title: Case T-201/99: Action brought on 9 September 1999 by Royal Olympic Cruises Ltd, Valentine Oceanic Trading Inc., Caroline Shipping Inc., Simpson Navigation Ltd, Solar Navigation Corporation, Ocean Quest Sea Carriers Ltd, Athena 2004 SA, Elliniki Etairia Diipirotikon Grammon AE and Freewind Shipping Company against the Council of the European Union and the Commission of the European Communities

text:
C 366/28               EN                       Official Journal of the European Communities                                    18.12.1999
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               office is in Piraeus, Greece, represented by Nikolaos Skandamis,
                           INSTANCE                                        of the Athens Bar, and Andreas Potamianos of the Piraeus Bar,
                                                                           with an address for service in Luxembourg at the Chambers of
                         of 16 July 1999                                   Stéphan Le Goueff, 9 Avenue Guillaume, L-1651 Luxembourg.
in Case T-143/99 R: Hortiplant SAT v Commission of the                     The applicants claim that the Court should:
                    European Communities
                                                                           — grant their application in its entirety;
           (Procedure for interim relief — Urgency)
                                                                           — declare that, by collaborating in acts of the European
                                                                               Union which are unlawful under international law, the
                        (1999/C 366/60)
                                                                               Council of the European Union and the Commission of
                                                                               the European Communities have offended against the
                                                                               fundamental Community law principle of the protection
                  (Language of the case: Spanish)
                                                                               of legitimate expectations in the field of the freedom
                                                                               to provide maritime transport services and maritime
In Case T-143/99 R: Hortiplant SAT, whose registered office is                 recreational services;
at Amposta, (Spain), represented by Concepción Fernández
Vicien, of the Barcelona Bar, and Eva Contreras Ynzenga, of the            — award the applicants USD 73 963 000 in damages under
Madrid Bar, Cuatrecasas Chambers, 78 Avenue d’Auderghem,                       Article 235 EC and the second paragraph of Article 288
1040 Brussels, against Commission of the European Com-                         EC.
munities (Agent: Juan Guerra Fernández) — application for
suspension of operation of Commission Decision C (1999)
537 of 4 March 1999 withdrawing Community aid granted
— the President of the Second Chamber of the Court of First                Pleas in law and main arguments
Instance made an order on 16 July 1999, the operative part of
which reads as follows:                                                    Admissibility of the action
1. The application for interim relief is dismissed.                        A. Legal interest in bringing proceedings
2. Costs are reserved.
                                                                           B. Exhaustion of domestic remedies
                                                                           Merits of the action
                                                                           A. Unlawful measures and conduct
                                                                           1. Unlawful conduct of the Member States of the European
Action brought on 9 September 1999 by Royal Olympic
                                                                               Union which are also members of NATO
Cruises Ltd, Valentine Oceanic Trading Inc., Caroline
Shipping Inc., Simpson Navigation Ltd, Solar Navigation
Corporation, Ocean Quest Sea Carriers Ltd, Athena 2004                     2. Unlawful conduct of the European Union
SA, Elliniki Etairia Diipirotikon Grammon AE and Free-
wind Shipping Company against the Council of the                               a) Collaboration of the European Union in the armed
European Union and the Commission of the European                                   intervention against the Federal Republic of Yugoslavia
                          Communities                                               as autonomous conduct which is unlawful under
                                                                                international and European Union law
                        (Case T-201/99)
                                                                               b) Legal liability of the European Union resulting from
                                                                                the unlawful obligations assumed by its members by
                        (1999/C 366/61)                                             virtue of decisions of the North Atlantic Council
                                                                           3. Unlawful conduct of the European Community
                   (Language of the case: Greek)
                                                                               a) Conduct for which the European Community is vicari-
An action against the Council of the European Union and the                         ously liable
Commission of the European Communities was brought
before the Court of First Instance of the European Communities                 b) Autonomous unlawful conduct of the European Com-
on 9 September 1999 by Royal Olympic Cruises Ltd, Valentine                         munity
Oceanic Trading Inc., Caroline Shipping Inc., Simpson Navi-
gation Ltd, Solar Navigation Corporation, Ocean Quest Sea                           (i) Infringement of a superior rule of law for the
Carriers Ltd, Athena 2004 SA and Freewind Shipping Com-                                  protection of individuals
pany whose registered offices are in Monrovia, Liberia, and
Elliniki Etairia Diipirotikon Grammon AE, whose registered                          (ii) Sufficiently serious breach
 ---pagebreak--- 18.12.1999            EN                     Official Journal of the European Communities                                        C 366/29
Harm                                                                    Pleas in law and main arguments
1. Loss of income due to cancelled and lost bookings                    The applicant contests the finding that her absences were
                                                                        unlawful, submitting that:
    a) Cancelled bookings
                                                                        — the Council infringed Article 59(3) of the Staff Regulations
    b) Lost bookings                                                         in refusing to request the Invalidity Committee to deter-
                                                                             mine the validity of the medical certificates submitted by
                                                                             the applicant as evidence that her absences were caused by
2. Loss of income by reason of reduction of the price of the                 illness; and
    services offered
                                                                        — the Council is in breach of its obligations to give reasons
3. Harm resulting from the increased burden on the budget                    for its decisions and to respect the rights of the defence, in
    for financing the construction of new ships, by reasony of               that it has failed to produce any information of a medical
    interest due on additional borrowing                                     nature which would enable the doctor treating the appli-
                                                                             cant to understand the reasons which have led the medical
4. Lower profits by reason of loss of income in future seasons               officers checking the certificates submitted to question
    and of clientele.                                                        their validity.
                                                                        As regards the disciplinary action, the applicant points out
                                                                        that this was taken following her refusal to undergo periodical
                                                                        medical examinations. She emphasises in this connection that
                                                                        she was acting on the advice of her own doctor who believed
                                                                        that such examinations might have a deleterious effect on her
                                                                        health, a view which, according to the applicant, was recently
                                                                        confirmed by the Invalidity Committee’s decision of 23 March
                                                                        1999 finding her definitively incapable of performing her
Action brought on 30 September 1999 by Gitte Rasmus-                    duties in view of the seriousness of the illness afflicting her.
         sen against Council of the European Union                      The applicant argues that she is not in breach, therefore, of the
                                                                        Staff Regulations and that, consequently, the decision to take
                       (Case T-221/99)                                  disciplinary action lacks legal foundation and, at the very least,
                                                                        is vitiated by a manifest error of assessment.
                       (1999/C 366/62)
                                                                        Lastly, the applicant maintains that, by requiring her to
                                                                        undergo medical examinations deleterious to her health, the
                                                                        Council acted in dereliction of its duty on a number of counts,
                  (Language of the case: French)                        thereby incurring liability.
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 30 September 1999 by Gitte Rasmussen,
residing in Brussels, represented by Jean-Noël Louis, Greta-
Françoise Parmentier and Véronique Peere, of the Brussels Bar,
with an address for service in Luxembourg at the offices of
Fiduciaire Myson SARL, 30 Rue de Cessange.                              Action brought on 5 October 1999 by Jean-Claude Marti-
                                                                        nez and Charles de Gaulle against the European Parliament
The applicant claims that the Court should:
                                                                                (Case T-222/99)
— annul the Council decision declaring that the applicant’s
    absences between 28 September 1998 and 18 March 1999                                          (1999/C 366/63)
    were unlawful;
— annul the Council’s decision to issue the applicant with a                                 (Language of the case: French)
    written warning by way of disciplinary action;
                                                                        An action against the European Parliament was brought before
— order the Council to make a token payment to the                      the Court of First Instance of the European Communities
    applicant of one euro by way of compensation for the                on 5 October 1999 by Jean-Claude Martinez, residing at
    non-physical damage suffered;                                       Montpellier (France), and Charles de Gaulle, residing in Paris,
                                                                        represented by François Wagner, of the Nice Bar, 2 Rue de la
— order the Council to pay the costs.                                   Poissonnerie, Nice.


