title: Action brought on 5 January 1998 by Framalicco Maria Cecilia against the Commission of the European Communities (Case T-5/98)

text:
7.3.98                EN                 Official Journal of the European Communities                                  C 72/23
Pleas in law and main arguments adduced in support:                 Action brought on 5 January 1998 by Birri Fiorindo
                                                                       against the Commission of the European Communities
                                                                                (Case T-4/98)
The pleas in law and main arguments are similar to those
relied upon in Case T-288/97 Regione Friuli-Venezia                                           (98/C 72/52)
Giulia v. Commission (1).
                                                                                (Language of the case: Italian)
(1) OJ C 7, 10.1.1998, p. 25.
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 5 January 1998
                                                                    by Birri Fiorindo, represented by Claudio Mussato, of the
                                                                    Udine Bar, with an address for service at his Chambers at
                                                                    4 Via Dante, Udine.
Action brought on 5 January 1998 by D'Odorico Franco
   against the Commission of the European Communities
                                                                    The applicant claims that the Court should:
                         (Case T-3/98)
                          (98/C 72/51)
                                                                    Ð annul Commission Decision C(97) 2735 final of
                                                                         30 July 1997,
                (Language of the case: Italian)
                                                                    Ð in the alternative, annul Article 5 of that Decision
                                                                         inasmuch as it requires the Member State to recover
An action against the Commission of the European                         the aid (granted as from 1 July 1990), together with
Communities was brought before the Court of First                        the interest accrued as from the date on which the aid
Instance of the European Communities on 5 January 1998                   was paid,
by D'Odorico Franco, represented by Claudio Mussato, of
the Udine Bar, with an address for service at his Chambers
at 4 Via Dante, Udine.                                              Ð in any event, order the Commission of the European
                                                                         Communities to pay the costs.
The applicant claims that the Court should:
                                                                    Pleas in law and main arguments adduced in support:
Ð annul Commission Decision C(97) 2735 final of                     The pleas in law and main arguments are similar to those
     30 July 1997,                                                  relied upon in Case T-288/97 Regione Friuli-Venezia
                                                                    Giulia v. Commission (1).
Ð in the alternative, annul Article 5 of that Decision              (1) OJ C 7, 10.1.1998, p. 25.
     inasmuch as it requires the Member State to recover
     the aid (granted as from 1 July 1990), together with
     the interest accrued as from the date on which the aid
     was paid,
Ð in any event, order the Commission of the European                Action brought on 5 January 1998 by Framalicco Maria
     Communities to pay the costs.                                  Cecilia against the Commission of the European
                                                                                Communities
                                                                                (Case T-5/98)
Pleas in law and main arguments adduced in support:
                                                                                (98/C 72/53)
The pleas in law and main arguments are similar to those                            (Language of the case: Italian)
relied upon in Case T-288/97 Regione Friuli-Venezia
Giulia v. Commission (1).
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
(1) OJ C 7, 10.1.1998, p. 25.                                       Instance of the European Communities on 5 January 1998
                                                                    by Framalicco Maria Cecilia, represented by Claudio
                                                                    Mussato, of the Udine Bar, with an address for service at
                                                                    4 Via Dante, Udine.
 ---pagebreak--- C 72/24               EN                 Official Journal of the European Communities                                     7.3.98
The applicant claims that the Court should:                         Pleas in law and main arguments adduced in support:
Ð annul Commission Decision C(97) 2735 final of                     The pleas in law and main arguments are similar to those
     30 July 1997,                                                  relied upon in Case T-288/97 Regione Friuli-Venezia
                                                                    Giulia v. Commission (1).
Ð in the alternative, annul Article 5 of that Decision              (1) OJ C 7, 10.1.1998, p. 25.
     inasmuch as it requires the Member State to recover
     the aid (granted as from 1 July 1990), together with
     the interest accrued as from the date on which the aid
     was paid,
Ð in any event, order the Commission of the European
                                                                    Action brought on 5 January 1998 by Siderca SAIC
     Communities to pay the costs.
                                                                       against the Commission of the European Communities
                                                                                (Case T-8/98)
Pleas in law and main arguments adduced in support:
                                                                                (98/C 72/55)
The pleas in law and main arguments are similar to those                           (Language of the case: English)
relied upon in Case T-288/97 Regione Friuli-Venezia
Giulia v. Commission (1).
                                                                    An action against the Commission of the European
(1) OJ C 7, 10.1.1998, p. 25.                                       Communities was brought before the Court of First
                                                                    Instance of the European Communities on 5 January 1998
                                                                    by Siderca SAIC, represented by Ian S. Forrester QC and
                                                                    Lord Lester of Herne Hill, with an address for service in
                                                                    Luxembourg at the Chambers of Aloyse May, 31,
                                                                    Grand'Rue.
Action brought on 5 January 1998 by Autotrasporti di
                                                                    The applicant claims that the Court should:
Viola Claudio & C. SNC against the Commission of the
                    European Communities
                         (Case T-6/98)                              Ð annul in whole or in part the Commission's Decision
                                                                         of 6 October 1997 addressed to Siderca SAIC,
                          (98/C 72/54)
                                                                    Ð take such other or further action as justice may
                (Language of the case: Italian)                          require, and
An action against the Commission of the European                    Ð order the Commission to pay the costs.
Communities was brought before the Court of First
Instance of the European Communities on 5 January 1998
by Autotrasporti di Viola Claudio & C. SNC, represented             Pleas in law and main arguments adduced in support:
by Claudio Mussato, of the Udine Bar, with an address for
service at 4 Via Dante, Udine.
                                                                    The shares in the applicant's company, a major Argentine
                                                                    manufacturer of oil company tubular goods and
The applicant claims that the Court should:                         mechanical pipe and tube, are ultimately held by the
                                                                    holding company San Faustin NV. The applicant acquired
                                                                    in 1993, through a wholly-owned subsidiary, a 27 % (later
Ð annul Commission Decision C(97) 2735 final of                     increased to 30 %) interest in Tubos de Acero de Mexico
     30 July 1997,                                                  SA (TAMSA), Mexico's only producers of oil company
                                                                    tubular goods.
Ð in the alternative, annul Article 5 of that Decision
     inasmuch as it requires the Member State to recover            Dalmine (1) is a former subsidiary of the Italian State steel
     the aid (granted as from 1 July 1990), together with           company Ilva, and manufactures a wide range of pipe and
     the interest accrued as from the date on which the aid         tube products. The applicant holds, via a wholly owned
     was paid,                                                      subsidiary, 47 % of the shares in Dalmine, in which it
                                                                    acquired an interest in 1996. The defendant is
                                                                    investigating allegations of a cartel among EU steel pipe
Ð in any event, order the Commission of the European                and tube producers going back to the early 1980s and the
     Communities to pay the costs.                                  possibility that, in addition to the core of European


title: Case C-214/12 P: Action of Land Burgenland against the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission, lodged on 8 May 2012

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/16

         Action of Land Burgenland against the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission, lodged on 8 May 2012
   (Case C-214/12 P)
   2012/C 194/25
   Language of the proceedings: German

      Parties

      Appellant: Land Burgenland (represented by: U. Soltész and P. Melcher, Rechtsanwälte, supported by A. Egger, Rechtsanwalt)

      Other parties: European Commission, Republic of Austria

      Form of order sought by the appellant

               —

               Set aside the judgment of the General Court of 28 February 2012 in Joined Cases T-268/08 and T-281/08;

               —

               Give final judgment in the case and annul Decision 2008/719/EC of the European Commission of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland (OJ 2008 L 239, p. 32) and order the European Commission to pay the costs of the proceedings before the General Court and the Court of Justice;

               —

               In the alternative to the second form of order, refer the case back to the General Court for a decision in keeping with the legal assessment in the judgment of the Court of Justice and reserve the costs.

