title: Case C-438/09: Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Bogusław Juliusz Dankowski v Dyrektor Izby Skarbowej w Łodzi (Sixth VAT Directive — Right to deduct input VAT — Services provided — Taxable person not registered for VAT — Details required on the VAT invoice — National tax legislation — Exclusion of right to deduct under Article 17(6) of the Sixth VAT Directive)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/8

         Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Bogusław Juliusz Dankowski v Dyrektor Izby Skarbowej w Łodzi
   (Case C-438/09) (1)

   (Sixth VAT Directive - Right to deduct input VAT - Services provided - Taxable person not registered for VAT - Details required on the VAT invoice - National tax legislation - Exclusion of right to deduct under Article 17(6) of the Sixth VAT Directive)
   2011/C 63/15
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Applicant: Bogusław Juliusz Dankowski

      Defendant: Dyrektor Izby Skarbowej w Łodzi

      Re:

   Reference for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of Article 17(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Compatibility with this provision of national legislation excluding the right to deduct input tax paid for supply of a service on the basis of an invoice issued, in breach of national law, by a person not on the register of taxable persons for the purposes of VAT

      Operative part of the judgment

               1.

               Articles 18(1)(a) and 22(3)(b) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2006/18/EC of 14 February 2006, must be interpreted as meaning that a taxable person has the right to deduct value added tax paid in respect of services supplied by another taxable person who is not registered for that tax, where the relevant invoices contain all the information required by Article 22(3)(b), in particular the information needed to identify the person who drew up those invoices and to ascertain the nature of the services provided;

               2.

               Article 17(6) of the Sixth Directive 77/388 as amended by Directive 2006/18 must be interpreted as precluding national legislation which excludes the right to deduct value added tax paid by a taxable person to another taxable person, who has provided services, where the latter has not registered for the purposes of that tax.

      (1)  OJ C 37, 13.02.2010.


title: ORDER OF THE COURT OF FIRST INSTANCE of 25 March 1998 in Case T-202/97: Louis Koopman v. Commission of the European Communities (Officials - Classification in step - Seniority - Article 90 of the Staff Regulations - Inadmissibility)

text:
C 151/8               EN                Official Journal of the European Communities                                   16.5.98
                                                  COURT OF FIRST INSTANCE
     ORDER OF THE COURT OF FIRST INSTANCE                          Araujo, officials of the Court of Justice of the European
                       of 16 March 1998                            Communities,        residing    respectively   in   Mamer
                                                                   (Luxembourg), Luxembourg, Mersch (Luxembourg),
in Case T-235/95: Anthony Goldstein v. Commission of               Luxembourg and Strassen (Luxembourg), represented by
                the European Communities (1)                       Jean-NoeÈl Louis, Ariane Tornel and FrancËoise Parmentier,
                                                                   of the Brussels Bar, with an address for service at the
(Action for annulment Ð Request for interim measures to
                                                                   offices of Fiduciaire Myson Sarl, 30 Rue de Cessange v.
be taken by the Commission Ð Powers of the
                                                                   the Court of Justice of the European Communities (Agent:
Commission Ð Confirmatory act Ð Lack of interest in
                                                                   Mr Timothy Millett) Ð application for the annulment of
          bringing proceedings Ð Inadmissibility)
                                                                   the express decisions rejecting the applicants' requests for
                         (98/C 151/15)                             reimbursement of the sums deducted from their household
                                                                   allowance pursuant to Article 67(2) of the Staff
                                                                   Regulations of officials of the European Communities on
               (Language of the case: English)                     the ground of the household grant received by their
                                                                   spouses under the collective agreement covering
In Case T-235/95, Anthony Goldstein, residing in London,           Luxembourg bank employees, and, so far as may be
represented by Raymond St John Murphy, Solicitor, 3                necessary, of the decisions of 17 March 1997 expressly
Kings Bench Walk, Inner Temple, London, against                    rejecting their complaints, the Court of First Instance
Commission of the European Communities (Agent:                     (Second Chamber), composed of: A. Kalogeropoulos,
Richard Lyal) Ð application for annulment of the                   President, C. W. Bellamy and J. Pirrung, Judges; Registrar:
Commission's decision of 16 October 1995 refusing both             H. Jung, made an order on 24 March 1998, the operative
to reconsider its decision to reject the request for interim       part of which is as follows:
measures submitted by the applicant in the context of a
procedure seeking a declaration that the General Medical
Council had infringed Articles 85 and 86 of the EC Treaty          1. The application is dismissed as inadmissible.
and to adopt certain other interim measures requested by
the applicant Ð the Court of First Instance (Third
                                                                   2. The parties shall bear their own costs.
Chamber), composed of V. Tiili, President, C. P. BrieÈt and
A. Potocki, Judges; H. Jung, Registrar, made an order on
16 March 1998, the operative part of which is as follows:          (1) OJ C 252, 16.8.1997.
1. The application is dismissed as inadmissible.
2. The applicant shall bear all the costs, including those
    in the interlocutory proceedings before the President
                                                                        ORDER OF THE COURT OF FIRST INSTANCE
    of the Court of First Instance.
                                                                                of 25 March 1998
( ) OJ C 64, 2.3.1996.
 1
                                                                   in Case T-202/97: Louis Koopman v. Commission of the
                                                                                European Communities (1)
                                                                   (Officials Ð Classification in step Ð Seniority Ð
                                                                       Article 90 of the Staff Regulations Ð Inadmissibility)
                                                                                (98/C 151/17)
     ORDER OF THE COURT OF FIRST INSTANCE
                       of 24 March 1998                                            (Language of the case: French)
in Case T-181/97: Huguette Meyer and Others v. Court of
          Justice of the European Communities (1)                  In Case T-202/97: Louis Koopman, official of the
(Officials Ð Action for annulment Ð Remuneration                   Commission of the European Communities, residing in
statements Ð Inadmissibility Ð Time-limits Ð New                   Keerbergen (Belgium), represented by Nicolas LhoeÈst, of
                 substantial fact Ð Time-bar)                      the Brussels Bar, with an address for service in
                                                                   Luxembourg at Fiduciaire Myson Sarl, 30 Rue de
                         (98/C 151/16)                             Cessange, against the Commission of the European
                                                                   Communities (Agents: Christine Berardis-Kayser and
                (Language of the case: French)                     Florence Duvieusart-Clotuche) Ð application for the
                                                                   annulment of the decision of the Commission of
                                                                   21 October 1996 rejecting the applicant's request to be
In Case T-181/97 Huguette Meyer, IneÁs Bruno, Alba                 reclassified pursuant to the third paragraph of Article 32
Muller di Lenardo, Maria da Paz Gomez and LeÂonore                 of the Staff Regulations of officials of the European
 ---pagebreak--- 16.5.98               EN                Official Journal of the European Communities                                  C 151/9
Communities Ð the Court of First Instance (Third                        ORDER OF THE COURT OF FIRST INSTANCE
Chamber), composed of V. Tiili, President, C. P. BrieÈt and                              of 24 March 1998
A. Potocki, Judges; H. Jung, Registrar, made an order on
25 March 1998, the operative part of which is as follows:          in Case T-232/97 Micheline Becret-Danieau and Others
                                                                                v. European Parliament (1)
                                                                   (Officials Ð Action for annulment Ð Remuneration
1. The application is dismissed as inadmissible.                   statements Ð Inadmissibility Ð Time-limits Ð New
                                                                                substantial fact Ð Time-bar)
                                                                                (98/C 151/19)
2. Each party is to bear its own costs.
                                                                                (Language of the case: French)
(1) OJ C 7, 10.1.1998.
                                                                   In Case T-232/97 Micheline Becret-Danieau, Jeremiah
                                                                   Cadogan, Madeleine Mesenburg, Rainer Moriarty, Anne-
                                                                   Marie Nilles, Teresa Rodrigues, Fernando Simoes, Jean-
                                                                   Louis Spellini, Jeanne Pica-Borruto and Nicole Schulte,
                                                                   officials of the Court of Justice of the European
                                                                   Communities,       residing    respectively  in   Bertrange
     ORDER OF THE COURT OF FIRST INSTANCE                          (Luxembourg),         Steinsel     (Luxembourg),       Biwer
                                                                   (Luxembourg), Colmar-Berg (Luxembourg), Mamer
                       (Second Chamber)                            (Luxembourg), Mondercange (Luxembourg), Munsbach
                       of 12 March 1998                            (Luxembourg), Bascharage (Luxembourg), Thionville
                                                                   (France) and Leudelange (Luxembourg), represented by
in Case T-207/97: Georges Berthu v. Council of the                 Jean-NoeÈl Louis, Ariane Tornel and FrancËoise Parmentier,
                     European Union (1)                            of the Brussels Bar, with an address for service at the
                                                                   offices of Fiduciaire Myson sarl, 30 Rue de Cessange v.
(Economic and monetary policy Ð Council Regulation on              the European Parliament (Agents: Manfred Peter and
certain provisions relating to the introduction of the euro        Yannis Pantalis) Ð application for the annulment of the
Ð Replacement of the name ecu' provided for by                    express decisions rejecting the applicants' requests for
Article 109g of the EC Treaty by the name euro' Ð                 reimbursement of the sums deducted from their household
     Action for annulment Ð Manifest inadmissibility)              allowance pursuant to Article 67(2) of the Staff
                         (98/C 151/18)                             Regulations of officials of the European Communities on
                                                                   the ground of the household grant received by their
                                                                   spouses under the collective agreement covering
                                                                   Luxembourg bank employees, and, so far as may be
                (Language of the case: French)
                                                                   necessary, of the decisions of 15 May and 27 July 1997
                                                                   expressly rejecting their complaints, the Court of First
                                                                   Instance    (Second       Chamber),     composed   of:    A.
In Case T-207/97: Georges Berthu, Member of the                    Kalogeropoulos, President, C. W. Bellamy and J. Pirrung,
European Parliament, resident in Chelles (France),                 Judges; Registrar: H. Jung, made an order on 24 March
represented by Alexandre Varaut, of the Paris Bar, 9 Rue           1998, the operative part of which is as follows:
Alfred de Vigny, Paris, against Council of the European
Union (Agents: Jean-Paul JacqueÂ and Ignacio Díez Parra)
Ð application for the annulment of Council Regulation              1. The application is dismissed as inadmissible.
(EC) No 1103/97 of 17 June on certain provisions relating
to the introduction of the euro (OJ L 162, 19.6.1997, p. 1)        2. The parties shall bear their own costs.
Ð the Court of First Instance (Second Chamber),
composed of A. Kalogeropoulos, President, C. W. Bellamy            (1) OJ C 318, 18.10.1997.
and J. Pirrung, Judges; H. Jung, Registrar, made an order
on 12 March 1998, the operative part of which is as
follows:
1. The application          is  dismissed   as    manifestly
                                                                   Action brought on 10 March 1998 by Emesa Sugar (Free
    inadmissible.
                                                                       Zone) NV against the Council of the European Union
                                                                                (Case T-43/98)
2. The applicant is ordered to pay the costs.                                               (98/C 151/20)
(1) OJ C 318, 18.10.1997.                                                         (Language of the case: Dutch)
                                                                   An action against the Council of the European Union was
                                                                   brought before the Court of First Instance of the European