title: Case T-93/01: Action brought on 30 April 2001 by A. Seisenbacher Gesellschaft m.b.H. against the Commission of the European Communities

text:
11.8.2001              EN                     Official Journal of the European Communities                                      C 227/21
                               — the verbal element contained            Action brought on 27 April 2001 by Mystery Drinks
                                   in the trade mark applied for         GmbH against the Office for Harmonisation in the
                                   is not in itself subject to any                Internal Market (Trade Marks and Designs)
                                   absolute ground for refusal
                               — there is no ground for refusal                                   (Case T-99/01)
                                   on the basis of a lack of dis-
                                   tinctiveness.
                                                                                (2001/C 227/42)
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
    Community trade mark (OJ 1994 L 11, p. 1).                           (Language of the case: to be determined in accordance with
                                                                         Article 131(2) of the Rules of Procedure. Language in which the
                                                                                application was drafted: German)
                                                                         An action against the Office for Harmonisation in the Internal
                                                                         Market (Trade Marks and Designs) was brought before the
                                                                         Court of First Instance of the European Communities on
                                                                         27 April 2001 by Mystery Drinks GmbH, of Epperthausen
Action brought on 30 April 2001 by A. Seisenbacher                       (Germany), represented by Dr Thomas Jestaedt, Dr Verena von
Gesellschaft m.b.H. against the Commission of the Euro-                  Bomhard and Dr Andreas Renck, lawyers. A further party
                       pean Communities                                  before the Board of Appeal was Karlsberg Brauerei KG Weber,
                                                                         of Homburg (Germany).
                          (Case T-93/01)
                                                                         The applicant claims that the Court should:
                         (2001/C 227/41)                                 —     annul the decision of Third Board of Appeal of the Office
                                                                               for Harmonisation in the Internal Market (Trade Marks
                                                                               and Designs) of 12 February 2001 (R 251/2000-3);
                   (Language of the case: German)                        —     order the defendant to pay the costs.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Pleas in law and main arguments
European Communities on 30 April 2001 by A. Seisenbacher
Gesellschaft m.b.H., represented by Dr Johannes Stieldorf,               Applicant for the Com-        the applicant
Lawyer.                                                                  munity trade mark:
The applicant claims that the Court should:                              Community trade mark          the figurative mark ‘MYSTERY’ for
                                                                         applied for:                  goods in Classes 29 and 30 and
—     order the European Community to pay the applicant the                                            ‘non-alcoholic drinks with the
      sum of ECU 59 694,44 together with interest at 13 %                                              exception of non-alcoholic beer’
      from 20 October 1998 and the costs of the case.                                                  in Class 32.
                                                                         Proprietor of the right       Karlsberg Brauerei KG Weber
Pleas in law and main arguments                                          to a trade mark or sign
                                                                         asserted in the oppo-
Following an invitation to tender concerning the renovation              sition proceedings:
of the European Community building in Kiev, a contract was
concluded between Ost-Invest und Bauprojektmanagement                    Right to a trade mark or      the word mark ‘MIXERY’ for ‘beer
GmbH. and the Commission. On account of the financial                    sign asserted:                and drinks containing beer’ in
situation of that company, the applicant as general contractor                                         Class 32
was to fulfil that contract vis-à-vis the Commission.
                                                                         Decision of the Oppo-         dismissal of the opposition
                                                                         sition Division:
After the restored building had been handed over, the applicant
requested settlement of its final account of ECU 59 694,44.              Decision of the Board of      cancellation of the decision of the
Following investigations the applicant discovered that payment           Appeal:                       Opposition Division, in so far
of ECU 55 000,00 had been made to another company, a fact                                              as the likelihood of confusion
which is, however, immaterial to the relationship between the                                          between the opposing mark and
applicant and the defendant. The applicant brings an action                                            goods in Class 32, namely ‘non-
pursuant to Article 238 EC and demands payment of the final                                            alcoholic drinks with the excep-
account.                                                                                tion of non-alcoholic beer’,
                                                                                referred to in the application was
                                                                                denied, and dismissal of the
                                                                                appeal as to the remainder.


title: Case T-288/01: Action brought on 23 November 2001 by OPI Products Inc. against the Office for Harmonisation in the Internal Market

text:
C 31/16                EN                     Official Journal of the European Communities                                         2.2.2002
—     failure by the Commission to take into account the fact            —     to order the OHIM to register the trademark ‘Nicole’ for
      that the applicant has fulfilled its obligations under the               goods of class 3 including essential oils, cosmetics, hair
      contract, whereas Clause 2(c) of the General Terms and                   lotions, dentifrices and nail polish.
      Conditions of the Contract expressly provides that a
      contractor is not to be liable for a contractor which does
      not fulfil its obligations if it can show that it has not          Pleas in law and main arguments
      contributed to such failure to fulfil obligations. In that
      regard, the defendant had overrated the obligations
      attaching to the project coordinator;                              Applicant for the Com-         OPI Products Inc.
                                                                         munity trade mark:
—     the defendant disregarded in the present case the duties           The Community trade            The verbal mark ‘Nicole’ for goods
      enshrined in Article 1375 of the Italian Civil Code so far         mark concerned:                in class 3.
      as concerns the principle of good faith and the protection
      of legitimate expectations.                                        Proprietor of the right to     Maxim Marken-Produkte GmbH
                                                                         the trade mark or sign         & Co. KG.
                                                                         asserted by way of oppo-
More generally, the applicant states that the object of the              sition in the opposition
contract in question is not for the supply of a piece of                 proceedings:
equipment or merely white goods, but of a thermal power
station whose technological characteristics should have proved           Trade mark or sign             The national verbal mark ‘Nicole’
to be something new and truly innovative. The applicant                  asserted by way of oppo-       for certain goods in class 3
therefore claims that the Commission’s conduct in the per-               sition in the opposition
formance of the contract should have been quite different to             proceedings:
that adopted, since the defendant was not in actual fact a party
to a synallagmatic contract, but a partner in the full sense of          Decision of the Oppo-          Partial rejection of the Oppo-
the word, sharing the contracting parties’ interest in developing        sition Division:               sition.
technology within the Member States.
                                                                         Decision of the Board of       Annulment of the Decision of the
                                                                         Appeal:                        Opposition Division for ‘dentrific-
                                                                                es’ in class 3 and dismissal of the
                                                                                further appeal by OPI Products
                                                                                Inc.
                                                                         Grounds of claim:              Violation of Article 43(2) of
Action brought on 23 November 2001 by OPI Products                                                      Council Regulation 40/94 in that
Inc. against the Office for Harmonisation in the Internal                                               the proof of the use of the mark
                              Market                                                                    asserted by way of opposition was
                                                                                insufficient. The applicant further
                                                                                claims a violation of article 8(1)b
                         (Case T-288/01)                                                                of Council Regulation 40/94 since
                                                                                there is no likelihood of confusion
                                                                                or similarity of goods.
                          (2002/C 31/30)
                   (Language of the case: English)
                                                                                Removal from the Register of Case T-108/00 (1)
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 23 November 2001 by OPI                                                    (2002/C 31/31)
Products Inc., represented by Mr Emmanuel Cornu and Mr Eric
De Gryse of Braun Bigwood SCRL, Brussels (Belgium).                                         (Language of the case: French)
A further party to the proceedings before the Board of Appeal
                                                                         By order of 12 September 2001, the President of the Third
was Maxim Marken-Produkte GmbH & Co. KG.
                                                                         Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the Register of
The applicant claims that the Court should:                              Case T-108/00: Santiago Gómez-Reino v Commission of the
                                                                         European Communities.
—     annul the decision of the third Board of Appeal in so far
      as it denies registration of the contested CTM application         (1) OJ C 176 of 24.6.2000.
      No 737 510 for the word mark ‘Nicole’ for ‘essential oils,
      cosmetics, hair lotions; including nail polish’ in class 3;


title: Judgment of the Court of First Instance of 10 April 2003 in Case T-186/01, Nicole Robert v European Parliament (Officials — Actions — Deadlines — Inadmissibility)

