 , 9 . 12 . 1995 .
                                                                       H OJ No C 31 , 3 . 2 . 1996 .
           Removal from the register of C-332/95 (')
                           ( 97/C 199/41 )                                      Removal from the register of C-3 78/95 (')
                                                                                ( 97/C 199/45 )
By order of 7 March 1997, the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-332/95 ( Reference for a                   By order of 7 March 1997, the President of the Court of
preliminary ruling from the Pretura Circondariale di                   Justice of the European Communities ordered the removal
Roma,       Sezione Distaccata di Tivoli        ( Rome District        from the register of Case C-378/95 ( Reference for a
Magistrates' Court, Tivoli Division )): criminal proceedings           preliminary ruling from the Pretura Circondariale di
against Mario Corbo and Others .                                       Roma, Sezione Distaccata di Tivoli ( Rome District
                                                                       Magistrates' Court, Tivoli Division )): criminal proceedings
(') OJ No C 333 , 9 . 12 . 1995 .                                      against Palma Mariulli .
                                                                        ') OJ No C 31 , 3 . 2 . 1996 .
           Removal from the register of C-342/95 H
                            ( 97/C 199/42 )
                                                                                Removal from the register of C-l/96 SA (')
By order of 7 March 1997, the President of the Court of                                             ( 97/C 199/46 )
Justice of the European Communities ordered the removal
from the register of Case C-342/95 ( Reference for a
preliminary ruling from the Pretura Circondariale di                   By order of 24 April 1997 the President of the Court of
Roma, Sezione Distaccata di Tivoli ( Rome District                     Justice of the European Communities has ordered the
Magistrates' Court, Tivoli Division )): criminal proceedings           removal from the register of Case C-l /96 SA: SA Must
against Miranda Viola .                                                Interim v. Commission of the European Communities.
(') OJ No C 333 , 9 . 12 . 1995 .                                        ') OJ No C 269 , 14 . 9 . 1996 .


title: Case C-473/10: Action brought on 29 September 2010 — European Commission v Republic of Hungary

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/19

         Action brought on 29 September 2010 — European Commission v Republic of Hungary
   (Case C-473/10)
   ()
   2010/C 328/36
   Language of the case: Hungarian

      Parties

      Applicant(s): European Commission (represented by: H. Støvlbæk and B.D. Simon, agents)

      Defendant(s): Republic of Hungary

      Form of order sought

   The Commission claims that the Court should

               1.

               declare that the Republic of Hungary:

                           —

                           Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, (1) and by Article 14(2) of Directive 2001/14/EC (2) in that it did not ensure the independence from the railway companies of the allocation of train paths,

                           —

                           Failed to fulfil its obligations under Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, and by Article 4(2) of Directive 2001/14/EC in that it did not ensure the independence from the railway companies of the establishment of charges,

                           —

                           Failed to fulfil its obligations under Article 6(1) of Directive 2001/14/EC in that it did not ensure the financial balance of infrastructure managers,

                           —

                           Failed to fulfil its obligations under Article 6(2) of Directive 2001/14/EC in that it did not provide infrastructure managers with incentives to reduce the costs of provision of infrastructure and the level of access charges,

                           —

                           Failed to fulfil its obligations under Article 7(3) of Directive 2001/14/EC in that it did not ensure that charges for the minimum access package and track access to service facilities were set at the cost that is directly incurred as a result of operating the train service,

                           —

                           Failed to fulfil its obligations under Article 11 of Directive 2001/14/EC in that it did not implement a scheme to encourage railway undertakings and infrastructure managers to minimise disruption and improve the performance of the railway network;

               2.

               order the Republic of Hungary to pay the costs.

