title: Case T-124/95: Action brought on 2 March 2005 by David Tas against the Commission of the European Communities

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/30

         Action brought on 2 March 2005 by David Tas against the Commission of the European Communities
   (Case T-124/95)
   (2005/C 132/55)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 March 2005 by David Tas, residing in Brussels (Belgium), represented by Sébastien Orlandi, Xavier Martin, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers,with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the Selection Board's decision in competition EPSO/A/4/03 not to admit him to the tests in the competition;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant, who possesses a university diploma of ‘M Sc in Business Administration’, was a candidate in competition EPSO/A/4/03 for the drawing up of a reserve list of assistant administrators at Grade A8 in the auditing sphere. He challenges the Selection Board's decision to exclude him from the competition on the grounds that his university diploma did not satisfy the conditions of the competition notice.
   In support of his action, the applicant pleads infringement of the conditions for admission fixed in the competition notice and a manifest error of assessment. He also claims that two other candidates, who were admitted to the competition tests, held the same diploma awarded by the same faculty of the same university and on that basis alleges breach of the principle of equal treatment.


title: Case C-441/06: Judgment of the Court (Fourth Chamber) of 18 October 2007 — Commission of the European Communities v French Republic (State aid — Duty of recovery — Duty of cooperation)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/20

         Judgment of the Court (Fourth Chamber) of 18 October 2007 — Commission of the European Communities v French Republic
   (Case C-441/06) (1)

   (State aid - Duty of recovery - Duty of cooperation)
   (2007/C 315/33)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: C. Giolito, acting as Agent)

      Defendant: French Republic (represented by: G. de Bergues and S. Ramet, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Failure to give effect, within the prescribed period, to Commission Decision 2005/709/EC of 2 August 2004 on the State aid implemented by France for France Télécom (OJ 2005 L 269, p. 30) — Breach of Articles 2 and 3 of the decision and Article 10 EC and the fourth paragraph of Article 249 EC — Obligation to recover aid deemed illegal — Practical difficulties in calculating the precise amount of the aid to be recovered and the existence of an application brought against the decision of the Commission declaring the aid illegal have no impact on that obligation
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to give effect, within the prescribed period, to Commission Decision 2005/709/EC of 2 August 2004 on the State aid implemented by France for France Télécom, the French Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision, the fourth paragraph of Article 249 EC and Article 10 EC;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 310, 16.12.2006.


title: Case T-365/08: Action brought on 28 August 2008 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO)

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/48

         Action brought on 28 August 2008 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO)
   (Case T-365/08)
   (2008/C 272/93)
   Language in which the application was lodged: Spanish
   Parties

      Applicant: Emilio Hidalgo, SA (Jerez de la Frontera, Spain) (represented by: Esteve Sanz, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Hidalgo — La Gitana, SA (Sanlucar de Barrameda,Cadiz, Spain)
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of OHIM, of 11 June 2008, in Case R 1329/2007-4, notified to the applicant on 18 June 2008;

               —

               Order the defendant and, where appropriate, the intervening party, to pay the costs of the proceedings before the Court of First Instance and those of the proceedings before the Board of Appeal.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Emilio Hidalgo, SA.

      Community trade mark concerned: Verbal mark ‘HIDALGO’ (Application No 4.032.108) for goods in Class 33 ‘alcoholic beverages (except beers)’.

      Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Hidalgo — La Gitana, SA.

      Mark or sign cited in opposition: Spanish verbal mark ‘HIDALGO’ for goods in Class 33 (‘Wines in general and especially those covered by the DDOO Jerez and Manzanilla’).

      Decision of the Opposition Division: Opposition upheld and application for registration rejected.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Articles 73 and 61(2) of Regulation (EC) No 40/94 on the Community trade mark (CTM) and the applicant's rights of the defence, by basing the contested decision on a document on which the applicant was unable to comment.
   The applicant also alleges breach of:

               —

               Article 8(1)(a) of the CTM, in so far as the contested decision considers that wines are identical to other alcoholic beverages in Class 33, other than wines.

               —

               Articles 4(1) and 5(1) of Directive EC/89/104 to approximate the laws of the Member States relating to trade marks and infringement of the principle of coexistence and equivalence between national and Community marks.


title: Case F-92/10: Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Dricot-Daniele and Others v Commission (Staff cases — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/54

         Order of the Civil Service Tribunal (Third Chamber) of 16 June 2011 — Dricot-Daniele and Others v Commission
   (Case F-92/10) (1)

   (Staff cases - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)
   2011/C 252/119
   Language of the case: French

      Parties

      Applicants: Luiga Dricot-Daniele (Overijse, Belgium) and Others (represented by: C. Mourato, lawyer)

      Defendant: European Commission (represented by: J Currall and G. Berscheid, Agents)

      Re:

   Annulment of the applicants’ correcting pay slips for the period from July to December 2009 and the pay slips issued after 1 January 2010 in the context of the annual adjustment of remuneration and pensions of officials and other servants on the basis of Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

      Operative part of the order

               1.

               There is no need to adjudicate on Case F-92/10 Dricot-Daniele and Others v Commission.

               2.

               Each party is ordered to bear its own costs.

      (1)  OJ C 13, 15.01.2011, p. 40.


title: Case C-661/13: Order of the President of the Court of 7 May 2014 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Astellas Pharma Inc. v Polpharma SA Pharmaceutical Works

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/21

         Order of the President of the Court of 7 May 2014 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Astellas Pharma Inc. v Polpharma SA Pharmaceutical Works
   (Case C-661/13) (1)

   2014/C 261/40
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 129, 28.4.2014.


title: Case C-236/17 P: Appeal brought on 8 May 2017 by Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Csi Cells Co. Ltd, Csi Solar Power (China), Inc. against the judgment of the General Court (Fifth Chamber) delivered on 28 February 2017 in Case T-162/14: Canadian Solar Emea GmbH and Others v Council

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/27

         Appeal brought on 8 May 2017 by Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Csi Cells Co. Ltd, Csi Solar Power (China), Inc. against the judgment of the General Court (Fifth Chamber) delivered on 28 February 2017 in Case T-162/14: Canadian Solar Emea GmbH and Others v Council
   (Case C-236/17 P)
   (2017/C 239/34)
   Language of the case: English

      Parties

      Appellants: Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Csi Cells Co. Ltd, Csi Solar Power (China), Inc. (represented by: J. Bourgeois, avocat, S. De Knop, advocaat, M. Meulenbelt, advocaat, A. Willems, avocat)

      Other parties to the proceedings: Council of the European Union, European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               quash the judgment of the General Court in case T-162/14;

               —

               uphold the application at first instance and annul the contested regulation in so far as it concerns appellants;

               —

               order the respondent to pay the appellants’ costs, and its own costs, both at first instance and on appeal;

               —

               order any other parties to the appeal to pay their own costs;

         In the alternative

               —

               quash the judgment of the General Court in case T-162/14;

               —

               refer the case back to the General Court for judgment;

               —

               reserve the costs at first instance and on appeal for final judgment by the General Court;

               —

               order any other parties to the appeal to pay their own costs.

      Pleas in law and main arguments

               1.

               The General Court erred in law by requiring appellants to show an interest in raising the first and second pleas; in any event, the General Court erred in its legal characterization of the facts as the appellants have such an interest.

               2.

               The General Court erred in law by requiring appellants to show an interest in raising the third plea; the General Court erred in its interpretation of Article 2(7)(a) of Regulation 1225/2009 (‘Basic Regulation’). (1)

               3.

               The General Court erred in law by finding that Regulation 1168/2012 applied to the present anti-dumping investigation (2); the General Court erred in law by finding that the Commission’s failure to make a determination on the appellants’ request for market economy treatment does not vitiate the contested regulation.

               4.

               The General Court erred in law by permitting the Institutions to set the anti-dumping duty at the level to counter injury caused by factors other than dumped imports; the General Court erred in law by unduly reversing the burden of proof.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009, L 343, p. 51). Article 2(7)(a) of the Basic Regulation has since been replaced by the identical Article 2(7)(a) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016, L 176, p. 21).