text:
19.7.2003               EN                          Official Journal of the European Union                                           C 171/23
 of the European Communities (Agents: C. Berardis-Kayser and                     JUDGMENT OF THE COURT OF FIRST INSTANCE
B. Wägenbaur) — application for annulment of the decision
of 17 April 2000 of the selection board for Open Competition                                          of 10 April 2003
COM/A/12/98 not to include the applicant on the list of
successful candidates in that competition — the Court of First
Instance (Fifth Chamber), composed of R. García-Valdecasas,                 in Case T-186/01, Nicole Robert v European Parliament (1)
President, P. Lindh and J.D. Cooke, Judges; D. Christensen,
Administrator, for the Registrar; has given a judgment on                        (Officials — Actions — Deadlines — Inadmissibility)
20 May 2003 in which it:
                                                                                (2003/C 171/35)
1.     Dismisses the application;
2.     Orders the parties to bear their own costs.                                              (Language of the case: French)
( 1) OJ C 186, 30. 6. 2001.
                                                                            In Case T-186/01: Nicole Robert, an official of the European
                                                                            Parliament, resident in Strassen (Luxembourg), represented by
                                                                            A. Lorang, lawyer, with an address for service in Luxembourg,
                                                                            against European Parliament (Agents: H. von Hertzen and
                                                                            D. Moore) — application for annulment of the decision of the
                                                                            Parliament not to promote the applicant to Grade B 1 in the
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                promotion year 1999 — the Court of First Instance (Fifth
                                                                            Chamber), composed of R. García-Valdecasas, President, and
                            of 8 May 2003                                   P. Lindh and J.D. Cooke, Judges; J. Plingers, Administrator, for
                                                                            the Registrar, has given a judgment on 10 April 2003, in
in Case T-82/01: VOF Josanne and Others v Commission                        which it:
                of the European Communities ( 1)
                                                                            1.     Dismisses the application as inadmissible;
(Inland waterway transport — Community fleet capacity —
Conditions for putting new vessels into service (‘old-for-new’              2.     Orders each of the parties to bear its own costs.
                        rule) — Exemption)
                                                                            (1 ) OJ C 317 of 10.11.01.
                           (2003/C 171/34)
                    (Language of the case: Dutch)
In Case T-82/01, VOF Josanne, established in Papendrecht
(Netherlands), Pieter van Wijnen, resident in Papendrecht,                       JUDGMENT OF THE COURT OF FIRST INSTANCE
Adrianus Jacobus van Wijnen, resident in Papendrecht, Anigje
Veen, resident in Meerkerk (Netherlands), represented by J. van                                       of 22 May 2003
Dam and Y. Ooykaas, lawyers, v Commission of the European
Communities (Agents: H. van Vliet and W. Wils): Application
for the annulment of Commission Decision SG (2001) D/                       in Case T-249/01: Marc Boixader Rivas against European
286100 of 9 February 2001 refusing the applicants’ request                                              Parliament (1)
for the exemption of the vessel Josanne from the scope of
Council Regulation (EC) No 718/1999 of 29 March 1999 on a                   (Officials — Competitions — Notice — Conditions for
Community-fleet capacity policy to promote inland waterway                  admission — Licenciatura degree or equivalent — Degree in
transport (OJ 1999 L 90, p. 1), the Court of First Instance                 technical engineering — Knowledge of a second official
(Third Chamber), composed of: K. Lenaerts, President, J. Azizi              language — Evidence — Action for annulment — Decision
and M. Jaeger, Judges; J. Plingers, Registrar, has given a                  of the selection board — Objection of illegality of the notice
judgment on 8 May 2003, in which it has ruled:                                                         of competition
1.     Dismisses the application;                                                                     (2003/C 171/36)
2.     Orders the applicants to bear their own costs and pay those of
       the Commission.                                                                         (Language of the case: Spanish)
( 1) OJ C 186 of 30.6.2001.
                                                                            In Case T-249/01: Marc Boixader Rivas, technical engineer, of
                                                                            Spanish nationality, residing in Madrid, represented by


title: Judgment of the Court of First Instance of 19 May 1999 in Case T-175/95: BASF Coatings AG v Commission of the European Communities (Competition - Article 81(1) EC (ex Article 85(1)) - Exclusive distribution agreement - Parallel imports)

text:
28.8.1999             EN                     Official Journal of the European Communities                                       C 246/23
                                                       COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                             an address for service in Luxembourg at the Chambers of
                                                                        Loesch and Wolters, 11 Rue Goethe v Commission of the
                        of 19 May 1999                                  European Communities (Agents: initially Bernd Langeheine
                                                                        and Heinz-Joachim Freund, and subsequently Wouter Wils
                                                                        and Heinz-Joachim Freund) — application for the annulment
in Case T-175/95: BASF Coatings AG v Commission of                      of Commission Decision 95/477/EC of 12 July 1995 relating
                the European Communities (1)                            to a proceeding pursuant to Article 85 of the EC Treaty (Case
                                                                        IV/33.802 — BASF Lacke + Farben AG, and Accinauto SA)
(Competition — Article 81(1) EC (ex Article 85(1)) —                    (OJ 1995 L 272, p. 16) — the Court (First Chamber), composed
     Exclusive distribution agreement — Parallel imports)               of: B. Vesterdorf, President, R.M. Moura Ramos and P. Mengoz-
                                                                        zi, Judges; J. Palacio González, Administrator, for the Registrar,
                        (1999/C 246/45)                                 has given a judgment on 19 May 1999, in which it:
                                                                        1. Dismisses the application;
                  (Language of the case: German)
                                                                        2. Orders the applicant to pay the costs.
In Case T-175/95: BASF Coatings AG (formerly BASF Lack
und Farben AG), with its registered office in Münster-Hiltrup
(Germany), represented by Ferdinand Hermanns, Rechtsan-                 (1) OJ C 315 of 25.11.1995.
walt, Düsseldorf, with an address for service in Luxembourg at
the Chambers of Loesch and Wolter, 11 Rue Goethe, against
the Commission of the European Communities (Agents:
initially Bernd Langeheine and Heinz-Joachim Freund and
subsequently by Wouter Wils and Hans-Joachim Freund)
— application for the annulment of Commission Decision
95/477/EC of 12 July 1995 relating to a proceeding pursuant
to Article 85 of the EC Treaty (Case IV/33.802 — BASF Lacke
                                                                            JUDGMENT OF THE COURT OF FIRST INSTANCE
+ Farben AG, and Accinauto SA) (OJ 1995 L 272, p. 16) —
the Court of First Instance (First Chamber), composed of B.
Vesterdorf, President, R.M. Moura Ramos, and P. Mengozzi,                                        of 19 May 1999
Judges; J. Palacio González, Administrator, for the Registrar,
has given a judgment on 19 May 1999, in which it:
                                                                        in Case T-203/95: Bernard Connolly v Commission of the
1. Dismisses the application;                                                               European Communities (1)
2. Orders the applicant to pay the costs.                               (Officials — Article 88 of the Staff Regulations — Suspen-
                                                                        sion — Admissibility — Statement of reasons — Alleged
                                                                        fault — Infringement of Articles 11, 12 and 17 of the Staff
(1) OJ C 315 of 25.11.1995.
                                                                                Regulations — Equal treatment)
                                                                                (1999/C 246/47)
                                                                                (Language of the case: French)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                        In Case T-203/95: Bernard Connolly, a former official of
                        of 19 May 1999                                  the Commission of the European Communities, residing in
                                                                        Everberg (Belgium), represented by Jacques Sambon and
in Case T-176/95: Accinauto SA v Commission of the                      Pierre-Paul Van Gehuchten, of the Brussels Bar, with an address
                  European Communities (1)                              for service in Luxembourg at the Chambers of Louis Schiltz, 2
                                                                        Rue du Fort Rheinsheim, against Commission of the European
                                                                        Communities (Agents: Gianluigi Valsesia and Julian Currall) —
(Competition — Article 81(1) EC (ex-Article 85(1)) —                    application for annulment of the decision of 27 September
     Exclusive distribution agreement — Parallel imports)               1995 by which the appointing authority decided to suspend
                                                                        the applicant from his duties and to withhold half of his basic
                        (1999/C 246/46)                                 salary with effect from 3 October 1995 — the Court of First
                                                                        Instance (First Chamber), composed of B. Vesterdorf, President,
                                                                        J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar, has given
                  (Language of the case: German)                        a judgment on 19 May 1999, the operative part of which is as
                                                                        follows:
In Case T-176/95: Accinauto SA, established in Brussels,
represented by Helmut Glassen, Rechtsanwalt, Leimen, with               1. The application is dismissed;


