title: Case C-240/02: Reference for a preliminary ruling by the Tribunal Supremo, Sala de lo Contencioso-Administrativo, Sección: Tercera by order of that Court of 16 May 2002 in the appeal brought by Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia and Asociación Nacional de Empresas de Externalización y Gestión de Envíos y Pequeña Paquetería

text:
C 202/14               EN                      Official Journal of the European Communities                                       24.8.2002
Reference for a preliminary ruling by the Tribunal Supre-                 Reference for a preliminary ruling by the Bundesfinanz-
mo, Sala de lo Contencioso-Administrativo, Sección: Ter-                 hof by order of that Court of 7 May 2002 in the case of
cera by order of that Court of 16 May 2002 in the                           Hauptzollamt Hamburg-Hafen against Ricardas Jonusas
appeal brought by Asociación Profesional de Empresas de
Reparto y Manipulado de Correspondencia and Asocia-
ción Nacional de Empresas de Externalización y Gestión                                          (Case C-246/02)
                de Envı́os y Pequeña Paqueterı́a
                                                                                (2002/C 202/20)
                         (Case C-240/02)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Bundesfinanzhof
                         (2002/C 202/19)                                  (Federal Finance Court) of 7 May 2002, received at the Court
                                                                          Registry on 8 July 2002, for a preliminary ruling in the case of
                                                                          Hauptzollamt Hamburg-Hafen against Ricardas Jonusas on the
                                                                          following questions:
                                                                          1.   Is Article 4(19) of the Customs Code to be interpreted as
                                                                               meaning that the notification to the customs authorities
Reference has been made to the Court of Justice of the                         of the arrival at a particular place of goods introduced into
European Communities by order of the Tribunal Supremo, Sala                    the Community customs territory must refer expressly
de lo Contencioso-Administrativo, Sección: Tercera (Supreme                   to goods which are hidden or concealed in secret
Court, Contentious-Administrative Chamber, Third Section) of                   compartments?
16 May 2002, received at the Court Registry on 1st July 2002,
for a preliminary ruling in the appeal brought by Asociación
Profesional de Empresas de Reparto y Manipulado de Corres-                2.   If Question 1 is answered affirmatively:
pondencia (Trade Association of Mail Delivery and Handling
Companies) and Asociación Nacional de Empresas de Exter-                      Is Article 40 of the Customs Code to be interpreted as
nalización y Gestión de Envı́os y Pequeña Paqueterı́a (National             meaning that such notification must also be made by the
Association of Companies dedicated to the Externalisation and                  driver of a lorry who was not aware and should not have
Handling of Letters and Small Packages) on the following                       been aware of the goods hidden or concealed in the lorry?
questions:
Does the interpretation of Recital 21 to Directive 97/67/EC (1)
permit the exclusion from ‘self-provision’ of postal services
provided by the sender (or another person acting exclusively
on his behalf), if that person is not also the receiver, if the
services are provided in the course of his commercial activity,           Reference for a preliminary ruling by the Tribunale
or carried out using the mailbag system or other similar                  Amministrativo Regionale per la Lombardia Sezione
methods, or if self-provision disrupts the services reserved to           staccata di Brescia by order of that Court of 22 June 2002
the universal service provider?                                           in the case of Sintesi S.p.A. against Autorità per la
                                                                          Vigilanza sui Lavori Pubblici; intervener: Ingg. Provera e
                                                                                Carrassi S.p.A.
May money order services be included amongst those reserved                                        (Case C-247/02)
to the universal postal service provider?
                                                                                (2002/C 202/21)
(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              Reference has been made to the Court of Justice of the
    improvement of quality of service. (OJ L 15 of 21.1.1998, p. 14.)     European Communities by order of the Tribunale Amministra-
                                                                          tivo Regionale per la Lombardia Sezione staccata di Brescia
                                                                          (Lombardy Regional Administrative Court, Brescia Chamber)
                                                                          of 22 June 2002, received at the Court Registry on 8 July
                                                                          2002, for a preliminary ruling in the case of Sintesi S.p.A.
                                                                          against Autorità per la Vigilanza sui Lavori Pubblici; intervener:
                                                                          Ingg. Provera e Carrassi S.p.A. on the following questions:


title: Case C-514/03: Action brought on 8 December 2003 by the Commission of the European Communities against the Kingdom of Spain

text:
C 47/18                EN                       Official Journal of the European Union                                          21.2.2004
     —     Is the Schumacker test for residents and non-                      —     by requiring, in connection with the rules applicable
           residents applicable only in the case of subjective or                   to foreign registrations, that private security firms
           person-related tax aspects, such as the right to a                       should:
           personal or family-related tax-free allowance, or
           does it also apply to non-person-related tax aspects,                    (a)  be a legal person in every particular case,
           such as the tax rate?
                                                                                (b) possess a particular amount of share capital,
     —     When deciding whether to treat a non-resident as a                            regardless of the fact that those firms are not
           resident, are Member States allowed to apply a                                subject to the same obligations in the State of
           quantitative rule (such as the 90 % rule), despite the                        their establishment;
           fact that this does not guarantee that all discrimi-
           nation will be removed?
                                                                                (c)  lodge security at the Caja General de Depósitos,
                                                                                regardless of the fact that security may have
3.   Is the right of option as referred to in Article 2.5 of the                         been paid in the Member State of origin,
     Wet IB 2001 an adequate procedural remedy which
     ensures that the party concerned may make use of his
                                                                                (d) have a minimum number of employees;
     rights as guaranteed under the EC Treaty and rules out all
     forms of discrimination?
                                                                              —     by requiring the employees of a foreign private
     If so, is this also an adequate remedy in the present case                     security firm to obtain a new specific permit in
     where the party concerned only receives income from                            Spain when they have already obtained a compar-
     savings and investments, given that the party concerned                        able permit in the State of that firm’s establishment;
     is unable to benefit from the right of option, as has been                     and by not making occupations in the field of
     considered under 4.3?                                                          private security subject to the Community rules on
                                                                                the recognition of professional qualifications,
                                                                              the Kingdom of Spain has failed to fulfil its obligations
                                                                              under Articles 43 and 49 of the EC Treaty and under
                                                                              Directives 89/48/EEC (1) and 92/51/EEC (2) and
                                                                        2.    Order the Kingdom of Spain to pay the costs.
Action brought on 8 December 2003 by the Commission
of the European Communities against the Kingdom of
                               Spain                                    Pleas in law and main arguments
                         (Case C-514/03)                                The Spanish legislation concerning private security services
                                                                        contravenes Community legislation, more particularly
                                                                        Articles 43 and 49 of the EC Treaty, and also, in connection
                          (2004/C 47/29)                                with recognition of professional qualifications, Directives 89/
                                                                        48/EEC and 92/51/EEC.
                                                                        Undertakings that wish to carry out private security activities
An action against the Kingdom of Spain was brought before               on Spanish soil must be authorised to do so by registering
the Court of Justice of the European Communities on 8 Decem-            with the Ministry of the Interior, which authorisation is granted
ber 2003 by the Commission of the European Communities,                 only if certain requirements relating to the form of the
represented by Maria Patakia and Luis Escobar, acting as                undertaking, share capital, the lodging of security in the Caja
Agents, with an address for service in Luxembourg.                      General de Depósitos and the number of the undertaking’s
                                                                        employees and of its armoured vehicles are satisfied. Moreover,
                                                                        the Spanish legislation requires each and every member of the
                                                                        staff of an undertaking intending to provide private security
The applicant claims that the Court should:                             services in Spain to obtain a specific permit granted if the
                                                                        person satisfies a series of requirements, and produce more
1.   Declare that:                                                      than the evidence provided for in order to ensure that he or
                                                                        she possesses the knowledge and abilities needed for the
                                                                        performance of his or her duties. Those requirements do not
     —     by requiring, in the implementing legislation, that          serve to guarantee the attainment of the objectives pursued,
           private security firms and the members of their staff        which are public safety or the protection of the persons for
           should possess Spanish nationality;                          whom the private security services are provided.
 ---pagebreak--- 21.2.2004               EN                         Official Journal of the European Union                                             C 47/19
Furthermore, there exists no provision of Spanish law which                Pleas in law and main arguments
demands that account should be taken of compliance by a
foreign private security firm, or by its staff, with the guarantees
and requirements imposed in another Member State. As a
result, those are measures which have the effect of discouraging           Under Article 23.3 of the contracts, the applicant before the
foreign undertakings that wish to carry on activities in Spain.            Court of First Instance, Società IAMA Consulting, is required
                                                                           to reimburse the Commission for any sums overpaid.
(1) Council Directive 89/48/EEC of 21 December 1988 on a general
    system for the recognition of higher-education diplomas awarded
                                                                           Part of the Community contribution is attributable to
    on completion of professional education and training of at least       the expenses incurred by IAMA Consulting before 1 Novem-
    three years’ duration (OJ 1989 L 19, p. 16).                           ber 1997 (and not re-invoiced to IAMA International) in
(2) Council Directive 92/51/EEC of 18 June 1992 on a second general        a total amount of LIT 913 874 209, of which
    system for the recognition of professional education and training      LIT 576 432 631 related to the REGIS Project and
    to supplement Directive 89/48/EC (OJ 1992 L 209, p. 25).               LIT 337 441 578 to the REFIAG Project.
                                                                           The remainder derives from the amendments to expenditure,
                                                                           made during the audit, amounting to a total of
                                                                           LIT 185 531 657, of which LIT 60 603 671 related to the
                                                                           REGIS Project and LIT 124 927 986 to the REFIAG Project.
Counterclaim submitted in the defence lodged on 17 July
2001 by the Commission in Case T-85/01 Società IAMA
Consulting v Commission of the European Communities,
pending before the Court of First Instance and referred to
the Court of Justice on 2 December 2003 by order of
        25 November 2003, as a matter of jurisdiction                      Action brought on 9 December 2003 by the Commission
                                                                           of the European Communities against the Kingdom of
                                                                                Sweden
                           (Case C-517/03)
                                                                                (Case C-518/03)
                            (2004/C 47/30)
                                                                                (2004/C 47/31)
On 2 December 2003 the Court of First Instance, by order of
25 November 2003, referred to the Court of Justice a                       An action against the Kingdom of Sweden was brought
counterclaim submitted by the Commission of the European                   before the Court of Justice of the European Communities on
Communities, represented by Eugenio de March and Alberto                   9 December 2003 by the Commission of the European
Dal Ferro, acting as Agents, in its defence in Case T-85/01                Communities, represented by K. Banks and K. Simonsson,
Società IAMA Consulting v Commission of the European                       Agents, with an address for service in Luxembourg.
Communities.
                                                                           The Commission claims that the Court should:
The Commission claims that the Court should:
                                                                           1.    declare that, by failing to adopt, or to communicate to
                                                                                the Commission, the laws, regulations and administrative
—     Uphold its counterclaim and order Società IAMA Con-                        provisions necessary to implement Directive 98/44/EC (1)
      sulting to repay the sum of LIT 1 099 405 866                              of the European Parliament and the Council of 6 July
      (EUR 567 796) plus interest, in accordance with                            1998 on the legal protection of biotechnological inven-
      Article 94 of Regulation No 341/93;                                        tions, Sweden has failed to fulfil its obligations under that
                                                                                directive; and
—     In any event order Società IAMA Consulting to pay the
      costs                                                                2.    order Sweden to pay the costs of the case.