      Pleas in law and main arguments

   The purpose of Directive 91/440/EEC and Directive 2001/14/EC is to guarantee equitable and non-discriminatory access to rail infrastructure for the railway undertakings. In order to achieve that objective those directives provide that bodies providing rail transport services may not take decisions relating to the allocation of train paths and distributing bodies must allocate capacity independently. If a railway undertaking manages transport this inevitably results in a competitive advantage as, in order to provide the tasks involved in the management of transport, detailed knowledge is required regarding the services offered by the railway undertakings, their frequency and their times.
   The need to bring the present application arose inter alia because in Hungary — in breach of the provisions of the above directives — transport management is carried out by bodies offering transport services.
   It is not possible to regard transport management as an infrastructure management activity which does not involve the allocation of train paths or supply of capacity as transport management is necessarily involved in the decision making process concerning the supply of capacity or the allocation of train paths. On the one hand, the transport manager must be fully informed of the decisions regarding designation of capacity in order to pursue its management activities; on the other hand, in the event of disruption of transport or emergency it must take the steps necessary to restore the operation of transport as scheduled, which necessarily requires a reallocation of network capacity and available train paths.
   The principle of the independence of transport management has been infringed in that, in Hungary, railway undertakings send detailed invoices setting out the charges for access to infrastructure. Given that the detailed invoices necessarily refer, inter alia, to the services used by certain railway undertakings and their frequency and times, they confer a competitive advantage on the undertakings which issue them.
   In addition to the failure to fulfil the requirement of the independence of the allocation of train paths, the Republic of Hungary has also failed to fulfil its obligations under Directives 91/440 and 2001/14 in so far as:

               —

               It has not laid down the conditions necessary to guarantee the financial balance of infrastructure management;

               —

               It has not adopted the necessary measures to require all infrastructure managers to reduce charges for access to the network and management costs;

               —

               It has not adopted the implementing measures necessary to guarantee the application of the principle of direct cost in determining the charges to be paid for track access to service facilities, and finally

               —

               It has not adopted a system of measures to encourage railway undertakings and infrastructure management to minimise disruption and improve the performance of the railway network.

      (1)  Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (OJ 1991 L 237, Special edition in Hungarian, Chapter 7, Volume 1, p. 341).

      (2)  Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29, Special edition in Hungarian, Chapter 7, volume 5, p. 404).


title: Case C-252/05: Judgment of the Court (Second Chamber) of 10 May 2007 (reference for a preliminary ruling from the High Court of Justice (England & Wales) Queen's Bench Division (Administrative Court) United Kingdom — Thames Water Utilities Ltd, The Queen v South East London Division, Bromley Magistrates' Court (Waste — Directives 75/442/EEC, 91/156/EEC and 91/271/EEC — Waste water which escapes from a sewerage network — Classification — Scope of Directives 75/442/EEC and 91/271/EEC)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/3

         Judgment of the Court (Second Chamber) of 10 May 2007 (reference for a preliminary ruling from the High Court of Justice (England & Wales) Queen's Bench Division (Administrative Court) United Kingdom — Thames Water Utilities Ltd, The Queen v South East London Division, Bromley Magistrates' Court
   (Case C-252/05) (1)

   (Waste - Directives 75/442/EEC, 91/156/EEC and 91/271/EEC - Waste water which escapes from a sewerage network - Classification - Scope of Directives 75/442/EEC and 91/271/EEC)
   (2007/C 140/04)
   Language of the case: English
   Referring court
   High Court of Justice (England & Wales) Queen's Bench Division (Administrative Court)
   Parties to the main proceedings

      Applicant: Thames Water Utilities Ltd, The Queen

      Defendant: South East London Division, Bromley Magistrates' Court

      Intervener in support of the applicant: Environment Agency
   Re:
   Reference for a preliminary ruling — High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) — Interpretation of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40) and of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) — Concept of waste — Effluent from leaks in sewage pipes
   Operative part of the judgment

               1)

               Waste water which escapes from a sewerage network maintained by a statutory sewerage undertaker pursuant to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment and the legislation enacted to transpose that directive constitutes waste within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991;

               2)

               Directive 91/271 is not ‘other legislation’ within the meaning of Article 2(1)(b) of Directive 75/442, as amended by Directive 91/156. It falls to the national court to ascertain whether, in accordance with the criteria set out in the present judgment, the national rules may be regarded as being ‘other legislation’ within the meaning of that provision. Such is the case if those national rules contain precise provisions organising the management of the waste in question and if they are such as to ensure a level of protection of the environment equivalent to that guaranteed by Directive 75/442, as amended by Directive 91/156, and, more particularly, by Articles 4, 8 and 15.

               3)

               Directive 91/271 cannot be considered, as regards the management of waste water which escapes from a sewerage network, to be special legislation (a lex specialis) vis-à-vis Directive 75/442, as amended by Directive 91/156, and cannot therefore be applied pursuant to Article 2(2) of Directive 75/442.