      (2)  Regulation (EU) No 1168/2012 of the European Parliament and the Council of 12 December 2012 amending Council Regulation (EC) No 1225/2009 (OJ 2012, L 344, p. 1).


title: Case C-207/00: Action brought on 25 May 2000 by the Commission of the European Communities against the Italian Republic

text:
C 211/12                EN                      Official Journal of the European Communities                                       22.7.2000
The applicant claims that the Court should:                                     so, are the provisions of Article L. 24-1(3) of the Code des
                                                                                Pensions Civiles et Militaires de Retraite in breach of the
— Declare that, by maintaining in force Article 8 of Law                        principle of equal pay?
     223/90 in respect of contracts entered into prior to
     28 February 1998, the Italian Republic has failed to                  (2) If Article 119 of the Treaty of Rome is not applicable, do
     transpose Article 11(3) of Council Directive 89/552/EEC (1)                the provisions of Directive 79/7/EEC of 19 December
     on the coordination of certain provisions laid down by                     1978 (1) preclude France’s maintaining provisions such as
     law, regulation or administrative action in Member States                  those of Article L. 24-1(3) of the Code des Pensions Civiles
     concerning the pursuit of television broadcasting activities,              et Militaires de Retraite?
     the Italian Republic has failed to fulfil its obligations under
     that directive;
                                                                           (1) Council Directive 79/7/EEC of 19 December 1978 on the pro-
— Order the Italian Republic to pay the costs.                                 gressive implementation of the principle of equal treatment for
                                                                               men and women in matters of social security (OJ 1979 L 6, p. 24).
The pleas in law and main arguments
Although, in principle, Article 3(2) and (3) of Law No 122/98
transposes Article 11(2) and (3) of Directive 89/552/EEC, the
derogation provided for in the last sentence of Article 3(3) of
Law No 122/98, which provides that the new provisions on
interruptions by advertisements do not apply to programmes
for which the rights were acquired prior to 28 February 1998,              Action brought on 25 May 2000 by the Commission of
leaves in force, only in respect of such contracts, Article 8 of             the European Communities against the Italian Republic
Law No 223/90. From that point of view, therefore,
Article 11(2) of the directive has not been transposed into
                                                                                (Case C-207/00)
Italian law and Article 11(3) has not been correctly transposed,
albeit strictly in relation to those contracts entered into prior
to 28 February 1998.                                                                                (2000/C 211/21)
(1) OJ 1989 L 298, p. 23.                                                  An action against the Italian Republic was brought before the
                                                                           Court of Justice of the European Communities on 25 May
                                                                           2000 by the Commission of the European Communities,
                                                                           represented by Karen Banks, Legal Adviser, and Laura Pignata-
                                                                           ro, of the Legal Service, acting as Agents, with an address for
                                                                           service in Luxembourg at the office of Carlos Gómez de la
                                                                           Cruz, of the Commission’s Legal Service, Wagner Centre,
                                                                           Kirchberg.
Reference for a preliminary ruling from the Tribunal
Administratif, Chalons-en-Champagne (Second Chamber),                      The applicant claims that the Court should:
France, by judgment of that court of 25 April 2000 in the
case of Henri Mouflin v Recteur de l’Académie de Reims;
                                                                           — Declare that, by failing to adopt the laws, regulations
Syndicat Général de l’Éducation Nationale et de la Recher-
                                                                                and administrative provisions necessary to comply with
         che Publique CFDT de la Marne, intervenor
                                                                                Directive 97/36/EC (1) of the European Parliament and of
                                                                                the Council of 30 June 1997 amending Council Directive
                          (Case C-206/00)                                       89/552/EEC (2) on the coordination of certain provisions
                                                                                laid down by law, regulation or administrative action
                          (2000/C 211/20)                                       in Member States concerning the pursuit of television
                                                                                broadcasting activities, specifically Article 1(1) amending
                                                                                Article 1(c) of Directive 89/552/EEC; Article 1(2) which
Reference has been made to the Court of Justice of the                          replaces Article 2 of Directive 89/552/EEC but not
European Communities by a judgment of the Tribunal Admini-                      Article 2(3), (4)(5) and (6); Article 1(3) which inserts
stratif (Administrative Court), Chalons-en-Champagne (Second                    Article 2a into Directive 89/552/EEC; Article 1(4) which
Chamber), of 25 April 2000, which was received at the Court                     introduces Article 3a(3) into Directive 89/552/EEC;
Registry on 25 May 2000, for a preliminary ruling in the case                   Article 1(12), which replaces Article 10 of Directive
of Henri Mouflin v Recteur de l’Académie de Reims; Syndicat                     89/552/EEC, but not Article 10(2); Article 1(14) amending
Géneral de l’Éducation Nationale et de la Recherche Publique                   the first sentence of Article 12 of Directive 89/552/EEC;
CFDT de la Marne, intervenor, on the following questions:                       Article 1(15) which replaces Article 13 of Directive
                                                                                89/552/EEC; and finally Article 1(18) which adds a para-
(1) Do the pensions provided under the French retirement                        graph 2 to Article 16 to Directive 89/552/EEC, the Italian
     pension scheme for public servants rank as ‘pay’ under                     Republic has failed to fulfil its obligations under that
     Article 119 of the Treaty of Rome, now Article 141 EC? If                  directive;
 ---pagebreak--- 22.7.2000                EN                   Official Journal of the European Communities                                      C 211/13
— Order the Italian Republic to pay the costs.                           2. order the Federal Republic of Germany to pay the costs.
The pleas in law and main arguments                                      Pleas in law and main arguments
Under the third paragraph Article 249 of the EC Treaty, a                In accordance with the fourth paragraph of Article 249 EC,
directive is to be binding, as to the result to be achieved, upon        the Commission decision of 8 July 1999 is binding in its
each Member State to which it is addressed. Under Article 10(1)          entirety on the Federal Republic of Germany as its addressee,
of the Treaty, Member States are to take appropriate measures,           and it is to be implemented immediately. Since 4 August 1989
whether general or particular, to ensure fulfilment of the               the Federal Republic of Germany has been obliged under
obligations arising out of that Treaty or resulting from action          Article 2 of the decision to adopt all necessary measures to
taken by the institutions of the Community.                              withdraw the aid, which was made available unlawfully, and
                                                                         to recover it from the recipient. Under Article 3, Germany
The Commission finds that, to date, despite the fact that the            must communicate to the Commission within two months
prescribed time-limit has expired, the Italian Republic has not          following notification of the decision the measures adopted to
brought into force the necessary provisions in order to comply           comply with it. In accordance with Article 242 EC, the actions
with Directive 97/36/EC and must therefore declare that the              brought against the decision (1) do not have suspensory effect;
Italian Republic has failed to fulfil its obligations under              an application for suspension of operation of the decision is
Article 2 of the directive.                                              possible under that provision but none has been made.
                                                                         Proposals made hitherto by the Federal Government for
                                                                         implementing the decision have been unacceptable for the
(1) OJ 1997 L 202, p. 60.
                                                                         Commission. Nor was repayment made before a final deadline
(2) OJ 1989 L 298, p. 23.                                                expired.
                                                                         (1) By the Federal Republic of Germany (Case C-376/99), Westdeut-
                                                                             sche Landesbank Girozentrale (T-228/99) and the Land of
                                                                             Nordrhein-Westfalen (T-233/99).
Action brought on 25 May 2000 by the Commission of
the European Communities against the Federal Republic
                            of Germany
                          (Case C-209/00)
                                                                         Reference for a preliminary ruling by the Tribunal du
                                                                         Travail de Mons (Second Chamber) by judgment of that
                          (2000/C 211/22)                                court of 24 May 2000, in the case of Salvatore Stallone
                                                                                against Office National de l’Emploi
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-                                     (Case C-212/00)
ties on 25 May 2000 by the Commission of the European
Communities, represented by Francisco Santaolalla, Principal
                                                                                (2000/C 211/23)
Legal Adviser, and Dr Klaus-Dieter Borchardt, of its Legal
Service, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of its Legal Service, Wagner                Reference has been made to the Court of Justice of the
Centre C 254, Kirchberg.                                                 European Communities by judgment of the Tribunal du Travail
                                                                         de Mons (Labour Court, Mons) (Second Chamber) of 24 May
                                                                         2000, received at the Court Registry on 30 May 2000, for a
The Commission claims that the Court should:
                                                                         preliminary ruling in the case of Salvatore Stallone against
                                                                         Office National de l’Emploi on the following question:
1. declare that, by not adopting within the period laid down
     all necessary measures to withdraw aid and reclaim
     from Westdeutsche Landesbank Girozentrale aid already               Do the EC treaties, the EC rules, and in particular Articles 1(f)
     granted, the Federal Republic of Germany has failed to              and 68(2) of Council Regulation (EC) No 118/97 of 2 Decem-
     fulfil its obligations under Article 249 EC and Article 3 of        ber 1996 (1), in their current versions or in their version
     Commission Decision K (1999) 2265 final of 8 July 1999              between 1 December 1990 and the date hereof, preclude
     by which the State aid granted by Germany in favour of              Article 110(1), first and second subparagraphs, of the Royal
     Westdeutsche Landesbank Girozentrale in the years 1992              Decree of 25 November 1991 concerning rules on unemploy-
     to 1998 was declared incompatible with the common                   ment in that this national provision makes the award of a
     market;                                                             better rate of unemployment benefit subject to a condition