7.8.1999              EN                   Official Journal of the European Communities                                     C 226/27
Action brought on 15 June 1999 by the Commission of                          Removal from the register of Case C-10/99 (1)
 the European Communities against the French Republic
                                                                                (1999/C 226/48)
                        (Case C-230/99)
                                                                      By order of 29 April 1999 the President of the Court of Justice
                        (1999/C 226/46)                               of the European Communities has ordered the removal from
                                                                      the register of Case C-10/99 (reference for a preliminary ruling
An action against the French Republic was brought before the          from the Amtsgericht München): Peter Feiler v Karlsruher
Court of Justice of the European Communities on 15 June               Lebensversicherungs-AG.
1999 by the Commission of the European Communities,
represented by Hendrik van Lier, Legal Adviser, and Olivier
Couvert-Castéra, a national civil servant on secondment to the        (1) OJ C 71 of 13.3.1999.
Legal Service, acting as Agent with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
Centre, Kirchberg.
The applicant claims that the Court should:
— Declare that, by adopting the order of 9 November 1994                     Removal from the register of Case C-63/98 (1)
    ‘concerning rubber material and rubber articles in contact
    with foodstuffs, food products and beverages for consump-
    tion’, without expressly recognising the technical rules                                  (1999/C 226/49)
    standards and manufacturing processes which are lawfully
    followed in the other Member States, and the findings             By order of 4 May 1999 the President of the Court of Justice
    from the related checks and tests carried out by an               of the European Communities has ordered the removal from
    inspection and supervisory body or a laboratory officially        the register of Case C-63/98: Commission of the European
    recognised in another Member State, the French Republic           Communities v Netherlands.
    has failed to fulfil its obligations under Article 28 (ex
    Article 30) of the EC Treaty;
                                                                      (1) OJ C 166 of 30.5.1998.
— Order the French Republic to pay the costs.
Pleas in law and main arguments
The effect of the French rules referred to in the application is
to prevent the marketing in France of the products concerned                 Removal from the register of Case C-311/98 (1)
which, albeit lawfully manufactured or marketed in another
Member State, do not comply with the French legislation;
those rules therefore constitute a restriction on intra-                                      (1999/C 226/50)
Community trace. The Commission does not deny that the
provisions of the above order are designed to meet public             By order of 21 May 1999 the President of the Court of Justice
health requirements, but it questions whether they are pro-           of the European Communities has ordered the removal from
portionate in relation to the objective pursued in the absence        the register of Case C-311/98: Commission of the European
of any provision for the mutual recognition of products which         Communities v Kingdom of Spain.
ensure an equivalent lever of protection to that sought under
the French legislation.
                                                                      (1) OJ C 299 of 26.9.1998.
       Removal from the register of Case C-292/98 (1)
                        (1999/C 226/47)                                      Removal from the register of Case C-66/98 (1)
By order of 19 April 1999 the President of the Fourth Chamber                                 (1999/C 226/51)
of the Court of Justice of the European Communities has
ordered the removal from the register of Case C-292/98:               By order of 26 May 1999 the President of the Third Chamber
Commission of the European Communities v Italian Republic.            of the Court of Justice of the European Communities has
                                                                      ordered the removal from the register of Case C-66/98:
(1) OJ C 299 of 26.9.1998.                                            Commission of the European Communities v Italian Republic.
                                                                      (1) OJ C 137 of 2.5.1999.


title: Judgment of the Court of 6 May 2003 in Case C-104/01 (Reference for a preliminary ruling from the Hoge Raad der Nederlanden): Libertel Groep BV v Benelux-Merkenbureau, (Trade marks — Approximation of laws — Directive 89/104/EEC — Signs capable of constituting a trade mark— Distinctive character — Colour per se — Orange)