title: Case T-257/15: Action brought on 22 May 2015 — Arcelormittal Spain Holding v Commission

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/38

         Action brought on 22 May 2015 — Arcelormittal Spain Holding v Commission
   (Case T-257/15)
   (2015/C 245/45)
   Language of the case: Spanish

      Parties

      Applicant: Arcelormittal Spain Holding, S.L. (Madrid, Spain) (represented by: M. Muñoz Pérez, lawyer)

      Defendant: European Commission

      Forms of order sought

               —

               annul European Commission Decision C (2014) 7280 of 15 October 2014, on State aid SA 355550 (13/C) (ex 12/CP) implemented by Spain;

               —

               in the alternative annul Article 4(2) of that decision for the reasons stated, and

               —

               order the defendant institution to bear the costs.

      Pleas in law and main arguments

   The contested decision in these proceedings is the same as that in Cases T-12/15, Banco de Santander and Santusa v Commission, and T-252/15 Ferrovial SA and others v Commission.
   The pleas and main arguments relied on are similar to those already raised in those cases.


title: Case T-283/15: Action brought on 29 May 2015 — Esso Raffinage v ECHA

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/32

         Action brought on 29 May 2015 — Esso Raffinage v ECHA
   (Case T-283/15)
   (2015/C 320/49)
   Language of the case: English

      Parties

      Applicant: Esso Raffinage (Courbevoie, France) (represented by: M. Navin-Jones, Solicitor)

      Defendant: European Chemicals Agency (ECHA)

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application as admissible and well-founded;

               —

               annul the decision of 1 April 2015 adopted by the European Chemicals Agency (‘ECHA’) with respect to Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (‘REACH’) establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, p. 1), being a letter entitled “Statement of Non-Compliance following a Dossier Evaluation Decision under Regulation (EC) No 1907/2006 (‘SONC’) and its attachment (reference number CCH-C-0000005770-74-01/F);

               —

               order that the case be referred back to the ECHA Executive Director with a direction that any new ECHA decision take into account the reasons for annulment stipulated in the General Court Judgment and all relevant, up-to-date information;

               —

               order ECHA to pay the costs incurred by the applicant regarding these proceedings; and

               —

               take other or further measures as justice may require.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a number of pleas in law, including the following:

               1.

               First plea in law, alleging ultra vires act, breach of institutional balance etc.

                           —

                           The applicant puts forward that there is no legal authority or legal basis for ECHA to establish, compile, adopt and/or send so-called Statements of Non-Compliance and that by having compiled, adopted and sent a SONC in this case, ECHA has (i) acted outside the limit of its discretionary and/or executive powers (ultra vires act); (2) acted in breach of the legal principle and requirement of institutional balance of power; (3) acted in breach of the legal principle and requirement of good administration; (4) acted in breach of the legal principle of good public governance; and/or (5) acted in breach of Article 41 of the Charter of Fundamental Rights of the European Union.

               2.

               Second plea in law, alleging, in the alternative, breach of Article 42 REACH.

                           —

                           The applicant submits that to the extent ECHA may seek to rely upon Article 42(1) REACH as legal authority and/or the legal basis for the Contested Decision, Article 42(1) REACH does not provide ECHA any legal authority or basis for adopting the contested decision and that by adopting the contested decision ECHA has acted in breach of Article 42(1) REACH. The applicant submits that, in this case, ECHA has not adopted the appropriate decision as required by Article 42(1) REACH. The applicant submits that ECHA has consistently interpreted Article 42(1) REACH as not authorizing the issuance of a Statement of Non-Compliance.

               3.

               Third plea in law, alleging a breach of the right to be heard.

                           —

                           The applicant puts forward that the contested decision has been adopted in breach of the EU legal principles of the right to be heard, the right to respond and to reply, the right of defence, the right to notice, and the right to good administration. The applicant submits that as a direct consequence of the breach of these procedural and process rights, the contested decision is voidable and void. That is: ECHA had not acted in breach of the applicant’s procedural and process rights, the applicant submits that the outcome of the process and the procedure would have materially differed.

               4.

               Fourth plea in law, alleging breach of the principle of proportionality.

                           —

                           The applicant submits that the contested decision was inconsistent with, and in breach of, the EU legal principle of proportionality. The applicant submits that the contested decision is not appropriate or necessary, did not constitute the least onerous measure and that the disadvantages caused were disproportionate to the aims pursued.

               5.

               Fifth plea in law, alleging an error in interpretation of data requirements under REACH.