title: Case C-607/16 P: Appeal brought on 24 November 2016 by the Council of the European Union against the judgment of the General Court (Ninth Chamber) delivered on 15 September 2016 in Cases T-112/14 to T-116/14 and T-119/14: Molinos Río de la Plata and others v Council

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/36

         Appeal brought on 24 November 2016 by the Council of the European Union against the judgment of the General Court (Ninth Chamber) delivered on 15 September 2016 in Cases T-112/14 to T-116/14 and T-119/14: Molinos Río de la Plata and others v Council
   (Case C-607/16 P)
   (2017/C 030/40)
   Language of the case: English

      Parties

      Appellant: Council of the European Union (represented by: H. Marcos Fraile, Agent, N. Tuominen, avocat)

      Other parties to the proceedings: Molinos Río de la Plata SA, Oleaginosa Moreno Hermanos SACIFI y A, Vicentin SAIC, Aceitera General Deheza SA, Bunge Argentina SA, Cámara Argentina de Biocombustibles (Carbio), European Commission, European Biodiesel Board (EBB)

      Form of order sought

   The Appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Cases T-112/14 to T-116/14 and T-119/14, Molinos Río de la Plata SA and Others v Council of the European Union;

               —

               reject the applications at first instance for the annulment of the Contested Regulation; and

               —

               order the Applicants to pay the Council's respective costs both at first instance and on appeal.

         Alternatively,

               —

               refer the cases back to the General Court for reconsideration;

               —

               reserve costs of the proceedings at first instance and on appeal.

      Pleas in law and main arguments

               1.

                  First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Argentinian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

               2.

                  Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Argentina as a result of the DET system lacks proper reasoning.

               3.

                  Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as it concerns the Applicants is disproportionate to the only ground for annulment considered by the General Court and gives undue effects to the finding of illegality.

               4.

               The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicants’ first plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the applications.

               5.

               The Council therefore respectfully requests that the Contested Judgment should be set aside and the applications for annulment of the Contested Regulation by the Applicants at first instance, dismissed.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009, L 343, p. 51) (‘Basic Regulation’).


title: Case T-422/07: Action brought on 16 November 2007 — DJEBEL v Commission

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/40

         Action brought on 16 November 2007 — DJEBEL v Commission
   (Case T-422/07)
   (2008/C 64/65)
   Language of the case: Portuguese
   Parties

      Applicant: DJEBEL SGPS, SA (Funchal, Portugal) (represented by: M. Andrade Neves and S. Castro Caldeira)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annulment of the decision of the Commission of the European Communities of 10 May 2007, published in the Official Journal of the European Union of 24 August 2007, on State aid C 4/2006 (ex N 180/2005) — Portugal — Aid to Djebel (notified under document number C(2007) 1959) (OJ 2007 L 219, p. 30);

               —

               recognition by the Court of First Instance that:

                           —

                           the aid requested was and is essential in order to carry out the investment project consisting of acquiring capital in RASH and the consequent purchase of the Hotel Rio Atlântico;

                           —

                           the aid was requested before the investment was made;

                           —

                           DJEBEL's project was Grupo Pestana's first actual experience of internationalisation;

                           —

                           carrying out that project did not alter the conditions of competition for European undertakings, either for those established in the territory of the Community or for those operating abroad;

                           —

                           carrying out the project did not place Grupo Pestana in any situation of advantage that might have put it in a position to distort trade between Member States;

                           —

                           the aid requested by Djebel presents the same features as that which was requested for Vila Galé and which was approved by the Commission by its decision of 15 October 2003;

               —

               a declaration that the grant of aid to Djebel, in the terms and on the grounds indicated, is not incompatible with any provision of the EC Treaty whatsoever or with any legislative provision implementing the Treaty;

               —

               an order amending the decision adopted by the Commission on 10 May 2007 with regard to the aid requested by Djebel so as to authorise the grant of aid in the terms proposed by Djebel and the Portuguese authorities.

         Pleas in law and main arguments
   The State aid requested by the applicant is not incompatible with the applicable provisions of the EC Treaty.
   Djebel fulfilled the legal conditions for having its candidature included in the SIME and the Commission is required to abide by the conditions for the admissibility of the candidature laid down by the law of the Portuguese Republic applicable to the matter.
   The applicable Portuguese legislation provided that in respect of candidatures submitted before 31 January 2001 investment expenditure incurred after 1 July 1999 could be counted as reimbursable.
   The State aid at issue was intended to provide incentives for and to support the internationalisation of Grupo Pestana and was requested before the investment was made.
   The applicant is not to suffer loss by reason of the dilatoriness of the responsible authorities in evaluating the project.
   The aid requested by the applicant cannot be assessed in the light of the present economic and financial situation.
   Without the aid at issue, the applicant would not have made the investment corresponding to the project in question.
   Grupo Pestana's first experience of internationalisation consists of the purchase made by the applicant in connection with the investment plan.
   In 1999 Grupo Pestana did not possess the financial means to carry out by itself the investment in Brazil.
   Making that investment made no significant impact on trading conditions in the EU.
   There is no link whatsoever between the purchase made by the applicant in Brazil and Grupo Pestana's expansion in Portugal.
   The investment project submitted by the applicant and the aid granted it are compatible with the rules of the EC Treaty, in particular with Article 87(3)(c) EC.
   The aid granted to the applicant facilitated the development of an economic activity, so falling within the scope of the exception provided for in Article 83(3)(c) of the EC Treaty.
   There has been no infringement whatsoever of the provisions of the EC Treaty or of secondary legislation thereunder and no distorting effect on competition in the common market.
   In accordance with the principle of equal treatment, the applicant maintains that, given that the investment project in question presents all the features presented by the Vila Galé project — the subject of the Commission's decision of 15 October 2003 — the Commission's decision on State aid C 4/2006 ought to have been the same as the former decision.


title: Judgment of the Court of 28 June 2011 in Case E-18/10 — EFTA Surveillance Authority v the Kingdom of Norway (Non-compliance with a judgment of the Court establishing a failure to fulfil obligations — Article 33 SCA — Measures necessary to comply with a judgment of the Court)

text:
               17.11.2011

               EN

               Official Journal of the European Union

               C 336/19

         JUDGMENT OF THE COURT
   of 28 June 2011
   in Case E-18/10
   EFTA Surveillance Authority v the Kingdom of Norway
   (Non-compliance with a judgment of the Court establishing a failure to fulfil obligations — Article 33 SCA — Measures necessary to comply with a judgment of the Court)
   2011/C 336/13
   In Case E-18/10, EFTA Surveillance Authority v the Kingdom of Norway — APPLICATION for a declaration that, by failing to take the measures necessary to comply with the judgment of the EFTA Court in Case E-2/07 — EFTA Surveillance Authority v the Kingdom of Norway, the Kingdom of Norway has failed to fulfil its obligations under Article 33 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the Court, composed of Carl Baudenbacher, President, Thorgeir Örlygsson and Per Christiansen (Judge-Rapporteur), Judges, gave judgment on 28 June 2011, the operative part of which is as follows:
   The Court hereby:

               1.