text:
C 146/6                  EN                          Official Journal of the European Union                                             21.6.2003
                  JUDGMENT OF THE COURT                                      1.    Declares that since the Municipality of Bockhorn (Germany)
                                                                                failed to invite tenders for the award of the contract for the
                                                                                collection of its waste water and failed to publish notice of the
                           (Fifth Chamber)                                         results of the procedure for the award of the contract in the
                                                                                Supplement to the Official Journal of the European Communi-
                          of 10 April 2003                                         ties, the Federal Republic of Germany, at the time of the award
                                                                                of that public service contract, failed to fulfil its obligations
                                                                                under Article 8 in conjunction with Article 15(2) and
In Joined Cases C-20/01 and C-28/01: Commission of the                             Article 16(1) of Council Directive 92/50/EEC of 18 June
European Communities v Federal Republic of Germany (1)                             1992 relating to the coordination of procedures for the award
                                                                                of public service contracts;
(Failure by a Member State to fulfil its obligations —
Admissibility — Legal interest in bringing proceedings —                     2.    Declares that since the City of Braunschweig (Germany)
Directive 92/50/EEC — Procedures for the award of public                           awarded a contract for waste disposal by negotiated procedure
service contracts — Negotiated procedure without prior                             without prior publication of a contract notice, although the
        publication of a contract notice — Conditions)                             criteria laid down in Article 11(3) of Directive 92/50 for an
                                                                                award by privately negotiated procedure without a Community-
                                                                                wide invitation to tender had not been met, the Federal Republic
                           (2003/C 146/09)                                         of Germany, at the time of the award of that public service
                                                                                contract, failed to fulfil its obligations under Article 8 and
                    (Language of the case: German)                                 Article 11(3)(b) of that directive;
                                                                             3.    Orders the Federal Republic of Germany to pay the costs;
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           4.    Orders the United Kingdom of Great Britain and Northern
                                                                                Ireland to bear its own costs.
                                                                             (1 ) OJ C 61 of 24.2.2001.
In Joined Cases C-20/01 and C-28/01, Commission of the
European Communities (Agent: J. Schieferer) v Federal Repub-
lic of Germany (Agent: W.-D. Plessing, assisted by H.-J. Prieß)
supported by United Kingdom of Great Britain and Northern
Ireland (Agent: R. Magrill, assisted by R. Williams, barrister):
Applications for declarations that:
                                                                                JUDGMENT OF THE COURT
—     by failing to invite tenders for the award of the contract
      for the collection of waste water in the Municipality of
      Bockhorn (Germany) and to publish notice of the results                                             of 6 May 2003
      of the procedure for the award of the contract in the
      Supplement to the Official Journal of the European                     in Case C-104/01 (Reference for a preliminary ruling from
      Communities, the Federal Republic of Germany, at the                   the Hoge Raad der Nederlanden): Libertel Groep BV v
      time of the award of that public service contract, failed to                                Benelux-Merkenbureau, (1)
      fulfil its obligations under Article 8 in conjunction with
      Article 15(2) and Article 16(1) of Council Directive 92/
      50/EEC of 18 June 1992 relating to the coordination of                 (Trade marks — Approximation of laws — Directive 89/
      procedures for the award of public service contracts (OJ               104/EEC — Signs capable of constituting a trade mark—
      1992 L 209, p. 1);                                                            Distinctive character — Colour per se — Orange)
—     at the time of the award of a public service contract, the                                         (2003/C 146/10)
      Federal Republic of Germany failed to fulfil its obligations
      under Article 8 and Article 11(3)(b) of Directive 92/50                                      (Language of the case: Dutch)
      by virtue of the fact that the City of Braunschweig
      (Germany) awarded a contract for waste disposal by
                                                                             (Provisional translation; the definitive translation will be published
      negotiated procedure without prior publication of a
                                                                                in the European Court Reports)
      contract notice, although the criteria laid down by
      Article 11(3) for an award of a contract by privately
      negotiated procedure without a Community-wide invi-
      tation to tender had not been met,                                     In Case C-104/01: Reference to the Court under Article 234
                                                                             EC by the Hoge Raad der Nederlanden (Netherlands) for a
the Court (Fifth Chamber), composed of: M. Wathelet, Presi-                  preliminary ruling in the proceedings pending before that
dent of the Chamber, D. A. O. Edward, A. La Pergola, P. Jann                 court between Libertel Groep BV and Benelux-Merkenbureau,
(Rapporteur) and A. Rosas, Judges; L. A. Geelhoed, Advocate                  on the interpretation of Article 3 of First Council Directive 89/
General; M.-F. Contet, Administrator, for the Registrar, has                 104/EEC of 21 December 1988 to approximate the laws of
given a judgment on 10 April 2003, in which it:                              the Member States relating to trade marks (OJ 1989 L 40,
 ---pagebreak--- 21.6.2003                 EN                           Official Journal of the European Union                                                C 146/7
p. 1), the Court, composed of: J.-P. Puissochet, President of the                                JUDGMENT OF THE COURT
Sixth Chamber, acting for the President, M. Wathelet and
C. W. A. Timmermans, Presidents of Chambers, C. Gulmann,
D. A. O. Edward, P. Jann, F. Macken, S. von Bahr and                                                      (Fifth Chamber)
J. N. Cunha Rodrigues (Rapporteur), Judges; P. Léger, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-                                             of 8 May 2003
trar, has given a judgment on 6 May 2003, in which it has
ruled:
                                                                               in Case C-111/01 (Reference for a preliminary ruling from
                                                                               the Oberster Gerichtshof): Gantner Electronic GmbH v
                                                                                Basch Exploitatie Maatschappij BV ( 1)
1.    A colour per se, not spatially delimited, may, in respect of
      certain goods and services, have a distinctive character within
      the meaning of Article 3(1)(b) and Article 3(3) of First Council         (Brussels Convention — Article 21 — Lis pendens — Set-
      Directive 89/104/EEC of 21 December 1988 to approximate                                                     off)
      the laws of the Member States relating to trade marks, provided
      that, inter alia, it may be represented graphically in a way that                                   (2003/C 146/11)
      is clear, precise, self-contained, easily accessible, intelligible,
      durable and objective. The latter condition cannot be satisfied
      merely by reproducing on paper the colour in question, but may                               (Language of the case: German)
      be satisfied by designating that colour using an internationally
      recognised identification code.                                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
2.    In assessing the potential distinctiveness of a given colour as a
      trade mark, regard must be had to the general interest in not
      unduly restricting the availability of colours for the other traders
      who offer for sale goods or services of the same type as those in        In Case C-111/01: Reference to the Court under the Protocol
      respect of which registration is sought.                                 of 3 June 1971 on the interpretation by the Court of Justice of
                                                                               the Convention of 27 September 1968 on Jurisdiction and the
                                                                               Enforcement of Judgments in Civil and Commercial Matters
3.    A colour per se may be found to possess distinctive character            by the Oberster Gerichtshof (Austria) for a preliminary ruling
      within the meaning of Article 3(1)(b) and Article 3(3) of                in the proceedings pending before that court between Gantner
      Directive 89/104, provided that, as regards the perception of            Electronic GmbH and Basch Exploitatie Maatschappij BV,
      the relevant public, the mark is capable of identifying the              on the interpretation of Article 21 of the abovementioned
      product or service for which registration is sought as originating       Convention of 27 September 1968 (OJ 1972 L 299, p. 32), as
      from a particular undertaking and distinguishing that product            amended by the Convention of 9 October 1978 on the
      or service from those of other undertakings.                             accession of the Kingdom of Denmark, Ireland and the United
                                                                               Kingdom of Great Britain and Northern Ireland (OJ 1978
                                                                               L 304, p. 1, and — amended text — p. 77), by the Convention
4.    The fact that registration as a trade mark of a colour per se is         of 25 October 1982 on the accession of the Hellenic Republic
      sought for a large number of goods or services, or for a specific        (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on
      product or service or for a specific group of goods or services, is      the accession of the Kingdom of Spain and the Portuguese
      relevant, together with all the other circumstances of the               Republic (OJ 1989 L 285, p. 1) and by the Convention of
      particular case, to assessing both the distinctive character of the      29 November 1996 on the accession of the Republic of
      colour in respect of which registration is sought, and whether           Austria, the Republic of Finland and the Kingdom of Sweden
      its registration would run counter to the general interest in not        (OJ 1997 C 15, p. 1), the Court (Fifth Chamber), composed
      unduly limiting the availability of colours for the other operators      of: M. Wathelet (Rapporteur), President of the Chamber,
      who offer for sale goods or services of the same type as those in        C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr,
      respect of which registration is sought.                                 Judges; P. Léger, Advocate General; M.-F. Contet, Principal
                                                                               Administrator, for the Registrar, has given a judgment on
                                                                               8 May 2003, in which it has ruled:
5.    In assessing whether a trade mark has distinctive character
      within the meaning of Article 3(1)(b) and Article 3(3) of
      Directive 89/104, the competent authority for registering trade          Article 21 of the Convention of 27 September 1968 on Jurisdiction
      marks must carry out an examination by reference to the actual           and the Enforcement of Judgments in Civil and Commercial Matters,
      situation, taking account of all the circumstances of the case           as amended by the Convention of 9 October 1978 on the accession
      and in particular any use which has been made of the mark.               of the Kingdom of Denmark, Ireland and the United Kingdom of
                                                                               Great Britain and Northern Ireland, by the Convention of 25 October
                                                                               1982 on the accession of the Hellenic Republic, by the Convention
                                                                               of 26 May 1989 on the accession of the Kingdom of Spain and the
( 1) OJ C 200 of 14.7.2001.                                                    Portuguese Republic, and by the Convention of 29 November 1996
                                                                               on the accession of the Republic of Austria, the Republic of Finland
                                                                               and the Kingdom of Sweden, must be construed as meaning that, in
                                                                               order to determine whether two claims brought between the same
                                                                               parties before the courts of different Contracting States have the same


title: Case F-122/13: Action brought on 17 December 2013 — ZZ v Europol

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/53

         Action brought on 17 December 2013 — ZZ v Europol
   (Case F-122/13)
   2014/C 52/105
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: J. Kempeners and M. Itani, lawyers)

      Defendant: European Police Office (Europol)

      Subject-matter and description of the proceedings

   Application for annulment of the decision of Europol not to renew the applicant’s contract for an indefinite period and for an order against Europol for the payment of the difference between the remuneration which he would have continued to receive at Europol and any other allowances which he has in fact received.