                           —

                           The applicant submits that ECHA has committed an error in interpreting the information requirements regarding Annex X, section 8.7.2. as there is in fact no de facto requirement to conduct a pre-natal developmental toxicity study on a second species. The applicant therefore submits that ECHA has, by adopting the contested decision, acted without legal basis and outside the limits of its discretionary powers.


title: Case F-77/09: Action brought on 14 September 2009 — Nijs v European Court of Auditors

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/65

         Action brought on 14 September 2009 — Nijs v European Court of Auditors
   (Case F-77/09)
   2009/C 282/125
   Language of the case: French

      Parties

      Applicant: Bart Nijs (Bereldange, Luxembourg) (represented by: Fränk Rollinger, avocat)

      Defendant: European Court of Auditors

      Subject-matter and description of the proceedings

   Application for annulment of the decision of the Committee ad hoc of the European Court of Auditors of 15 January 2009 removing the applicant from his post with effect from 1 February 2009 without reduction in pension

      Form of order sought

   Principally, annul the decision of the Committee ad hoc of the European Court of Auditors of 15 January 2009 removing the applicant from his post with effect from 1 February 2009 without reduction in pension;
   Annul the European Court of Auditors’ decision 81-2007 of 20 September 2007 conferring certain powers of the Appointing Authority on a Committee ad hoc;
   Annul all the preparatory decisions adopted by that Committee ad hoc, particularly those of 22/29 October and 23 November 2007 and of 12 June 2008 to open an administrative enquiry;
   In the alternative, should the Tribunal not uphold the applications for annulment formulated in the principal heads of relief, hold that the penalty inflicted by the Committee ad hoc of the European Court of Auditors on 15 January 2009 is, on the basis of Article 10 of Annex IX to the Staff Regulations, for the reasons set out above, far too severe;
   Refer the matter to a differently constituted Appointing Authority of the European Court of Auditors, to inflict a different penalty, if one is really considered necessary, much more suited to the facts;
   In the further alternative, find expressly that the principle that procedures should be conducted with reasonable expedition was infringed in this case, as set out above, and taking account of the level of the penalty to be inflicted, if one is appropriate;
   Order the defendant to pay the costs.


title: Case C-494/09: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Alessandria (Italy) lodged on 1 December 2009 — Bolton Alimentari SpA v Agenzia Dogane Ufficio delle Dogane Di Alessandria

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/44

         Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Alessandria (Italy) lodged on 1 December 2009 — Bolton Alimentari SpA v Agenzia Dogane Ufficio delle Dogane Di Alessandria
   (Case C-494/09)
   2010/C 24/76
   Language of the case: Italian

      Referring court

   Commissione Tributaria Provinciale di Alessandria

      Parties to the main proceedings

      Applicant: Bolton Alimentari SpA

      Defendant: Agenzia Dogane Ufficio delle Dogane Di Alessandria

      Questions referred

               1.

               Is Article 239 CCC to be interpreted as meaning that, in a case such as that at issue here, where the Member State takes the view that the European Commission cannot be criticised for having committed any irregularity and none of the other circumstances contemplated in Article 905(1) (of Regulation No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code)(‘ICCC’) obtain, that same Member State may decide independently on an application for repayment to the debtor within the meaning of Article 899(2) ICCC?

               2.

               If the answer to the preceding question is in the affirmative, may the expression ‘special situation’ used in (Article 905(1) ICCC with reference to)Article 239 of the Common Customs Code refer to the exclusion of a Community importer from a tariff quota whose opening date falls on a Sunday because of the Sunday closing of the customs offices of the Member State in question?

               3.

               Are Article 308a to 308c ICCC and the relevant provisions of the Administrative Arrangement on the management of tariff quotas to be interpreted as meaning that, in a case such as that at issue here, the Member State should have asked the Commissione Tributaria beforehand to suspend the tariff quota in question in order to enable Italian importers to receive equal and non-discriminatory treatment in comparison with importers from other Member States?

               4.

               Are the exclusion of Bolton s.p.a. from the quota, as decided by the Commissione Tributaria and the TAXUD note, measures taken in compliance with Article 308a to 308c ICCC, as well as with the relevant provisions of the Administrative Arrangement on the management of tariff quotas adopted by the Customs Code Committee (TAXUD/3439/2006-rev.1-[EN]), and therefore valid?


title: Case C-135/05: Judgment of the Court (Third Chamber) of 26 April 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Waste management — Directives 75/442/EEC, 91/689/EEC and 1999/31/EC)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/8

         Judgment of the Court (Third Chamber) of 26 April 2007 — Commission of the European Communities v Italian Republic
   (Case C-135/05) (1)

   (Failure of a Member State to fulfil obligations - Waste management - Directives 75/442/EEC, 91/689/EEC and 1999/31/EC)
   (2007/C 96/11)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: D. Recchia and M. Konstantinidis, Agents)

      Defendant: Italian Republic (represented by: I.M. Braguglia and G. Fiengo, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 4, 8 and 9 of Council Directive 75/442/EEC of 15 July 1995 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) — Infringement of Article 2(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20) — Infringement of Article 14(a), (b) and (c) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1).
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt all the necessary measures to ensure that:

                           —

                           waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and to prohibit the abandonment, dumping or uncontrolled disposal of waste;

                           —

                           any holder of waste has it handled by a private or public undertaking which carries out the operations of recovery or disposal, or recovers or disposes of it himself in accordance with the provisions of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991;

                           —

                           any establishment or undertaking which carries out waste-disposal operations is required to obtain a permit from the competent authority;

                           —

                           on every site where tipping (discharge) of hazardous waste takes place the waste is recorded and identified, and

                           —

                           as regards landfills which had already been granted a permit or were already in operation on 16 July 2001, the operator of a landfill, before 16 July 2002, prepared and presented to the competent authorities, for their approval, a conditioning plan for the site including particulars relating to the conditions of the permit and any corrective measures which the operator considered would be needed and that, following the presentation of the conditioning plan, the competent authorities took a definite decision on whether operations might continue, by closing down as soon as possible sites which had not been granted a permit to continue to operate, or by authorising the necessary work and laying down a transitional period for the completion of the plan,

                     the Italian Republic has failed to fulfil its obligations under Articles 4, 8 and 9 of Directive 75/442, as amended by Directive 91/156/EEC, under Article 2(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, and under Article 14(a) to (c) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 132, 28.5.2005.


title: Case T-501/13: Judgment of the General Court of 18 March 2016 — Karl-May-Verlag v OHIM — Constantin Film Produktion (WINNETOU) (Community trade mark — Invalidity proceedings — Community word mark WINNETOU — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Article 52(1) and (2) of Regulation No 207/2009 — Principles of autonomy and independence of the Community trade mark — Obligation to state reasons)

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/33

         Judgment of the General Court of 18 March 2016 — Karl-May-Verlag v OHIM — Constantin Film Produktion (WINNETOU)
   (Case T-501/13) (1)

   ((Community trade mark - Invalidity proceedings - Community word mark WINNETOU - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Article 52(1) and (2) of Regulation No 207/2009 - Principles of autonomy and independence of the Community trade mark - Obligation to state reasons))
   (2016/C 156/42)
   Language of the case: German

      Parties

      Applicant: Karl-May-Verlag GmbH, formerly Karl May Verwaltungs- und Vertriebs- GmbH (Bamberg, Germany) (represented by: M. Pejman and M. Brenner, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by A. Pohlmann, and subsequently by M. Fischer, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Constantin Film Produktion GmbH (Munich, Germany) (represented by: P. Baronikians and S. Schmidt, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 9 July 2013 (Case R 125/2012-1), concerning invalidity proceedings between Constantin Film Produktion GmbH and Karl-May Verwaltungs- und Vertriebs- GmbH.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 July 2013 (Case R 125/2012-1) in so far as it rejected the application for a declaration of invalidity;

               2.

               Orders OHIM to bear, in addition to its own costs, the costs incurred by Karl-May-Verlag GmbH;

               3.

               Orders Constantin Film Produktion GmbH to bear its own costs.

      (1)  OJ C 336, 16.11.2013.


title: Case C-397/10: Judgment of the Court (Fifth Chamber) of 30 June 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Article 56 TFEU — Freedom to provide services — National legislation making the activities of temporary work agencies subject to a set of requirements — Unjustified obstacles)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/6

         Judgment of the Court (Fifth Chamber) of 30 June 2011 — European Commission v Kingdom of Belgium
   (Case C-397/10) (1)

   (Failure of a Member State to fulfil obligations - Article 56 TFEU - Freedom to provide services - National legislation making the activities of temporary work agencies subject to a set of requirements - Unjustified obstacles)
   2011/C 252/08
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: J.-P. Keppenne and I. Rogalski, acting as Agents)

      Defendant: Kingdom of Belgium (represented by: M. Jacobs, acting as Agent)

      Re:

   Failure of a Member State to comply with its obligations — Infringement of Article 56 TFEU — Restriction on freedom to provide services — National legislation making the activities of temporary work agencies established in other Member States subject to a set of requirements — Unjustified obstacles

      Operative part of the judgment

   The Court:

               1.