      (1)  OJ C 205, 20.08.2005.


title: Case T-339/06: Judgment of the Court of First Instance of 11 December 2008 — Greece v Commission (Agriculture — Common organisation of the market in wine — Aid for the restructuring and conversion of vineyards — Regulation (EC) No 1493/1999 — Fixing of the definitive financial allocations made to Member States — Decision 2006/669/EC — Binding nature of the time-limit in Article 16(1) of Regulation (EC) No 1227/2000 — Principles of cooperation in good faith, good faith and sound administration, proportionality and effectiveness)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/28

         Judgment of the Court of First Instance of 11 December 2008 — Greece v Commission
   (Case T-339/06) (1)

   (Agriculture - Common organisation of the market in wine - Aid for the restructuring and conversion of vineyards - Regulation (EC) No 1493/1999 - Fixing of the definitive financial allocations made to Member States - Decision 2006/669/EC - Binding nature of the time-limit in Article 16(1) of Regulation (EC) No 1227/2000 - Principles of cooperation in good faith, good faith and sound administration, proportionality and effectiveness)
   (2009/C 32/52)
   Language of the case: Greek
   Parties

      Applicant: Hellenic Republic (represented by: I. Chalkias and S. Papaioannou, acting as Agents)

      Defendant: Commission of the European Communities (represented by: H. Tserepa-Lacombe, M. Konstantinidis and F. Jimeno Fernández, acting as Agents)
   Re:
   Application for annulment of Commission Decision 2006/669/EC of 4 October 2006 fixing, for the 2006 financial year and in respect of a certain number of hectares, the definitive financial allocations to Member States for the restructuring and conversion of vineyards under Council Regulation (EC) No 1493/1999 (OJ 2006 L 275, p. 62)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 326, 30.12.2006.


title: Case C-295/07 P: Appeal lodged on 20 June 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-369/00 Département du Loiret, supported by Scott SA v Commission of the European Communities

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/19

         Appeal lodged on 20 June 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-369/00 Département du Loiret, supported by Scott SA v Commission of the European Communities

   (Case C-295/07 P)
   (2007/C 211/36)
   Language of the case: French
   Parties

      Appellant: Commission of the European Communities (represented by: J. Flett, Agent)

      Other parties to the proceedings: Département du Loiret, Scott SA
   Form of order sought
   The appellant claims that the Court should:

               —

               uphold the appeal and, accordingly, set aside the judgment under appeal in its entirety;

               —

               give final judgment in the matter and find that Decision [2002/14/EC] (1) is sufficiently reasoned as regards the use of a compound interest rate or, if that is not the case, should the Court consider that the state of the proceedings is not fit for judgment, refer the case back to the Court of First Instance for judgment;

               —

               order the applicant to bear its own costs as well as those incurred by the Commission before the Court of Justice and the Court of First Instance;

               —

               order Scott SA to bear its own costs at first instance and on appeal.

         Pleas in law and main arguments
   Maintaining, first of all, that the judgment under appeal is based on an erroneous view of the Community rules in respect of State aid, which the Court of First Instance assimilates, wrongly, to the rules on competition between undertakings, at the date of the order for recovery of the illegal aid, and not to rules on competition between Member States at the date of the effective granting of that aid, the appellant relies on eight grounds in support of its appeal.
   By its first ground of appeal, the Commission claims that, contrary to the Court of First Instance's finding in the judgment under appeal, a decision ordering the recovery of aid illegally granted is sufficiently reasoned if a simple mathematical calculation enables it to be established which method of calculation was used. That is precisely the case in these proceedings since all the significant data relating to the amount of the aid granted, to the rate of interest, to the period and to the amount to be recovered were set out in its decision.
   By its second ground of appeal, the appellant submits that the use of a compound interest rate was, in any event, at least implicit in the reasoning of its decision in view of the stated objectives of eliminating the advantages flowing from the aid and of re-establishing the pre-existing situation. In that perspective, the interest rate applicable to the sum to be recovered must necessarily be a compound rate of interest in order to take account of inflation and of the advantage gained by the recipient of the aid with the passage of time.
   By its third ground of appeal, the Commission asserts that by reversing, to its detriment, the burden of proof, the Court of First Instance made an error of law. It is, in fact, for the applicant at first instance to prove the alleged change in the Commission's practice concerning the interest rate applicable to orders for the recovery of illegal aid, and not for the Commission to prove the absence of such a change.
   By its fourth ground of appeal, the appellant submits that the Court of First Instance made an error of law in holding that the Commission had not stated in what respect the company receiving the aid still had an advantage at the date of the order for recovery of that aid. It is at the date the aid was granted that the Commission must establish the existence of such an advantage, not at the date of its recovery.
   By its fifth and sixth grounds of appeal, the Commission complains that the Court of First Instance based its judgment on speculation and not on the evidence, as regards the price of the sale of the company which received the aid to another company and of having found that such sale price, 11 years after the grant of the aid, was a factor which the Commission should have taken into account in fixing the amount to be recovered. In the field of State aid, the objective is to re-establish the earlier situation and the amount of the aid to be recovered therefore corresponds, necessarily, to the amount initially granted subject, until its actual recovery, to annual compound interest, irrespective of what the recipient of the aid did with it in the meantime.
   By its seventh ground of appeal, the appellant submits that the Court of First Instance made an error of law in holding that the fact that the recovery of the aid should take place in compliance with the national rules necessarily implies that the interest is to be calculated at a simple rate. While it is correct that the principal and interest must be recovered in accordance with the procedures of national law, the imposition of an interest rate, just like the question whether that rate should be simple or compound, is a matter of Community law, and not of national law.
   By its eighth ground of appeal, the Commission argues, finally, that the judgment under appeal is totally disproportionate since it annuls its decision in its entirety whereas it was possible to distinguish the amount of the principal from the amount of interest payable, just as it was possible to distinguish the use of a simple interest rate from that of a compound interest rate.