      Form of order sought

               —

               annulment of the decision taken by Europol on 6 May 2013 by which Europol informed the applicant that it would not renew his fixed-term contract which expired on 31 October 2013;

               —

               order Europol to pay the applicant the difference between, first, the amount of the remuneration which he would have earned if he had continued to be employed by Europol and, second, the amount of the remuneration, fees, unemployment benefit or any other allowance in lieu which he has in fact received since 1 October 2013 in place of the remuneration which he was receiving at Europol;

               —

               order Europol to pay the costs.


title: Case T-379/14: Order of the General Court of 17 December 2015 — Universal Music v OHIM — Yello Strom (Yellow Lounge) (Community trade mark — Opposition proceedings — Withdrawal of the opposition — No need to adjudicate)

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/26

         Order of the General Court of 17 December 2015 — Universal Music v OHIM — Yello Strom (Yellow Lounge)
   (Case T-379/14) (1)

   ((Community trade mark - Opposition proceedings - Withdrawal of the opposition - No need to adjudicate))
   (2016/C 068/34)
   Language of the case: German

      Parties

      Applicant: Universal Music GmbH (Berlin, Germany) (represented by: M. Viefhus, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: G. Schneider, and subsequently by: G. Schneider and D. Walicka, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Yello Strom GmbH (Cologne, Germany) (represented by: K. Gründig-Schnelle, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 March 2014 (Case R 274/2013-4) concerning opposition proceedings between Yello Strom GmbH and Universal Music GmbH.

      Operative part of the order

               1.

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

               2.

               Universal Music GmbH and Yello Strom GmbH shall bear their own costs and shall each pay half of the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 292, 1.9.2014.


title: Judgment of the Court (Second Chamber) of  15 December 2005  in Case C-344/03: Commission of the European Communities v Republic of Finland (Directive 79/409/EEC — Conservation of wild birds — Spring hunting of certain aquatic birds)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/3

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 15 December 2005
   in Case C-344/03: Commission of the European Communities v Republic of Finland (1)

   (Directive 79/409/EEC - Conservation of wild birds - Spring hunting of certain aquatic birds)
   (2006/C 48/06)
   Language of the case: Finnish
   In Case C-344/03, Commission of the European Communities (Agents: G. Valero Jordana and P. Aalto) v Republic of Finland (Agent: T. Pynnä) — action under Article 226 EC for failure to fulfil obligations, brought on 1 August 2003 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), R. Schintgen, G. Arestis and J. Klučka, Judges; D. Ruiz-Jarabo Colomer, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 15 December 2005, in which it:

               1.

               Declares that, since it has failed to establish that, in the context of the spring hunting of aquatic birds in mainland Finland and the province of Åland:

                           —

                           the condition laid down in Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, for the purpose of a derogation, that there be no satisfactory solution other than spring hunting, was fulfilled in respect of eider, golden-eye, red-breasted merganser, goosander, velvet scoter and tufted duck; and that

                           —

                           the condition laid down in that same provision for the purpose of a derogation, relating to the fact that hunting must concern only the taking of birds in small numbers, was fulfilled in respect of eider, goosander, red-breasted merganser and velvet scoter;

                     the Republic of Finland has failed to fulfil its obligations under that directive;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Republic of Finland to pay the costs.

      (1)  OJ C 226 of 20.09.2003.


title: Case C-337/11: Reference for a preliminary ruling from the Sø- og Handelsret (Denmark) lodged on 1 July 2011 — HK Danmark, acting on behalf of Lone Skouboe Werge v Pro Display A/S in liquidation

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/32

         Reference for a preliminary ruling from the Sø- og Handelsret (Denmark) lodged on 1 July 2011 — HK Danmark, acting on behalf of Lone Skouboe Werge v Pro Display A/S in liquidation
   (Case C-337/11)
   2011/C 269/63
   Language of the case: Danish

      Referring court

   Sø- og Handelsret

      Parties to the main proceedings

      Applicant: HK Danmark, acting on behalf of Lone Skouboe Werge

      Defendant: Pro Display A/S in liquidation

      Questions referred

               1.

                           (a)

                           Is any person who, because of physical, mental or psychological injuries, cannot or can only to a limited extent carry out his work in a period that satisfies the requirement as to duration specified in paragraph 45 of the judgment of the Court of Justice in Case C-13/05 Navas
                               (1) covered by the concept of disability within the meaning of the directive?

                           (b)

                           Can a condition caused by a medically diagnosed incurable illness be covered by the concept of disability within the meaning of the directive?

                           (c)

                           Can a condition caused by a medically diagnosed temporary illness be covered by the concept of disability within the meaning of the directive?

               2.

               Should a permanent reduction in functional capacity which does not entail a need for special aids or the like but means only that the person concerned is not capable of working full-time be regarded as a disability in the sense in which that term is used in Council Directive 2000/78/EC (2)?

               3.

               Is a reduction in working hours among the measures covered by Article 5 of Directive 2000/78/EC?

               4.

               Does Council Directive 2000/78/EC preclude the application of a provision of national law under which an employer is entitled to dismiss an employee with a shortened notice period where the employee has received his salary during periods of illness for a total of 120 days during a period of 12 consecutive months, in the case of an employee who must be regarded as disabled within the meaning of the directive, where

                           (a)

                           the absence was caused by the disability
                           or

                           (b)

                           the absence was due to the fact that the employer did not implement the measures appropriate in the specific situation to enable a person with a disability to perform his work?

      (1)  [2006] ECR I-6467.

      (2)  OJ 2000 L 303, p. 16.


title: Case C-176/12: Judgment of the Court (Grand Chamber) of 15 January 2014 (request for a preliminary ruling from the Cour de cassation (France)) — Association de médiation sociale v Union locale des syndicats CGT and Others (Social policy — Directive 2002/14/EC — Charter of Fundamental Rights of the European Union — Article 27 — Subjecting the setting up of bodies representing staff to certain thresholds of employees — Calculation of the thresholds — National legislation contrary to European Union law — Role of the national court)

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/3

         Judgment of the Court (Grand Chamber) of 15 January 2014 (request for a preliminary ruling from the Cour de cassation (France)) — Association de médiation sociale v Union locale des syndicats CGT and Others
   (Case C-176/12) (1)

   (Social policy - Directive 2002/14/EC - Charter of Fundamental Rights of the European Union - Article 27 - Subjecting the setting up of bodies representing staff to certain thresholds of employees - Calculation of the thresholds - National legislation contrary to European Union law - Role of the national court)
   2014/C 85/04
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicant: Association de médiation sociale

      Defendants: Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT),

      Re:

   Request for a preliminary ruling — Cour de cassation (France) — Interpretation of the provisions of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community — Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29) — Interpretation of Articles 27, 51, 52 and 53 of the Charter of Fundamental Rights of the European Union — Interpretation of Article 6(1) and (3) TEU — Whether the aforementioned provisions can be invoked in a dispute between individuals in order to examine whether a national measure transposing the Directive complies with EU law — Lawfulness of a national legislative provision excluding from the calculation of staff numbers of the undertaking, in order to determine, inter alia, the legal thresholds for setting up bodies representing staff, workers holding certain categories of employment contract.

      Operative part of the judgment

   Article 27 of the Charter of Fundamental Rights of the European Union, by itself or in conjunction with the provisions of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, must be interpreted to the effect that, where a national provision implementing that directive, such as Article L. 1111-3 of the French Labour Code, is incompatible with European Union law, that article of the Charter cannot be invoked in a dispute between individuals in order to disapply that national provision.

