title: JUDGMENT OF THE COURT (Sixth Chamber) of 18 June 1998 in Case C-208/97: Commission of the European Communities v. Portuguese Republic (Failure to fulfil obligations - Directive 84/156/EEC - Failure to transpose within the prescribed period)

text:
C 278/4               EN                  Official Journal of the European Communities                                      5.9.98
               JUDGMENT OF THE COURT                                                  JUDGMENT OF THE COURT
                       (Sixth Chamber)                                                       (Sixth Chamber)
                        of 18 June 1998                                                      of 25 June 1998
in   Case    C-208/97: Commission of the European                    in Case C-192/96 (reference for a preliminary ruling from
           Communities v. Portuguese Republic (1)                    the Netherlands Raad van State): Beside BV and I. M.
(Failure to fulfil obligations Ð Directive 84/156/EEC Ð              Besselsen v. Minister van Volkshuisvesting, Ruimtelijke
      Failure to transpose within the prescribed period)                                Ordening en Milieubeheer (1)
                         (98/C 278/06)                               (Management, transport and storage of municipal/
                                                                                household waste Ð Illegal traffic)
                                                                                (98/C 278/07)
              (Language of the case: Portuguese)
                                                                                (Language of the case: Dutch)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
In Case C-208/97: Commission of the European                          (Provisional translation; the definitive translation will be
Communities (Agent: Francisco de Sousa Fialho) v.                             published in the European Court Reports)
Portuguese Republic (Agents: Luís Fernandes and JoaÄo
Lopes Fernandes) Ð application for a declaration that, by
failing to adopt within the period prescribed the laws,
regulations and administrative provisions necessary to               In Case C-192/96: reference to the Court under Article 177
comply with Council Directive 84/156/EEC of 8 March                  of the EC Treaty from the Netherlands Raad van State
1984 om limit values and quality objectives for mercury              (Council of State), for a preliminary ruling in the
discharges by sectors other than the chlor-alkali                    proceedings pending before that court between Beside BV
electrolysis industry (OJ L 74, 17.3.1984, p. 49), and, in           and I. M. Besselsen and Minister van Volkshuisvesting,
particular, by failing to draw up the specific programmes            Ruimtelijke Ordening en Milieubeheer Ð on the
required by that Directive, and in the alternative, by               interpretation of Council Regulation (EEC) No 259/93 of
failing forthwith to inform the Commission of such                   1 February 1993 on the supervision and control of
measures, the Portuguese Republic has failed to fulfil its           shipments of waste within, into and out of the European
obligations under the third paragraph of Article 189 of the          Community (OJ L 30, 6.2.1993, p. 1) and of Council
EC Treaty and under that Directive Ð the Court (Sixth                Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194,
Chamber), composed of: H. Ragnemalm, President of the                25.7.1975, p. 39), as amended by Council Directive 91/
Chamber, G. F. Mancini, J. L. Murray, G. Hirsch and                  156/EEC of 18 March 1991 amending Directive 75/442/
K. M. Ioannou (Rapporteur), Judges; P. LeÂger, Advocate-             EEC on waste (OJ L 78, 26.3.1991, p. 32) Ð the Court
General; R. Grass, Registrar, has given a judgment on                (Sixth Chamber), composed of: H. Ragnemalm
18 June 1998, in which it:                                           (Rapporteur), President of the Chamber, G. F. Mancini,
                                                                     P. J. G. Kapteyn, J. L. Murray and G. Hirsch, Judges: F. G.
                                                                     Jacobs, Advocate-General; H. A. Rühl, Principal
                                                                     Administrator, for the Registrar, has given a judgment on
1. declares that, by failing to adopt within the period              25 June 1998, in which it has ruled:
     prescribed the laws, regulations and administrative
     provisions necessary to comply with Council Directive
     84/156/EEC of 8 March 1984 on limit values and
     quality objectives for mercury discharges by sectors
                                                                     1.    The expression municipal/household waste' referred
     other than the chlor-alkali electrolysis industry and, in
                                                                           to under AD 160 in the amber list in Annex III to
     particular, by failing to draw up the specific
                                                                           Council Regulation (EEC) No 259/93 of 1 February
     programmes required by that directive, the Portuguese
                                                                           1993 on the supervision and control of shipments of
     Republic has failed to fulfil its obligations under
                                                                           waste within, into and out of the European
     Article 4(1) of the said Directive;
                                                                           Community, as amended by Commission Decision
                                                                           94/721/EC of 21 October 1994 adapting, pursuant to
                                                                           Article 42(3), Annexes II, III and IV to Council
2. orders the Portuguese Republic to pay the costs.                        Regulation (EEC) No 259/93, includes both waste
                                                                           which for the most part consists of waste mentioned
                                                                           on the green list in Annex II to the Regulation,
(1) OJ C 228, 26.7.1997.                                                   mixed with other categories of waste appearing on
                                                                           that list, and waste mentioned on the green list mixed
                                                                           with a small quantity of materials not referred to on
                                                                           that list.