title: Action brought on 15 May 1996 by Sonja Edith Berlingieri Vinzek against the Commission of the European Communities (Case T-71/96)

text:
No C 233/ 10          EN                 Official Journal of the European Communities                                     10 . 8 . 96
organizations to which they belong, their task necessarily          The applicant submits that this decision was adopted in
entails an appropriate financial arrangement . Thus the fact        breach of the essential procedural requirements set out in
that members of the ESC continue to go without such an              Article 25 of the Staff Regulations . It infringes general rules
arrangement is incompatible with the nature of the task             of law relating to the application of the Treaty establishing
assigned to them by the Treaty, since it inherently                 the European Community, namely the principles of equal
presupposes that all members of the ESC are paid for those          treatment, the protection of legitimate expectations and the
services by organizations in their respective countries and         prohibition of retroactive withdrawal of a legal measure
that they are therefore in practice obliged , in the                which confers individual rights . The decision was also
performance of their ESC duties, to act in the interests and at     adopted without taking the applicant's rights and legitimate
the behest of those organizations .                                 interests into account .
The applicant also alleges : ( a ) breach of the principle of
equal treatment as between the various European
appointments; ( b ) breach of the principle that allowances
should compensate time devoted to the performance of
duties and the quality and quantity of work undertaken , and
not merely ( and, above all, not partially ) actual expenses        Action brought on 15 May 1996 by Sonja Edith Berlingieri
incurred .
                                                                    Vinzek against the Commission of the European
                                                                                Communities
                                                                                ( Case T-71 /96 )
                                                                                ( 96/C 233/20 )
Action brought on 13 May 1996 by John Mellett against the
      Court of Justice of the European Communities                                  (Language of the case: French)
                        Case T-66/96 )
                        ( 96/C 233/ 19 )                            An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                (Language of tbe case: Englisb)                     Instance of the European Communities on 15 May 1 996 by
                                                                    Sonja Edith Berlingieri Vinzek, residing at Sterrebeek
An action against the Commission of the European                    ( Belgium ), represented by Jean-Noël Louis , Thierry
Communities was brought before the Court of First                   Demaseure and Ariane Tornel , all of the Brussels Bar, with
Instance of the European Communities on 13 May 1996 by              an address for service in Luxembourg at the offices of
John Mellett, represented by Brendan O'Donovan, with an             Fiduciaire Myson , Sari, 1 Rue Glesener .
address for service in Luxembourg at 61 , rue des
Maraîchers, Plateau du Kirchberg.                                   The applicant claims that the Court should :
The applicant claims that the Court should :                        — annul the decision of the selection board in competition
                                                                        COM/A/955 of 28 March 1996 not to admit her to the
— annul the decision of the Administrative Committee of
    the Court of Justice of the European Communities of                 oral test in the competition,
    14 June 1995 not to commence the procedure leading to
    the establishment of Mr Mellett as a permanent official ,       — annul , in so far as necessary, the decision of the selection
    and                                                                 board in competition COM/A/955 of 16 February 1996
                                                                        not to admit her to the oral test in the competition,
— order the       defendant to     bear the   costs  of these
    proceedings .                                                   — order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
The applicant, who , as personal driver of one of its
Members, is a member of the temporary staff of the Court of         The applicant states that she obtained her veterinary degree
Justice challenges the refusal to commence a procedure              at the University of Pisa ( Italy ) in 1974 and that, since
leading to his appointment as permanent official .                  September 1974, she has been working as an independent
                                                                    consultant in various areas, and especially in the technical
The applicant states that according to a well-established           and administrative areas and in the area of veterinary
practice of the defendant institution, drivers are first            legislation . On 4 October 1995 , the Commission published
recruited as temporary officials attached to the Chambers of        the notice of open competition COM/A/955 with a view to
a Member . After three years' service, the Member would             the recruitment of principal administrators ( A4/A5 ) of
propose that a procedure leading to the establishment of the        Austrian nationality . The applicant lodged her candidature
driver as a permanent official be set in motion . An internal       within the prescribed time-limit . By letter of 16 February
competition would then be organized by the Court's                  1996 , she was informed that she had not been admitted to
administration, which would invariably lead to the driver           the oral test in the competition . Following a request by the
being established . The contested decision has departed from        applicant that the decision be re-examined, the selection
this practice .                                                     board confirmed its decision by letter of 26 March 1996 .
 ---pagebreak---  10 . 8 . 96            EN                  Official Journal of the European Communities                                  No C 233/ 11
The applicant maintains, first, that the notice of competition          head    of   another     unit  in  DG     VIII   informed    the
COM/AY/955 was unlawful in that it required the selection               Director-General and the Deputy Director-General in
board to take notice of all the candidates ' applications and           writing of a number of very negative assessments concerning
supporting documents before fixing the criteria for assessing           the manner in which the applicant performed his duties . The
their professional qualifications . As a result of the                  applicant immediately challenged those accusations, which
unlawfulness of that notice, all decisions adopted on the               he regarded as defamatory and insulting. Having carried out
basis of the notice should also be considered unlawful .                an enquiry, the Director-General concluded that no
                                                                        evidence had been adduced to support the assessments made
She also argues that she has outstanding professional                   of the applicant and decided to close the file on the matter .
qualifications and significant professional experience . The           Nevertheless, he subsequently informed the applicant that
decision not to admit her to the oral test in the competition          he had decided, first, to transfer him to unit VIII/B/5 and,
therefore cannot fail to be vitiated by a manifest error of             secondly, to retain the author of the accusations in his post
assessment .                                                           without taking any disciplinary measure against him . In a
                                                                       conversation he had on that subject with the
Finally, the Commission refused to communicate to her                  Director-General, the applicant challenged the decision,
during the pre-litigation stage any information concerning             arguing that to transfer him to a post of lesser professional
the deliberations of the selection board and, in particular, as        interest and at a lower administrative level, while
to the precise criteria fixed by the board and the time at             maintaining the other person in his post, could only be
which they were adopted . She infers that the Commission               interpreted as a disguised sanction against him . On
infringed the duty to state reasons under Article 25 of the             11 August 1 995 , the applicant was informed that the
                                                                       Commission had decided, in the context of the
Staff Regulations of officials.
                                                                       reorganization of DG VIII, to assign him as Head of the unit
                                                                       VIII/B/5 ' Sysmin ' in Directorate B ' Instruments '.
                                                                      The applicant applies for the annulment of that decision,
                                                                       and makes the following pleas in law:
Action brought on 17 May \ 996 by Miguel Forçat Icardo                 ( a ) the statement of reasons was erroneous and unfounded
  against the Commission of the European Communities                         in so far as the Commission claimed that the contested
                          ( Case T-73/96 )                                   decision was taken ' in the context of the reorganization
                                                                             of DG VIII'. The applicant maintains that, in the light of
                            ( 96/C 233/21 )
                                                                             the facts, that statement of reasons is obviously unreal,
                                                                             since he was in fact transferred after accusations which
                (Language of tbe case: French)                               were made against him, even though those accusations
                                                                             turned out to be unfounded;
An action against the Commission of the European                       ( b ) the applicant considers that the contested decision
Communities was brought before the Court of First                            disregards the interests of the service, since its effect is
Instance of the European Communities on 17 May 1996 by                       to deprive the service of a responsible person
Miguel Forçât Icardo, residing in Brussels, represented by                   unanimously recognized as competent and efficient and
Georges Vandersanden, of the Brussels Bar, with an address                   to assign him to less responsible tasks in a smaller team,
for service in Luxembourg at the offices of Fiduciaire Myson                 signifying de facto demotion in the eyes of all
Sàrl, 1 Rue Glesener .                                                       concerned ;
The applicant claims that the Court should :                          (c ) in the applicant's submission, the contested decision
                                                                             constitutes a misuse of powers, in that it was not based
                                                                             on the interests of the service and that its real
— annul the decision compulsorily to reassign the applicant
     to unit VIII/B/5 , contained in the note of F. De Koster of             motivation was not the reorganization of DG VIII but
     11 August 1995 ,                                                        the seriously defamatory and acknowledgedly
                                                                             unfounded accusations which had been made against
                                                                             him .
— award compensation to the applicant for the
     non-material damage suffered,
                                                                      The applicant further maintains that the attitude which the
— order the Commission to pay the costs .                             Commission adopted towards the unjustified accusations
                                                                      against him, as described above, has caused him obvious
                                                                      non-material damage which it must make good . He
Pleas in law and main arguments adduced in support:                   therefore claims that the Commission should be ordered to
                                                                      pay him Bfrs 500 000 in damages and take disciplinary
The applicant states that, as from 1 January 1991 , he was            action against the author of the accusations .
Head of the ' Caribbean' unit (VIII/F/1 ) in the
Directorate-General for Development ( DG VIII ), and
performed his duties to the satisfaction of his superiors, as is
demonstrated by his staff reports. In February 1995 , the