      (1)  OJ C 184, 23.6.2012


title: Case C-441/02: Action brought on 5 December 2002 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 31/10                 EN                        Official Journal of the European Union                                           8.2.2003
4.    Does the principle of proportionality preclude legislation                4.    in adopting expulsion orders against citizens of
      such as that described in Question 1, on examination of                         the Union which fail to maintain a reasonable
      Questions 1 to 3?                                                               relationship between the fundamental right to
                                                                                respect for the right to family life, on the one hand,
5.    Would the answer to Questions 1 to 4 be different if                            and the preservation of public order, on the other;
      ‘non-prescription’ medicinal products were entirely or
      partly exempted from the requirement under national
      legislation that retail trade in medicinal products be                    5.    in ordering the immediate enforcement of expulsion
      carried on only by the State or by legal persons in which                       orders against citizens of the Union in non-urgent
      the State has a determining influence?                                          cases;
                                                                                the Federal Republic of Germany has failed to fulfil its
                                                                                obligations under Articles 18 and 39 of the EC Treaty,
                                                                                under the fundamental right to respect for family life as a
                                                                                general principle of Community law, and under Articles 3
                                                                                and 9 of Directive 64/221/EEC ( 1) on the coordination of
                                                                                special measures concerning the movement and residence
                                                                                of foreign nationals which are justified on grounds of
Action brought on 5 December 2002 by the Commission                             public policy, public security or public health, Article 1
of the European Communities against the Federal Repub-                          of Regulation (EEC) No 1612/68 ( 2) on freedom of
                           lic of Germany                                       movement for workers, Articles 1, 4, 5, 8 and 10 of
                                                                                Directive 73/148/EEC (3) on the abolition of restrictions
                                                                                on movement and residence within the Community for
                          (Case C-441/02)                                       nationals of Member States with regard to establishment
                                                                                and the provision of services, and Articles 1 and 2 of
                                                                                Directive 90/364/EEC ( 4) on the right of residence;
                           (2003/C 31/15)
                                                                          —     Order the Federal Republic of Germany to pay the costs.
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 5 December 2002 by the Commission of the European
Communities, represented by C. O’Reilly and W. Bogensberger,
with an address for service in Luxembourg.                                Pleas in law and main arguments
                                                                          —     Mandatory (automatic) expulsion fails to take adequate
The Commission claims that the Court should find that:                          account of individual conduct: The provisions of Para-
                                                                                graph 47(1) and (2) of the Ausländergesetz (AuslG) are,
—     1.    in failing to make sufficiently clear in its legislation            in so far as they relate to citizens of the Union, flagrantly
            that expulsion orders against citizens of the Union                 and inevitably contrary to the requirements of Article 3(2)
            may not be based on an enabling provision which                     of Directive 64/221/EEC, under which criminal convic-
            provides mandatorily for expulsion on the ground                    tions may not in themselves constitute grounds for
            of a final criminal conviction or provides mandatori-               automatic expulsion. They also conflict with the require-
            ly for it as the general rule, or in basing expulsion               ment in Article 3(1) of Directive 64/221/EEC, which
            orders against citizens of the Union on this unclear                requires an assessment of the personal conduct of the
            enabling provision;                                                 ‘individual concerned’, i.e. an examination of the individ-
                                                                                ual case. However, Paragraph 47(1) and (2) (the general
                                                                                rule) of the AuslG deprive the authorities of precisely the
      2.    in failing to implement in sufficiently clear terms in              discretion which they must have for such an assessment
            Paragraph 4 12(1) of the Aufenthaltsgesetz/EWG                      of the individual case and replaces it with the legislature’s
            the requirements under Community law with regard
                                                                                general assessment which exclusively takes account of
            to restriction of freedom of movement, or in basing                 the conviction. Although Paragraph 12 of the Aufen-
            expulsion orders against citizens of the Union on
                                                                                thaltsgesetz/EWG provides that a criminal conviction in
            this unclear enabling provision;
                                                                                itself does not suffice for the expulsion of a foreign
                                                                                national (subparagraph 4) and the determining factor is
      3.    in failing to make sufficiently clear in its legislation            whether his personal conduct gives cause to expel him
            that expulsion orders against citizens of the Union                 for reasons of public order and security (subparagraph 3),
            may not be based on an enabling provision which                     Paragraph 12(3) and (4) of the Aufenthaltsgesetz/EWG
            pursues general preventative aims, or in justifying                 and Article 3(1) and (2) of Directive 64/221/EEC cannot
            expulsion orders against citizens of the Union with                 be understood as a mere ‘supplement’ and ‘modification’
            deterrence of other foreign nationals;                              to mandatory expulsion under Paragraph 47(1) and (2)
 ---pagebreak--- 8.2.2003              EN                        Official Journal of the European Union                                           C 31/11
     (the general rule) of the AuslG, nor can the last mentioned        —       Immediate expulsion in non-urgent cases: in German
     provision fill out the terms of the first mentioned                        administrative practice it is found as a general rule —
     provision, because it conflicts with the terms of the                      almost systematically — that there exists a particular
     provision to be filled out. This contradictory legal situ-                 interest in immediate enforcement of the expulsion for
     ation creates problems when the provision is applied in                    the purposes of Paragraph 80(2), Head 4, of the VwGO.
     practice and consequently produces decisions which are                     The rules laid down in Articles 7 and 9 of Directive 64/
     contrary to Community law.                                                 221/EEC thereby lose any significance. However, as
                                                                                German law on foreign nationals does not provide a
                                                                                specific procedure before an independent authority
                                                                                within the meaning of Article 9 of Directive 64/221/EEC,
                                                                                in the case of the expulsion of citizens of the Union
—    Inadequate examination of danger to public order in the                    suspensive effect may be excluded by an order under
     case of the expulsion of citizens of the Union with limited                Paragraph 80(2), Head 4, of the VwGO only when
     residence permits. When applying Paragraph 12 of                           ‘urgency’ exists within the meaning of Article 9(1) of
     the Aufenthaltsgesetz/EWG, in many cases the German                        Directive 64/221/EEC. In the Commission’s view, such a
     authorities erroneously apply the broad interpretation of                  case of urgency can be held to exist only if immediate
     the notion of ‘public safety and order’ in German                          enforcement is the only means to avert a specific, direct
     administrative law and fail to take into account the                       and serious danger to public order and the existence of
     materially more restrictive interpretation of that notion                  that enhanced requirement has been specifically estab-
     in the case-law of the Court of Justice (‘Bouchereau’),                    lished by the authority. Furthermore, in the Commission’s
     which, in conjunction with Article 39(4) and Article 46                    view, the principle of proportionality also requires, at
     EC, is alone authoritative. This is clearly due to the fact                least in the case of long-term resident citizens of the
     that the authorities reach, a contrario from the particular                Union, to order the immediate enforcement of an expul-
     scheme of Paragraph 12(1) of the Aufenthaltsgesetz/                        sion order only in exceptional cases for particularly
     EWG, a conclusion which is obvious but incompatible                        serious and urgent reasons. The German legal position
     with Community law, namely that the existence of serious                   and administrative practice must be unambiguously and
     public order grounds is to be examined only in the case                    unmistakably clarified in that regard too.
     of persons who possess an unlimited EC residence permit
     within the meaning of the second sentence of the
     abovementioned rule, whereas other citizens of the Union
                                                                        (1 )  OJ, English Special Edition, 1963-1964, p. 117 .
     may therefore be expelled even on ‘simple’ public order            (2 )  OJ, English Special Edition, 1968 (II), p. 475.
     grounds.                                                           (3 )  OJ L 172 of 28.6.1973, p. 14.
                                                                        (4 )  OJ L 180 of 13.7.1990, p. 26.
—    General, preventative considerations unlawfully taken
     into account: Expulsion as the general rule, on the basis
     of a criminal conviction for the particular offence, as a
     means of general prevention of crime is incompatible
     with the principles applicable to the freedom of move-
     ment for workers who are nationals of a Member State.
     An administrative practice based on Article 47(1) and (2)          Reference for a preliminary ruling by the Tribunale di
     of the AuslG and thus undoubtedly also on general,                 Pordenone by order of that Court of 20 November 2002
     preventative considerations, is contrary to Community                   in the criminal proceedings against Nicolas Schreiber
     law.
                                                                                (Case C-443/02)
—    Failure to take adequate account of the principle of
                                                                                (2003/C 31/16)
     proportionality with regard to the fundamental right to
     respect for family life: In many cases the family situation
     of the person concerned (in view of the rule in Article 17
     AuslG) has not, or has not been sufficiently, taken into
     account, even though the ‘public order’ exception must
                                                                        Reference has been made to the Court of Justice of the
     be applied in accordance with human rights. The Com-
                                                                        European Communities by order of the Tribunale di Pordenone
     mission refers in this regard in particular to the case-law
                                                                        (Pordenone District Court) of 20 November 2002, received at
     of the European Court of Human Rights, according to
                                                                        the Court Registry on 6 December 2002, for a preliminary
     which even recidivists involved in serious crime without
                                                                        ruling in the criminal proceedings against Nicolas Schreiber
     an individual right of residence cannot, having regard to
                                                                        on the following questions:
     all the specific circumstances of the person concerned,
     always be expelled. In its view, the German legal situation
     and administrative practice in that regard calls for unam-         1.      Must Article 2(1)(a) and (b) of Directive 98/8/EC ( 1), in
     biguous and unmistakable clarification.                                    the light of the general rules which that directive intro-