               declares that, by failing to take the measures necessary to comply with the judgment in Case E-2/07 — EFTA Surveillance Authority v the Kingdom of Norway, the Kingdom of Norway has failed to fulfil its obligations under Article 33 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice;

               2.

               orders the Kingdom of Norway to bear the costs of the proceedings.


title: Case C-459/05: Order of the President of the Court of 7 March 2007 — Commission of the European Communities v Kingdom of Belgium

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/27

         Order of the President of the Court of 7 March 2007 — Commission of the European Communities v Kingdom of Belgium
   (Case C-459/05) (1)

   (2007/C 96/48)

      Language of the case: French

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

      (1)  OJ C 48, 25.2.2006.


title: Reference for a preliminary ruling by the Tribunal Supremo (Sala Social) by order of that court of 17 March 1997 in the case of Aristóteles Juan Grajera Rodríguez v. Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social (Case C-153/97)

text:
No C 181 /8              EN                    Official Journal of the European Communities                                      14 . 6 . 97
Action brought on 17 April 1997 by the Commission                         ( g) the Portuguese legislation does not ensure that the
of the European Communities against the Portuguese                              data obtained by the environmental authorities and by
                                Republic                                        the Member States are taken into account, as required
                          ( Case C-150/97)                                      by Article 8 of the Directive;
                            ( 97/C 181 / 14 )
                                                                          ( h ) the Portuguese legislation does not provide for the
                                                                                neighbouring Member State to be informed, if
An action against the Portuguese Republic was brought                           necessary, of the decision provided for in Article 9 of
before the Court of Justice of the European Communities                         the Directive;
on 17 April 1997 by the Commission of the European
Communities, represented by Francisco de Sousa Fialho,
of its Legal Service, acting as Agent, with an address for                ( i ) the Portuguese legislation does not require the national
service in Luxembourg at the office of Carlos Gomez de la                       measures to be applied to projects in respect of which
Cruz, Wagner Centre , Kirchberg.                                                an application for authorization has been pending
                                                                                since June 1 990 .
The applicant claims that the Court should:
                                                                          (') OJ No L 175 , 5 . 7. 1985 , p. 40 .
— declare that, by failing to adopt the laws, regulations
      or administrative provisions necessary to comply fully
      with Council Directive 85/337/EEC of 27 June 1985
      on the assessment of the effects of certain public and
      private projects on the environment ( 1 ), the Portuguese
      Republic has failed to fulfil its obligations under the
      third paragraph of Article 189 of the EC Treaty and                 Reference for a preliminary ruling by the Tribunal
      Article 12 of Directive 85/337/EEC,                                 Supremo ( Sala Social ) by order of that court of 17 March
                                                                          1997 in the case of Aristoteles Juan Grajera Rodriguez v.
— order the Portuguese Republic to pay the costs.                         Instituto Nacional de la Seguridad Social and Tesoreria
                                                                                General de la Seguridad Social
Pleas in law and main arguments adduced in support:                                                 ( Case C-153/97)
                                                                                ( 97/C 181 / 15 )
The Commision asserts that, despite the prescribed period
having expired, the Portuguese Republic has still not
adopted all the provisions to ensure full compliance of its               Reference has been made to the Court of Justice of the
internal legal system with Directive 85/337/EEC, so that it               European Communities by an order of the Social Chamber
has failed to fulfil its obligations under the third                      of the Tribunal Supremo ( Supreme Court ) of 17 March
paragraph of Aricle 189 of the EC Treaty and of Article 12                1997, which was received at the Court Registry on
( 1 ) of the Directive .                                                  23 April 1997, for a preliminary ruling in the case of
                                                                          Aristoteles Juan Grajera Rodriguez v. Instituto Nacional
In particular, the Portuguese Republic did not fulfil its                 de la Seguridad Social ( National Social Security Institute )
obligations under the abovementioned Directive inasmuch                   and Tesoreria General de la Seguridad Social ( General
as :                                                                      Social Security Fund ), on the following questions:
( a ) the Portuguese legislation concerns only part of the                A. Must the calculation method laid down in Annex VI
      categories referred to in Annex II of the Directive;                      ( D ) ( 4 ) to Regulation ( EEC ) No 1408/71 ( J ), in the
                                                                                version inserted by Regulation ( EEC ) No 1248/92 ( 2 ),
( b ) the Portuguese legislation does not take into account                     under which the Spanish theoretical pension is
      the whole of the criteria laid down in Article 2 of the                   determined in accordance with the bases of the
      Directive ;                                                               worker's contributions during the calculation period
                                                                                immediately preceding payment of his last
( c) the Portuguese legislation provides for the possibility                    contribution to the Spanish social security, with
      of exempting a complete category from assessment on                       revalorization of the resultant theoretical pension on
      the effects on the environment;                                           the same terms as those which, under Spanish national
                                                                                legislation, would have been applied to revalorization
( d ) the Portuguese legislation concerns only partially the                    of a pension becoming payable at the time of payment
      provisions of Articles 3 and 5 and those of Annex III                     of the last contribution in Spain be regarded as
      of the Directive;                                                         contrary to Articles 48 and 51 of the Treaty
                                                                                establishing the European Community, and
( e ) the Portuguese legislation concerns only partially the
      provisions of Article 6 ( 2 ) and ( 3 ) of the Directive;           B. In order to guarantee equal treatment for migrant
                                                                                workers in matters of social security, must the basic
( f) the Portuguese legislation did not implement Article 7                     amount of the Spanish pension be calculated by
      of the Directive regarding consultation of                                reference to what would have been the bases for the
      neighbouring Member States;                                               migrant worker's contributions if he had stayed in
 ---pagebreak--- 14 . 6 . 97               EN                    Official Journal of the European Communities                                  No C 181 /9
       Spain during the calculation period preceding                       reasoned opinion, the Commission has decided to bring
       materialization of the risk provided for on a general               the matter before the Court .
       basis by Spanish legislation ?
                                                                           (') OJ No L 216 , 12 . 9 . 1995 , p . 8 .
H OJ No L 149 , 5 . 7. 1971 , p . 2 .
( 2 ) OJ No L 136 , 19 . 5 . 1992 , p. 7.
                                                                           Reference for a preliminary ruling from the Helsingborgs
                                                                           Tingsratt by order of that court of 28 April 1997 in the
Action brought on 23 April 1997 by the Commission of                       case of Public Prosecutor v. Gunnar Nilsson, Per Olov
the European Communities against the Kingdom of                                              Hagelgren and Solweig Arrborn
                                 Belgium                                                             ( Case C-162/97 )
                             Case C-155/97 )
                                                                                ( 97/C 181 / 17 )
                             ( 97/C 181 / 16 )
                                                                           Reference has been made to the Court of Justice of the
An action against the Kingdom of Belgium was brought                       European Communities by an order of the Helsingborgs
before the Court of Justice of the European Communities                    Tingsratt ( District Court, Helsingborg ) of 28 April 1997,
on 23 April 1997 by the Commission of the European                         which was received at the Court Registry on 30 April
Communities, represented by Wouter Wils, of its Legal                      1997, for a preliminary ruling in the case of Public
Service, acting as Agent, with an address for service in                   Prosecutor v. Gunnar Nilsson, Per Olov Hagelgren and
Luxembourg at the office of Carlos Gomez de la Cruz,                       Solweig Arrborn on the following questions :
Wagner Centre, Kirchberg.
                                                                           1 . Do Article 30 of the EC Treaty and Directive 87/328/
The Commission of the European Communities claims                               EEC (') allow a national authority to scrutinize, for
that the Court should :
                                                                                authorization purposes, insemination operations using
                                                                                cattle sperm, that is to say the gathering of sperm,
— declare that,                                                                 handling and distribution of sperm and insemination ,
                                                                                in the way indicated above ?
      — by failing to bring to an end the infringement
           described    in Article      1  of the  abovementioned          2 . Do Article 30 of the Treaty of Rome and Directive 87/
           decision within the prescribed period, and                           328/EEC allow a Member State to prohibit, or lay
                                                                                down conditions for, insemination and breeding of
                                                                                cattle :
      — in the alternative, in any event, by failing to
           inform the Commission within the prescribed
           period of the measures adopted to that end,                          ( a ) for a purpose which, according to a national
                                                                                authority, can entail suffering for animals or affect
                                                                                their natural behaviour ?
      the Kingdom of Belgium has failed to fulfil its
       obligations under Article 2 of the Commission's
       decision of 28 June 1995 (') relating to a proceeding                    ( b ) using a certain breed which is regarded by a
       pursuant to Article 90 ( 3 ) of the EC Treaty;                                 national authority as having genetic defects ?
— order the Kingdom of Belgium to pay the costs .                          3 . ( a ) Does interpretation of the preamble to Directive
                                                                                87/328/EEC allow national exceptions from
                                                                                approval for artificial insemination in its territory
Pleas in law and main arguments adduced in support:                                   as far as concerns animals with an undesirable
                                                                                pedigree — even where those exceptions entail a
                                                                                prohibition in relation to animals which fulfil the
The Commission's decision of 28 June 1995 referred to in                              requirements laid down in Article 2 of the
the applicant's submissions requires the Kingdom of                                   Directive ?
Belgium to take the measures necessary to bring to an end
the system of discounts on landing fees at Brussels
National Airport ( Zaventem ) which infringes Article 90                        ( b ) If so, can the individual Member State be left to
( 1 ) of the Treaty, read in conjunction with Article 86                              define 'impairment of the pedigree' and 'hereditary
thereof.                                                                              defects '?
                                                                           (') OJ No L 167, 26 . 6 . 1987, p . 54 .
Since it has received no information from the Belgian
Government regarding the adoption of measures bringing
the infringement to an end within the time-limit set by the