      (1)  Commission Decision 2002/14/EC of 12 July 2000 on the State aid granted by France to Scott Paper SA/Kimberly-Clark (OJ 2002 L 12, p. 1).


title: Case T-151/16: Action brought on 12 April 2016 — NC v Commission

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/29

         Action brought on 12 April 2016 — NC v Commission
   (Case T-151/16)
   (2016/C 279/43)
   Language of the case: English

      Parties

      Applicant: NC (represented by: J. Killick and G. Forwood, Barristers and C. Van Haute and A. Bernard, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 28 January 2016 to exclude the applicant from participation in procedures for the award of procurement contracts and grants financed by the general budget of the European Union, and to enter the applicant in the Early Detection and Exclusion System provided for at Article 108(1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union (OJ 2012 L 298, p. 1);

               —

               adopt the requested measures of organisation of procedure; and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a breach of the principle of the retroactive application of the more lenient penalty (lex mitior), in failing to apply Regulation No 966/2012 as amended by Regulation 2015/1929 (1) to the contested decision.

               2.

               Second plea in law, alleging a breach of an essential procedural requirement in failing to consult the panel and to revise its decision as required by Regulation No 966/2012 as amended by Regulation 2015/1929.

               3.

               Third plea in law, in the alternative, alleging a breach of the principle of proportionality and Article 133a(1) of Regulation No 2342/2002 (2) in applying an exclusion that is disproportionate in the circumstances.

               4.

               Fourth plea in law, alleging a breach of the principle of proportionality and the principle of ne bis in idem to the extent that the applicant has already been excluded for the same conduct.

      (1)  Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 amending Regulation (EU, Euratom) No 966/2012 on the financial rules applicable to the general budget of the Union (OJ 2015 L 286, p. 1).

      (2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).


title: Case C-432/14: Request for a preliminary ruling from the Conseil de prud’hommes de Paris (France) lodged on 22 September 2014 — David Van der Vlist v Bio Philippe Auguste SARL

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/15

         Request for a preliminary ruling from the Conseil de prud’hommes de Paris (France) lodged on 22 September 2014 — David Van der Vlist v Bio Philippe Auguste SARL
   (Case C-432/14)
   (2014/C 431/22)
   Language of the case: French

      Referring court

   Conseil de prud’hommes de Paris

      Parties to the main proceedings

      Applicant: David Van der Vlist

      Defendant: Bio Philippe Auguste SARL

      Question referred

   Does the general principle of non-discrimination on grounds of age preclude national legislation (Article L. 1243-10 of the French Code du travail) which excludes young persons who work during their school holidays or university vacations from entitlement to an insecurity payment payable in the event that employment under a fixed-term contract is not followed by an offer of permanent employment?


               30.4.2004

               EN

               Official Journal of the European Union

               C 118/53

         Removal from the Register of Case T-82/04 (1)

   (2004/C 118/117)

      Language of the case: French

   By order of 1 April 2004, the President of the Second Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-82/04, Jamal Quariachi v Commission of the European Communities.