title: Case T-343/99: Action brought on 1 December 1999 by Hans-Werner Schmidt against the Commission of the European Communities

text:
C 79/32                 EN                  Official Journal of the European Communities                                     18.3.2000
The applicant claims that the Court should annul the contested         (c) Defects of reasoning
decision on the following grounds:
                                                                           The Commission has infringed Article 253 EC by giving in
                                                                           the Decision inadequate reasons in two principal areas:
(a) Misapplication of Council Regulation (EEC) No 4064/89 (the
    ‘ECMR’), in particular in respect of the finding of collective         — There are certain important elements of argument and
    dominance                                                                   evidence adduced by the applicant which have been
                                                                                ignored by the Commission in its Decision. By ignoring
    It is common ground between the applicant and the                           them, the Commission fails to give adequate reasons
    Commission that the ECMR prohibits the creation or                          for its Decision.
    strengthening of a collective dominant position within
    a relevant product and geographic market within the                    — In certain key areas of the Decision, the reasoning of
    Community. The relevant test is whether as a result of the                  the Commission is logically defective.
    creation or strengthening of a dominant position effective
    competition would be significantly impeded.                        (d) Breach of the principle of legal certainty
                                                                           The Commission has infringed the principle of legal
    In the application of that test the overriding principle is to         certainly in that it has departed from its own previous
    establish, using a prospective analysis of the relevant                decisional case-law and the case-law of the European Court
    market, whether effective competition would be signifi-                of Justice and the Court of First Instance, particularly in its
    cantly impeded by the undertakings involved in the                     approach in establishing and applying a test for collective
    concentration and one or more other undertakings which                 dominance which rests on ‘incentives’ and ‘rational’
    together, in particular because of factors giving rise to a            actions, but without the need for tacit collusion.
    connection between them, are able to adopt a common
    policy on the market and act to a considerable extent
    independently of their competitors, their customers and
    ultimately of consumers.
    The ability to adopt a common policy involves tacit
    collusion between the undertakings concerned. Tacit col-
    lusion means some form of coordination to identify,                Action brought on 1 December 1999 by Hans-Werner
    achieve and sustain such a common policy. Coordination             Schmidt against the Commission of the European Com-
    itself involves what is known as a punishment mechanism                                          munities
    to deter any deviation from the common policy.
                                                                                (Case T-343/99)
    In carrying out its prospective analysis of the conduct
    of the three alleged oligopolists the Commission has                                         (2000/C 79/70)
    misapplied the ECMR in the following ways:
                                                                                (Language of the case: French)
    — It has not based its case on tacit collusion; it has
         replaced that essential and stringent requirement with
                                                                       An action against the Commission of the European Communi-
         a lesser test founded on ‘unilateral’ effects, consisting
                                                                       ties was brought before the Court of First Instance of the
         of what are described as incentives and rational
                                                                       European Communities on 1 December 1999 by Hans-Werner
         behaviour to achieve, in the present case, a reduction
                                                                       Schmidt, residing at Konz (Federal Republic of Germany),
         in capacity and prices above competitive levels. That
                                                                       represented by Georges Vandersanden and Laure Levi, of the
         falls short of the necessary test which requires the
                                                                       Brussels Bar, with an address for service in Luxembourg at the
         Commission to establish more, namely the coordi-
                                                                       offices of the Société de la Gestion Fiduciaire, 2-4 Rue Beck.
         nation and the common policy referred above.
                                                                       The applicant claims that the Court should:
    — Tacit collusion, just as active collusion, requires a
         punishment mechanism to be effective. The Com-                — annul the implicit decision rejecting the application made
         mission wrongly claims that this essential requirement            by the applicant on 5 October 1998 by which he sought
         is not necessary.                                                 (i) the confirmation of the appointing authority that it
                                                                           would close the disciplinary proceedings brought against
(b) Manifest errors of appreciation                                        him by adopting the decision referred to in the third
                                                                           paragraph of Article 7 of Annex IX to the Staff Regulations
                                                                           of officials of the EC on the basis of the reasoned opinion
    The Commission has committed manifest errors of                        of the Disciplinary Board dated 16 July 1997, (ii) an award
    appreciation of the facts relating to the market and the               of damages provisionally fixed, on an equitable basis, in
    conduct of undertakings within this market, resulting in a             the sum of LFR 500 000 and (iii) the immediate and