title: Case F-139/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Kurrer v Commission (Civil Service — Officials — Appointment — Temporary agents appointed as officials — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules governing classification in grade at the time of recruitment — Classification in grade pursuant to the new, less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/56

         Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Kurrer v Commission
   (Case F-139/06) (1)

   (Civil Service - Officials - Appointment - Temporary agents appointed as officials - Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations - Transitional rules governing classification in grade at the time of recruitment - Classification in grade pursuant to the new, less favourable rules - Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)
   2010/C 234/101
   Language of the case: French

      Parties

      Applicant: Christian Kurrer (Watermael-Boitsfort, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: European Commission (represented by: J. Currall and H. Krämer, Agents)

      Intervener in support of the defendant: Council of the European Union (represented by: B. Driessen and M. Simm, Agents)

      Re:

   Annulment of the Commission decision, effective from 1 April 2006, by which the applicant — a member of the temporary staff in grade A7 (now grade A*8) and a successful candidate in Open Competition COM/A/3/03 — was appointed as an official in grade A*6, step 2, pursuant to the provisions of Annex XIII to the Staff Regulations, without maintenance of the points which he had accumulated as a member of the temporary staff

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the parties to bear their own respective costs.

      (1)  OJ C 20 of 27.01.07, p. 39.


title: Case T-248/03: Action brought on 30 June 2003 by Société des Produits Nestlé S.A. against the Office for Harmonisation in the Internal Market

text:
C 239/18                  EN                          Official Journal of the European Union                                         4.10.2003
Pleas in law and main arguments                                               Action brought on 30 June 2003 by Société des Produits
                                                                              Nestlé S.A. against the Office for Harmonisation in the
                                                                                Internal Market
The applicant invokes the same pleas in law as in Case T-218/
03 (1).
                                                                                (Case T-248/03)
( 1) See p. 9 of this Official Journal.
                                                                                (2003/C 239/36)
                                                                              (Language of the case to be determined pursuant to Article 131(2)
                                                                              of the Rules of Procedure — language in which the application was
                                                                                submitted: English)
Action brought on 13 June 2003 by Cecil Sharkey against
        the Commission of the European Communities                            An action against the Office for Harmonisation in the Internal
                                                                              Market (Trade Marks and Designs) (OHIM) was brought before
                                                                              the Court of First Instance of the European Communities on
                             (Case T-240/03)
                                                                              30 June 2003 by Société des Produits Nestlé S.A., Vevey,
                                                                              Switzerland, represented by Mr J. Evrard, lawyer.
                            (2003/C 239/35)
                                                                              Grupo Kalise Menorquina, S.A. was also a party to the
                      (Language of the case: English)                         proceedings before the Board of Appeal.
                                                                              The applicant claims that the Court should:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                              —     annul the decision of the Second Board of Appeal of
European Communities on 13 June 2003 by Cecil Sharkey,
                                                                                28 April 2003;
Clogherhead, (Ireland), represented by P. Gallagher and A.
Collins, Barristers, and D. Barry, Solicitor.
                                                                              —     order for payment of all costs of the proceedings against
                                                                                the OHIM.
The applicant claims that the Court should:
—      annul the decision contained in Article 2 of Commission
       Decision of 4 April 2003 on the requests received by the               Pleas in law and main arguments
       Commission to increase in MAGP IV objectives to take
       into account improvements on safety, navigation at sea,
       hygiene, product quality and working conditions for                    Applicant for the Com-         Société des Produits Nestlé S.A.
       vessels of more than 12 m in length overall notified                   munity trade mark:
       under document number C(2003) 1113 to reject a safety
       capacity application in respect of the MFV Endurance;                  Community trade mark           The figurative mark ‘POLO POLO’
                                                                              sought:                        (application No 803429) for
—      order the Commission to pay the costs of these proceed-                                               goods in class 30 (a.o. cocoa and
       ings.                                                                                preparations having a base of
                                                                                cocoa, chocolate products, con-
                                                                                fectionery, sweets, sugar, chewing
                                                                                gum).
Pleas in law and main arguments
                                                                              Proprietor of mark or          Grupo Kalise Menorquina S.A.
                                                                              sign cited in the oppo-
                                                                              sition proceedings:
The applicant invokes the same pleas in law as in Case T-218/
03 (1).
                                                                              Mark or sign cited in          The Spanish national word mark
                                                                              opposition:                    ‘POLOS’ for goods in the old
( 1) See p. 9 of this Official Journal.                                                                      Spanish class 7 (a.o. ice creams,
                                                                                cocoas, chocolate products, cara-
                                                                                mels, general confectionery prod-
                                                                                ucts).
 ---pagebreak--- 4.10.2003             EN                          Official Journal of the European Union                                        C 239/19
Decision of the Oppo-         Partial admission of the oppo-              Pleas in law and main arguments
sition Division:              sition and allowance to proceed
                              to registration of the Community
                              trade mark for the following                The purpose of the present action is to challenge the legality
                              goods: cocoa, sugar and chewing             of the implied decision rejecting the complaint by the applicant
                              gum.                                        against her suspension from her duties following her removal
                                                                          from the post of Accounting Officer and Budget Execution
                                                                          Director in Directorate General Budget, and her transfer to the
Decision of the Board of      Dismissal of the appeal lodged by
Appeal:                       Société des Produits Nestlé.                position of Principal Adviser in Directorate General Personnel
                                                                          and Administration, as the result of a disciplinary procedure.
Pleas in law:                 According to the applicant there
                              is no likelihood of confusion               This application is based on the following elements:
                              between the two marks and it
                              refers in this respect to a judgment        —     Breach of Article 25 of the Staff Regulation, through
                              of the Superior Court of justice in               the adoption of a measure resulting in the applicant’s
                              Madrid that allegedly stated that                 suspension without adequate grounds therefore, in the
                              Menorquina was not entitled to                    absence of any breach of Articles 12, 21 or 60 of the
                              oppose the use of the word mark                   Staff Regulation.
                              ‘POLO’ in Spain.
                                                                          —     Breach of Article 88 of the Staff Regulation, in the
                                                                                absence of any serious misconduct that may justify the
                                                                                urgent need to exclude her from the working place.
                                                                          —     Breach of the principle of proportionality, in as much as
                                                                                the measure in question is to be qualified as dispro-
                                                                                portionnal in relation to the allegations made against her.
                                                                          —     Breach of the rights of defence, through the adoption of
Action brought on 27 June 2003 by Marta Andreasen                               a suspension measure without ensuring the possibility of
  against the Commission of the European Communities                            the applicant being heard and protecting her rights.
                       (Case T-250/03)
                       (2003/C 239/37)
                                                                          Action brought on 2 July 2003 by Albert Albrecht GmbH
                  (Language of the case: English)                         + Co.KG & 9 others against the Commission of the
                                                                                European Communities
                                                                                (Case T-251/03)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                        (2003/C 239/38)
European Communities on 27 June 2003 by Marta Andreasen,
Brussels, Belgium, represented by I. Forrester, QC.                                         (Language of the case: English)
The applicant claims that the Court should:
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
—     annul the implied decision of the Commission rejecting              European Communities on 2 July 2003 by Albert Albrecht
      the Applicant’s appeal against her suspension from her              GmbH + Co.KG, Aulendorf, Germany, AniMedica GmbH,
      duties;                                                             Senden-Bösensell, Germany, Ceva Tiergesundheit GmbH, Düs-
                                                                          seldorf, Germany, Fatro S.p.A., Bologna, Italy, Laboratorios
—     award her pecuniary damages for an amount of money                  Syva S.A., León, Spain, Laboratorios Virbac S.A., Barcelona,
      to be fixed by the Court, plus interest at 5 % or at such           Spain, Química Farmacéutica Bayer S.A., Barcelona, Spain,
      other rate as may be fixed by the Court;                            Univete Técnica Pecuaria Comercio Industria, Lda, Lisboa,
                                                                          Portugal, Vétoquinol Especialidades Veterinarias S.A., Madrid,
                                                                          Spain, Virbac S.A., Carros, France, represented by D. Wael-
—     award her the costs of the present action.                          broeck, U. Zinsmeister and N. Rampal, lawyers.