title: Case C-423/03: Action brought on 3 October 2003 by the Commission of the European Communities against the Republic of Finland

text:
C 275/42              EN                         Official Journal of the European Union                                     15.11.2003
Action brought on 3 October 2003 by the Commission                       Action brought on 3 October 2003 by the Commission
of the European Communities against the Republic of                      of the European Communities against the Kingdom of
                             Finland                                                                   Spain
                        (Case C-423/03)                                                          (Case C-424/03)
                        (2003/C 275/67)                                                          (2003/C 275/68)
An action against the Republic of Finland was brought
before the Court of Justice of the European Communities                  An action against the Kingdom of Spain was brought before
on 3 October 2003 by the Commission of the European                      the Court of Justice of the European Communities on 3 Octo-
Communities, represented by U. Wölker and M. Huttunen,                   ber 2003 by the Commission of the European Communities,
acting as Agents, with an address for service in Luxembourg.             represented by Gregorio Valero Jordana of the Commission’s
                                                                         Legal Service, with an address for service in Luxembourg.
The Commission claims that the Court should:
                                                                         The applicant claims that the Court should:
1.    Declare that the Republic of Finland has failed to fulfil its
      obligations under Directive 2001/18/EC of the European             —     declare that by failing to adopt the laws, regulations
      Parliament and of the Council of 12 March 2001 on the                    and administrative provisions necessary to comply with
      deliberate release into the environment of genetically                   Directive 2001/18/EC (1) of the European Parliament and
      modified organisms and repealing Council Directive 90/                   of the Council of 12 March 2001 on the deliberate release
      220/EEC (1), since Finland has not brought into force the                into the environment of genetically modified organisms
      laws, regulations and administrative provisions necessary                and repealing Council Directive 90/220/EEC, or, in any
      to comply with the directive, or at least has not informed               event, by failing to notify the Commission thereof, the
      the Commission thereof;                                                  Kingdom of Spain has failed to comply with its obli-
                                                                               gations under that directive;
2.    Order Finland to pay the costs.
                                                                         —     order the Kingdom of Spain to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
The period prescribed for transposition of the directive expired
on 17 October 2002.
                                                                         The period for transposition into national law of the directive
                                                                         expired on 17 October 2002.
(1) OJ L 106 of 17.4.2001, p. 1.
                                                                         (1) OJ L 106 of 17.4.2001, p. 1.


Avis juridique important

|

E1995J0427(04)

Removal from the Register of Case E-7/94

Official Journal C 106 , 27/04/1995 P. 0006 - 0006

Removal from the Register of Case E-7/94 (1) (95/C 106/08)By order of 27 February 1995 the Acting President of the EFTA Court ordered the removal from the Register of Case E-7/94 (request for an advisory opinion from Högsta domstolen: Data Delecta Aktiebolag and Ronnie Forsberg against MSL Dynamics Limited).(1) OJ No C 347, 8. 12. 1994.


title: Order of the President of the Court of First Instance of 20 December 2001 in Case T-213/01 R: Österreichische Postsparkasse AG v Commission of the European Communities (Proceedings for interim measures — Competition — Access to documents — Admissibility — Urgency — Weighing of interests)

text:
29.6.2002              EN                     Official Journal of the European Communities                                     C 156/25
1.   The application is dismissed as inadmissible.                       ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
2.   The applicant shall bear the costs.
                                                                                of 20 December 2001
                                                                         in Case T-214/01 R: Bank für Arbeit und Wirtschaft AG v
                                                                                Commission of the European Communities
(1) OJ C 173 of 16.6.2001.
                                                                         (Proceedings for interim measures — Competition — Access
                                                                         to documents — Admissibility — Urgency — Weighing of
                                                                                interests)
                                                                                (2002/C 156/49)
                                                                                (Language of the case: German)
ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                           INSTANCE                                      In Case T-214/01 R: Bank für Arbeit und Wirtschaft AG,
                                                                         established in Vienna, represented by H.J. Niemeyer, lawyer,
                                                                         against Commission of the European Communities (Agent:
                     of 20 December 2001                                 S. Rating), — application principally for suspension of the
                                                                         operation of the Commission’s decision COMP/D-1/36.571 of
                                                                         25 July 2001 and, in the alternative, for an order restraining
in Case T-213/01 R: Österreichische Postsparkasse AG v                  the Commission from disclosing to the Freiheitliche Partei
        Commission of the European Communities                           Österreichs the statement of objections of 10 September 1999
                                                                         and the further statement of objections of 21 November 2000
                                                                         in Case COMP/36.571, — the President of the Court of First
(Proceedings for interim measures — Competition — Access                 Instance has made an order on 20 December 2001 in which
to documents — Admissibility — Urgency — Weighing of                     he:
                             interests)
                                                                         1.    Dismisses the application for interim measures.
                         (2002/C 156/48)
                                                                         2.    Reserves the costs.
                  (Language of the case: German)
In Case T-213/01 R: Österreichische Postsparkasse AG, estab-
lished in Vienna, represented by M. Klusmann, F. Wiener and                    ORDER OF THE COURT OF FIRST INSTANCE
A Reidlinger, lawyers, against Commission of the European
Communities (Agent: S. Rating), — application principally for                                      of 21 March 2002
suspension of the operation of the Commission’s decision
COMP/D-1/36.571 of 9 August 2001 and, in the alternative,
for an order restraining the Commission from disclosing to               in Case T-218/01: Laboratoire Monique Remy SAS against
the Freiheitliche Partei Österreichs the statement of objections             the Commission of the European Communities (1)
of 10 September 1999 and the further statement of objections
of 21 November 2000 in Case COMP/36.571, — the President                 (Action for annulment — Time-limits — Manifest inadmis-
of the Court of First Instance has made an order on 20 Decem-                                           sibility)
ber 2001 in which he:
                                                                                (2002/C 156/50)
1.   Dismisses the application for interim measures.
                                                                                (Language of the case: French)
2.   Reserves the costs.
                                                                         In Case T-218/02: Laboratoire Monique Remy SAS, established
                                                                         in Grasse (France), represented by J.-F. Pupel, lawyer, v
                                                                         Commission of the European Communities (Agent: A. Bordes)


title: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien, by order of that court of 28 October 1998 in the case of Westdeutsche Landesbank Girozentrale against Friedrich Stefan, intervener: Republic of Austria (Case C-464/98)