      Pleas in law and main arguments

   By the present appeal, the appellant challenges the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 in which it dismissed the action of the appellant against Commission Decision 2008/719/EC of 30 April 2008 on State aid implemented by Austria for the privatisation of Bank Burgenland.
   The appellant relies on four grounds of appeal:
   1.   Infringement by the General Court of the right to be heard through the failure to appraise an essential part of the eighth plea in law

   In the submissions that were not appraised, the appellant criticised the fact that the Commission exclusively took account of the advantage associated with the ‘additional bonds’ in the amount of EUR 380 million and thereby disregarded the advantage which was associated with the bonds in the amount of EUR 320 million and thus the absence of any ‘aid element’ in the sale of Bank Burgenland to Grazer Wechselseitige Versicherung.
   Those submissions were not acknowledged by the General Court although the appellant had expressly pointed them out to the General Court in its observations on the Report for the Hearing because they were not contained in the Report for the Hearing.
   2.   Infringement of Article 107(1) TFEU through the finding that, during the evaluation of the offers, the Commission did not err in law in not taking account of the risks arising from Ausfallhaftung for the Province of Burgenland (Land Burgenland)

   In that respect, the General Court wrongly relied on case-law which is not applicable to the present case or, if the case-law were applicable at least in principle, it is in conflict with the considerations of the General Court.
   In addition, the General Court did not take account of other case-law which is in conflict with its arguments.
   Finally, the General Court wrongly considered that the risks arising from Ausfallhaftung were not relevant, although Ausfallhaftung constitutes existing and therefore lawful aid.
   3.   Infringement of Article 107(1) TFEU through the finding that the Commission did not err in law in relying on the offer of the Consortium in order to determine the market value of Bank Burgenland

   The General Court wrongly concluded that there was no manifest error of assessment in the choice and application of the methods for determining the market value of Bank Burgenland by the Commission.
   In addition, the General Court considered that the tender procedure carried out for the sale of Bank Burgenland was unconditional, contrary to the unambiguous conclusions of the Commission, and, without checking, relied on the incorrect conclusion of the Commission that the ‘deficient’ conditions had no effect on the amount of the offers.
   Furthermore, the General Court considered that the taking into account by the Commission of the clearly excessive offer of the Consortium was without fault although the determination of the excess was decisively based on the fact that Ausfallhaftung did not apply and that the risks arising from Ausfallhaftung were not to be taken into account.
   4.   Infringement of Article 107(1) TFEU through the finding that the Commission did not err in law in determining that neither the outcome nor the length of the procedure before the Finanzmarktaufsichtbehörde (authority responsible for the supervision of financial markets, ‘FMA’) justified the sale of Bank Burgenland to Grazer Wechselseitige Versicherung

   The General Court considered that the finding of the Commission that nothing indicated that the FMA was going to prohibit the sale to the Consortium was without fault but in so doing incorrectly assumed that the evidence put forward by the appellant was not relevant for the authorisation procedure before the FMA and had not been taken into account by the FMA.
   In addition, in finding that nothing indicated that the length of the procedure before the FMA had seriously compromised the chances of privatisation of Bank Burgenland, the General Court ignored the hard evidence put forward by the applicant.
   Finally, the General Court applied an incorrect standard of examination and review.


title: Judgment of the Court (Fifth Chamber) of 15 June 1999 in Case C-421/97 (reference for a preliminary ruling from the Tribunal de Grande Instance de Meaux): Yves Tarantik v Direction des Services Fiscaux de Seine-et-Marne (Article 95 of the EC Treaty (now, after amendment, Article 90 EC) - Differential tax on motor vehicles)

text:
C 226/6                   EN                       Official Journal of the European Communities                                            7.8.1999
     employer, or for that State to be held liable for damage caused to       2. National legislation restricting imports of alcoholic drinks by
     them by failure to transpose the directive correctly, where the               travellers arriving from non-member countries in order to
     events which give rise to the operation of the guarantee provided             maintain public order is not, in principle, contrary to Regulation
     for in the directive occurred prior to the date of accession.                 No 918/83 or Directive 69/169.
                                                                              3. National legislation restricting imports by travellers arriving
(1) OJ C 331 of 1.11.1997.                                                         from third countries of alcoholic drinks, on the basis of the
                                                                                duration of the journey, with a view to combating disturbances
                                                                                of public order connected with the consumption of alcohol, is not
                                                                                contrary to Regulation No 918/83 or Directive 69/169.
                                                                              (1) OJ C 41 of 7.2.1998.
                   JUDGMENT OF THE COURT
                            (Fifth Chamber)
                            of 15 June 1999
in Case C-394/97 (reference for a preliminary ruling from                                       JUDGMENT OF THE COURT
the Helsingin Käräjäoikeus): Criminal proceedings against
                           Sami Heinonen (1)
                                                                                (Fifth Chamber)
(Goods contained in travellers personal luggage — Travellers
arriving from non-member countries — Duty-free allow-                                                    of 15 June 1999
ances — Prohibition on imports linked to minimum period
                              spent abroad)                                   in Case C-421/97 (reference for a preliminary ruling from
                                                                              the Tribunal de Grande Instance de Meaux): Yves Tarantik
                            (1999/C 226/09)                                      v Direction des Services Fiscaux de Seine-et-Marne(1)
                     (Language of the case: Finnish)                          (Article 95 of the EC Treaty (now, after amendment, Article
                                                                                90 EC) — Differential tax on motor vehicles)
(Provisional translation; the definitive translation will be published                                   (1999/C 226/10)
                     in the European Court Reports)
In Case C-394/97: reference to the Court under Article 234                                         (Language of the case: French)
EC (ex Article 177) by the Helsingin Käräjäoikeus, Finland, for
a preliminary ruling in the criminal proceedings before that
court against Sami Heinonen — on the interpretation of                        (Provisional translation; the definitive translation will be published
Council Regulation (EEC) No 918/83 of 28 March 1983                                               in the European Court Reports)
setting up a Community system of reliefs from customs duty
(OJ 1983 L 105, p. 1) and Council Directive 69/169/EEC of
28 May 1969 on the harmonisation of provisions laid                           In Case C-421/97: reference to the Court under Article 234
down by law, regulation or administrative action relating to                  EC (ex Article 177) by the Tribunal de Grande Instance de
exemption from turnover tax and excise duty on imports in                     Meaux, France, for a preliminary ruling in the proceedings
international travel (OJ, English Special Edition 1969 (I),                   pending before that court between Yves Tarantik and Direction
p. 232) — the Court (Fifth Chamber), composed of                              des Services Fiscaux de Seine-et-Marne — on the interpretation
J.-P. Puissochet, President of the Chamber, P. Jann (Rappor-                  of Article 95 of the EC Treaty (now, after amendment,
teur), J.C. Moitinho de Almeida, C. Gulmann and M. Wathelet,                  Article 90 EC) — the Court (Fifth Chamber), composed of:
Judges; A. Saggio, Advocate General; H. von Holstein, Deputy                  J.-P. Puissochet, President of the Chamber, J.C. Moitinho de
Registrar, has given a judgment on 15 June 1999, in which it                  Almeida, C. Gulmann, L. Sevón and M. Wathelet (Rapporteur),
has ruled:                                                                    Judges; F.C. Jacobs, Advocate General; H. von Holstein, Deputy
                                                                              Registrar, has given a judgment on 15 June 1999, in which it
1. National legislation prohibiting or restricting imports of certain         has ruled:
     goods by travellers arriving from non-member countries on
     grounds of public morality, public policy, public security or            National rules on motor vehicle tax such as those in point in the
     protection of health and life of humans is not contrary to Council       main proceedings do not, as a result of the increase in the progression
     Regulation (EEC) No 918/83 of 28 March 1983 setting up a                 coefficient of the tax between the 15-16 CV tax band, on the one
     Community system of reliefs from customs duty and Council                hand, and the tax bands above 18 CV, which contain only imported
     Directive 69/169/EEC of 28 May 1969 on the harmonisation                 vehicles, on the other, have discriminatory or protective effects which
     of provisions laid down by law, regulation or administrative             are incompatible with the first paragraph of Article 95 of the EC
     action relating to exemption from turnover tax and excise duty           Treaty (now, after amendment, the first paragraph of Article 90 EC)
     on imports in international travel.                                      where:
 ---pagebreak--- 7.8.1999                  EN                     Official Journal of the European Communities                                            C 226/7
— either vehicles in the 15-16 CV tax band cannot be regarded as            (OJ 1982 L 388, p. 1) — the Court (Fifth Chamber), composed
     similar, for the purposes of that provision, to vehicles in the tax    of J.-P. Puissochet, President of the Chamber, J.C. Moitinho de
     bands above 18 CV and, more particularly, to vehicles in tax           Almeida, D.A.O. Edward (Rapporteur), L. Sevón and M. Wa-
     bands 23 CV and above, such as that of the plaintiff in the main       thelet, Judges; A. La Pergola, Advocate General; R. Grass,
     proceedings,                                                           Registrar, has given a judgment on 17 June 1999, in which it
                                                                            has ruled:
— or some of the vehicles in the 15-16 CV tax band may be
     regarded as products similar to vehicles in tax bands above 18
     CV and, more particularly, those in tax bands 23 CV and above,         An acknowledgement of indebtedness enforceable under the law of
     but, within the range of imported vehicles in the 15-16 CV             the State of origin whose authenticity has not been established by a
     band, consumers have a choice such that the increase in the            public authority or other authority empowered for that purpose by
     progression co-efficient between the 15-16 CU band and the             that State does not constitute an authentic instrument within the
     bands above 18 CV and, more particularly, tax band 23 CV               meaning of Article 50 of the Convention of 27 September 1968 on
     and above, is not of a nature such as to favour the sale of vehicles   jurisdiction and the enforcement of judgments in civil and commercial
     of domestic manufacture.                                               matters, as amended by the Convention of 9 October 1978 on the
                                                                            accession of the Kingdom of Denmark, Ireland and the United
                                                                            Kingdom of Great Britain and Northern Ireland and by the
(1) OJ C 41 of 7.2.1998.                                                    Convention of 25 October 1982 on the accession of the Hellenic
                                                                            Republic.
                                                                            (1) OJ C 295 of 27.9.1997.
                   JUDGMENT OF THE COURT
                            (Fifth Chamber)
                            of 17 June 1999                                                   JUDGMENT OF THE COURT
in Case C-260/97 (reference for a preliminary ruling from                                              (Fifth Chamber)
the Bundesgerichtshof): Unibank A/S v Flemming G.
                             Christensen (1)                                                           of 17 June 1999
(Brussels Convention — Interpretation of Article 50 —
Meaning of ‘document which has been formally drawn up or                    in Case C-295/97 (reference for a preliminary ruling
registered as an authentic instrument and is enforceable in                 from the Tribunale di Genova): Industrie Aeronautiche e
one Contracting State’ — Document drawn up without any                      Meccaniche Rinaldo Piaggio SpA v International Factors
    involvement of a public officer — Articles 32 and 36)                   Italia SpA (Ifitalia), Dornier Luftfahrt GmbH, Ministero
                                                                                della Difesa (1)
                            (1999/C 226/11)
                                                                            (State aid — Article 92 of the EC Treaty (now, after
                                                                            amendment, Article 87 EC) — New aid — Prior notification)
                    (Language of the case: German)
                                                                                (1999/C 226/12)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                                              (Language of the case: Italian)
In Case C-260/97: reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of             (Provisional translation; the definitive translation will be published
the Convention of 27 September 1968 on jurisdiction and the                                     in the European Court Reports)
enforcement of judgments in civil and commercial masters, by
the Bundesgerichtshof (Germany), for a preliminary ruling in
the proceedings pending before that court between Unibank                   In Case C-295/97: reference to the Court under Article 234
A/S and Flemming G. Christensen on the interpretation of                    EC (ex Article 177) by the Tribunale di Genova (Italy) for a
Articles 32, 36 and 50 of the abovementioned Convention of                  preliminary ruling in the proceedings pending before that
27 September 1968 (OJ 1972 L 299, p. 32), as amended by                     court between Industrie Aeronautiche e Meccaniche Rinaldo
the Convention of 9 October 1978 on the accession of the                    Piaggio SpA and International Factors Italia SpA (Ifitalia),
Kingdom of Denmark, Ireland and the United Kingdom of                       Dornier Luftfahrt GmbH, Ministero della Difesa — on the
Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and                 interpretation of Article 92 of the EC Treaty (now, after
— amended text — p. 77) and by the Convention of                            amendment, Article 87 EC) — the Court (Fifth Chamber),
25 October 1982 on the accession of the Hellenic Republic                   composed of J.-P. Puissochet, President of the Chamber,