title: Case C-224/02: Reference for a preliminary ruling by the Korkein Oikeus by order of that Court of 14.06.2002 in the case of Heikki Antero Pusa against Osuuspankkien Keskinäinen Vakuutusyhtiö

text:
24.8.2002              EN                     Official Journal of the European Communities                                      C 202/11
The restrictions in the directive in fact affect specifically small      income tax prepayment levied in the Member State in question,
and medium-sized undertakings. Restricting working time                  whereas the income tax which a debtor resident in another
would weaken the competitive position of those undertakings,             Member State is obliged to pay in his State of residence is not
since their situation differs from that of the owner of a large          taken into account as a deduction, so that the attachable part
undertaking. It follows from the division of work within a               is greater in the latter case in being determined on the basis of
large undertaking that the persons responsible for driving can           the gross and not the net amount of the pension?
use the whole time permitted by the directive for driving.
The management and development of the business are the
responsibility of different persons, whose working time the
provisions of the directive do not restrict in any way.
Fifth plea in law: failure to comply with the
duty to state reasons                                                    Reference for a preliminary ruling by the Tribunale di
                                                                         Gela — Ufficio del Giudice per le Indagini Preliminari by
Finland considers that by including self-employed drivers in             order of that Court of 19 June 2002 in criminal proceed-
the scope of the directive the Parliament and the Council                  ings against Marco Antonio Saetti and Andrea Frediani
infringed Article 253 EC.
                                                                                (Case C-235/02)
According to settled case-law of the Court of Justice, the
obligation to state reasons under Article 253 EC is determined
by the nature of the legislation, decision or other measure. The                                  (2002/C 202/14)
statement of reasons must disclose clearly and unambiguously
the reasoning of the Community institution which has adopted
the measure, so that the reasons for the measure are clear to
                                                                         Reference has been made to the Court of Justice of the
those concerned by it and the Community court can perform
                                                                         European Communities by order of the Tribunale di Gela —
its function of review.
                                                                         Ufficio del Giudice per le Indagini Preliminari (Gela District
                                                                         Court, Chambers of the Judge in charge of Preliminary
Finland considers that those requirements are not satisfied in           Inquiries) of 19 June 2002, received at the Court Registry on
so far as the directive concerns self-employed drivers.                  26 June 2002, for a preliminary ruling in criminal proceedings
                                                                         against Marco Antonio Saetti and Andrea Frediani on the
(1) OJ L 80 of 23.3.2002, p. 35.                                         following questions:
                                                                         1.    Does pet coke fall within the definition of ‘waste’ as
                                                                               provided in Article 1 of Directive 75/442/EEC? (1)
                                                                         2.    Does use of pet coke as a fuel constitute ‘recovery’ within
                                                                               the meaning of Article 1 of Directive 75/442/EEC?
Reference for a preliminary ruling by the Korkein Oikeus                 3.    Does pet coke, when used as a fuel for production
by order of that Court of 14.06.2002 in the case of                            purposes, come within the category of waste which a
Heikki Antero Pusa against Osuuspankkien Keskinäinen                           Member State may exclude from the application of the
                          Vakuutusyhtiö                                        Community, following the adoption of specific rules in
                                                                               accordance with Article 2 of Directive 75/442/EEC?
                         (Case C-224/02)
                                                                         4.    Does permitting the use of petroleum coke at the place
                         (2002/C 202/13)                                       of production even for combustion processes intended
                                                                               for the generation of electric or thermal energy for
                                                                               purposes unconnected with refining processes, subject to
                                                                               the condition that emissions must be within the limits
Reference has been made to the Court of Justice of the                         laid down in the relevant provisions, even where its
European Communities by order of the Korkein Oikeus                            sulphur content exceeds 3 % of mass, constitute a
(Supreme Court) of 14.6.2002, received at the Court Registry                   necessary and sufficient measure to ensure that such
on 17.6.2002, for a preliminary ruling in the case of Heikki                   waste is recovered without endangering human health
Antero Pusa against Osuuspankkien Keskinäinen Vakuutus-                        and without the use of processes or methods likely harm
yhtiö on the following question:                                               the environment, in accordance with Article 4 of Directive
                                                                               75/442/EEC?
Does Article 18 of the EC Treaty or any other rule of
Community law preclude national legislation under which, in
an attachment carried out for the purpose of enforcing a                 (1) OJ L 194 of 25.7.1975, p. 39.
judgment concerning a money debt, that part of the pension
payable at regular intervals to the debtor which the attachment
may concern is determined by deducting from the pension the


title: Case T-162/09: Judgment of the General Court of 19 April 2012 — Würth and Fasteners v Council (Actions for annulment — Dumping — No individual concern — Inadmissibility)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/17

         Judgment of the General Court of 19 April 2012 — Würth and Fasteners v Council
   (Case T-162/09) (1)

   (Actions for annulment - Dumping - No individual concern - Inadmissibility)
   2012/C 165/28
   Language of the case: German

      Parties

      Applicants: Adolf Würth GmbH & Co. KG (Künzelsau, Germany) and Arnold Fasteners (Shenyang) Co. Ltd (Shenyang, China) (represented by: M. Karl and M. Mayer, lawyers)

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

      Parties intervening in support of the defendant: European Commission: (represented by: H. van Vliet and B. Martenczuk, Agent); and European Industrial Fasteners Institute AISBL (EIFI) (Brussels, Belgium) (represented by: initially J. Bourgeois, Y. van Gerven and E. Wäktare, then J. Bourgeois, lawyers)

      Re:

   Application for annulment of Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible.

               2.

               Orders Adolf Würth GmbH & Co. KG and Arnold Fasteners (Shenyang) Co. Ltd to bear their own costs and to pay those incurred by the Council of the European Union and by the European Industrial Fasteners Institute AISBL.

               3.

               Order the European Commission to bear its own costs.

      (1)  OJ C 167, 18.07.2009.


title: Case T-78/99: Action brought on 1 April 1999 by Sonia Marion Elder and Robert Dale Elder against the Commission of the European Communities