title: Case T-13/07: Action brought on 12 January 2007 — Cemex UK Cement v Commission

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/37

         Action brought on 12 January 2007 — Cemex UK Cement v Commission
   (Case T-13/07)
   (2007/C 56/70)
   Language of the case: English
   Parties

      Applicant: Cemex UK Cement Ltd (Thorpe, United Kingdom), (represented by: D. Wyatt QC, S. Taylor, Solicitor, S. Tromans and C. Thomann, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               to annul the Commission decision of 29 November 2006, concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC (1); insofar as

                           —

                           the latter decision failed to object to/approved an allocation of allowances to the applicant in respect of its Rugby plant which was inadequate and unlawful to the extent of 343 838 tonnes;

                           —

                           the latter decision failed to object to/approved an allocation to cement manufacturers in competition with the applicant which was excessive and unlawful to the extent of the 343 838 tonnes comprising as it did the under-allocation to the applicant;

                           —

                           the latter decision failed to object to/approved the allocation methodology laid down in paragraphs 3(7) and 3(8) of the UK national allocation plan, and paragraphs 28 and 30 of Appendix C to the UK national allocation plan insofar as the latter methodology treats a cement plant as commencing operations in a year in which the plant was undergoing commissioning, and treats this year as the first year of operation of such a plant, and calculates emission allowances on the basis of average emissions for the baseline period 2000-2003, excluding the lowest year's emissions, regardless of the actual length of the commissioning period of the plant in question;

               —

               to order the Commission to bear the applicant's costs.

         Pleas in law and main arguments
   The application at stake is made pursuant to Article 230 EC for the annulment, in relevant part, of Commission decision of 29 November 2006 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC of the European Parliament and of the Council.
   The grounds for annulment advanced by the applicant are mainly that the Commission allegedly failed to object to/approved an under-allocation of allowances to the applicant's Rugby plant, which, according to the applicant:

               —

               unlawfully discriminates against that plant by failing to take sufficient account of the latter plant's period of commissioning, and by basing the allocation to the plant on a period of emissions which the United Kingdom authorities knew to be unrepresentative;

               —

               restricts the right of establishment of the applicant's parent company Cemex Espana, since it allegedly hinders and makes less attractive the exercise by the latter of a fundamental freedom, and cannot be justified by imperative requirements in the general interest; and

               —

               along with the resulting over-allocation to the applicant's competitors, amounts to state aid contrary to Article 87 and 88 EC.

      (1)  Directive 2003/87/EC of the European Parliament and of the Council concerning the establishment of a scheme for greenhouse gas emission allowance trading in the Community and amending Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).


title: Case C-397/03 P: Appeal brought on 24 September 2003 by Archer Daniels Midland Company and Archer Daniels Midland Ingredients Limited against the judgment delivered on 9 July 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-224/00 between Archer Daniels Midland Company and Archer Daniels Midland Ingredients Limited and the Commission of the European Communities