      (1)  Not yet published.


title: Case T-627/13: Action brought on 25 November 2013 — The Tea Board v OHIM — Delta Lingerie (Darjeeling)

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/38

         Action brought on 25 November 2013 — The Tea Board v OHIM — Delta Lingerie (Darjeeling)
   (Case T-627/13)
   2014/C 45/67
   Language in which the application was lodged: English

      Parties

      Applicant: The Tea Board (Calcutta, India) (represented by: A. Nordemann, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Delta Lingerie (Cachan, France)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 September 2013 given in Case R 1387/2012-2;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

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

      Community trade mark concerned: The figurative mark containing the verbal element ‘Darjeeling’ for goods and services in Classes 25, 35 and 38 — Community trade mark application No 9 468 521

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

      Mark or sign cited in opposition: Community collective trade mark registration No 4 325 718 of the word mark ‘DARJEELING’ for goods in Class 30; Community collective trade mark registration No 8 674 327 of the figurative mark containing the verbal element ‘DARJEELING’

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 8(1)(b) and 8(5) CTMR.


title: Case C-177/04: Judgment of the Court (Grand Chamber) of  14 March 2006  — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 85/374/EEC — Product liability — Judgment of the Court finding a failure to fulfil obligations — Failure to take measures to comply — Article 228 EC — Financial penalties — Partial compliance with the judgment during the proceedings)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/10

         Judgment of the Court (Grand Chamber) of 14 March 2006 — Commission of the European Communities v French Republic
   (Case C-177/04) (1)

   (Failure of a Member State to fulfil obligations - Directive 85/374/EEC - Product liability - Judgment of the Court finding a failure to fulfil obligations - Failure to take measures to comply - Article 228 EC - Financial penalties - Partial compliance with the judgment during the proceedings)
   (2006/C 131/18)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by G. Valero Jordana and B. Stromsky, Agents)

      Defendant: French Republic (represented by G. de Bergues and R. Loosli, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Failure to give effect to the judgment delivered by the Court on 25 April 2002 in Case C-52/00 concerning the incorrect transposition of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29) — Failure to amend the provisions of the French Civil Code — Application for imposition of a penalty payment
   Operative part of the judgment
   The Court:

               1.

               Declares that, by continuing to regard the supplier of a defective product as liable on the same basis as the producer where the producer cannot be identified, even though the supplier has informed the injured person within a reasonable time of the identity of the person who supplied him with the product, the French Republic has failed to take the necessary measures to comply fully with the judgment in Case C-52/00 Commission v France as regards the transposition of Article 3(3) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, and has thereby failed to fulfil its obligations under Article 228 EC;

               2.

               Orders the French Republic to pay to the Commission of the European Communities, into the ‘European Community own resources’ account, a penalty payment of EUR 31 650 for each day of delay in taking the necessary measures to comply fully with the judgment in Case C-52/00 Commission v France from delivery of the present judgment until full compliance with the judgment in that case;

               3.

               Orders the French Republic to pay the costs.

      (1)  OJ C 118, 30.04.2004.


title: Case T-82/12: Order of the General Court of 6 August 2012 — Makhlouf v Council

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/32

         Order of the General Court of 6 August 2012 — Makhlouf v Council
   (Case T-82/12) (1)

   2012/C 295/56
   Language of the case: French
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 109, 14.4.2012.


title: Case C-304/00: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Crown Office), by order of that court of 26 January 2000, in the case of Regina against Ministry of Agriculture, Fisheries and Food, ex parte: W.H. Strawson (Farms) Ltd and J.A. Gagg & Sons (a firm)