title: Case T-72/08: Judgment of the General Court of 13 September 2010 — Travel Service v OHIM — Eurowings Luftverkehrs (smartWings) (Community trade mark — Opposition proceedings — Application for the Community figurative mark smartWings — Earlier national and international word and figurative marks EUROWINGS and EuroWings — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Obligation to state the reasons on which the decision is based — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) — Article 79 of Regulation No 40/94 (now Article 83 of Regulation No 207/2009))

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/25

         Judgment of the General Court of 13 September 2010 — Travel Service v OHIM — Eurowings Luftverkehrs (smartWings)
   (Case T-72/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark smartWings - Earlier national and international word and figurative marks EUROWINGS and EuroWings - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Obligation to state the reasons on which the decision is based - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) - Article 79 of Regulation No 40/94 (now Article 83 of Regulation No 207/2009))
   2010/C 301/40
   Language of the case: English

      Parties

      Applicant: Travel Service a.s. (Prague, Czech Republic) (represented by: S. Hejdová and R. Charvát, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Eurowings Luftverkehrs AG (Nuremberg, Germany) (represented by: J. Schmidt, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 21 November 2007 (Case R 1515/2006-2), relating to opposition proceedings between Eurowings Luftverkehrs AG and Travel Service a.s.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Travel Service a.s. to pay, in addition to its own costs, the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Eurowings Luftverkehrs AG.

      (1)  OJ C 107, 26.4.2008.


               6.11.2004

               EN

               Official Journal of the European Union

               C 273/27

         Removal from the register of Case C-17/04 (1)

   (2004/C 273/54)
   By order of 29 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-17/04: Commission of the European Communities v Kingdom of Spain.

      (1)  OJ C 59 of 6.3.2004.


title: Case T-409/13: Action brought on 2 August 2013 — Companhia Previdente and Socitrel v Commission

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/30

         Action brought on 2 August 2013 — Companhia Previdente and Socitrel v Commission
   (Case T-409/13)
   2013/C 367/53
   Language of the case: Portuguese

      Parties

      Applicants: COMPANHIA PREVIDENTE — Sociedade de Controle de Participações Financeiras, SA (Lisbon, Portugal) and SOCITREL — Sociedade Industrial de Trefilaria, SA (Trofa, Portugal) (represented by: D. Proença de Carvalho, J. Caimoto Duarte, F. Proença de Carvalho and T. Luísa Faria, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare the action admissible and well founded;

               —

               annul Decision D/2013/048425 of the European Commission’s Directorate-General for Competition of 24 May 2013, relating to the refusal to reduce, on grounds of inability to pay, the fine imposed on SOCITREL in a proceeding for infringement of Article 101 TFEU and Article 53 of the EEA Agreement, which also declared COMPANHIA PREVIDENTE jointly and severally liable for payment of that fine;

               —

               impose a reduced fine on the applicants as a result of their inability to pay the fine;

      Pleas in law and main arguments

   The applicants rely on two pleas in law which, in essence, consist of the following:

               1.

               First plea in law: infringement by the Commission of the obligation to state reasons under Article 296 TFEU, in that it disregarded the evidence submitted by the COMPANHIA PREVIDENTE group relating to its lack of finances.

                           —

                           The applicants claim that Article 296 TFEU was infringed, because the refusal to reduce the fine on the ground of inability to pay did not contain a substantiated statement of reasons, since there was no specific analysis of the requirements which, in accordance with the European Union’s decision-making practice (in particular under paragraph 35 of the Guidelines for setting fines pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003, (1)‘the Guidelines’), and in accordance with the case-law of the European Union relating to inability to pay, must be verified for the purposes of granting a reduction of the fine in this context; nor were the arguments duly addressed, which had been adduced by COMPANHIA PREVIDENTE during the relevant proceeding before the European Commission, relating to the COMPANHIA PREVIDENTE group’s fulfilment of those requirements.

               2.

               Second plea in law: error as to the facts, manifest error of assessment and breach of the principle of proportionality, in that the fine was not reduced in the light of the COMPANHIA PREVIDENTE group’s inability to pay.