               Declares that, by making the temporary work agencies providing their services in the territory of the Brussels Capital Region subject to the following requirements:

                           —

                           that they have as their sole business activity that of the provision of workers, and

                           —

                           that they have a particular legal form,
                           the Kingdom of Belgium has failed to fulfil its obligations under Article 56 TFEU;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 301, 6.11.2010.


title: Case T-156/03: Action brought on 30 April 2003 by Orlando Pérez-Díaz against Commission of the European Communities

text:
19.7.2003              EN                         Official Journal of the European Union                                            C 171/37
Pleas in law and main arguments                                           the temporary staff. By decision of 14 July 2002, the Selection
                                                                          Board did not enter the applicant’s name on the reserve list.
                                                                          That decision was annulled by the Court of First Instance in
The applicant in these proceedings objects to the two-year                Case T-102/01 Pérez-Díaz v Commission [2002] ECR II-0000.
delay in receiving his staff report in respect of the period              In order to comply with that judgment, the Selection Board
between July 1995 and June 1997 and to the contents thereof,              decided to organise fresh oral tests in which the applicant took
by comparison to the preceding reports.                                   part while nevertheless reserving his position as to its validity.
                                                                          The selection board decided that the applicant’s results in the
                                                                          new tests were not sufficient to enable him to be entered on
In support of his claims, the applicant alleges failure to fulfil         the reserve list.
the obligation to provide a statement of reasons, manifest error
of assessment, misuse of powers and irregular procedures.
                                                                          In support of his application, the applicant puts forward five
                                                                          pleas in law alleging:
                                                                          —     infringement of the second paragraph of Article 25 of the
                                                                                Staff Regulations inasmuch as the contested decision was
                                                                                inadequately reasoned;
Action brought on 30 April 2003 by Orlando Pérez-Díaz                     —     infringement of Article 233 of the EC Treaty and of the
    against Commission of the European Communities                              principles of equal treatment and objectivity in making a
                                                                                choice from among the candidates inasmuch as the
                         (Case T-156/03)                                        applicant’s performance was allegedly assessed under
                                                                                conditions and according to criteria which were different
                                                                                to those employed in respect of the other candidates;
                         (2003/C 171/62)
                                                                          —     breach of the principles of ‘restitutio in integrum’ and of
                   (Language of the case: French)                               equal treatment inasmuch as the applicant was required
                                                                                to re-sit the first and third stages of the oral test and give
                                                                                his views, in the second part of the second stage, on
                                                                                current scientific developments which had taken place
An action against the Commission of the European Communi-                       since the original tests;
ties was brought before the Court of First Instance of the
European Communities on 30 April 2003 by Orlando Pérez-                   —     infringement of Article 233 of the EEC Treaty, inasmuch
Díaz, residing in Brussels, represented by Marc-Albert Lucas,                   as the members of the new Selection Board had insuf-
lawyer.                                                                         ficient knowledge of the Spanish language to be able to
                                                                                assess the candidate’s abilities;
The applicant claims that the Court should:                               —     breach of the principle of ‘restitutio in integrum’ inas-
                                                                                much as the composition of the new selection board was
—     annul the decision of the Selection Board in COM/R/A/1/                   not as close as possible to that of the original board.
      1999 not to enter his name in the reserve list for that
      selection, notified to him by letter of 21 January 2003
      from the Head of Personnel in the Research Directorate
      General of the Commission in the name of the Chairman
      of the Selection Board;
—     order the Commission to pay him, by way of compen-                  Action brought on 5 May 2003 by Cascades SA against
      sation for the non-material damage and damage to his                       the Commission of the European Communities
      career suffered by him as a result of the unlawfulness of
      the contested decision damages at a level to be assessed
                                                                                (Case T-161/03)
      by the Court of First Instance;
—     order the Commission to pay the costs.                                                         (2003/C 171/63)
                                                                                (Language of the case: French)
Pleas in law and main arguments
                                                                          An action against the Commission of the European Communi-
The applicant, an agent for the Centre for the Development of             ties was brought before the Court of First Instance of the
Enterprise, applied to take part in selection procedure COM/R/            European Communities on 5 May 2003 by Cascades SA,
A/01/1999 organised by the defendant with a view to                       established in La Rochette (France), represented by Jacques
establishing a reserve list for the recruitment of members of             Buhart and Pierre-M. Louis, lawyers.


title: Case T-197/03: Action brought on 30 May 2003 by Proras S.r.l. Engineering and Contracting against Commission of the European Communities