text:
C 285/6               EN                    Official Journal of the European Communities                                    7.10.2000
Reference for a preliminary ruling by the High Court of                Action brought on 9 August 2000 by the Commission of
Justice (England & Wales), Queen’s Bench Division                      the European Communities against the Kingdom of the
(Crown Office), by order of that court of 26 January 2000,                                        Netherlands
in the case of Regina against Ministry of Agriculture,
Fisheries and Food, ex parte: W.H. Strawson (Farms) Ltd                                         (Case C-306/00)
                 and J.A. Gagg & Sons (a firm)
                                                                                (2000/C 285/11)
                        (Case C-304/00)
                                                                       An action against the Kingdom of the Netherlands was
                        (2000/C 285/10)
                                                                       brought before the Court of Justice on 9 August 2000 by the
                                                                       Commission of the European Communities, represented by
Reference has been made to the Court of Justice of the                 C. Van Der Hauwaert, of its Legal Service, acting as Agent,
European Communities by an order of the High Court of                  with an address for service in Luxembourg at the office of
Justice (England & Wales), Queen’s Bench Division (Crown               C. Gómez de la Cruz, of its Legal Service, Wagner Centre,
Office) of 26 January 2000, which was received at the Court            Kirchberg.
Registry on 10 August 2000, for a preliminary ruling in the
case of Regina against Ministry of Agriculture, Fisheries and
Food, ex parte: W.H. Strawson (Farms) Ltd and J.A. Gagg &              The applicant claims that the Court should:
Sons (a firm), on the following question:
                                                                       —     declare that, by failing within the prescribed time-
                                                                             limits to adopt the laws, regulations and administrative
In circumstances where                                                       provisions necessary in order to implement the provisions
(i)   as a result of an inspection the competent authority                   of Council Directive 97/76/EC (1) of 16 December 1997
      discovers that an applicant under Arable Area Payments                 amending Directive 77/99/EEC and Directive 72/462/EEC
      Scheme has made an error (otherwise than intentionally                 with regard to the rules applicable to minced meat, meat
      or as a result of gross negligence) which has resulted in              preparations and certain other products of animal origin,
      an over-declaration of area in the application for aid                 the Kingdom of the Netherlands has failed to fulfil its
      payments; and                                                          obligations under the Treaty;
(ii) the competent authority is satisfied by reason of that            —     order the Kingdom of the Netherlands to pay the costs.
      inspection and other checks that the applicant has made
      a corresponding error in previous years resulting in each
                                                                       Pleas in law and main arguments
      of those years in an overdeclaration of area in the
      application for aid payments:
                                                                       The mandatory nature of the provisions of the third paragraph
is the competent national authority required to reduce the area        of Article 249 EC and of the first paragraph of Article 10 EC
actually determined on inspection pursuant to Article 9 (2) of         obliges the Member States to adopt the measures necessary in
Commission Regulation (EEC) No. 3887/92 (1) for the purpose            order to comply with directives addressed to them within the
of calculating the aid due in respect of previous years?               time-limit prescribed for so doing. The time-limit laid down in
                                                                       Article 4 of Directive 97/76/EC expired on 1 January 1999
                                                                       but the Kingdom of the Netherlands has not adopted the
(1) of 23 December 1992 laying down detailed rules for applying
    the integrated administration and control system for certain
                                                                       necessary measures, apart from the already existing ‘1993
    Community aid schemes (OJ L 391, 31.12.1992, p. 36).               Rules on testing and trading in meat products’.
                                                                       (1) OJ 1998 L 10, p. 25.


title: Case C-488/10: Judgment of the Court (First Chamber) of 16 February 2012 (reference for a preliminary ruling from the Juzgado de lo Mercantil No 1 de Alicante — Spain) — Celaya Emparanza y Galdos Internacional SA v Proyectos Integrales de Balizamientos SL (Regulation (EC) No 6/2002 — Article 19(1) — Community designs — Infringement or threatened infringement — Definition of ‘third parties’ )

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/8

         Judgment of the Court (First Chamber) of 16 February 2012 (reference for a preliminary ruling from the Juzgado de lo Mercantil No 1 de Alicante — Spain) — Celaya Emparanza y Galdos Internacional SA v Proyectos Integrales de Balizamientos SL
   (Case C-488/10) (1)

   (Regulation (EC) No 6/2002 - Article 19(1) - Community designs - Infringement or threatened infringement - Definition of ‘third parties’)
   2012/C 98/09
   Language of the case: Spanish

      Referring court

   Juzgado de lo Mercantil No 1 de Alicante

      Parties to the main proceedings

      Applicant: Celaya Emparanza y Galdos Internacional SA

      Defendant: Proyectos Integrales de Balizamiento SL

      Re:

   Reference for a preliminary ruling — Juzgado de lo Mercantil No 1 de Alicante — Interpretation of Article 19(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) — Infringement or threatened infringement — Concept of third parties

      Operative part of the judgment

               1.

               Article 19(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted as meaning that, in a dispute relating to infringement of the exclusive right conferred by a registered Community design, the right to prevent use by third parties of the design extends to any third party who uses a design that does not produce on informed users a different overall impression, including the third party holder of a later registered Community design.

               2.

               The answer to the first question is unconnected with the intention or conduct of the third party.

      (1)  OJ C 346, 18.12.2010.