                           —

                           The applicants claim that an error as to the facts, a manifest error of assessment and a breach of the principle of proportionality were committed because not all the relevant facts were given due consideration, nor was the evidence provided by COMPANHIA PREVIDENTE adequately examined during the procedure to revise the fine on the ground of inability to pay, pursuant to paragraph 35 of the Guidelines, and the fine, which is beyond the current financial resources of the COMPANHIA PREVIDENTE group, was maintained.

         In addition, pursuant to Article 261 TFEU, the applicants request a reduction, on the ground of inability to pay, of the fine imposed on SOCITREL, for which COMPANHIA PREVIDENTE is jointly and severally liable.

      (1)  OJ 2006, C 210, p. 2.


title: Case F-87/05: Order of the Civil Service Tribunal (Second Chamber) of 30 June 2006 — Ott and Others v Commission (Officials — Promotion for 2004 — Non-inclusion on the list of officials promoted — Article 111 of the Rules of Procedure of the Court of First Instance — Action, in part, manifestly inadmissible and, in part, manifestly unfounded )

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/34

         Order of the Civil Service Tribunal (Second Chamber) of 30 June 2006 — Ott and Others v Commission
   (Case F-87/05) (1)

   (Officials - Promotion for 2004 - Non-inclusion on the list of officials promoted - Article 111 of the Rules of Procedure of the Court of First Instance - Action, in part, manifestly inadmissible and, in part, manifestly unfounded )
   (2006/C 190/63)
   Language of the case: French
   Parties

      Applicants: Martial Ott (Oberanven, Luxembourg), Fernando Lopez Tola (Luxembourg, Luxembourg), Francis Weiler (Itzig, Luxembourg) (represented by: G. Bounéou and F. Frabetti, lawyers)

      Defendant: Commission (represented by: C. Berardis-Kayser and D. Martin, Agents)
   Re:
   First, annulment of the decision of 30 November 2004, published in Administrative Notice No 130 2004 of 30 November 2004, in which the Commission of the European Communities set out the list of officials promoted in 2004, since that list does not include the names of the applicants, and, secondly, in the alternative, annulment of the allocation of promotion points for 2004.
   Operative part of the order

               1.

               The action is dismissed, in part, as manifestly inadmissible and, in part, as manifestly unfounded.

               2.

               Each of the parties shall bear its own costs.

      (1)  OJ C 315 of 10.12.2005 (case initially registered before the Court of First Instance of the European Communities under number T-349/05 and transferred to the European Civil Service Tribunal by order of 15.12.2005).


title: Case C-261/15: Judgment of the Court (Tenth Chamber) of 21 September 2016 (request for a preliminary ruling from the Vredegerecht te Ieper — Belgium) — Nationale Maatschappij der Belgische Spoorwegen NV v Gregory Demey (Rail transport — Regulation (EC) No 1371/2007 — Passengers’ rights and obligations — Absence of a ticket — Failure to regularise within the prescribed period — Criminal offence)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/20

         Judgment of the Court (Tenth Chamber) of 21 September 2016 (request for a preliminary ruling from the Vredegerecht te Ieper — Belgium) — Nationale Maatschappij der Belgische Spoorwegen NV v Gregory Demey
   (Case C-261/15) (1)

   ((Rail transport - Regulation (EC) No 1371/2007 - Passengers’ rights and obligations - Absence of a ticket - Failure to regularise within the prescribed period - Criminal offence))
   (2016/C 419/25)
   Language of the case: Dutch

      Referring court

   Vredegerecht te Ieper

      Parties to the main proceedings

      Applicant: Nationale Maatschappij der Belgische Spoorwegen NV

      Defendant: Gregory Demey

      Operative part of the judgment

   The final sentence of Article 6(2) of Appendix A to the Convention Concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention Concerning International Carriage by Rail of 3 June 1999, in Annex I to Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations, must be interpreted as not precluding national provisions which lay down that a person making a train journey while not in possession of a ticket for that purpose, who fails to regularise his situation within the periods laid down in those provisions, does not have a contractual relationship with the railway undertaking.

      (1)  OJ C 270, 17.8.2015.


title: Case T-512/09: Judgment of the General Court of 5 November 2013 — Rusal Armenal v Council (Dumping — Imports of certain aluminium foil originating in Armenia, Brazil and China — Accession of Armenia to the WTO — Market economy treatment — Article 2(7) of Regulation (EC) No 384/96 — Whether compatible with the Anti-Dumping Agreement — Article 277 TFEU)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/27

         Judgment of the General Court of 5 November 2013 — Rusal Armenal v Council
   (Case T-512/09) (1)

   (Dumping - Imports of certain aluminium foil originating in Armenia, Brazil and China - Accession of Armenia to the WTO - Market economy treatment - Article 2(7) of Regulation (EC) No 384/96 - Whether compatible with the Anti-Dumping Agreement - Article 277 TFEU)
   2013/C 367/48
   Language of the case: English

      Parties

      Applicant: Rusal Armenal ZAO (Yerevan, Armenia) (represented by: B. Evtimov, lawyer)

      Defendant: Council of the European Union (represented: initially by J.-P. Hix, Agent, and by G. Berrisch and G. Wolf, lawyers, and subsequently by J.-P. Hix and B. Driessen, Agents, and by G. Berrisch, and lastly by J.-P. Hix and B. Driessen)

      Intervener in support of the defendant: European Commission (represented by M. França and C. Clyne, Agents)

      Re:

   Application for the annulment of Council Regulation (EC) No 925/2009 of 24 September 2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China (OJ 2009 L 262, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Regulation (EC) No 925/2009 of 24 September 2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China in so far as it concerns Rusal Armenal ZAO;

               2.

               Orders the Council of the European Union to pay the costs incurred by Rusal Armenal;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 80, 27.3.2010.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 29 June 1995 in Joined Cases C-109/94, C-207/94 and C-225/94: Commission of the European Communities v. Hellenic Republic (Failure of a Member State to fulfil its obligations - Directives 90/618/EEC, 88/357/EEC and 90/619/EEC - Non-transposition - Insurances)