text:
2.8.2003               EN                           Official Journal of the European Union                                          C 184/51
—     An alleged infringement of the EC Treaty and of                       European Communities on 30 May 2003 by Proras S.r.l.
      secondary Community legislation in that the contested                 Engineering and Contracting, represented by Gian Michele
      measure actually infringes Article 95(3) and Directive 76/            Roberti, Alessandro Maria Lerro, Marco Simone Mariani, Paolo
      768/EEC which require Community harmonisation                         Ziotti and Isabella Perego, lawyers.
      measures to be based on a ‘high level of protection’ of
      health, safety, environment and consumers.
                                                                            The applicant claims that the Court should:
—     The applicant also advances a manifest error of assess-
      ment in that the contested measure allegedly fails to take
      account of scientific assessments made by the Community               —     annul the decision of the European Commission
      advisory bodies.                                                            contained in the letter of 19 March 2003 from Mr P.B.
                                                                                Knudsen, Director of Directorate A — Office of Coopera-
                                                                                tion, EuropeAid, D(2003) D/8511, ‘Proras exclusion from
In support of its application to annul the provisions relating to                 participation in a TACIS procurement procedure’;
the prohibition of carcinogenic and similar substances, the
applicant advances the following grounds:
                                                                            —     find the Commission liable in damages for having
—     An alleged manifest error of assessment and inconsistency                   adopted the abovementioned decision;
      with Directive 76/768/EEC. According to the applicant the
      contested measure is inconsistent with the risk-based
      approach in the latter Directive.                                     —     order the defendant to make good the injury suffered by
                                                                                the applicant as a result of that damage, quantified at
                                                                                EUR 1 177 638,24 and further order the publication of
—     An alleged infringement of an essential procedural                          any judgment to that effect;
      requirement, in that the prohibition should have been
      made subject to the prior consultation and positive
      opinion of the Scientific Committee on Cosmetic Products              —     order the Commission to pay the costs.
      and Non Food Products intended for Consumers, in
      accordance with Article 8(2) of Directive 76/768/EEC.
—     An alleged infringement Article 95(3) of the EC Treaty
      and the rules adopted for its application,
                                                                            Pleas in law and main arguments
Further, the applicant alleges that both contested provisions
infringe superior principles of Community law, namely the
principles of proportionality, legal certainty and legitimate
expectations, the precautionary principle, the principle of                 By the present action, Proras S.r.l. Engineering and Contracting
consistency, the principle of equal treatment and the need to               (hereinafter ‘Proras’ or ‘the applicant’) is challenging the deci-
consider the balance of interests.                                          sion of the Commission contained in the letter of 19 March
                                                                            2003 from Mr P.B. Knudsen, Director of Directorate A —
                                                                            Office of Cooperation, EuropeAid, D(2003) D/8511, ‘Proras
(1) OJ L 66, 11.3.2003, p. 26-35.                                           exclusion from participation in a TACIS procurement proce-
(2) OJ L 262, 27.9.1976, p. 169-200.                                        dure’ by which it imposes, on the basis of Article 93(c) and (f)
                                                                            in conjunction with Article 96 of Regulation No 1605/
                                                                            2002, (1) a sanction consisting in exclusion for two years
                                                                            from tender procedures organised in the context of external
                                                                            actions funded by the Commission in the framework of the
                                                                            TACIS programme and, pursuant to Articles 235 and 288 EC,
                                                                            compensation for the damage suffered as a result of that
                                                                            decision. That decision was adopted after a procedure which
                                                                            contained a number of irregularities, denied by the applicant,
Action brought on 30 May 2003 by Proras S.r.l. Engi-                        which, according to the defendant, were committed in the
neering and Contracting against Commission of the                           course of tender procedure SCR — E/110983/D/S/NI,
                      European Communities                                  published by the unit ‘Programma de apoyo al Sector Educa-
                                                                            tivo en Nicaragua’ and financed under the ‘ALA’ programme.
                          (Case T-197/03)
                                                                            In support of its action for annulment, Proras puts forward
                         (2003/C 184/108)                                   four pleas in law. First, the applicant claims that the EuropeAid
                                                                            department, by adopting as a legal basis for the contested
                                                                            decision a provision — such as Regulation No 1605/2002 —
                    (Language of the case: Italian)                         which had not entered into force at the material time, has
                                                                            infringed the principles of retroactivity, lawfulness of sanctions
                                                                            and legitimate expectations. So far as concerns procedure, the
                                                                            applicant criticises the aforementioned department for failing
An action against the Commission of the European Commu-                     to inform it of the steps it intended to take in terms of the
nities was brought before the Court of First Instance of the                sanctions it proposed to impose on it or, at the very least,
 ---pagebreak--- C 184/52               EN                            Official Journal of the European Union                                             2.8.2003
giving it the opportunity to be heard, contrary to the rights of             Community       trade    mark     Figurative trade mark ‘COMP
defence and the principle of sound administration. As to                     sought:                           USA’      —     Application    no
substance, the applicant alleges, first misapplication of                                                      2 133 202 for goods in
Article 93(c) and (f) of Regulation No 1605/03 and, secondly,                                                  Classes 9 and 37 (items related
infringement of Article 96 of that regulation and of the                                                       to computers)
principle of proportionality in determining the level of sanc-
tions. The applicant further alleges a defective statement of
reasons in respect of the latter claims.
                                                                             Proprietor of mark or sign        The applicant
The applicant thus seeks compensation for the damage caused                  cited in the opposition pro-
by the sanctions unlawfully imposed by the contested decision;               ceedings:
such damage is not only economic in nature but is also
detrimental to the image and reputation of the company.
(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002            Mark or sign cited in op-         The figurative English trade
    on the Financial Regulation applicable to the general budget of the      position:                         mark ‘COMP USA’ for goods in
    European Communities (OJ 2002 L 248, p. 1).                                                                Class 39 (transport)
                                                                             Decision of the Opposition        Rejection of the opposition
                                                                             Division:
Action brought on 2 June 2003 by Alecansan, S.L. against
the Office for Harmonisation in the Internal Market
              (Trade Marks and Designs) (OHIM)                               Decision of the Board of          Dismissal of the appeal
                                                                             Appeal:
                          (Case T-202/03)
                         (2003/C 184/109)
                                                                             Pleas in law:                     Misapplication of Article 8(1)(b)
                                                                                of Regulation (EC) No 40/94
                    (Language of the case: Spanish)
                                                                                (likelihood of confusion)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
2 June 2003 by Alecansan, S.L., with its registered office in
                                                                             Action brought on 11 June 2003 by Nicolas Georgio-
Madrid, represented by María Baylos Morales, Pedro Merino
                                                                             poulos and Others against the Commission of the
Baylos and Jesús Arribas García, lawyers at the Madrid Bar.
                                                                                European Communities
The applicant claims that the Court should:                                                            (Case T-205/03)
—     annul the decision of the First Board of Appeal of OHIM                                         (2003/C 184/110)
      of 24 March 2003 in Case R 711/2002-1;
                                                                                (Language of the case: French)
—     annul the decision of OHIM's Opposition Division of
      17 June 2002;
                                                                             An action against the Commission of the European Commu-
—     declare the mark claimed and the applicant's trade mark                nities was brought before the Court of First Instance of the
      with priority incompatible pursuant to Article 8(1)(b) of              European Communities on 11 June 2003 by Nicolas Georgio-
      Regulation No 40/94 on the Community trade mark;                       poulos, residing in Brussels, and 4 other officials, represented
                                                                             by G. Bounéou and F. Frabetti, lawyers, with an address for
—     refuse registration of the Community trade mark ‘COMP                  service in Luxembourg.
      USA’, no 849 497, for Classes 9 and 37; and
                                                                             The applicants claim that the Court should:
—     order the defendant, and the intervener if he intervenes in            —     annul the decision of the competent hierarchical authority
      the action for annulment, to pay the costs.                                  changing, with effect from a year not further specified
                                                                                (1993, 1996, 1997, or another year, and for the period
                                                                                during which the applicants were officials of the Commis-
                                                                                sion of the European Communities), the procedure for
Pleas in law and main arguments                                                    calculating the annual expense of travelling to Greece in
                                                                                respect of the journey via Brindisi, as taken into consid-
Applicant for Community           CompUSA Management Com-                          eration for destinations in the Pelopponese;
trade mark:                       pany                                             or, in the alternative,


title: Case C-14/01: Reference for a preliminary ruling by the Verwaltungsgericht Hannover by order of 6 December 2000 in the case of Molkerei Wagenfeld Karl Niemann GmbH & Co. KG v Bezirksregierung Hannover

text:
C 79/16               EN                    Official Journal of the European Communities                                      10.3.2001
Reference for a preliminary ruling by the Giudice di Pace                    —     during the period prescribed for the transposition of
di Genova by order of 4 January 2001 in the case of                                the directive itself;
           Safalero Srl against Prefetto di Genova
                                                                             —     after expiry, without transposition, of the period?
                         (Case C-13/01)
                                                                             If the answer to the above is in the positive, what is the
                                                                             meaning of the Community concept of ‘measure liable
                                                                             seriously to compromise the result prescribed by the
                         (2001/C 79/27)
                                                                             directive’?
Reference has been made to the Court of Justice of the                 (1) OJ 1999 L 91, p. 10.
European Communities by order of the Giudice di Pace di
Genova (District Court, Genoa) of 4 January 2001, which was
received at the Court Registry on 11 January 2001, for a
preliminary ruling in the case of Safalero Srl against Prefetto di
Genova on the following questions:
(1) Are the rules on procedure and on sanctions for adminis-
     trative infringements, laid down by Law No 689 of                 Reference for a preliminary ruling by the Verwaltungsge-
     24 November 1981 compatible with the principles of
                                                                       richt Hannover by order of 6 December 2000 in the case
     proportionality, effectiveness and adequate legal protec-
                                                                       of Molkerei Wagenfeld Karl Niemann GmbH & Co. KG v
     tion of the rights conferred by Community law on                                     Bezirksregierung Hannover
     individuals, laid down in the Treaty and/or set out and
     defined in the case-law of the Court of Justice, where:
                                                                                (Case C-14/01)
     —     the offender cannot institute court proceedings
           against a measure authorising seizure adopted by the                                  (2001/C 79/28)
           administrative authorities until the administrative
           authorities themselves, without being constrained to        Reference has been made to the Court of Justice of the
           observe procedural time-limits, have applied to the         European Communities by order of 6 December 2000 by the
           courts for an interim order or a confiscation order;        Verwaltungsgericht Hannover (Administrative Court, Hann-
                                                                       over), which was received at the Court Registry on 12 January
                                                                       2001, for a preliminary ruling in the case of Molkerei
     —     a person directly and individually concerned by a           Wagenfeld Karl Niemann GmbH & Co. KG v Bezirksregierung
           measure adopted by the administrative authorities is        Hannover on the following questions:
           not allowed to institute court proceedings where the
           measure itself is addressed to other persons;
                                                                       Does Regulation (EC) No 2799/1999 (1) in conjunction with
                                                                       its annexes contravene
     —     a person directly and individually concerned by a
           measure adopted by the administrative authorities           (a)   Article 11(1) of Regulation (EC) No 1255/1999 (2),
           and addressed to other persons is not allowed to
           participate, even as a voluntary intervener, in court       (b) the second subparagraph of Article 34(2) EC, and
           proceedings brought against such a measure;
                                                                       (c)   the general legal principles of the European Community
                                                                             and the principle of the protection of legitimate expec-
     —     provision is made, without it being possible for a
           court to make a different and unfettered assessment,              tations,
           for the additional penalty of confiscation of the
           goods in the event of a purely administrative               inasmuch as the aforesaid regulation precludes aid from being
           infringement, the main penalty for which is pecuni-         granted for skimmed milk and buttermilk for liquid feed unless
           ary and involves payment of a quite modest sum of           that milk is first processed into compound feedingstuffs or
           money?                                                      into skimmed-milk powder, and makes no provision for a
                                                                       transitional period; is it on those grounds void (in part)?
(2) Do Articles 10 and 249 of the Treaty precludes Member
     States from adopting measures contrary to Directive               (1) OJ L 340 of 31.12.1999, p. 3.
     1999/5/EC (1) of the European Parliament and of the               (2) OJ L 160 of 26.6.1999, p. 48.
     Council of 9 March 1999 on radio equipment and
     telecommunications terminal equipment and the mutual
     recognition of their conformity:


title: Case C-293/05: Action brought on 20 July 2005 by the Commission of the European Communities against the Italian Republic