text:
15.11.2003             EN                       Official Journal of the European Union                                             C 275/33
The applicant claims that the Court should:                             scheme constitutes State aid and must therefore be approved
                                                                        by the Commission is not substantiated by the explicit and
1.    Annul Commission Decision SG (2003) D/230248 of                   coherent statement of reasons required for such a conclusion.
      26 June 2003 concerning Aid measure No N 35/2003
      relating to tradeable NO x emission rights in so far as the
      Commission takes the view in that decision that the               (1) OJ L 213, 30.7.1998, p. 13.
      notified measure constitutes State aid for the purposes of
      Article 87(1) EC (1);
2.    Order the Commission to pay the costs.
Pleas in law and main arguments
                                                                        Appeal brought on 24 September 2003 by Archer Daniels
                                                                        Midland Company and Archer Daniels Midland Ingredi-
The applicant, namely the Kingdom of the Netherlands,                   ents Limited against the judgment delivered on 9 July
notified the Commission under Article 88(3) EC of the ‘NOx              2003 by the Fourth Chamber of the Court of First
emission rights trading scheme’. It requested a decision by the         Instance of the European Communities in case T-224/
Commission that that scheme ‘does not constitute aid’ within            00 (1) between Archer Daniels Midland Company and
the meaning of Article 4(2) of Regulation No 659/99/EC (OJ              Archer Daniels Midland Ingredients Limited and the
1999 L 83, p. 1). By the scheme, the Netherlands Government                      Commission of the European Communities
has complied with its obligations to transpose Directive 2001/
81/EC of the European Parliament and of the Council of
23 October 2001 on national emission ceilings for certain                                       (Case C-397/03 P)
atmospheric pollutants (OJ 2001 L 309, p. 22) in so far as
reductions in emissions by large industrial plants are con-
cerned. With respect to the Netherlands, that directive lays                                     (2003/C 275/50)
down a national NO x emission ceiling of 260 kilotonnes,
which is to be achieved by 2010. By the contested decision of
24 June 2003, the Commission concluded that the measure
constitutes State aid and declared that it had no objection to
the notified measure. The Commission takes the view that the            An appeal against the judgment delivered on 9 July 2003 by
measure is a valuable contribution to Community environmen-             the Fourth Chamber of the Court of First Instance of the
tal policy.                                                             European Communities in case T-224/00 between Archer
                                                                        Daniels Midland Company and Archer Daniels Midland
                                                                        Ingredients Limited and the Commission of the European
Although the Netherlands Government welcomes the fact that              Communities, was brought before the Court of Justice of the
the European Commission has not objected to the measure,                European Communities on 24 September 2003 by Archer
notified by it on a precautionary basis, it seeks, by this action,      Daniels Midland Company, established in Decatur, Illinois
annulment of the Decision in so far as the Commission                   (United States of America) and Archer Daniels Midland
concludes therein that the notified measure constitutes State           Ingredients Limited, established in Erith (United Kingdom),
aid. The Netherlands Government takes the view that it does             represented by C.O. Lenz, L. Martin Alegi, E.W. Batchelor and
not in any way constitute aid.                                          M. Garcia, lawyers, with an address for service in Luxembourg.
In support of its action, the Netherlands Government submits            The Appellants claim that the Court should:
that there has been an infringement of Article 87 EC. The
Netherlands scheme makes no use of State resources within
the meaning of Article 87(1) EC. The measures relating to               (i)   set aside the judgment in so far as it dismisses the
emission rights are financed entirely by private funds. Any                   application brought by ADM in respect of the Decision (2);
profit made by undertakings on the sale of credits does not
arise from the allocation of rights by the State but from the           (ii) annul Article 2 of the Decision in so far as it pertains to
undertakings’ own earnings made as a result of above-                         ADM;
standard performance. The undertakings are not placed at any
advantage. There is therefore no question of aid distorting
competition or affecting trade.                                         (iii) in the alternative to (ii), modify Article 2 of the Decision
                                                                              to reduce further or cancel the fine imposed on ADM;
The applicant further claims that there has been an infringe-           (iv) in the alternative to (ii) and (iii), refer the case back to the
ment of the principle that reasons must be stated. The                        CFI for judgment in accordance with the judgment of the
Commission’s conclusion that the NOx emission rights trading                  ECJ as to the law;
 ---pagebreak--- C 275/34                EN                         Official Journal of the European Union                                          15.11.2003
(v) in any event, order that the Commission bear its own                   (5) the CFI distorts the evidence by finding that the Com-
      costs and pay ADM’s costs relating to the proceedings                      mission has proven actual economic impact as the
      before the CFI and the ECJ.                                                evidence in question does not analyse price levels absent
                                                                                collusion and therefore cannot show that prices were
                                                                                higher than they otherwise would have been;
                                                                           (6) the CFI infringes the principle that the Commission must
                                                                                follow self-imposed rules by permitting the Commission
                                                                                to infringe the Guidelines;
Pleas in law and main arguments
                                                                           (7) the CFI infringes the principle of proportionality, as
                                                                                interpreted by the ECJ and CFI, which requires that fines
The grounds relied upon by the Appellants are as follows:                        bear some relationship to relevant turnover.
(1) the CFI infringes the principle of non-retroactivity by                (1) OJ C 316, 4.11.2002, p. 32.
      upholding the Commission’s retroactive application of                (2) 2001/418/EC: Commission Decision of 7 June 2000 relating to a
      the Guidelines on Fines;                                                 proceeding pursuant to Article 81 of the EC Treaty and Article 53
                                                                               of the EEA Agreement (Case COMP/36.545/F3 Amino Acids)
                                                                               (Text with EEA relevance) (OJ L 152, 7.6.2001, p. 24).
(2) the CFI infringes the principle of equality:
      (a)   by upholding the Commission’s discrimination as
            to the method of calculation of fines applied to
            contemporaneous competition law infringements
            depending on whether the Commission adopts its
            decision before or after publication of the Guide-
            lines;
                                                                           Reference for a preliminary ruling by the Helsingin
      (b)   by upholding an equal starting point for the fine on           Hallinto-oikeus by order of that Court of 22 September
            ADM and Ajinomoto, notwithstanding Ajinomoto’s                        2003 in the case brought by E. Gavrielides Oy
            market share in the EEA is almost twice the size of
            ADM’s;
                                                                                (Case C-398/03)
(3) the CFI infringes the principle of ne bis in idem by holding
      that the Commission is not required to set off or take
                                                                                (2003/C 275/51)
      into account fines paid by ADM to other authorities in
      respect of the same actions;
(4) the CFI infringes the duty to state reasons:
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Helsingin Hallinto-
                                                                           oikeus (Helsinki Administrative Court) of 22 September 2003,
      (a)   in finding that the Commission is not required to              received at the Court Registry on 24 September 2003, for a
            take account of fines paid by ADM in third countries           preliminary ruling in the case brought by E. Gavrielides Oy on
            notwithstanding that the Commission’s fine is based,           the following questions:
            inter alia, on ADM’s global turnover and therefore
            penalises ADM on the basis of its sales in countries
            where ADM has already been fined;
                                                                           Is Article 1(1) of Council Directive 90/642/EEC of 27 Novem-
                                                                           ber 1990 (1) on the fixing of maximum levels for pesticide
      (b)   in finding that the fine is reasonable notwithstanding         residues in and on certain products of plant origin, including
            the Commission’s failure to take into account ADM’s            fruit and vegetables, as subsequently amended, to be interpret-
            EEA lysine sales;                                              ed as meaning that the directive applies to leaves of the vine?


title: Case T-435/07: Judgment of the Court of First Instance of 26 November 2008 — New Look v OHIM (NEW LOOK) (Community trade mark — Application for the Community word mark NEW LOOK — Absolute ground for refusal — Lack of distinctive character acquired through use — Article 7(3) of Regulation (EC) No 40/94)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/28

         Judgment of the Court of First Instance of 26 November 2008 — New Look v OHIM (NEW LOOK)
   (Case T-435/07) (1)

   (Community trade mark - Application for the Community word mark NEW LOOK - Absolute ground for refusal - Lack of distinctive character acquired through use - Article 7(3) of Regulation (EC) No 40/94)
   (2009/C 19/54)
   Language of the case: English
   Parties

      Applicant: New Look Ltd (Weymouth, United Kingdom) (represented by: S. Malynicz, Barrister, and M. Blair and K. Gilbert, Solicitors)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Agent)
   Re:
   Action against the decision of the Second Board of Appeal of OHIM of 3 September 2007 (Case R 670/2007-2) relating to the registration of the word sign NEW LOOK as a Community trade mark
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders New Look Ltd to pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Case C-72/15: Judgment of the Court (Grand Chamber) of 28 March 2017 (request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Divisional Court) — United Kingdom) — PJSC Rosneft Oil Company, formerly OJSC Rosneft Oil Company v Her Majesty’s Treasury, Secretary of State for Business, Innovation and Skills, The Financial Conduct Authority (Reference for a preliminary ruling — Common Foreign and Security Policy (CFSP) — Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine — Provisions of Decision 2014/512/CFSP and Regulation (EU) No 833/2014 — Validity — Jurisdiction of the Court — EU Russia Partnership Agreement — Obligation to state reasons — Principles of legal certainty and nulla poena sine lege certa — Access to capital markets — Financial assistance — Global Depositary Receipts — Oil sector — Request for interpretation of concepts of ‘shale’ and ‘waters deeper than 150 metres’ — Inadmissibility)

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/2

         Judgment of the Court (Grand Chamber) of 28 March 2017 (request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Divisional Court) — United Kingdom) — PJSC Rosneft Oil Company, formerly OJSC Rosneft Oil Company v Her Majesty’s Treasury, Secretary of State for Business, Innovation and Skills, The Financial Conduct Authority
   (Case C-72/15) (1)

   ((Reference for a preliminary ruling - Common Foreign and Security Policy (CFSP) - Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine - Provisions of Decision 2014/512/CFSP and Regulation (EU) No 833/2014 - Validity - Jurisdiction of the Court - EU Russia Partnership Agreement - Obligation to state reasons - Principles of legal certainty and nulla poena sine lege certa - Access to capital markets - Financial assistance - Global Depositary Receipts - Oil sector - Request for interpretation of concepts of ‘shale’ and ‘waters deeper than 150 metres’ - Inadmissibility))
   (2017/C 161/02)
   Language of the case: English

      Referring court

   High Court of Justice (England & Wales), Queen’s Bench Division (Divisional Court)

      Parties to the main proceedings

      Applicants: PJSC Rosneft Oil Company, formerly OJSC Rosneft Oil Company

      Defendants: Her Majesty’s Treasury, Secretary of State for Business, Innovation and Skills, The Financial Conduct Authority

      Operative part of the judgment

               1.

               Articles 19, 24 and 40 TEU, Article 275 TFEU, and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Court of Justice of the European Union has jurisdiction to give preliminary rulings, under Article 267 TFEU, on the validity of an act adopted on the basis of provisions relating to the Common Foreign and Security Policy (CFSP), such as Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as amended by Council Decision 2014/872/CFSP of 4 December 2014, provided that the request for a preliminary ruling relates either to the monitoring of that decision’s compliance with Article 40 TEU, or to reviewing the legality of restrictive measures against natural or legal persons;

               2.

               Examination of the second question has disclosed nothing capable of affecting the validity of Article 1(2)(b) to (d) and (3), and Article 7 of, and Annex III to, Decision 2014/512, as amended by Decision 2014/872, or of Articles 3 and 3a, Article 4(3) and (4), Article 5(2)(b) to (d) and (3), and Article 11 of, and Annexes II and VI to, Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as amended by Council Regulation (EU) No 1290/2014 of 4 December 2014;
               The principles of legal certainty and nulla poena sine lege certa must be interpreted as meaning that they do not preclude a Member State from imposing criminal penalties that are to be applied in the event of an infringement of the provisions of Regulation No 833/2014, as amended by Regulation No 1290/2014, in accordance with Article 8(1) of that regulation, before the scope of those provisions and, therefore, the scope of the associated criminal penalties, has been clarified by the Court of Justice of the European Union.