text:
No C 229/6               EN                    Official Journal of the European Communities                                        2 . 9 . 95
and grape musts ( 3 ) — the Court ( Sixth Chamber ),                      preliminary ruling in the proceedings pending before that
composed of F. A. Schockweiler, President of the Chamber,                 court between SCAC Sri and Associazione dei Produttori
G. F. Mancini, C. N. Kakouris, J. L. Murray ( Rapporteur )                Ortofrutticoli ( ASIPO ) — on the interpretation and validity
and G. Hirsch, Judges; P. Leger, Advocate-General; H.                     of Article 1 ( 2 ) of Council Regulation ( EEC ) No 668/93 of
A. Riihl, Principal Administrator, for the Registrar, gave a              1 7 March 1 993 on the introduction of a limit to the granting
judgment on 29 June 1995 , the operative part of which is as              of production aid for processed tomato products ( 2 ) — the
follows :                                                                 Court ( Sixth Chamber ), composed of: F. A. Schockweiler
                                                                          ( Rapporteur ), President of the Chamber, P. J. G. Kapteyn,
                                                                          G. F. Mancini, J. L. Murray and G. Hirsch, Judges;
1 . Article 3 (2) of Commission Regulation (EEC)
                                                                          D. Ruiz-Jarabo Colomer, Advocate-General; L. Hewlett,
       No 3201 /90 of 16 October 1990 laying down detailed
                                                                          Administrator, for the Registrar, has given a judgment on
       rules for the description and presentation of wines and
                                                                          29 June 1995 , in which it rules :
       grape musts must be interpreted as not precluding
       the labelling of quality wines ('Qualitatsweine mit
       Pradikat') from repeating the terms 'Kabinett',                    1 . Article 1 (2) of Council Regulation (EEC) No 668/93 of
       'Spatlese ' or 'Auslese ' — in addition to their prescribed              1 7 March 1 993 on the introduction of a limit to the
       use (in lettering of the same type and height as the name                granting of production aid for processed tomato
       of the specified region or of a geographical unit smaller                products must be interpreted as meaning that, in the
       than the specified region) — in different lettering with                 event of a transfer of fresh tomatoes by a processing
       higher letters, particularly in a conspicuous manner as                  undertaking during a marketing year from the 'peeled
       part of a brand name;                                                    tomatoes ' category to the 'concentrate ' or 'other tomato
                                                                                products ' category, only the quantities actually
2 . Article 3 (3) (a), first indent, in conjunction with the                    produced by that undertaking in each category, regard
       second subparagraph of Article 3 (3) of Regulation                       being had to that transfer, are to be taken into account in
       (EEC) No 3201 /90 must be interpreted as not                             the following marketing year for the purposes of the
       precluding the repetition on the label, in the case of                   division of the maximum quantities between the
       German quality wines produced in specified regions                       processing undertakings by the Member State
                                                                                concerned.
       (' Qualitatsweine bA '), of the term ' Weiflherbst' — in
       addition to its use in the same lettering as that used for
       indicating the specified region — in larger letters,               2 . Consideration of Article 1 (2) of Regulation (EEC)
       particularly in a conspicuous manner as part of a brand                  No 668/93 has disclosed no factor of such a kind as to
       name .
                                                                                affect the validity of that provision.
 (') OJ No C 27, 28 . 1 . 1994 .
 ( 2 ) OJ No L 232 , 9 . 8 . 1989 , p . 13 .                               (') OJ No C 90 , 26 . 3 . 1994 .
 ( 3 ) OJ No L 309 , 8 . 11 . 1990 , p. 1 .                                (2 ) OJ No L 72, 25 . 3 . 1993 , p. 1 .
                  JUDGMENT OF THE COURT                                                   JUDGMENT OF THE COURT
                            ( Sixth Chamber)                                                         ( Fifth Chamber)
                            of 29 June 1995                                                         of 29 June 1995
 in Case C-56/94 (reference for a preliminary ruling from                  in Joined Cases C-109/94, C-207/94 and C-225/94:
 the Tribunale di Piacenza): SCAC Srl v. Associazione dei
                                                                           Commission of the European Communities v. Hellenic
               Produttori Ortofrutticoli ( ASIPO ) (M                                                   Republic ( ' )
  (Common organization of the market — Processed tomato                     (Failure of a Member State to fulfil its obligations —
 products — Limit to the granting of production aid —                      Directives 90/61 8/EEC, 88/357/EEC and 90/619/EEC —
 Determination of quotas — Validity of Regulation (EEC)                                   Non-transposition — Insurances)
                                 No 668/93)
                                                                                95/C 229/ 12 )
                               ( 95/C 229/11 )
                    (Language of the case: Italian)                                         (Language of the case: Greek)
  (Provisional translation; the definitive translation will be              (Provisional translation; the definitive translation will be
            published in the European Court Reports)                                 published in the European Court Reports)
  In Case C-56/94 : reference to the Court under Article 177 of             In Joined Cases C-109/94 , C-207/94 and C-225/94 :
  the EC Treaty by the Tribunale di Piacenza ( Italy ) for a                Commission of the European Communities ( Agent:
 ---pagebreak--- 2 . 9 . 95           I KN                  Official Journal of the European Communities                                  No C 229/7
Dimitrios Gouloussis ) v. Hellenic Republic (Agents:                            effective exercise of freedom to provide services and
Michael Apessos, Katerina Samoni-Rantou and Nana                                amending Directive 79/267/EEC;
Dafniou ) — application for a declaration that the Hellenic
Republic has failed to fulfil its obligations under the EC
Treaty by failing, in Case C- 109/94, to adopt or to                  2 . orders the Hellenic Republic to pay the costs.
communicate to the Commission within the prescribed
period the laws, regulations and administrative provisions
necessary to comply with Council Directive 90/618/EEC of              (])  OJ  No  C  161 , 11 . 6 . 1994 .
8 November 1990 amending, particularly as regards motor               (2)  OJ  No  L 330 , 29 . 11 . 1990, p . 44 .
vehicle liability insurance, Directive 73/239/EEC and                 (3)  OJ  No  L 172 , 4 . 7. 1988 , p . 1 .
Directive 88/357/EEC which concern the coordination of                (4)  OJ  No  L 330 , 29 . 11 . 1990 , p . 50 .
laws, regulations and administrative provisions relating to
direct insurance other than life assurance ( 2 ), and by failing,
in Cases C-207/94 and C-225/94 , to adopt and, in the
alternative, to communicate to the Commission within the
prescribed periods the laws, regulations and administrative
provisions necessary to comply, respectively, with Second
Council Directive 88/357/EEC of 22 June 1988 on the
coordination of laws, regulations and administrative
provisions relating to direct insurance other than life
assurance and laying down provisions to facilitate the
                                                                                JUDGMENT OF THE COURT
effective exercise of freedom to provide services and
amending Directive 73/239/EEC ( 3 ), and Council Directive                                        ( Sixth Chamber)
90/619/EEC of 8 November 1990 on the coordination of
                                                                                of 29 June 1995
laws, regulations and administrative provisions relating to
direct life assurance, laying down provisions to facilitate the             in Case C-135/94: Commission of the European
effective exercise of freedom to provide services and                                Communities v. Italian Republic (')
amending Directive 79/267/EEC ( 4 ) — the Court ( Fifth               (Failure to fulfil obligations — Directive 89/61 8/Euratom
Chamber ), composed of: C. Gulmann, President of the                                             — Admissibility)
Chamber, P. Jann, J. C. Moitinho de Almeida, D. A. O.                                               ( 95/C 229/ 13
Edward and L. Sevon, Judges; C. O. Lenz, Advocate
General; D. Louterman-Hubeau, Principal Administrator,
for the Registrar, has given a judgment on 29 June 1995 ,
in which it:                                                                            (Language of the case: Italian)
                                                                      (Provisional translation; the definitive translation will be
1 . declares that the Hellenic Republic has failed to fulfil its                published in the European Court Reports)
     obligations under the EC Treaty by failing to adopt
     within the prescribed periods the laws, regulations and
     administrative provisions necessary to comply with :
                                                                      In Case C-135/94 : Commission of the European
                                                                      Communities ( Agent: Antonio Aresu ) v. Italian Republic
     — Council Directive 90/618/EEC of 8 November                     ( Agent: Umberto Leanza ) — application for a declaration
          1990 amending, particularly as regards motor                that, by failing to adopt the laws, regulations and
          vehicle liability insurance, Directive 73/239/EEC           administrative measures necessary to comply with Council
          and Directive 88/357/EEC which concern the                  Directive 89/61 8/Euratom of 27 November 1989 on
          coordination oflaws, regulations and administrative         informing the general public about health protection
          provisions relating to direct insurance other than life     measures to be applied and steps to be taken in the event of a
          assurance,
                                                                      radiological emergency ( 2 ), the Italian Republic has failed to
                                                                      fulfil its obligations under that Directive and under the third
                                                                      paragraph of Article 161 and the first paragraph of
     — Second Council Directive 88/357/EEC of 22 June                 Article 192 of the EAEC Treaty — the Court ( Sixth
          1988 on the coordination of laws, regulations               Chamber ), composed of: F. A. Schockweiler, President of
          and administrative provisions relating to direct            the Chamber, P. J. G. Kapteyn ( Rapporteur ), C. N.
          insurance other than life assurance and laying down         Kakouris, J. L. Murray and G. Hirsch, Judges; M. B. Elmer,
          provisions to facilitate the effective exercise of          Advocate-General; R. Grass, Registrar, has given a
          freedom to provide services and amending Directive          judgment on 29 June 1995 , in which it:
          73/239/EEC, and
                                                                       1 . declares that, by failing to adopt the laws, regulations
     — Council Directive 90/619/EEC of 8 November 1 990                    and administrative measures necessary to comply with
          on the coordination of laws, regulations and                      Council Directive 89/61 8/Euratom of 27 November
          administrative provisions relating to direct life                 1989 on informing the general public about health
          assurance, laying down provisions to facilitate the              protection measures to be applied and steps to be taken


title: Case C-580/14: Order of the Court (Sixth Chamber) of 17 December 2015 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Sandra Bitter, acting as insolvency administrator of Ziegelwerk Höxter GmbH v Bundesrepublik Deutschland (Reference for a preliminary ruling — Directive 2003/87/EC — Scheme for greenhouse gas emission allowances trading — Excess emissions penalty — Proportionality)

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/19

         Order of the Court (Sixth Chamber) of 17 December 2015 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Sandra Bitter, acting as insolvency administrator of Ziegelwerk Höxter GmbH v Bundesrepublik Deutschland
   (Case C-580/14) (1)

   ((Reference for a preliminary ruling - Directive 2003/87/EC - Scheme for greenhouse gas emission allowances trading - Excess emissions penalty - Proportionality))
   (2016/C 068/24)
   Language of the case: German

      Referring court

   Verwaltungsgericht Berlin

      Parties to the main proceedings

      Applicant: Sandra Bitter, acting as insolvency administrator of Ziegelwerk Höxter GmbH

      Defendant: Bundesrepublik Deutschland

      Operative part of the order

   Examination of the question referred has revealed nothing capable of affecting, in the light of the principle of proportionality, the validity of the second sentence of Article 16(3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, in that it provides for a penalty of EUR 100 for each tonne of carbon dioxide equivalent emitted for which the operator has not surrendered allowances.