text:
C 71/6                EN                 Official Journal of the European Communities                                   13.3.1999
    the facts found by it, that the applicant must be              (c) Is the Combined Nomenclature (Council Regulation
    deemed to have been given the possibility of effectively             2658/87 (1) (as amended)) to be interpreted as
    expressing its views on the envisaged reductions in                  requiring that those goods set out in the schedule
    assistance, in accordance with the judgment in                       attached hereto be classified as Automatic data
    Lisrestal v Commission'.                                             processing machines and units thereof; magnetic or
                                                                         optical readers, machines for transcribing data onto
                                                                         data media in coded form and machines for processing
                                                                         such data, not elsewhere specified or included . . .'
Ð Second, the applicant maintains, with regard to
                                                                         under tariff heading 8471 either (i) post 1 January
    sub-heading 14.3.1a (remuneration of the teaching
                                                                         1996, or (ii) between 28 April 1993 and 31 December
    staff) and sub-heading 14.3.13 (taxes and charges),
                                                                         1995, or (iii) for both periods of time?
    that it is clear from the documentary evidence in the
    file that the findings of fact made by the Court of First
    Instance in relation to those sub-headings are
    incorrect.                                                      (d) If the answer to any part of question (c) is in the
                                                                         negative in respect of one or more of the goods set out
                                                                         in the schedule attached hereto, is the Combined
Ð Third, the applicant maintains that the incorrectness                  Nomenclature to be interpreted as requiring that such
    of the findings of fact made by the Court of First                   goods to be classified, ante 1 January 1996, as
    Instance       concerning       sub-headings      14.3.1a            Electrical apparatus for line telephony or line
    (remuneration of the teaching staff) and sub-heading                 telegraphy, including such apparatus for carriercurrent
    14.3.13 (taxes and charges) led the Court of First                   line systems . . .' under tariff heading 8517 or, post
    Instance misapply the law to its case, in breach of the              1 January 1996, as Electrical apparatus for line
    principle of proportionality and to give contradictory               telephony or line telegraphy, including line telephone
    grounds for the judgment.                                            sets with cordless handsets and telecommunication
                                                                         apparatus for carriercurrent line systems or for digital
                                                                         line systems; video phones . . .' under tariff heading
                                                                         8517?
                                                                    (1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
                                                                        tariff and statistical nomenclature and on the Common
                                                                        Customs Tariff (OJ L 256, 7.9.1987, p. 1).
Reference for a preliminary ruling by the Appeal
Commissioners, Dublin, by request of that court of
15 December 1998, in the case of Cabletron Systems Ltd
             against the Revenue Commissioners
                       (Case C-463/98)
                        (1999/C 71/10)
                                                                    Reference for a preliminary ruling from the Landesgericht
                                                                    für Zivilrechtssachen Wien, by order of that court of
                                                                    28 October 1998 in the case of Westdeutsche Landesbank
Reference has been made to the Court of Justice of the              Girozentrale against Friedrich Stefan, intervener: Republic
European Communities by a request of the Appeal                                                of Austria
Commissioners, Dublin, of 15 December 1998, which was
received at the Court Registry on 17 December 1998, for                                     (Case C-464/98)
a preliminary ruling in the case of Cabletron Systems Ltd                                    (1999/C 71/11)
against the Revenue Commissioners, on the following
questions:
                                                                    Reference has been made to the Court of Justice of the
(a) Is Commission Regulation (EC) No 1638/94 of 5 July              European Communities by order of the Landesgericht für
    1994 (OJ L 172, 7.7.1994, p. 5) concerning the                  Zivilrechtssachen Wien (Regional Civil Court, Vienna), of
    classification of certain goods in the Combined                 28 October 1998, received at the Court Registry on
    Nomenclature, valid insofar as it classifies under CN           18 December 1998, for a preliminary ruling in the case of
    Code 8517 82 90 the goods respectively described at             Westdeutsche Landesbank Girozentrale against Friedrich
    items 1, 2 and 3 of the annex to the said Regulation?           Stefan, intervener: Republic of Austria, on the following
                                                                    questions:
(b) Is Commission Regulation (EC) No 1165/95 of 23 May
    1995 (OJ L 117, 24.5.1995, p. 15), concerning the               (a) Does a refusal to allow a mortgage to be created to
    classification of certain goods in the Combined                      cover an existing foreign-currency debt (in this case in
    Nomenclature, valid insofar as it classifies under CN                German marks (DM)) constitute a restriction on the
    Code 8517 82 90 the goods described at item 4 of the                 movement of capital and payments compatible with
    annex to the said Regulation?                                        Article 73b of the EC Treaty?'
 ---pagebreak--- 13.3.1999              EN                Official Journal of the European Communities                                     C 71/7
(b) Does Article 73b of the EC Treaty apply retroactively          Justice of the European Communities on 18 December
     to mortgages which were registered in German marks             1998 by the Commission of the European Communities,
     prior to the accession of Austria to the European              represented by Frank Benyon, Legal Adviser, acting as
     Community, and thus incurably void at the time of              Agent, with an address for service in Luxembourg at the
     registration, in such a way as to remedy them ex post          office of Carlos Gómez de la Cruz, member of the Legal
     facto?'                                                        Service of the Commission, Centre Wagner.
     Alternatively,
                                                                    The Applicant claims that the Court should:
     Have the Community rules concerning the free
     movement of capital, in particular Article 73b of the
     EC Treaty, had the effect, by virtue of the accession
     application made by Austria on 17 July 1989 and the            1) declare that by concluding and applying an Air
     Opinion of 31 July 1991, of rendering the registration             Services Agreement signed on 23 July 1977 with the
     of a foreign-currency mortgage in Austria on                       United States of America which provides for the
     16 December 1991 permissible?'                                     revocation, suspension or limitation of traffic rights in
                                                                        cases where air carriers designated by the United
                                                                        Kingdom are not owned by the United Kingdom or
                                                                        nationals of the United Kingdom, the United Kingdom
                                                                        is in breach of Article 52 of the Treaty;
Reference for a preliminary ruling by the Oberlandes-
gericht Köln by order of 2 December 1998 in the case of
Verein gegen Unwesen in Handel und Gewerbe Köln e.V.                2) order the United Kingdom to pay the costs.
                       v Adolf Darbo AG
                        (Case C-465/98)
                         (1999/C 71/12)                             Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
European Communities by order of 2 December 1998                    A Member State must allow nationals of any other
from the Oberlandesgericht Köln (Higher Regional Court,             Member State to set up businesses and pursue the same on
Cologne), which was received at the Court Registry on               national conditions: anything less would render the right
18 December 1998, for a preliminary ruling in the case of           of establishment pointless, an empty shell. Article 52 is
Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v              not concerned with how and whether the right to supply
Adolf Darbo AG on the following question:                           services to another Member State may be exercised or
                                                                    restricted (which is governed at Community level by a
                                                                    separate Treaty article, Article 59) but, simply with the
Is it contrary to Article 2(1)(a)(i) of Directive 79/112/EEC
                                                                    right to be treated as a national of the Member State for
(OJ L 33, 8.2.1979, p. 1) (the directive on labelling') for
                                                                    the purposes of its business where an undertaking is
jam manufactured in a Member State (Austria) and sold
                                                                    established in that same Member State.
there and in another Member State (the Federal Republic
of Germany) under the description naturrein' (naturally
pure') to contain the gelling agent pectin and less than
0.01 mg/kg lead (atomic absorption spectrometry analysis
Ð AAS), 0.008 mg/kg cadmium (AAS), and pesticides                   Article 52 by its very nature does not refer to treatment
(0.016 mg/kg procymidone and 0.005 mg/kg vinclozolin)?              under Community law (for example the rights granted
                                                                    under Regulation (EEC) No 2408/92 (1)) as the United
                                                                    Kingdom alleges, but to those granted nationally, in the
                                                                    present case, the rights which the United Kingdom
                                                                    correctly notes derive from bilateral Member State
                                                                    agreements with third countries'. By concluding a
                                                                    so-called open sky' agreement, the United Kingdom
Action brought on 18 December 1998 by the Commission                authorities have granted a right to benefit from the traffic
of the European Communities against the United                      rights granted under the agreement to designated airlines
       Kingdom of Great Britain and Northern Ireland                if under United Kingdom control since there is no
                        (Case C-466/98)                             possibility for the United States to refuse the same, but
                                                                    they have granted only a possibility, wholly unguaranteed,
                         (1999/C 71/13)                             to benefit therefrom where the designated carrier is
                                                                    controlled by nationals of other Member States. This is a
                                                                    failure by the United Kingdom to grant equal treatment to
An action against the United Kingdom of Great Britain               nationals of other Member States irrespective of whether
and Northern Ireland was brought before the Court of                and how the United States of America excercises its rights.