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/9

         Action brought on 20 July 2005 by the Commission of the European Communities against the Italian Republic
   (Case C-293/05)
   (2005/C 229/19)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 20 July 2005 by the Commission of the European Communities, represented by Sara Pardo Quintillan and Donatella Recchia, of its Legal Service.
   The applicant claims that the Court should:

               1.

               declare that, by failing to take measures to ensure that, as from 31 December 1998, urban waste water from the agglomeration of several communes of the Province of Varese situated in the basin of the River Olona is subject to more stringent treatment than the secondary treatment or equivalent treatment provided for in Article 4 of Directive 91/271/EEC, (1) the Italian Republic has failed to fulfil its obligations under Article 5(2) of that directive, referred to in Article 5(5) thereof;

               2.

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The Commission does not challenge the failure to designate the basin which drains the southern Lambro-Olona area as a sensitive area, inasmuch as appropriate infringement proceedings are pending for that purpose. However, that drainage basin is part of an area situated within the Po basin, which has been officially designated a sensitive area.
   Accordingly, pursuant to Article 5(5) of Directive 91/271, which refers to Article 5(2) thereof, water from the agglomeration in the Province of Varese situated in the basin of the River Olona should have been subject to more stringent treatment than secondary treatment since 31 December 1998.
   Despite the passing of that time-limit, the agglomeration of the Varese area has, up to the present day, still not been provided with purification plants to ensure that the waste water from that agglomeration is treated in accordance with Article 5(2) of Directive 91/271/EEC.

      (1)  Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ L 135 of 30.05.1991, p. 40).


title: Joined Cases C-512/14 P and C-513/14 P: Order of the President of the Third Chamber of the Court of 17 July 2015 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Unibail Management

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/26

         Order of the President of the Third Chamber of the Court of 17 July 2015 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Unibail Management
   (Joined Cases C-512/14 P and C-513/14 P) (1)

   (2015/C 320/39)
   Language of the case: French
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 138, 27.4.2015.


title: Case C-528/13: Judgment of the Court (Fourth Chamber) of 29 April 2015 (request for a preliminary ruling from the Tribunal administrative, Strasbourg — France) — Geoffrey Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes, Établissement français du sang (Reference for a preliminary ruling — Public health — Directive 2004/33/EC — Technical requirements relating to blood and blood components — Blood donation — Eligibility criteria for blood donors — Criteria for permanent or temporary deferral — Persons whose sexual behaviour puts them at a high risk of acquiring severe infectious diseases that can be transmitted by blood — Man who has had sexual relations with another man — Charter of Fundamental Rights of the European Union — Articles 21(1) and 52(1) — Sexual orientation — Discrimination — Justification — Proportionality)

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/7

         Judgment of the Court (Fourth Chamber) of 29 April 2015 (request for a preliminary ruling from the Tribunal administrative, Strasbourg — France) — Geoffrey Léger v Ministre des Affaires sociales, de la Santé et des Droits des femmes, Établissement français du sang
   (Case C-528/13) (1)

   ((Reference for a preliminary ruling - Public health - Directive 2004/33/EC - Technical requirements relating to blood and blood components - Blood donation - Eligibility criteria for blood donors - Criteria for permanent or temporary deferral - Persons whose sexual behaviour puts them at a high risk of acquiring severe infectious diseases that can be transmitted by blood - Man who has had sexual relations with another man - Charter of Fundamental Rights of the European Union - Articles 21(1) and 52(1) - Sexual orientation - Discrimination - Justification - Proportionality))
   (2015/C 213/10)
   Language of the case: French

      Referring court

   Tribunal administrative, Strasbourg

      Parties to the main proceedings

      Applicant: Geoffrey Léger

      Defendants: Ministre des Affaires sociales, de la Santé et des Droits des femmes, Établissement français du sang

      Operative part of the judgment

   Point 2.1 of Annex III to Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components must be interpreted as meaning that the criterion for permanent deferral from blood donation in that provision relating to sexual behaviour covers the situation in which a Member State, having regard to the prevailing situation there, provides for a permanent contraindication to blood donation for men who have had sexual relations with other men where it is established, on the basis of current medical, scientific and epidemiological knowledge and data, that such sexual behaviour puts those persons at a high risk of acquiring severe infectious diseases and that, with due regard to the principle of proportionality, there are no effective techniques for detecting those infectious diseases or, in the absence of such techniques, any less onerous methods than such a counter indication for ensuring a high level of health protection of the recipients. It is for the referring court to determine whether, in the Member State concerned, those conditions are met.

      (1)  OJ C 367, 14.12.2013.


title: Action brought on 4 August 1997 by Irish Sugar plc against the Commission of the European Communities (Case T-228/97)