      (1)  OJ C 96, 23.3.2015.


title: Case C-340/09: Judgment of the Court (Fifth Chamber) of 9 December 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 1999/22/EC — Article 4(2) to (5) — Keeping of wild animals — Zoos)

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/12

         Judgment of the Court (Fifth Chamber) of 9 December 2010 — European Commission v Kingdom of Spain
   (Case C-340/09) (1)

   (Failure of a Member State to fulfil obligations - Directive 1999/22/EC - Article 4(2) to (5) - Keeping of wild animals - Zoos)
   2011/C 55/20
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: S. Pardo Quintillán and D. Recchia, Agents)

      Defendant: Kingdom of Spain (represented by: B. Plaza Cruz and N. Díaz Abad, Agents)

      Re:

   Failure of Member State to fulfil obligations — Infringement of Article 4(2), (3), (4) and (5) of Council Directive 1999/22/EC of 29 March 1999 relating to the keeping of wild animals in zoos (OJ 1999 L 94, p. 24)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to take, within the period prescribed, all the measures necessary with respect to the zoos which are the subject of the present action in the Autonomous Communities of Aragon, Asturias, the Balearic Islands, the Canary Islands, Cantabria, Castile and Leon, Valencia, Extremadura and Galicia concerning the inspection, licensing and, if appropriate, the closure of those establishments in accordance with Article 4(2), to (5) of Council Directive 1999/22/EC of 29 March 1999 relating to the keeping of wild animals in zoos, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 256, 24.10.2009.


title: Case C-308/13 P: Appeal brought on 5 June 2013 by Società Italiana Calzature SpA against the judgment of the General Court (Third Chamber) delivered on 9 April 2013 in Case T-336/11 Società Italiana Calzature SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               10.8.2013

               EN

               Official Journal of the European Union

               C 233/2

         Appeal brought on 5 June 2013 by Società Italiana Calzature SpA against the judgment of the General Court (Third Chamber) delivered on 9 April 2013 in Case T-336/11 Società Italiana Calzature SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-308/13 P)
   2013/C 233/03
   Language of the case: Italian

      Parties

      Appellant: Società Italiana Calzature SpA (represented by: A. Rapisardi and C. Ginevra, avvocati)

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

      Form of order sought

               —

               Set aside judgment No 564397 delivered by the General Court of the European Union in Cases T-336/11 on 9 April 2013 and notified on that date and grant the claims made by Società Italiana Calzature SpA (‘SIC’) in the proceedings at first instance by annulling the decision of the Second Board of Appeal of OHIM of 8 April 2011 in Case R 0634/20 10-2 and, in accordance with the decision of the Opposition Division of 5 March 2010 on opposition No B 1 350 711, declare that Community trade mark VICINI No 6513386 is to be refused registration on the ground of lack of novelty, as it is similar to such a degree that it may be confused with the earlier word sign ‘ZANOTTI’, which is registered in the European Union under No 244 277 and in Italy under No 452 869, SIC being the proprietor of both registrations;

               —

               order OHIM to pay all the costs of both sets of proceedings;

               —

               order VICINI SpA to reimburse SIC in respect of all the costs relating to the proceedings before the Opposition Division and the Board of Appeal.

      Pleas in law and main arguments

   The decision of the General Court is vitiated by inadequate and contradictory reasoning. The fact that the graphic element is visually dominant when compared with the word element of the mark applied for and that the words ‘Giuseppe’ and ‘Design’ have been added to the term ‘ZANOTTI’ are not sufficient to rule out the possibility of a likelihood of confusion between the marks at issue, in view of the intrinsic qualities of the elements in question, in particular their lack of distinctive character.
   The General Court erred in finding that the word ‘ZANOTTI’, which is the word element of the mark applied for, does not have an independent distinctive role, thus also ruling out in this respect a likelihood of confusion between the marks at issue.


title: Case T-464/16 P: Appeal brought on 22 August 2016 by HI against the judgment of the Civil Service Tribunal of 10 June 2016 in Case F-133/15, HI v Commission

text:
               10.10.2016

               EN

               Official Journal of the European Union

               C 371/24

         Appeal brought on 22 August 2016 by HI against the judgment of the Civil Service Tribunal of 10 June 2016 in Case F-133/15, HI v Commission
   (Case T-464/16 P)
   (2016/C 371/26)
   Language of the case: French

      Parties

      Appellant: HI (Brussels, Belgium) (represented by M. Velardo, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   The appellant claims that the General Court should:

               —

               set aside the judgment of 10 June 2016 in Case F-133/15 and itself rule on the case;

               —

               in the alternative, refer the case back to the Civil Service Tribunal;

               —

               order the Commission to pay the costs of both instances.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on four grounds.

               1.

               First ground, alleging breach of EU law in relation to the obligation to state reasons and the rights of the defence, in so far as the appointing authority of the European Commission did not set out in detail the reasons behind its decision to impose on the appellant, by way of disciplinary penalty, a downgrading by two grades within the same function group.

               2.

               Second ground, alleging breaches of EU law committed by the Civil Service Tribunal (‘the CST’) committed in relation to observance of a reasonable period, the rights of the defence and the obligation to state reasons. The CST, moreover, distorted the facts and evidence.

               3.

               Third ground, alleging distortion of facts and evidence and breaches of EU law and infringement of Article 41 of the Charter of Fundamental Rights of the European Union, committed by the CST.

               4.

               Fourth ground, alleging infringement of the principle of proportionality committed by the CST.


title: Case T-68/02: Action brought on 8 March 2002 by Masdar (U.K.) Ltd against the Commission of the European Communities