title: Case C-125/01: Reference for a preliminary ruling from the Sozialgericht Leipzig, by order of that court of 21 February 2001 in the case of Peter Pflücke against Bundesanstalt für Arbeit

text:
C 161/8                EN                   Official Journal of the European Communities                                        2.6.2001
b)     Failure to comply with Article 10 of                            3.     Is the Chamber obliged, pursuant to the case-law of the
       Directive 94/47/EC                                                    Court of Justice, to refrain from applying the provision
                                                                             concerning the prescriptive period?
Article 12 of Decree No 427/98 does not lay down any
penalties or specify any other type of consequence resulting           (1) OJ L 283, 28.10.1980, p. 3.
from a vendor’s failure to comply with its obligation to provide
any person requesting the same with a document setting out
at least brief and accurate information on the particulars
mentioned in points (a) to (g), (i) and (1) of the annex to the
directive. In particular, the decree does not provide for any
fine or similar sanction in the event of omission of the
particulars mentioned in points (a), (b), (c), (i) and (1) of the
annex to the directive.
                                                                       Action brought on 20 March 2001 by the Commission of
Furthermore, the information in question must be given in the            the European Communities against the Italian Republic
document mentioned not only to ensure effective protection
of purchasers, but also to avoid distortions of competition
between vendors at the level of the internal market.                                             (Case C-128/01)
For those reasons, the Commission submits that Article 10 of                                     (2001/C 161/15)
the directive has not been fully and properly transposed by the
Italian Republic.                                                      An action against the Italian Republic was brought before the
                                                                       Court of Justice of the European Communities on 20 March
                                                                       2001 by the Commission of the European Communities,
(1) OJ L 280, 1994, p. 83.                                             represented by Luca Visaggio, acting as Agent.
                                                                       The applicant claims that the Court should:
                                                                       —     declare that, by failing to adopt the laws, regulations
                                                                             and administrative provisions necessary to comply with
                                                                             Council Directive 96/51/EC of 23 July 1996 (1) amending
                                                                             Directive 70/524/EEC concerning additives in feeding-
Reference for a preliminary ruling from the Sozialgericht                    stuffs, or by failing to communicate such provisions, the
Leipzig, by order of that court of 21 February 2001 in the                   Italian Republic has failed to fulfil its obligations under
   case of Peter Pflücke against Bundesanstalt für Arbeit                    that directive and the Treaty;
                                                                       —     order the Italian Republic to pay the costs.
                         (Case C-125/01)
                         (2001/C 161/14)                               Pleas in law and main arguments
Reference has been made to the Court of Justice of the                 According to Article 249 EC, directives are binding upon the
European Communities by order of the Sozialgericht Leipzig             Member States as to the result to be achieved. Article 10 EC
(Leipzig Social Court) of 21 February 2001, received at the            provides that the Member States are to take all appropriate
Court Registry on 19 March 2001, for a preliminary ruling in           measures, whether general or particular, to ensure fulfilment
the case of Peter Pflücke against Bundesanstalt für Arbeit on          of the obligations arising out of the Treaty or resulting from
the following questions:                                               action taken by the institutions of the Community, and to
                                                                       facilitate the achievement of the Community’s tasks.
1.    Is a prescriptive period for bringing claims for payment
      by the guarantee institution of outstanding wage claims
      compatible with Article 9 of Council Directive                   The Commission submits that, because the Italian Republic
      80/98/EEC (1) of 20 October 1980 on the approximation            failed to adopt, or to communicate, the provisions necessary
      of the laws of the Member States relating to the protection      to conform to the directive mentioned, it has failed to fulfil its
      of employees in the event of the insolvency of their             obligations under the directive and the Treaty.
      employer?
2.    Does the Court of Justice share the Chamber’s view that          (1) OJ L 235, 1996, p. 39.
      such a prescriptive period does not constitute a legal
      provision which is more favourable to employees within
      the meaning of Article 9 of Directive 80/987/EEC?


title: Corrigendum to the notice in the Official Journal in Case T-175/17 (OJ C 269, 14.8.2017)

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/42

         Corrigendum to the notice in the Official Journal in Case T-175/17
   (
         Official Journal of the European Union C 269 of 14 August 2017
      )
   (2017/C 309/57)
   The OJ notice in Case T-175/17, Ostvesta v Commission should read as follows:

      Action brought on 15 March 2017 — Ostvesta v Commission
      (Case T-175/17)
      (2017/C 269/38)
      Language of the case: Latvian

         Parties

         Applicant: Ostvesta SIA (Riga, Latvia) (represented by: J. Davidovičs, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  annul Mission Report THOR (2013) 11413-07/05/2013 of the European Anti-fraud Office (OLAF), together with its 15 annexes, Final Report OF/2010/0827/B1, Report No OF/2010/0827 and Report THOR (2011) 27463, in view of the serious illegalities vitiating those acts and the recommended measures adopted on the basis of those acts;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the contested measures are binding on the State tax authorities and courts and have direct legal effects that harm the interests and the personal and actual rights of the applicant, altering its legal position, and are therefore challengeable acts, taking into consideration:

                              —

                              the nature of customs duties as ‘EU own resources’ and the consequential obligations for Member States, which must collect those duties;

                              —

                              the nature of OLAF as the administrative investigating body that replaces the Commission in external investigations;

                              —

                              the role of the European Commission, as the institution with an enforcement function in relation to the application of the European Union’s Customs Code.

                  2.

                  Second plea in law, alleging that the contested measures are unlawful and are vitiated by irregularities, because:

                              —

                              they do not contain any of the essential information envisaged in Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013; that is to say, they lack information relating to the procedural guarantees in the investigation, to the persons involved in the investigation, to the hearing of the applicant’s legal representatives, or to the preliminary legal qualification;

                              —

                              they reject the responsibility of the competent authorities in an unreasoned and contradictory manner;

                              —

                              OLAF failed to fulfil its duty to conduct the investigation objectively and impartially and in accordance with the principle of presumption of innocence;

                              —

                              incorrect information is included in the Final Report because of the lack of a preliminary investigation or because of omissions in the preliminary investigation;

                              —

                              the Community legislation in the field of anti-dumping duties was infringed and misapplied;

                              —

                              the Community legislation and the legislation of the Republic of Taiwan concerning the obligation imposed on the Bureau of Foreign Trade of Taiwan to verify the origin of the goods which it certifies were infringed and misapplied;

                              —

                              Article 220(2)(b) of Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code was infringed and misapplied;

                              —

                              the Treaties and the legal rules relating to their application, as well as the Charter of Fundamental Rights of the European Union, specifically Article 41 thereof, were infringed.


title: Case C-4/18: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 January 2018 — Michael Winterhoff, acting as liquidator in the insolvency of DIREKTexpress Holding AG v Finanzamt Ulm

text:
               9.4.2018

               EN

               Official Journal of the European Union

               C 123/9

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 January 2018 — Michael Winterhoff, acting as liquidator in the insolvency of DIREKTexpress Holding AG v Finanzamt Ulm
   (Case C-4/18)
   (2018/C 123/13)
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Michael Winterhoff, acting as liquidator in the insolvency of DIREKTexpress Holding AG

      Defendant: Finanzamt Ulm

      Question referred

   Is an undertaking which effects the formal service of documents pursuant to provisions of public law a ‘universal service provider’, within the meaning of Article 2.13 of Directive 97/67/EC of 15 December 1997, (1) providing a universal postal service in whole or in part, and is such service exempt from tax under Article 132(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (2)

      (1)  Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14).