text:
19.6.1999             EN                      Official Journal of the European Communities                                         C 174/11
Finally, the applicant pleads infringement of fundamental                The applicant was subsequently refused registration of his
Community rights, alternatively of rights equivalent thereto, in         vehicle. He learned thereafter that the chassis number of his
the form of a disproportionate impairment, contrary to the               vehicle had been blocked by the customs service by reason of
principle of the protection of legitimate expectations, of the           the fact that the Commission had not supplied the Belgian
commercial enterprise set up and operated by the applicant,              Customs and Excise Administration with relevant and necess-
viewed as a property right. According to the applicant, there            ary information that had been requested a number of times.
has been an infringement of the guaranteed right to have
access to legal remedies (see Article 19(4) of the German Basic          The applicant maintains that the Commission is liable to him
Law), which is enshrined in the German constitution but which            for the following failures in its administrative system:
also falls to be observed in the context of Community law.
                                                                         — The Commission did not ensure that the applicant’s
                                                                              individual file contained all the important and relevant
(1) OJ L 208 of 24.7.1992, p. 1.                                              documents which it should have contained in order to
                                                                              enable it to give the Belgian authorities correct and
                                                                              complete information;
                                                                         — the Commission did not correctly defend the applicant’s
                                                                              interests before the Belgian authorities, in that they insisted
                                                                              on 1 November 1992 as the date on which he assumed
                                                                              his duties, whereas his individual file contained two
                                                                              documents showing that it was 5 January 1993;
Action brought on 2 April 1999 by Girish Ojha against
       the Commission of the European Communities                        — the Commission did not appear to know the terms of the
                                                                              agreements concluded with the Belgian Ministry of Finance
                                                                              and did not make the effort to become acquainted with
                         (Case T-77/99)                                       them.
                        (1999/C 174/22)                                  The material damage comprises the cost of hiring a vehicle
                                                                         identical to the applicant’s, at the rate of BFR 2 200 per day
                                                                         for the period from 1 February 1996 until 31 December 1997.
                                                                         The applicant considers that the non-material damage may
                   (Language of the case: French)                        fairly be assessed at BFR 300 000, since he suffered significant
                                                                         non-material damage through the errors and omissions of the
An action against the Commission of the European Communi-                Commission’s staff.
ties was brought before the Court of First Instance of the
European Communities on 2 April 1999 by Girish Ojha,
residing at Bierbeek (Belgium), represented by Antonietta
Ottati and Marc Dallemagne, both of the Brussels Bar.
The applicant claims that the Court should:                              Action brought on 1 April 1999 by Sonia Marion Elder
                                                                         and Robert Dale Elder against the Commission of the
                                                                                European Communities
— annul the express decision of the Commission rejecting
    the applicant’s complaint under Article 90(2) of the Staff                                     (Case T-78/99)
    Regulations;
                                                                                (1999/C 174/23)
— order the Commission to pay the applicant damages of
    BFR 1 552 339 for material damage and BFR 300 000 for
    non-material damage;                                                                    (Language of the case: English)
— order the Commission to pay the costs.                                 An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 1 April 1999 by Sonia Marion
                                                                         Elder and Robert Dale Elder, represented by Scott Crosby of
Pleas in law and main arguments
                                                                         Kemmier Rapp Böhlke & Crosby, 9, Rond-Point, Brussels.
The applicant was posted to the Commission delegation in                 The applicant claims that the Court should.
Dacca (Bangladesh) until 31 December 1992. He imported a
Mercedes motor car, purchased free of VAT on 17 December                 (i) annul the refusal of the Commission to grant the appli-
1991, to Bangladesh from Belgium. On 5 January 1993, he                       cation for review of 6 January 1999 addressed to the
resumed his duties with the Commission in Brussels.                           Secretary General of the Commission constituted by its
                                                                              failure to reply in any form by the last hour of 8 February
                                                                              1999, or in the alternative by its failure to define its
According to the applicant, the relevant department of the                    position before the last hour of 13 or 14 February 1999;
Commission stated on tax forms on 23 December 1992 and
15 January 1993 that the applicant satisfied the conditions for          (ii) order the defendant to pay the applicants’ costs pursuant
customs exemption, erroneously indicating 1 November 1992                     to Article 87 of the Rules of Procedure of the Court of First
as the date on which he assumed his duties.                                   Instance.
 ---pagebreak--- C 174/12              EN                      Official Journal of the European Communities                                     19.6.1999
Pleas in law and main arguments                                          The applicant claims that the Court should:
The applicants claim to be affected by some provisions of the            — annul the Commission’s decision of 5 January 1999
United Kingdom VAT Act 1994, which were adopted on the                        rejecting his complaint under Article 90(2) of the Staff
basis of an enabling power under Article 4(4) of Council                      Regulations against the Commission’s refusal of authoris-
Directive 77/388/EEC, as amended (the Sixth VAT Directive),                   ation to publish a detailed transcript of the lecture which
which provides inter alia that ‘each Member State may treat as                he had been authorised to give in Cordoba on 30 October
a single taxable person persons established in the territory of               1997 on the subject of ‘The need for economic fine-tuning
the country who, while legally independent, are closely bound                 at the local and regional level in the Monetary Union of
to one another by financial, economic and organisational                      the European Union’;
links’. No Member State may, however, rely on this power
unconditionally because Article 4(4) states clearly that its use         — declare his claim for authorisation to publish the transcript
is ‘subject to the consultations provided for in Article 29’.                 of his lecture admissible and well-founded;
Article 29 of the Sixth VAT Directive establishes the ‘Advisory
Committee on VAT’.
                                                                         — order the Commission to pay the costs.
The applicants are of the view that if the United Kingdom did
not consult the Committee as required or, if no direct evidence
in the form of a probative contemporaneous report of                     Pleas in law and main arguments
consultation can be adduced, then the abovementioned pro-
visions of United Kingdom law are invalid on the ground of
breach of an essential procedural requirement and cannot be              The applicant states that he personally participated in a
applied as against the applicant.                                        seminar, at which he gave a lecture, having requested and
                                                                         obtained the authorisation of his superiors at the Commission
The applicants did ask the United Kingdom authorities for                on the strength of a résurmé and an outline of the main points
details of the consultations, but the request was declined on            he was going to raise in his presentation. Subsequently, the
the grounds that the relevant details were not in the public             organisers of the seminar asked him to supply a detailed text
domain. The applicants consequently lodged an application                of his lecture for an inclusion in a publication they intended
with the defendant. The defendant did not reply to the                   to issue. The applicant’s application under Article 17(2) of the
application for access within one month of the application               Staff Regulations for leave to publish the text in question was
being made or within one month to the application for review.            refused by the Commission on the grounds that, first, it risked
                                                                         compromising the interests of the institution by reducing its
The applicants submit that, by failing to reply within one               room for manoeuvre, and, secondly, there were significant
month of the application for review, the defendant was deemed            differences between the résumé of the lecture (which had been
to have refused the application by virtue of Article 2(4) of the         the basis of the authorisation to deliver it) and the text in
Access Decision. That refusal is unlawful per se and also                question.
because it is not accompanied by a statement of reasons and
therefore infringes Article 190 EC, which is a mandatory                 The applicant challenges that statement of reasons, arguing
provision. The time-limit of one month for each of the                   that, in denying him the right to publish his article, the
abovementioned applications imposes a necessary discipline,              Commission committed an obvious error of assessment and a
designed to protect the rights of persons such as the applicants         misuse of powers, and infringed the principle of the protection
who seek access to documents against prevarication, by                   of legitimate expectations and duty to have due regard for the
requiring the Commission to do everything necessary —                    welfare of officials.
including the conduct of internal consultations and the
obtaining of all necessary consents — within the time-limit,
and must be regarded as mandatory and binding in all respects.
Action brought on 12 April 1999 by Michael Cwik against                  Action brought on 13 April 1999 by Michel Hendrickx
       the Commission of the European Communities                                                against CEDEFOP
                         (Case T-82/99)
                                                                                (Case T-87/99)
                        (1999/C 174/24)
                                                                                (1999/C 174/25)
                   (Language of the case: French)
An action against the Commission of the European Communi-                                    (Language of the case: French)
ties was brought before the Court of First Instance of the
European Communities on 12 April 1999 by Michael Cwik,
residing at Tervuren (Belgium), represented by Nicholas Lhöest,          An action against the European Centre for the Development
of the Brussels Bar, with an address for service in Luxembourg           of Vocational Training (CEDEFOP) was brought before the
at the offices of Fiduciaire Myson SARL, 30 Rue de Cessange.             Court of First Instance of the European Communities on