text:
1.6.2002               EN                  Official Journal of the European Communities                                      C 131/21
4.    Order the defendant to pay the applicants the difference        Action brought on 8 March 2002 by Masdar (U.K.) Ltd
      between the statements of earnings actually issued and            against the Commission of the European Communities
      the statements to be issued in accordance with claim 2,
      or in the alternative claim 3;
                                                                                (Case T-68/02)
5.    Order the defendant to pay the costs.                                                   (2002/C 131/40)
                                                                                (Language of the case: English)
                                                                      An action against the Commission of the European Communi-
Pleas in law and main arguments                                       ties was brought before the Court of First Instance of the
                                                                      European Communities on 8 March 2002 by Masdar (U.K.)
                                                                      Ltd, represented by Mr Philip Bentley QC and Mr Patrick Green
                                                                      of Rosemary Smith & Co, Crowthorne (United Kingdom).
The applicants contest the annual salary adjustment for the
                                                                      The applicant claims that the Court should:
year 2001 for staff of the European Central Bank. In 1999 the
Governing Council of the defendant decided that the annual
salary adjustment of the defendant was to be based on the             —     annul the defendant’s refusal to grant the applicant access
average development of nominal salaries of the fifteen national             to the documents mentioned in the applicant’s request
central banks and the Bank for International Settlements as the             dated 16 October 2001;
‘central bank’ of the central banks. This method was to be
applied for three years altogether. By letter of 11 July
2001 the Vice-President of the defendant informed the Staff           —     order the Commission to pay the costs of this application.
Committee that the Governing Council of the defendant
endorsed the Executive Board’s proposal for the salary adjust-
ment for 2001, in accordance with the methodology decided
in 1999. A table annexed to that letter showed that the salary
adjustment for 2001 was to take effect from 1 July 2001 and           Pleas in law and main arguments
would be 2,2 %.
                                                                      The applicant provides consultancy services in the agricultural
                                                                      sector. The applicant was employed by another company in
                                                                      respect of two programs funded by the Commission’s TACIS
On 13 July 2001 the applicants each received statements of            programme. The applicant brought proceedings against this
earnings which were based on the new calculations.                    company before a national Court for the recovery of sums still
                                                                      outstanding. In this respect, the applicant requested access to
                                                                      two audit reports of the Commission established in respect of
                                                                      the contracts in question. This access was refused by the
                                                                      Commission.
The applicants claim that the statements of earnings issued for
July 2001 should be annulled. They submit that the salary
adjustment in 2001 was not the subject of consultation with           The applicant submits that the Commission failed to give
the Staff Committee and is therefore unlawful. The method of          reasons for this decision and has not respected the rights of
calculation applied for the salary adjustment in July 2001            the applicant under Decision 94/90 (1). The applicant further
further infringed Article 13 of the Conditions of Employment,         claims that the Commission violated the principle of good
since it results in a loss of purchasing power at the place of        administration.
employment. A correct method of calculation must take
account at least of the rate of inflation and thus produce a
figure of 2,7 %.
                                                                      (1) 94/90/ECSC, EC, Euratom: Commission Decision of 8 February
                                                                          1994 on public access to Commission documents (OJ L 46 of
                                                                          18.2.1994, p. 58)


title: Case C-390/12: Judgment of the Court (Third Chamber) of 30 April 2014 (request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich (previously Unabhängiger Verwaltungssenat des Landes Oberösterreich — Austria) — proceedings brought by Robert Pfleger, Autoart a.s., Mladen Vucicevic, Maroxx Software GmbH, Ing. Hans-Jörg Zehetner (Article 56 TFEU — Freedom to provide services — Charter of Fundamental Rights of the European Union — Articles 15 to 17, 47 and 50 — Freedom to choose an occupation, right to engage in work, freedom to conduct a business, right to property, right to an effective remedy and access to an impartial tribunal, ne bis in idem principle — Article 51 — Scope — Implementation of EU law — Games of chance — Restrictive legislation of a Member State — Administrative and criminal penalties — Overriding reasons in the public interest — Proportionality)

text:
               24.6.2014

               EN

               Official Journal of the European Union

               C 194/3

         Judgment of the Court (Third Chamber) of 30 April 2014 (request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich (previously Unabhängiger Verwaltungssenat des Landes Oberösterreich — Austria) — proceedings brought by Robert Pfleger, Autoart a.s., Mladen Vucicevic, Maroxx Software GmbH, Ing. Hans-Jörg Zehetner
   (Case C-390/12) (1)

   ((Article 56 TFEU - Freedom to provide services - Charter of Fundamental Rights of the European Union - Articles 15 to 17, 47 and 50 - Freedom to choose an occupation, right to engage in work, freedom to conduct a business, right to property, right to an effective remedy and access to an impartial tribunal, ne bis in idem principle - Article 51 - Scope - Implementation of EU law - Games of chance - Restrictive legislation of a Member State - Administrative and criminal penalties - Overriding reasons in the public interest - Proportionality))
   2014/C 194/03
   Language of the case: German

      Referring court

   Landesverwaltungsgericht Oberösterreich (previously Unabhängiger Verwaltungssenat des Landes Oberösterreich, Austria)

      Parties to the main proceedings

   Robert Pfleger, Autoart a.s., Mladen Vucicevic, Maroxx Software GmbH, Ing. Hans-Jörg Zehetner

      Re:

   Request for a preliminary ruling — Unabhängiger Verwaltungssenat des Landes Oberösterreich — Interpretation of Article 56 TFEU and Articles 15 to 17, 47 and 50 of the Charter of Fundamental Rights of the European Union — Games of chance — Member State's rules prohibiting, with criminal penalties, the operation of gaming machines with small winnings (‘kleines Glücksspiel’) without a concession issued by the competent authority — Principle of proportionality

      Operative part of the judgment

   Article 56 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, where that legislation does not actually pursue the objective of protecting gamblers or fighting crime and does not genuinely meet the concern to reduce opportunities for gambling or to fight gambling-related crime in a consistent and systematic manner.

      (1)  OJ C 343, 10.11.2012.


title: Judgment of the Court (Sixth Chamber) 30 January 2002 in Case C-103/00: Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil its obligations — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Protection of species)