    failure to comply with the requisite legal standard and thus           definitive cessation of any investigation carried out by the
    in an error of law.                                                    appointing authority without the applicant’s knowledge;
 ---pagebreak--- 18.3.2000               EN                    Official Journal of the European Communities                                       C 79/33
— award damages provisionally estimated, on an equitable                 Action brought on 1 December 1999 by Lucı́a Recalde
     basis, as amounting to LFR 600 000;                                 Langarica against Commission of the European Communi-
                                                                                ties
— order the defendant to pay the costs.
                                                                                (Case T-344/99)
Pleas in law and main arguments
                                                                                (2000/C 79/71)
In June 1996 the appointing authority notified the applicant
of its decision to open disciplinary proceedings against him on
account of alleged tampering with the computer program                                      (Language of the case: Spanish)
relating to the remuneration of officials. The Disciplinary
Board delivered its reasoned opinion in July 1997, in which it
proposed imposition of the disciplinary measure of a written             An action against the Commission of the European Communi-
warning. Ultimately, in the context of the discussion provided           ties was brought before the Court of First Instance of the
for in the third paragraph of Article 7 of Annex IX to the Staff         European Communities on 1 December 1999 by Lucı́a
Regulations, the appointing authority expressed its wish to              Recalde Langarica, residing in Brussels, represented by Ramon
make further inquiries. In March 1998 the applicant’s advisers           Garcı́a-Gallardo and Gerard Pérez Olmo, of the Madrid and
were informed that the appointing authority had decided to               Barcelona Bars respectively, of S.J. Berwin & Co, 19 Square de
refer the matter once again to the Disciplinary Board. The               Meeûs, Brussels.
applicant was subsequently informed that his personal file was
being examined by DG IX.
                                                                         The applicant claims that the Court should:
Against that background, the applicant, in bringing the present
action, contests in particular the rejection by the appointing           — annul the measure adopted by the Commission by means
authority of his application for the closure of the disciplinary              of its letter of 26 February 1999, and subsequently
proceedings brought against him.                                              implemented by means of acts communicated by letter
                                                                              of 5 May 1999, whereby the applicant’s entitlement to
                                                                              expatriation allowance was retrospectively withdrawn.
In support of his claims, the applicant pleads:
                                                                         — order the defendant to pay the costs.
— infringement of the third paragraph of Article 7 of
     Annex IX to the Staff Regulations, failure to comply with
     the duty to have regard for the welfare and interests of
     officials and failure to comply with the principles of good         Pleas in law and main arguments
     management and sound administration. He maintains in
     that regard that the appointing authority has known since
     September 1997 that he did not wish to add anything to              The applicant in the present case contests the appointing
     the statements made in the context of the investigation of          authority’s refusal to recognise her claim to expatriation
     the file in issue. Moreover, whilst the appointing authority        allowance as from her entry into the service of the Com-
     is not bound by strict or mandatory time-limits for the             mission. She observes in that regard that the refusal was
     purposes of adopting the decision referred to in the third          adopted retroactively, after the defendant administration itself
     paragraph of Article 7 of Annex IX to the Staff Regulations,        had, in mid-1996, provisionally granted her the aforemen-
     such a decision must nevertheless be taken within a                 tioned allowance. Following that provisional allocation, the
     reasonable time;                                                    applicant did not receive any notification whatsoever that her
                                                                         file was under review, which, together with the fact that she
— infringement of the rights of the defence, of Article 87 of            continued to receive the allowance in question, led her to
     the Staff Regulations and of Articles 1, 7 and 11 of                believe her situation with the Commission to be definitive.
     Annex IX to the Staff Regulations. In that regard, he
     maintains, inter alia, that disciplinary proceedings, as
     organised by the Staff Regulations, do not authorise the            The applicant categorically denies having worked and pursued
     appointing authority, in the context of one and the same            a professional activity in Belgium during the five years
     set of proceedings, to proceed to make further inquiries            preceding the six months prior to her entering the Community
     after the Disciplinary Board has delivered its reasoned             civil service. In support of her arguments, she claims that:
     opinion. Moreover, the hearing referred to in the third
     paragraph of Article 7 of Annex IX to the Staff Regulations         — her fundamental rights of defence were infringed with
     cannot be used by the appointing authority in order to                   regard to the obligation to state reasons for the adoption
     pursue an inquiry. By the same token, the Disciplinary                   of Community administrative acts;
     Board’s opinion of 25 November 1999 stated in clear
     terms that no new facts existed which might warrant the
                                                                         — the principle of legitimate expectations was infringed;
     matter being referred a second time to that Board.
                                                                         — the contested decision was unlawfully implemented with
                                                                              retroactive effect;