text:
18 . 10 . 97              EN                  Official Journal of the European Communities                                   C 318/29
Instance of the European Communities on 30 July 1997                     Action brought on 4 August 1997 by Irish Sugar pic
by Guerin Automobiles, the principal place of business of                  against the Commission of the European Communities
which is at Alengon (France ), represented by Jean-Claude
                                                                                ( Case T-228/97)
Fourgoux, of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue                                                ( 97/C 318/57)
Beatrix de Bourbon .
The applicant claims that the Court should:                                               (Language of the case: English)
— declare that the Commission has failed to act,
                                                                         An action against the Commission of the European
— order the Commission to pay the costs.                                 Communities was brought before the Court of First
                                                                         Instance of the European Communities on 4 August 1997
Pleas in law and main arguments adduced in support:                      by Irish Sugar pic, represented by Alexander Bohlke,
                                                                         Rechtsanwalt, and Scott Crosby, Solicitor, with an address
                                                                         for service in Luxembourg at the Elvinger & Dessoy, 31 ,
The applicant states that on 3 August 1992 it submitted a                rue d'Eich, Luxembourg.
complaint to the Commission contesting the compatibility
of the Volvo dealership contract with the competition
rules under the EC Treaty, in particular Commission
                                                                         The applicant claims that the Court should :
Regulation ( EEC ) No 123/85 of 12 December 1984 on the
application of Article 85 ( 3 ) of the EEC Treaty to certain
categories of motor vehicle distribution and servicing
agreements ( ! ). On 5 May 1994, not having succeeded in                 — annul the Commission Decision C ( 97 ) 1315 final,
obtaining from the Commission a response as to the steps
which it intended to take in relation to the complaint, the
applicant brought an action before the Court of First                    — alternatively, reduce the fine imposed in Article 2, and
Instance of the European Communities for a declaration                        annul Article 3 , third and fourth paragraphs, in so far
of failure to act (2 ). During the course of those                            as they go beyond the scope of the abuses found in
proceedings, the Commission sent a notification under                         Article 1 , points 5 and 6 ,
Article 6 of Regulation No 99/63 , informing the applicant
of the reasons for which it did not propose to give
individual consideration to the complaint, in particular the             — order the Commission to pay the costs.
fact that it was then engaged in considering other similar
cases and that it was necessary to await their outcome .
The      Court     of    First   Instance  considered   that   that
notification constituted a definition of position within the             Pleas in law and main arguments adduced in support:
meaning of Article 175 of the EC Treaty and that there
was therefore no need to give a ruling on the application
for a declaration of failure to act. The applicant points out            The contested decision states that the applicant has
that whilst, in the appeal proceedings brought by it                     infringed Article 86 of the EC Treaty by having recourse
against that judgment ( 3 ), the Court of Justice declared               to methods different from those which condition normal
that a notification under Article 6 does not constitute a                competition in products or services based on traders'
measure open to review, it also stated that it is always                 performance, the effect thereof being that the maintenance
open to the complainant undertaking subsequently to                      of the degree of competition still existing in the market
serve formal notice on the Commission calling upon it to                 and the growth of that competition has been hindered. For
adopt a definitive decision .                                            these infringements, also cited in the decision, a fine of
                                                                         ECU 8 800 000 was imposed on the applicant.
In those circumstances, on 2 and 11 April 1997 the
applicant formally called on the Commission to serve a
statement of objections on Volvo .                                       The applicant pleads misapplication of Article 86 of the
                                                                         EC Treaty. It rejects the Commission's views on joint
The applicant considers that it is now entitled, over two                dominance or dominance in the industrial sugar market
months later and five years after submission of the                      and on alleged abuses on the industrial market and the
                                                                         retail market .
original complaint, to bring the present proceedings for a
declaration of failure to act and that it is justified in so
doing.
                                                                         Furthermore, the applicant pleads misapplication of
(') OJL 15 , 18 . 1 . 1985 , p . 16 .                                    Article 15 (2 ) of Regulation No 17. The fine is too high
( 2 ) Case T- 1 86/94, Guérin Automobiles v. Commission [ 1995 ]         and not in line with previous practice . The fine ignores the
      ECR 11-1756 , ( judgment of 27 June 1995 ).                        constraints of the EC sugar regime, treating the applicant
( 3 ) Case C-282/95 P, Guêrin Automobiles v. Commission [ 1997]          worse than it does producers of industrial products. The
      ECR 1-1531 , ( judgment of 18 March 1997 ).                        Commission is not only in breach of its duty to take into
                                                                         account the regulatory and economic context of the
                                                                         practices called in question but also penalizes, in part,
 ---pagebreak--- C 318/30             EN                   Official Journal of the European Communities                                    18 . 10 . 97
infringements not duly found to exist. In the applicant's            applicant, or where there is no national representative
view, the length of the administrative proceeding, which             organization, challenges the Council decision, set out in
could be regarded as a lack of reasonable diligence, should          Regulation ( EC ) No 1188/97, to recognize Italy as a
be considered to be a mitigating factor.                             deficit area and to fix a derived intervention price for
                                                                     white sugar produced in Italy.
Finally, the applicant pleads misapplication of Article 3 ( 1 )
of Regulation No 17 which confers on the Commission                  Owing to the fact that the derived intervention price for
only the power to prohibit abuses found to exist. The                the marketing year 1997/98 should have been fixed before
Commission may order them not to continue, as it does,               1 August 1996 , whereas the contested regulation fixed the
and not to be repeated, as it likewise does . That Article           price on the 25 June 1997, the applicant submits that the
provides no legal basis, however, for prohibiting, by way            said Regulation was adopted with unreasonable delay.
of anticipation, abuses other than the ones formally found.          Sugar manufacturers have the right to be informed in
                                                                     good time of the price at which they may sell to the
                                                                     intervention agencies the sugar produced within the quota
                                                                     and the minimum price to be paid to beet producers .
                                                                     Furthermore, the Council did not state any reasons
Action brought on 5 August 1997 by the Comite                        justifying the decision to regard Italy as a deficit area and,
Europeen des Fabricants de Sucre against the Council of              consequently, the adoption of a derived intervention price .
                    the European Union
                       ( Case T-229/97 )
                                                                     Finally, the applicant claims that the treatment of Italy as
                         ( 97/C 318/58 )                             a deficit area, when it is not, has a negative impact on the
                                                                     European industry and on the common organization of
                                                                     the market in sugar and constitutes a breach of the
               (Language of the case: English)                       principles of non-discrimination and of Community
                                                                     preference .
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 5 August 1997 by the Comite Europeen
des Fabricants de Sucre, represented by Bernard O'Connor
and Bonifacio Garcia Porras, with an address for service
in Luxembourg at the Chambers of Arsene Kronshagen,
22, Rue Marie Adelaide .                                             Action brought on 5 August 1997 by Comafrica SpA
                                                                     and Dole Fresh Fruit Europe Ltd & Co. against the
                                                                               Commission of the European Communities
The applicant claims that the Court should:                                                  ( Case T-230/97 )
                                                                                ( 97/C 318/59 )
— pursuant to Articles 173 and 174 of the EC Treaty,
     declare void Article 1 ( f) of Regulation ( EC ) No 1188/
     97 of 25 June 1997 in so far as it affects the applicant                         (Language of the case: English)
     and the European sugar manufacturers; alternatively,
     declare the said provision of the regulation void erga
     omnes,
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 5 August 1997
— request the Council to hand over all impugned                       by Comafrica SpA and Dole Fresh Fruit Europe Ltd &c
     documents, information and methods at its disposal               Co ., represented by Bernard O'Connor, assisted by
     for the adoption of the Regulation, with regard to the           Bonifacio Garcia Porras, with an address for service in
     decision to consider Italy a deficit area;                       Luxembourg at the Chambers of Arsene Kronshagen, 22,
                                                                      rue Marie Adelaide .
 — make any additional orders which the Court considers
     necessary, and                                                   The applicants claim that the Court should :
 — order the Council to pay the costs of the proceedings .            — pursuant to Articles 173 and 174 EC, declare void
                                                                           Commission Regulation ( EC ) No 1155/97 in so far as
 Pleas in law and main arguments adduced in support:                       it affects the applicants, or, in the alternative declare
                                                                           the said Regulation void erga omnes, on the basis that
                                                                           the Commission has acted in breach of Article 40 ( 3 )
 The applicant, an international association made up of                    of the EC Treaty and contrary to the case-law of the
 national organizations of sugar manufacturers, as well as                 Court of Justice and denied the applicants their
 individual sugar companies, where their national                          fundamental rights to property and to pursue a
 representative organization is not a member of the                        professional trade or activity,


title: Case T-198/10: Order of the General Court of 12 January 2011 — Maximuscle v OHIM — Foreign Supplement Trademark (GAKIC)

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/33

         Order of the General Court of 12 January 2011 — Maximuscle v OHIM — Foreign Supplement Trademark (GAKIC)
   (Case T-198/10) (1)

   2011/C 72/52
   Language of the case: English
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 179, 3.7.2010.


title: Case T-53/03: Judgment of the Court of First Instance (Third Chamber) of 8 July 2008 — BPB v Commission (Competition — Cartels — Plasterboard market — Decision finding an infringement of Article 81 EC — Single and continuous infringement — Repeated infringement — Fine — Guidelines on the method of setting fines — Leniency Notice)

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/41

         Judgment of the Court of First Instance (Third Chamber) of 8 July 2008 — BPB v Commission
   (Case T-53/03) (1)

   (Competition - Cartels - Plasterboard market - Decision finding an infringement of Article 81 EC - Single and continuous infringement - Repeated infringement - Fine - Guidelines on the method of setting fines - Leniency Notice)
   (2008/C 209/69)
   Language of the case: English
   Parties

      Applicant: BPB plc (Slough, United Kingdom) (represented by: T. Sharpe QC, and A. Nourry, Solicitor)

      Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre, Agent, J. Flynn QC, and C. Kilroy, Barrister)
   Re:
   Application for annulment in part of Commission Decision 2005/471/EC of 27 November 2002 relating to a proceeding under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 — Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative, annulment or reduction of the fine imposed on the applicant.
   Operative part of the judgment
   The Court:

               1.

               Sets the amount of the fine imposed on BPB plc by Article 3 of Commission Decision 2005/471/EC of 27 November 2002 relating to a proceeding under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 — Plasterboard) at EUR 118,8 million;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Commission to pay one tenth of its own costs and one tenth of the costs incurred by BPB;

               4.

               Orders BPB to pay nine tenths of its own costs and nine tenths of the costs incurred by the Commission.