text:
C 84/22                  EN                      Official Journal of the European Communities                                            6.4.2002
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                          15 January 2002                                                              (Sixth Chamber)
in Case C-55/00 (Reference for a preliminary ruling from                                               30 January 2002
the Tribunale ordinario di Roma): Elide Gottardo v
    Istituto nazionale della previdenza sociale (INPS) (1)
                                                                            in Case C-103/00: Commission of the European Communi-
                                                                                ties v Hellenic Republic (1)
(Reference for a preliminary ruling — Articles 12 EC and
39(2) EC — Old-age benefits — Social security convention
concluded between the Italian Republic and the Swiss
                                                                            (Failure by a Member State to fulfil its obligations —
Confederation — Refusal to take account of periods of
                                                                            Directive 92/43/EEC — Conservation of natural habitats
  insurance completed by a French national in Switzerland)
                                                                                and of wild fauna and flora — Protection of species)
                           (2002/C 84/34)
                                                                                (2002/C 84/35)
                     (Language of the case: Italian)
                                                                                (Language of the case: Greek)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-55/00: reference to the Court under Article 234 EC
by the Tribunale ordinario di Roma (Italy) for a preliminary                In Case C-103/00, Commission of the European Communities
ruling in the proceedings pending before that court between                 (Agents: R. Wainwright and P. Panayotopoulos) v Hellenic
Elide Gottardo and Istituto nazionale della previdenza sociale              Republic (Agents: A. Samoni-Rantou and P. Skandalou): Appli-
(INPS) on the interpretation of Articles 12 EC and 39(2) EC,                cation for a declaration that, by failing to adopt or, in the
the Court, composed of: G.C. Rodrı́guez Iglesias, President,                alternative, to notify to the Commission, within the prescribed
F. Macken and S. von Bahr (Presidents of Chambers), C. Gul-                 time-limit, the requisite measures to establish and implement
mann, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevón,                 an effective system of strict protection for the sea turtle Caretta
M. Wathelet, V. Skouris, J.N. Cunha Rodrigues and                           caretta on Zakinthos (Greece) so as to avoid any disturbance
C.W.A. Timmermans, Judges, Advocate General: D. Ruiz-                       of the species during its breeding period and any activity which
Jarabo Colomer, Registrar: L. Hewlett, Administrator, has given             might bring about deterioration or destruction of its breeding
a judgment on 15 January 2002, in which it has ruled:                       sites, the Hellenic Republic has failed to fulfil its obligations
                                                                            under the EC Treaty and under Article 12(1)(b) and (d)
                                                                            of Council Directive 92/43/EEC of 21 May 1992 on the
                                                                            conservation of natural habitats and of wild fauna and flora
The competent social security authorities of one Member State are           (OJ 1992 L 206, p. 7), the Court (Sixth Chamber), composed
required, pursuant to their Community obligations under                     of: F. Macken, President of the Chamber, C. Gulmann (Rappor-
Article 39 EC, to take account, for purposes of acquiring the right to      teur), J.-P. Puissochet, R. Schintgen and J.N. Cunha Rodrigues,
old-age benefits, of periods of insurance completed in a non-member         Judges, Advocate General: P. Léger, Registrar: L. Hewlett,
country by a national of a second Member State in circumstances             Administrator, has given a judgment on 30 January 2002, in
where, under identical conditions of contribution, those competent          which it:
authorities will take into account such periods where they have been
completed by nationals of the first Member State pursuant to a
bilateral international convention concluded between that Member
                                                                            1.    Declares that by failing to take, within the prescribed time-
State and the non-member country.
                                                                                limit, the requisite measures to establish and implement an
                                                                                effective system of strict protection for the sea turtle Caretta
                                                                                caretta on Zakinthos so as to avoid any disturbance of the
                                                                                species during its breeding period and any activity which might
(1) OJ C 122 of 29.4.2000.                                                        bring about deterioration or destruction of its breeding sites, the
                                                                                Hellenic Republic has failed to fulfil its obligations under
                                                                                Article 12(1)(b) and (d) of Council Directive 92/43/EEC of
                                                                                21 May 1992 on the conservation of natural habitats and of
                                                                                wild fauna and flora;
 ---pagebreak--- 6.4.2002                 EN                     Official Journal of the European Communities                                            C 84/23
2.    Orders the Hellenic Republic to pay the costs.                       1.    Declares that, by failing to comply with Article 4c of
                                                                                Commission Directive 90/388/EEC of 28 June 1990 on
                                                                                competition in the markets for telecommunications services, as
(1) OJ C 163 of 10.6.2000.
                                                                                amended by Commission Directive 96/19/EC of 13 March
                                                                                1996, and by failing to comply with Article 5(1), (3), (4) and
                                                                                (5) of Directive 97/33/EC of the European Parliament and
                                                                                of the Council of 30 June 1997 on interconnection in
                                                                                Telecommunications with regard to ensuring universal service
                                                                                and interoperability through application of the principles of
                                                                                Open Network Provision (ONP), the French Republic has failed
                                                                                to fulfil its obligations under those directives;
                                                                           2.    Orders the French Republic to pay the costs.
                 JUDGMENT OF THE COURT
                                                                           (1) OJ C 163 of 10.6.2000.
                          (Sixth Chamber)
                        of 6 December 2001
in Case C-146/00: Commission of the European Communi-
                     ties v French Republic (1)
                                                                                JUDGMENT OF THE COURT
(Telecommunications — Financing of a ‘universal service’                                               (Fourth Chamber)
          — contribution from new market entrants)
                                                                                of 6 December 2001
                           (2002/C 84/36)
                                                                           in Case C-148/00: Commission of the European Communi-
                    (Language of the case: French)                                                 ties v Italian Republic (1)
                                                                           (Failure of a Member State to fulfil its obligations — Failure
(Provisional translation; the definitive translation will be published                       to transpose Directive 98/51/EC)
                   in the European Court Reports)
                                                                                (2002/C 84/37)
In Case C-146/00: Commission of the European Communities                                          (Language of the case: Italian)
(Agents: initially by B. Doherty and F. Siredey-Garnier, and,
subsequently, by E. Gippini Fournier and F. Siredey-Garnier) v
                                                                           (Provisional translation; the definitive translation will be published
French Republic (Agents: initially by K. Rispal-Bellanger,
                                                                                in the European Court Reports)
F. Million and S. Pailler, and, subsequently, by G. de Bergues,
F. Million and S. Pailler) — application for a declaration that,
by failing to comply with Article 4c of Commission Directive
90/388/EEC of 28 June 1990 on competition in the markets
for telecommunications services (OJ 1990 L 192, p. 10), as                 In Case C-148/00: Commission of the European Communities
amended by Commission Directive 96/19/EC of 13 March                       (Agents: initially S. Dragone and F. P. Ruggeri Laderchi, and
1996 (OJ 1996 L 74, p. 13), and by failing to comply with                  subsequently S. Dragone and L. Visaggio) v Italian Republic
Article 5(1), (3), (4) and (5) of Directive 97/33/EC of the                (Agent: U. Leanza, assisted by G. De Bellis) — application for
European Parliament and of the Council of 30 June 1997                     a declaration that, by not adopting and, in any event, by
on interconnection in Telecommunications with regard to                    not notifying the Commission of the laws, regulations and
ensuring universal service and interoperability through appli-             administrative provisions necessary to comply with:
cation of the principles of Open Network Provision (ONP) (OJ
1997 L 199, p. 32), the French Republic has failed to fulfil its           —     Council Directive 97/41/EC of 25 June 1997 amending
obligations under the EC Treaty and under those directives —                     Directives 76/895/EEC, 86/362/EEC, 86/363/EEC and
the Court (Sixth Chamber), composed of: F. Macken, President                     90/642/EEC relating to the fixing of maximum levels for
of the Chamber, N. Colneric, C. Gulmann (Rapporteur),                            pesticide residues in and on, respectively, fruit and
J.-P. Puissochet and J.N. Cunha Rodrigues, Judges; L.A. Geel-                    vegetables, cereals, foodstuffs of animal origin, and certain
hoed, Advocate General; R. Grass, Registrar, has given a                         products of plant origin, including fruit and vegetables
judgment on 6 December 2001, in which it:                                        (OJ 1997 L 184, p. 33),


title: Case T-249/06: Action brought on 8 September 2006 — Niko Tube and Nyzhniodniprovskyi Tube Rolling Plant v Council

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/28

         Action brought on 8 September 2006 — Niko Tube and Nyzhniodniprovskyi Tube Rolling Plant v Council
   (Case T-249/06)
   (2006/C 261/53)
   Language of the case: English
   Parties

      Applicants: Nikopol Seamless Tubes Plant Closed Joint Stock Company (Niko Tube) (Nikopol, Ukraine) and Nyzhniodniprovskyi Tube Rolling Plant Open Joint Stock Company (Dnipropetrovsk, Ukraine) (represented by: H.-G. Kamann and P. Vander Schueren, lawyers)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annul the contested regulation as far as it concerns the applicants;

               —

               order to Council to pay the costs.

         Pleas in law and main arguments
   The applicants, who are Ukrainian producers of seamless tubes and pipes, seek the annulment of Council Regulation No 954/2006 (1) imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes originating in among others Ukraine.
   In support of their application, the applicants invoke that the Council:

               —

               determined the normal value on the basis of a manifest error of assessment and contrary to the principle of non-discrimination by taking into account products that were not manufactured by the applicants;

               —

               made a material injury determination in breach of Article 3 of the Basic Regulation (2) given that the Community producers did not fully cooperate;

               —

               acted in breach of Article 5(4) of the Basic Regulation by not terminating the proceeding in light of the non-cooperation by the Community industry;

               —

               committed a manifest error of assessment under Article 2(10) of the Basic Regulation by deducting an assumed commission from the export price of the sales company Sepco;

               —

               breached the principle of non-discrimination in considering and ultimately rejecting an offer of undertaking by the applicants; and

               —

               breached the rights of defence of the applicants and Article 253 EC by not adequately stating reasons for its decision.

      (1)  Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (OJ 2006 L 175, p. 4).

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) .


title: Case C-523/16: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 October 2016 — Ma.t.i. Sud S.p.a. v Centostazioni S.p.a.

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/4

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 October 2016 — Ma.t.i. Sud S.p.a. v Centostazioni S.p.a.
   (Case C-523/16)
   (2017/C 022/07)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicant: Ma.t.i. Sud S.p.a.

      Defendant: Centostazioni S.p.a.

      Questions referred

               1.

               Although the Member States have the ability to require payment for soccorso istruttorio, a procedure whereby the tenderer is given an opportunity to remedy shortcomings in its tendering documentation, which has the effect of remedying any irregularity, is Article 38(2a) of Legislative Decree No 163 of 2006, in the version in force at the time of the tendering procedure in question …, which makes provision for the payment of a ‘pecuniary penalty’, in so far as that penalty must be fixed by the contracting authority (‘not less than 0.1 % and not more than 1 % of the value of the contract and in any event not more than EUR 50 000, the payment of which shall be guaranteed by the provisional security’), contrary to EU law in view of the excessively high amount and the predetermined nature of that penalty, which cannot be adjusted according to the specific situation to be regulated or the seriousness of the irregularity to be remedied?

               2.

               Is Article 38(2a) of Legislative Decree No 163 of 2006 (in the version in force at the time indicated above) contrary to EU law, in that that requirement to pay for soccorso istruttorio may be regarded as contrary to the principle of opening up the market to competition as widely as possible, an aim which the soccorso istruttorio mechanism is intended to achieve, the facility which the contracting authority is required to offer in that regard therefore being a logical consequence of the duties imposed on that authority by law in the light of the public interest in achieving that aim?