11 . 11 . 95          EN                    Official Journal of the European Communities                           No C 299/ 1
                                                                      I
                                                              (Information)
                                                   COURT OF JUSTICE
                                                          COURT OF JUSTICE
                                Swearing of the oath by the new member of the Court of Justice
                                                             ( 95/C 299/01 )
             Mr Melchior Wathelet, appointed on 13 September 1995 judge at the Court of Justice of the
             European Communities by decision of the representatives of the governments of the Member States
             of the European Communities ('), took the oath before the Court of Justice on 18 September
             1995 .
             (') OJ No L 233 , 30 . 9 . 1995 , p . 88 .
             Swearing of the oath by the new members of the Court of First Instance of the European
                                                              Communities
                                                             ( 95 /C 299/02 )
             Mr Andre Potocki and Mr Rui Manuel Gens de Moura Ramos, appointed on 17 and 26 July 1995
             judges at the Court of First Instance of the European Communities by decisions of the representatives
             of the governments of the Member States of the European Communities ( 1 ) ( 2 ), took the oath before
             the Court of Justice of the European Communities on 18 September 1995 .
             (') OJ No L 172 , 22 . 7 . 1995 , p . 23 .
             ( 2 ) OJ No L 188 , 9 . 8 . 1995 , p . 7 .
                            Decisions adopted by the Court at its meeting on 19 September 1995
                                                              ( 95 /C 299/03 )
             The Court of Justice of the European Communities adopted the following decisions at its meeting on
              19 September 1995 :
             Attachment of Mr Wathelet
             The Court has decided to attach Mr Wathelet to the First and Fifth Chambers .


title: Action brought on 11 January 1995 by Hans-Theo Wellmann against Council of the European Union and Commission of the European Communities (Case T-3/95)

text:
No C 54/18             EN                 Official Journal of the European Communities                                   4 . 3 . 95
before the Court of First Instance of the European                   — infringement of Articles 4 (4 ) and 2 ( 12 ) of the basic
Communities on 9 January 1995 by Christian Vahrenkamp,                   regulation and manifest error of assesment, in that the
Eggebek ( Federal Republic of Germany ), represented by Dr               Commission found that the product imported from
Lukanow, Rechtsanwalt, Euskirchen, with an address for                   China and Russia and the product manufactured in the
service in Luxembourg at the Chambers of Dupong &                        Community were alike,
Associés, 14a Rue des Bains.
                                                                     — infringement of Article 4 of the basic regulation and
The applicant claims that the Court should:                              manifest error of assessment, in that the Council found
                                                                         that the Community industry had suffered material
order the defendants to pay compensation to the applicant                injury,
for the period of five milk years from 1 April 1988 in the
amount of DM 30 705 plus 8 % interest with effect from               — infringement of Article 12 of the basic regulation and
2 November 1983 .                                                        manifest error of assessment, in that the Council
                                                                         concluded that the Community interest called for the
Pleas in law and main arguments                                          imposition of definitive measures,
The pleas in law and main arguments are similar to those in          — infringement of Article 190 of the Treaty, in that the
Case T-20/94 .                                                           Council failed to discharge its obligation to provide a
                                                                         statement of reasons with regard to the complaint of
                                                                         abuse of a dominant position lodged by the applicant
                                                                         with DG IV,
                                                                     — misuse of powers, in that the Commission was party to
Action brought on 9 January 1995 by Industrie des Poudres                the use of an anti-dumping procedure for
Sphériques (IPS ) against the Council of the European                    anti-competitive purposes.
                               Union
                          (Case T-2/95 )                             In the alternative, the applicant claims that the regulation
                                                                     should be declared unenforceable against it on the grounds
                           ( 95/C 54/34)                             of manifest error of appreciation, in that the Council
                                                                     imposed anti-dumping duties generally on all imports of
                (Language of the case: French)                       calcium metal originating in the People's Republic of China
                                                                     and Russia .
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 9 January 1995 by Industrie des Poudres
Sphériques (IPS), having its seat at Annemasse (France),
represented by Chantal Momège, of the Paris Bar, with an
address for service in Luxembourg at the Chambers of Alex            Action brought on 11 January 1995 by Hans-Theo
Schmitt, 62 Avenue Guillaume.                                        Wellmann against Council of the European Union and
                                                                             Commission of the European Communities
The applicant claims that the Court should:                                                 (Case T-3/95 )
— primarily, annul Regulation ( EEC) No 2257/94 of                                           ( 95/C 54/35 )
    19 October 1994,
                                                                                (Language of the case: German)
— in the alternative, declare it unenforceable against
    IPS,
                                                                     An action against the Council of the European Union and
— order the Council to pay the costs.                                Commission of the European Communities was brought
                                                                     before the Court of First Instance of the European
                                                                     Communities on 11 January 1995 by Hans-Theo
Pleas in law and main arguments                                      Wellmann, Rees ( Federal Republic of Germany),
                                                                     represented by Bernd Meisterernst, Mechtild Düsing,
The applicant contends in support of its action that the             Dietrich Manstetten, Frank Schulze and Winfried
contested regulation should be annulled for the following            Haneklaus, Rechtsanwälte, Munster, with an address for
reasons :
                                                                     service in Luxembourg at the Chambers of Dupong &
                                                                     Associés, 14a Rue des Bains.
— infringement of the basic regulation, Council Regulation
    (EEC) No 2423/88 , and breach of the principle of legal
    certainty, in that, following the annulment of Regulation       The applicant claims that the Court should:
    No 2808/89 by the judgment of 11 June 1992, the
    Commission 'resumed the investigation',                          1 . order the defendants jointly to pay to the applicant
                                                                         SLOM III compensation for the period from 2 April
— infringement of Articles 7 and 8 of the abovementioned                 1984 to 29 July 1993 in the amount of DM 15 238,33
    basic regulation and of the applicant's rights to a fair             together with interest thereon at 8 % from 1 9 May 1992
    hearing,                                                             and jointly to pay the costs of the proceedings;
 ---pagebreak--- 4 . 3 . 95            EN                 Official Journal of the European Communities                                   No C 54/1 9
2. join the present action to that already pending in Case          — order the Community to pay the applicant ECU 10
     T-77/93 Hulseberg and Others v. Council and                        million by way of damages and to pay the costs,
      Commission and also stay the proceedings.
                                                                    — grant interim relief regardless of the proceedings and
Pleas in law and main arguments                                         without requiring a guarantee.
The pleas in law and main arguments are similar to those in
Case T-20/94 .                                                      Pleas in law and main arguments
                                                                    The applicant contests the Commission's decision to
                                                                    proceed no further with its complaint concerning the
                                                                    infringement of the Community rules on competition by the
Action brought on 16 January 1995 by the Amicale des                undertakings possessing the sole operating franchise in
Residents du Square d'Auvergne against Commission of the            respect of the district heating system for Massy-Antony.
                    European Communities
                         (Case T-5/95 )                             The applicant claims first of all that, in taking the decision to
                                                                    proceed no further on the ground of the alleged lack of a
                          ( 95/C 54/36 )
                                                                    Community interest, the Commission made a manifest error
                                                                    of assessment of the facts of the case.
               (Language of the case: French)
An action against the Commission of the European                    Secondly, the undertakings in question have participated in
Communities was brought before the Court of First                   agreements and concerted practices which have as their
Instance of the European Communities on 16 January 1995             object the restriction or distortion of competition in a
by the Amicale des Residents du Square d'Auvergne, whose            substantial part of the common market, increasing by a
headquarters are in Massy ( France ), represented by                disproportionate amount the costs to be borne by the
                                                                    tenants .
Jean-Marc Florand and Karim Achoui, of the Paris Bar.
The applicant claims that the Court of First Instance               Lastly, the Commission's inaction is ground for a
should :                                                            declaration that Article 155 of the Treaty has also been
                                                                    infringed.
— declare that the Commission has exceeded its powers
     and that it has failed to act,
— declare void the declaratory decisions (D/09735 and
     D/10419 ) issued by Directorate-General IV
     ( Competition ) on 20 September 1994 and 5 October
     1994 respectively and the declaratory decision ( SPC/D               Removal from the register of Case T-45/92 ( a )
     03463 ) issued by the Consumer Policy Service on
     26 October 1994,                                                                         ( 95/C 54/37)
— order the Commission to take further steps — in strict                          (Language of the case: French)
     compliance with the guidelines laid down by the Court
     of First Instance in Automec v. Commission ( Case
     T-24/90 [ 1992] ECR 11-2223 ) and other judgments              By order of 4 January 1995 the President of the Third
     contributing to that branch of case-law — for the              Chamber of the Court of First Instance of the European
     thorough investigation of the grounds set out in the           Communities ordered the removal from the register of Case
     original complaint of 25 July 1994 submitted by the            T-45/92: Loek Rijnoudt v. Commission of the European
                                                                    Communities .
     applicant against the French State, SIMACUR, HLM
     Residences le Logement des Fonctionnaires, CURMA
     and UFINER-COFRETH,                                            (!) OJ No C 182 , 18 . 7. 1992 .