      (2)  OJ 2006 L 347, p. 1.


title: Case T-179/17: Judgment of the General Court of 21 February 2018 — Laboratoire Nuxe v EUIPO — Camille and Tariot (NYouX) (EU trade mark — Opposition proceedings — Application for EU figurative mark NYouX — Earlier national word mark NUXE — Obligation to state reasons — First sentence of Article 75 of Regulation (EC) No 207/2009 (now first sentence of Article 94(1) of Regulation (EU) 2017/1001) — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Similarity of the signs — Distinctive character — Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001))

text:
               9.4.2018

               EN

               Official Journal of the European Union

               C 123/19

         Judgment of the General Court of 21 February 2018 — Laboratoire Nuxe v EUIPO — Camille and Tariot (NYouX)
   (Case T-179/17) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark NYouX - Earlier national word mark NUXE - Obligation to state reasons - First sentence of Article 75 of Regulation (EC) No 207/2009 (now first sentence of Article 94(1) of Regulation (EU) 2017/1001) - Relative ground for refusal - Likelihood of confusion - Similarity of the goods - Similarity of the signs - Distinctive character - Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001)))
   (2018/C 123/25)
   Language of the case: French

      Parties

      Applicant: Laboratoire Nuxe (Paris, France) (represented by: P. Wilhelm and J. Roux, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: A. Folliard–Monguiral and V. Ruzek, acting as Agents)

      Other parties to the proceedings before the Board of Appeal of EUIPO: Élisabeth Camille (Alicante, Spain) and Jean–Yves Tariot (Alicante)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 16 January 2017 (Case R 718/2016-5), relating to opposition proceedings between, on the one hand, Laboratoire Nuxe and, on the other, Ms Camille and Mr Tariot.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 January 2017 (Case R 718/2016-5);

               2.

               Orders EUIPO to pay the costs.

      (1)  OJ C 144, 8.5.2017.


title: Case T-65/18: Action brought on 6 February 2018 — Venezuela v Council

text:
               16.4.2018

               EN

               Official Journal of the European Union

               C 134/24

         Action brought on 6 February 2018 — Venezuela v Council
   (Case T-65/18)
   (2018/C 134/34)
   Language of the case: English

      Parties

      Applicant: Bolivarian Republic of Venezuela (represented by: F. Di Gianni and L. Giuliano, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Regulation (EU) 2017/2063 of 13 November 2017 concerning restrictive measures in view of the situation in Venezuela, insofar as its provisions concern the Applicant; and

               —

               order the Council to bear the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that, by adopting the restrictive measures without previously informing the Applicant of its intention, and without previously hearing the position of the Applicant on the facts allegedly justifying the restrictive measures, the Council infringed the Applicant’s right to be heard.

               2.

               Second plea in law, alleging that the Council infringed its obligation to state the reasons and to provide sufficient evidence for the adoption of the restrictive measures.

               3.

               Third plea in law, alleging that the Council committed a manifest error of assessment as concerns the facts on which the restrictive measures are based.

               4.

               Fourth plea in law, alleging that the restrictive measures constitute unlawful countermeasures under customary international law.


title: Case C-182/17: Judgment of the Court (Seventh Chamber) of 22 February 2018 (request for a preliminary ruling from the Kúria — Hungary) — Nagyszénás Településszolgáltatási Nonprofit Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Article 2(1)(c), Article 9 and Article 13(1) — Treatment as a non-taxable person — Definition of ‘body governed by public law’ — Commercial company 100 % owned by a municipality and responsible for performing certain public tasks incumbent on that municipality — Those tasks and their remuneration determined in a contract between the company and the municipality)

text:
               16.4.2018

               EN

               Official Journal of the European Union

               C 134/11

         Judgment of the Court (Seventh Chamber) of 22 February 2018 (request for a preliminary ruling from the Kúria — Hungary) — Nagyszénás Településszolgáltatási Nonprofit Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága
   (Case C-182/17) (1)

   ((Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Article 2(1)(c), Article 9 and Article 13(1) - Treatment as a non-taxable person - Definition of ‘body governed by public law’ - Commercial company 100 % owned by a municipality and responsible for performing certain public tasks incumbent on that municipality - Those tasks and their remuneration determined in a contract between the company and the municipality))
   (2018/C 134/14)
   Language of the case: Hungarian

      Referring court

   Kúria

      Parties to the main proceedings

      Applicant: Nagyszénás Településszolgáltatási Nonprofit Kft.

      Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

      Operative part of the judgment

               1.

               Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning, subject to verification of the relevant facts by the referring court, that an activity such as that at issue in the main proceedings, whereby a company performs certain public tasks under a contract concluded between that company and a municipality, constitutes a supply of services effected for consideration and subject to VAT under that provision.

               2.

               Article 13(1) of Directive 2006/112 must be interpreted as meaning that, subject to verification of the relevant matters of fact and national law by the referring court, an activity such as that at issue in the main proceedings, whereby a company performs certain public municipal tasks under a contract concluded between that company and a municipality, does not fall within the scope of the rule of treatment as a non-taxable person for VAT purposes laid down by that provision, if that activity constitutes an economic activity within the meaning of Article 9(1) of that directive.

      (1)  OJ C 221, 10.7.2017.


title: Case T-94/18: Action brought on 19 February 2018 — Multifit Tiernahrungs v EUIPO (fit+fun)

text:
               16.4.2018

               EN

               Official Journal of the European Union

               C 134/32

         Action brought on 19 February 2018 — Multifit Tiernahrungs v EUIPO (fit+fun)
   (Case T-94/18)
   (2018/C 134/45)
   Language of the case: German

      Parties

      Applicant: Multifit Tiernahrungs GmbH (Krefeld, Germany) (represented by: N. Weber and L. Thiel, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: Application for EU word mark fit+fun — Application No 15 996 432

      Contested decision: Decision of the First Board of Appeal of EUIPO of 7 December 2017 in Case R 847/2017-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) of Regulation 2017/1001.


title: Case T-307/16: Judgment of the General Court of 27 February 2018 — CEE Bankwatch Network v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a Commission decision on granting a Euratom loan in support of the Ukraine safety upgrade program of nuclear power units — Partial refusal of access — Exception concerning the protection of the public interest in the field of international relations — Exception concerning the protection of commercial interests — Overriding public interest — Regulation (EC) No 1367/2006 — Application to documents relating to decisions taken under the EAEC Treaty)

text:
               16.4.2018

               EN

               Official Journal of the European Union

               C 134/19

         Judgment of the General Court of 27 February 2018 — CEE Bankwatch Network v Commission
   (Case T-307/16) (1)

   ((Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a Commission decision on granting a Euratom loan in support of the Ukraine safety upgrade program of nuclear power units - Partial refusal of access - Exception concerning the protection of the public interest in the field of international relations - Exception concerning the protection of commercial interests - Overriding public interest - Regulation (EC) No 1367/2006 - Application to documents relating to decisions taken under the EAEC Treaty))
   (2018/C 134/26)
   Language of the case: English

      Parties

      Applicant: CEE Bankwatch Network (Prague, Czech Republic) (represented by: C. Kiss, lawyer)

      Defendant: European Commission (represented by: C. Zadra, F. Clotuche-Duvieusart and C. Cunniffe, acting as Agents)

      Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: initially M. Holt and D. Robertson, and subsequently S. Brandon, acting as Agents)

      Re:

   Application based on Article 263 TFEU and seeking annulment of Commission Decision C(2016) 2319 final of 15 April 2016 refusing, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), access to several documents relating to Commission Decision C(2013) 3496 final of 24 June 2013 on granting a Euratom loan in support of the Ukraine safety upgrade program of nuclear power units.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders CEE Bankwatch Network to bear its own costs and pay those incurred by the European Commission;

               3.

               Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

      (1)  OJ C 305, 22.8.2016.