      (1)  OJ C 101, 26.4.2003.


title: Case C-249/15: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2015 — Wind 1014 GmbH, Kurt Daell v Skatteministeriet

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/12

         Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2015 — Wind 1014 GmbH, Kurt Daell v Skatteministeriet
   (Case C-249/15)
   (2015/C 245/16)
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: Wind 1014 GmbH, Kurt Daell

      Defendant: Skatteministeriet

      Questions referred

               1)

               Is it consistent with EU law, including Article 56 TFEU, that a vehicle covered by a leasing agreement between a leasing company domiciled in one Member State and a lessee resident or domiciled in another Member State (please see question 2 below) basically cannot begin being used on the roads of the latter Member State while the authorities process an application for permission to pay proportionate registration tax on that vehicle in respect of the period for which it is desired to use the vehicle in that Member State?

               2)

               Is it compatible with EU law, including Article 56 TFEU, that a national measure serving as a prerequisite for the registration/proportionate adjustment of tax on a vehicle for only temporary, not permanent, use requires prior approval or means that:

                           (i)

                           the authorities require full payment of Danish registration tax as a prerequisite for immediate use, and that the difference between the full amount of tax and the proportionate amount of tax that has been calculated is to be repaid with interest if permission is subsequently given; and/or that

                           (ii)

                           the authorities require full payment of the registration tax as a prerequisite for immediate use, and this is not adjusted, and the surplus is not repaid when temporary use ceases, in the event that permission is not given?


title: Case C-24/09: Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 19 January 2009 — Djurgården-Lilla Värtans Miljöskyddsförening v AB Fortum Värme samägt med Stockholms stad

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/27

         Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 19 January 2009 — Djurgården-Lilla Värtans Miljöskyddsförening v AB Fortum Värme samägt med Stockholms stad
   (Case C-24/09)
   (2009/C 69/50)
   Language of the case: Swedish
   Referring court
   Högsta domstolen
   Parties to the main proceedings

      Applicant: Djurgården-Lilla Värtans Miljöskyddsförening

      Defendant: AB Fortum Värme samägt med Stockholms stad
   Questions referred

               1.

               Does the provision in Article 10a of Directive 85/337 (1) — that under certain circumstances the public concerned is to have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of a decision — imply that there is also a requirement that the public concerned is to be entitled to challenge a decision of a court in planning consent proceedings in a case where the public concerned has had the opportunity of participating in the court's examination of the question of planning consent and of submitting its views to that court?

               2.

               If the answer to Question 1 is affirmative: Are Articles 1(2), 6(4) and 10a of Directive 85/337 to be interpreted as meaning that different national requirements can be laid down with regard to the public concerned referred to in Articles 6(4), on the one hand, and 10a, on the other, with the result that a locally established environmental protection association which has a right to participate in the decision-making procedures referred to in Article 6(4) in respect of projects which may have significant effects on the environment in the area where the association is active does not — since it has fewer members than the minimum number laid down in national law — have a right of appeal such as is referred to in Article 10a of Directive 85/337?

               3.

               Does the provision in Article 15a of Directive 96/61 (2) — that under certain circumstances the public concerned is to have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of a decision — imply that there is a requirement that the public concerned is to be entitled to challenge a decision of a court in planning consent proceedings in a case where the public concerned has had the opportunity of participating in the court's examination of the question of planning consent and of submitting its views to that court?

               4.

               If the answer to Question 3 is affirmative: Are Articles 2(14) and 15a of Directive 96/61 to be interpreted as meaning that national requirements can be laid down with regard to the right to judicial review, with the result that a locally established environmental protection association which has a right to participate in the decision-making procedures in respect of projects which may have significant effects on the environment in the area where the association is active does not — since it has fewer members than the minimum number laid down in national law — have a right of appeal such as is referred to in Article 15a of Directive 96/61?

      (1)  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

      (2)  Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26).


title: Case C-90/14: Order of the Court (Sixth Chamber) of 8 July 2015 (request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 1 de Miranda de Ebro — Spain) — Banco Grupo Cajatres SA v María Mercedes Manjón Pinilla, Comunidad Hereditaria formada al fallecimiento de D. M. A. Viana Gordejuela (Reference for a preliminary ruling — Directive 93/13/EEC — Contract entered into between a seller or a supplier and a consumer — Mortgage contract — Default interest clause — Early repayment clause — Mortgage enforcement proceedings — Moderation of the amount of interest — Powers of the national court)

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/5

         Order of the Court (Sixth Chamber) of 8 July 2015 (request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 1 de Miranda de Ebro — Spain) — Banco Grupo Cajatres SA v María Mercedes Manjón Pinilla, Comunidad Hereditaria formada al fallecimiento de D. M. A. Viana Gordejuela
   (Case C-90/14) (1)

   ((Reference for a preliminary ruling - Directive 93/13/EEC - Contract entered into between a seller or a supplier and a consumer - Mortgage contract - Default interest clause - Early repayment clause - Mortgage enforcement proceedings - Moderation of the amount of interest - Powers of the national court))
   (2015/C 320/06)
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia e Instrucción No 1 de Miranda de Ebro

      Parties to the main proceedings

      Applicant: Banco Grupo Cajatres SA

      Defendants: María Mercedes Manjón Pinilla, Comunidad Hereditaria formada al fallecimiento de D. M. A. Viana Gordejuela

      Operative part of the order

               1)

               Articles 3(1), 4(1), 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the assessment by the national court of the unfairness of contractual clauses coming under that Directive requires it to take into account the nature of the goods and services which form the subject of the contract concerned by referring, in relation to the date of the conclusion of the contract, to all the circumstances surrounding it.

               2)

               Articles 6(1) and 7(1) of Directive 93/13 must be interpreted as meaning that they do not preclude national provisions for moderating default interest under a mortgage contract, provided that those national provisions:

                           —

                           do not prejudice to the assessment by the national court hearing mortgage enforcement proceedings relating to that contract on the ‘unfairness’ of the default interest clause, and

                           —

                           do not prevent that court setting aside that clause should it conclude that the latter clause is ‘unfair’ within the meaning of Article 3(1) of Directive 93/13.

      (1)  OJ C 151, 19.5.2014.


title: Case T-271/17: Action brought on 8 May 2017 — Clean Sky 2 Joint Undertaking v Revoind Industriale

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/34

         Action brought on 8 May 2017 — Clean Sky 2 Joint Undertaking v Revoind Industriale
   (Case T-271/17)
   (2017/C 231/42)
   Language of the case: English

      Parties

      Applicant: Clean Sky 2 Joint Undertaking (CSJU) (represented by: B. Mastantuono, Agent and M. Velardo, lawyer)

      Defendant: Revoind Industriale Srl (Oricola, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               order the defendant to pay the CSJU the amount of EUR 189 128,26 in relation to the Grant Agreement for partners No 632456 ‘WITTINESS-WindTunnel Tests on an Innovative regional A/C for Noise assessment’, plus the amount of EUR 979,32 as late payment interest calculated at a rate of 3,5 % for the period between 7 February 2017 and 1 April 2017;

               —

               order the defendant to pay EUR 18,14 per day by way of interest from 2 April 2017 until the date on which the debt is repaid in full; and

               —

               order the defendant to pay the costs of the present proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on on the following plea in law.
   The applicant contends that the defendant has breached its contractual obligations, by failing to implement project WITTINESS and by failing to provide CSJU with the relevant reports and deliverables, in accordance with Article II.2 Annex II of the Grant Agreement.
   Moreover, the defendant has failed to carry out the work to be performed as identified in Annex I therefore violating its obligations under Article II.3 lett. a) e) and h) of Annex II of the Grant Agreement.
   Accordingly, the applicant terminated the Grant Agreement on the basis of Article II.38 Annex II of the Grant Agreement and issued debit note for the pre-financing of EUR 189 128,26 that had already been paid by the coordinator to the defendant in compliance with the provisions of the Grant Agreement. Indeed the pre-financing remains the property of the applicant until final payment.
   The facts giving rise to Revoind Industriale S.r.l.’s obligations, as beneficiary of the Grant Agreement, are widely undisputed in the present case and the defendant’s objections are generic, incomplete and lack of any supporting element, thus appear to be completely unfounded.
   Accordingly, the applicant is entitled to ask for the recovery and the reimbursement of the amount paid to the defendant as pre-financing, increased by default interest.