title: Case T-222/15: Order of the General Court of 7 June 2016 — Beele Engineering v EUIPO (WE CARE) (EU trade mark — Application for the EU figurative mark WE CARE — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/28

         Order of the General Court of 7 June 2016 — Beele Engineering v EUIPO (WE CARE)
   (Case T-222/15) (1)

   ((EU trade mark - Application for the EU figurative mark WE CARE - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 279/41)
   Language of the case: English

      Parties

      Applicant: Beele Engineering BV (Aalten, the Netherlands) (represented by: M. Ring, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: H. O’Neill, acting as Agent)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 11 February 2015 (Case R 1933/2014-1), relating to an application for registration of the figurative sign WE CARE as an EU trade mark.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Beele Engineering BV shall pay the costs.

      (1)  OJ C 228, 13.7.2015.


title: Case T-284/08: Judgment of the Court of First Instance of 4 December 2008 — People's Mojahedin Organization of Iran v Council (Common foreign and security policy — Restrictive measures directed against certain persons and entities with a view to combating terrorism — Freezing of funds — Actions for annulment — Rights of the defence — Judicial review)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/29

         Judgment of the Court of First Instance of 4 December 2008 — People's Mojahedin Organization of Iran v Council
   (Case T-284/08) (1)

   (Common foreign and security policy - Restrictive measures directed against certain persons and entities with a view to combating terrorism - Freezing of funds - Actions for annulment - Rights of the defence - Judicial review)
   (2009/C 19/55)
   Language of the case: English
   Parties

      Applicant: People's Mojahedin Organization of Iran (Auvers-sur-Oise, France) (represented by: initially, J.-P. Spitzer, lawyer, and D. Vaughan QC, subsequently by J.-P. Spitzer, D. Vaughan QC and M.E. Demetriou, Barrister)

      Defendant: Council of the European Union (represented by: initially, G.J. Van Hegleson, M. Bishop and E. Finnegan, subsequently by M. Bishop and E. Finnegan, Agents)

      Interveners in support of the defendant: French Republic (represented by: G. de Bergues and A.L. During, Agents); and Commission of the European Communities (represented by: P. Aalto and S. Boelaert, Agents)
   Re:
   Application for annulment of Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC (OJ 2008 L 188, p. 21), so far as it concerns the applicant.
   Operative part of the judgment
   The Court:

               1.

               Annuls Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC, in so far as it concerns the People's Mojahedin Organization of Iran.

               2.

               Orders the Council to bear, in addition to its own costs, the costs of the People's Mojahedin Organization of Iran.

               3.

               Orders the French Republic and the Commission to pay their own costs.

      (1)  OJ C 236, 13.9.2008.


title: Case C-308/10 P: Appeal brought on 29 June 2010 by Union Investment Privatfonds GmbH against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-392/06 Union Investment Privatfonds GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party to the proceedings: Unicre-Cartão International De Crédito SA

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/23

         Appeal brought on 29 June 2010 by Union Investment Privatfonds GmbH against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-392/06 Union Investment Privatfonds GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party to the proceedings: Unicre-Cartão International De Crédito SA
   (Case C-308/10 P)
   ()
   2010/C 246/40
   Language of the case: German

      Parties

      Appellant: Union Investment Privatfonds GmbH (represented by: J. Zindel, Rechtsanwalt)

      Other parties to the proceedings:

               —

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

               —

               Unicre-Cartão International De Crédito SA

      Form of order sought

               —

               set aside the judgment of the General Court of 27 April 2010 in Case T-392/06;

               —

               declare void Decision R 442/2004-2 of the Board of Appeal of the Office for Harmonisation in the Internal Market of 10 October 2006 and uphold the appellant’s oppositions to the registration of Community Trade Mark 1871896 ‘unibanco’.