               3.

               The expression ‘financial assistance’ in Article 4(3)(b) of Regulation No 833/2014, as amended by Regulation No 1290/2014, must be interpreted as meaning that it does not include the processing of a payment, as such, by a bank or other financial institution;
               Article 5(2) of Regulation No 833/2014, as amended by Regulation No 1290/2014, must be interpreted as meaning that it prohibits the issuance, after 12 September 2014, of international certificates representative of share ownership (Global Depositary Receipts), pursuant to a depositary agreement concluded with one of the entities listed in Annex VI to Regulation No 833/2014, as amended by Regulation No 1290/2014, including cases where those certificates represent shares issued by one of those entities before that date.

      (1)  OJ C 155, 11.5.2015.


title: Case T-742/15 P: Appeal brought on 16 December 2015 by DD against the judgment of the Civil Service Tribunal of 8 October 2015 in Joined Cases F-106/13 and F-25/14 DD v FRA

text:
               29.3.2016

               EN

               Official Journal of the European Union

               C 111/26

         Appeal brought on 16 December 2015 by DD against the judgment of the Civil Service Tribunal of 8 October 2015 in Joined Cases F-106/13 and F-25/14 DD v FRA
   (Case T-742/15 P)
   (2016/C 111/32)
   Language of the case: English

      Parties

      Appellant: DD (Vienna, Austria) (represented by: L. Levi and M. Vandenbussche, lawyers)

      Other party to the proceedings: European Union Agency for Fundamental Rights (FRA)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               partly set aside the judgment in joint cases F-106/13 and F-25/14 of 8 October 2015;

               —

               consequently:

                           —

                           annul both decisions of the FRA (the contested reprimand and termination of contract) not just on grounds of procedure, but also on the other grounds raised in the pleas submitted in the application at first instance;

                           —

                           grant the appellant an adequate compensation for the moral damage caused by the gross illegality and irregularity of the administrative inquiry and of the decision to issue a reprimand. This moral damage is assessed ex aequo et bono at EUR 15 000;

                           —

                           grant the appellant an adequate compensation for the moral damage caused by the irregular procedure and decision of termination of contract. This moral damage is assessed ex aequo et bono at EUR 50 000;

               —

               order the FRA to pay all costs related to this appeal

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on two pleas in law.

               1.

               First plea in law, alleging that the Civil Service Tribunal committed errors of law when examining only the procedural plea of absence of hearing which led to the annulment of both the decision of reprimand and of termination of contract, and refusing to examine all other pleas submitted in the application at first instance. The appellant submits that the Civil Service Tribunal committed an error of law and an incomplete examination of the facts, a violation of Article 47 of the Charter of fundamental rights and a violation of the duty to state reasons, a violation of the principle of a good administration of justice, a violation of the principle of legitimate expectations and a manifest error of assessment.

               2.

               Second plea in law, alleging that the Civil Service Tribunal committed errors of law when rejecting the appellant’s claims for non-material damages both with regard to the decision of reprimand and the decision of termination of contract.

                           —

                           The Civil Service Tribunal committed errors of law regarding the rejection of the claim for non-material prejudice caused by the administrative inquiry, a distortion of evidence, an incomplete examination of facts, a manifest error of assessment, a violation of the notion of proof with respect to the existence of a damage as a condition for non-contractual liability, a misapplication of the principle of the rights of the defence and of Article 86(2) of the EU Staff Regulations, a violation of the duty to state reasons, a violation of the principle of legitimate expectation and a violation of Article 15 of Directive 2000/43/EC (1).

                           —

                           The Civil Service Tribunal committed an error of law regarding the rejection of the claim for non-material prejudice caused by the decision of reprimand, a distortion of evidence, a manifest error of assessment, an incomplete examination of facts, a legal error in the assessment of the prejudice, a violation of the duty to state reasons, and a violation of Article 15 of Directive 2000/43/EC.

                           —

                           The Civil Service Tribunal committed an error of law regarding the rejection of the claim for non-material prejudice caused by the termination decision, a distortion of evidence, an incomplete examination of the facts, a manifest error of assessment, a legal error in the assessment of the prejudice, a violation of the duty to state reasons, a violation of legitimate expectation, and a violation of Article 15 of Directive 2000/43/EC.

      (1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).


title: Case C-381/01: Action brought on 4 October 2001 by the Commission of the European Communities against the Italian Republic

text:
C 348/14              EN                     Official Journal of the European Communities                                       8.12.2001
Reference for a preliminary ruling from the Verwaltungs-                      Republic has failed to fulfil its obligations under the Sixth
gerichtshof by order of that court of 13 September 2001                       Council VAT Directive 77/388/EEC (2);
in the case of Dr Gustav Schneider v Bundesminister für
                              Justiz                                    —     Order the Italian Republic to pay the costs.
                         (Case C-380/01)
                                                                        Pleas in law and main arguments
                         (2001/C 348/24)
                                                                        Under Article 11(A)(1)(a) of the Directive, Member States are
                                                                        required to include in the taxable amount not only that which
                                                                        constitutes the consideration paid by the purchaser or to the
Reference has been made to the Court of Justice of the
European Communities by an order of the Verwaltungsge-                  provider of the service, but also the subsidies provided by third
                                                                        parties to the supplier of the goods or the provider of the
richtshof (Administrative Court, Austria) of 13 September
2001, which was received at the Court Registry on 4 October             service, provided that such subsidies are ‘directly linked to the
2001, for a preliminary ruling in the case of Dr Gustav                 price of such supplies’.
Schneider v Bundesminister für Justiz on the following ques-
tion:                                                                   The Commission argues that the assistance paid to the
                                                                        processing undertakings which produce dried fodder consti-
                                                                        tutes part of the price of the good produced by such
Is Article 6 of Council Directive 76/207/EEC on the implemen-           undertakings, thus falling within the category ‘subsidies directly
tation of the principle of equal treatment for men and women            linked to the price of such supplies’ and which must therefore
as regards access to employment, vocational training and                be subject to tax.
promotion, and working conditions (1) to be interpreted as
meaning that the possibility required by that article of pursuing
claims (in the present case, a claim for compensation) by               (1) OJ 1995 L 15, p. 11.
judicial process is not adequately satisfied by the Austrian            (2) OJ 1977 L 145, p. 1.
Verwaltungsgerichtshof (Administrative Court) alone, in view
of that court’s legally limited powers (a court which hears
appeals on points of law only with no fact-finding powers)?
(1) OJ 1976 L 39, p. 40.
                                                                        Action brought on 5 October 2001 against the French
                                                                        Republic by the Commission of the European Communi-
                                                                                ties
                                                                                (Case C-384/01)
Action brought on 4 October 2001 by the Commission
of the European Communities against the Italian Republic                                          (2001/C 348/26)
                         (Case C-381/01)
                                                                        An action against the French Republic was brought before the
                                                                        Court of Justice of the European Communities on 5 October
                         (2001/C 348/25)
                                                                        2001 by the Commission of the European Communities,
                                                                        represented by E. Traversa and C. Giolito, acting as Agents,
                                                                        with an address for service in Luxembourg.
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 October               The Commission of the European Communities claims that
2001 by the Commission of the European Communities,                     the Court should:
represented by Enrico Traversa, acting as Agent.
                                                                        —     Declare that, by applying a reduced rate of VAT to the
                                                                              fixed part of the prices for gas and electricity supplied by
The applicant claims that the Court should:                                   the public networks, the French Republic has failed to
                                                                              fulfil its obligations under Article 12(3)(a) and (b) of Sixth
—     Declare that, by failing to levy value added tax (VAT) on               Council Directive 77/388/EC of 17 May 1977 on the
      the assistance paid pursuant to Council Regulation (EC)                 harmonisation of the laws of the Member States relating
      No 603/95 of 21 February 1995 on the common                             to turnover taxes — Common system of value added tax:
      organisation of the market in dried fodder (1), the Italian             uniform basis of assessment (1),