      Pleas in law and main arguments

   The appeal alleges misapplication of Article 74(2) of Regulation (EC) No 40/94. The General Court, in the appellant’s view, wrongly proceeded on the basis that the appellant had been late in submitting evidence of use of the marks cited in opposition. Furthermore, the discretionary examination which the Board of Appeal of OHIM is required to carry out under Article 74(2) of Regulation (EC) No 40/94 does not comply with the requirements laid down by the Court in its judgment of 13 March 2007 in Case C-29/05 P OHIM v Kaul [2007] ECR I-2213.
   A proper discretionary examination would necessarily have resulted in the appellant’s evidence as to use of the mark cited in opposition being taken into account even if it had in fact been submitted late. Appraisal of the evidence would not have given rise to a delay in the proceedings because the Opposition Division of OHIM did not take its decision until 15 months after the evidence had been submitted. The evidence would also have had direct legal relevance. Furthermore, inaccurate written communications from the Opposition Division of OHIM were instrumental in contributing to the appellant’s submission of the evidence only after the period for so doing had elapsed.
   The General Court also failed to assess the finding of the Opposition Division of OHIM that the parties involved had submitted their arguments and evidence within the periods which had been laid down. The Opposition Division of OHIM thus did not take the view that there had been a delay. The Board of Appeal of OHIM was thus precluded from assuming that there had been a delay. Rather, the Board of Appeal ought to have carried out a substantive examination of the evidence submitted.
   Neither the Board of Appeal nor the General Court could make up for the absence of a discretionary decision on the part of the Opposition Division of OHIM. Because of non-exercise of discretion, the Board of Appeal ought to have remitted the matter back to the Opposition Division in accordance with Article 62(2) of Regulation (EC) No 40/94.
   Furthermore, there are a number of reasons why the appellant was not late in submitting the evidence of use of the mark cited in opposition. First, the daily publications in the financial section of national newspapers, by which the use of the marks cited in opposition and further serial trade marks was evidenced by the indication of investment funds of the appellant, are established matters of public knowledge. OHIM was, for its part, obliged to take cognisance of this matter. Second, the trade mark applicant did not dispute the use of the opposition and serial trade marks. Third, the Opposition Division of OHIM unlawfully prevented the appellant from submitting further evidence of trade mark use. OHIM in fact informed the appellant that it could set out its views only in regard to arguments of the trade mark applicant, and it stated that it would not consider new evidence. It was thus irrelevant whether or not the appellant adduced further evidence of use. Fourth, periods were shortened in an impermissible manner. In this regard, OHIM also failed to comply with rule 80 of implementing Regulation No 2868/95.


title: Case C-309/07: Judgment of the Court (First Chamber) of 19 March 2009 (reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany)) — Firma Baumann GmbH v Land Hessen (Common agricultural policy — Fees concerning veterinary inspections and controls — Directive 85/73/EEC)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/6

         Judgment of the Court (First Chamber) of 19 March 2009 (reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany)) — Firma Baumann GmbH v Land Hessen
   (Case C-309/07) (1)

   (Common agricultural policy - Fees concerning veterinary inspections and controls - Directive 85/73/EEC)
   2009/C 113/11
   Language of the case: German

      Referring court

   Hessischer Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Firma Baumann GmbH

      Defendant: Land Hessen

      Re:

   Reference for a preliminary ruling — Hessischer Verwaltungsgerichtshof –Interpretation of Article 5(3) and points 1, 2(a), 4(a) and 4(b) of Chapter I of Annex A to Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat (OJ 1985 L 32, p. 14), as amended by Council Directive 96/43/EC of 26 June 1996 (OJ 1996 L 162, p. 1) — Legislation making a distinction between slaughtering units in large establishments and other slaughtering activities, adjusting the rate of fees on a diminishing scale according to animal types and increasing fees for slaughtering carried out outside normal hours

      Operative part of the judgment

               1.

               Point 4(a) of chapter I of Annex A to Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC, as amended and consolidated by Council Directive 96/43/EC of 26 June 1996, must be interpreted as meaning that it does not permit Member States to deviate from the fee structure laid down in points 1 and 2(a) of Chapter I of Annex A and charge a fee the scale of which varies according to the size of establishments and diminishes according to the number of animals slaughtered per animal type;
               Point 4(b) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State is not required to comply with the fee structure laid down in points 1 and 2(a) of Chapter I of Annex A and may charge a fee the scale of which varies according to the size of an establishment and the number of animals slaughtered per animal type, where it is established that those factors have an actual effect on the actual costs incurred in carrying out the veterinary inspections and controls required by the relevant provisions of Community law.

               2.

               Point 4(a) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State may charge, in respect of inspections of animals which, at the request of the owner, are slaughtered outside normal slaughtering hours, an ‘additional fee on a percentage basis’ on top of the fee normally charged for inspections of animals when that increase represents a standard value which reflects the additional costs to be covered;
               Point 4(b) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State may charge, in respect of inspections of animals which, at the request of the owner, are slaughtered outside normal slaughtering hours, an ‘additional fee on a percentage basis’ on top of the fee normally charged for inspections of animals when that increase reflects the additional actual costs.

      (1)  OJ C 247, 20.10.2007.


title: Case C-187/15: Judgment of the Court (First Chamber) of 13 July 2016 (request for a preliminary ruling from the Verwaltungsgericht Düsseldorf — Germany) — Joachim Pöpperl v Land Nordrhein-Westfalen (Reference for a preliminary ruling — Article 45 TFEU — Freedom of movement for workers — Civil servant of a Member State who has left the public service in order to be employed in another Member State — National legislation providing in that case for loss of the retirement pension rights acquired in the civil service and for retrospective insurance under the general old-age insurance scheme)

text:
               12.9.2016

               EN

               Official Journal of the European Union

               C 335/18

         Judgment of the Court (First Chamber) of 13 July 2016 (request for a preliminary ruling from the Verwaltungsgericht Düsseldorf — Germany) — Joachim Pöpperl v Land Nordrhein-Westfalen
   (Case C-187/15) (1)

   ((Reference for a preliminary ruling - Article 45 TFEU - Freedom of movement for workers - Civil servant of a Member State who has left the public service in order to be employed in another Member State - National legislation providing in that case for loss of the retirement pension rights acquired in the civil service and for retrospective insurance under the general old-age insurance scheme))
   (2016/C 335/23)
   Language of the case: German

      Referring court

   Verwaltungsgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Joachim Pöpperl

      Defendant: Land Nordrhein-Westfalen

      Operative part of the judgment

               1.

               Article 45 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a person having the status of civil servant in a Member State who leaves his post voluntarily in order to be employed in another Member State loses his retirement pension rights under the retirement pension scheme for civil servants and is insured retrospectively under the general old-age insurance scheme, conferring entitlement to a retirement pension lower than the retirement pension that would result from those rights.

               2.

               Article 45 TFEU must be interpreted as meaning that is incumbent on the national court to give full effect to that article and to grant workers, in a situation such as that at issue in the main proceedings, retirement pension rights which are comparable to those of the civil servants who retain retirement pension rights corresponding, despite a change in public-sector employer, to the years of pensionable service that they have completed, by interpreting domestic law in conformity with that article or, if such an interpretation is not possible, by disapplying any contrary provision of domestic law in order to apply the same arrangements as those applicable to those civil servants.

      (1)  OJ C 245, 27.7.2015.


title: Case T-473/09: Order of the General Court of 19 September 2011 — Matkompaniet v OHIM — DF World of Spices (KATOZ) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/21

         Order of the General Court of 19 September 2011 — Matkompaniet v OHIM — DF World of Spices (KATOZ)
   (Case T-473/09) (1)

   (Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
   2011/C 340/43
   Language of the case: English

      Parties

      Applicant: Matkompaniet AB (Borås, Sweden) (represented by: J. Gulliksson and J. Olson, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: DF World of Spices GmbH (Dissen, Germany) (represented by: A. Ebert-Weidenfeller and S. Schmüser, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 9 September 2009 (Case R 1023/2008-2) concerning opposition proceedings between Matkompaniet AB and DF World of Spices GmbH

      Operative part of the order

               1.

               There is no further need to adjudicate on the action.

               2.

               The applicant and the intervener shall bear their own costs and each of them shall pay half the costs of the defendant.

      (1)  OJ C 24, 30.1.2010.


title: Case C-2/13: Request for a preliminary ruling from the Cour de cassation (France) lodged on 2 January 2013 — Directeur général des douanes et droits indirects, Chef de l’agence de la direction nationale du renseignement et des enquêtes douanières v Humeau Beaupreau SAS

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/11

         Request for a preliminary ruling from the Cour de cassation (France) lodged on 2 January 2013 — Directeur général des douanes et droits indirects, Chef de l’agence de la direction nationale du renseignement et des enquêtes douanières v Humeau Beaupreau SAS
   (Case C-2/13)
   2013/C 71/17
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Appellants: Directeur général des douanes et droits indirects, Chef de l’agence de la direction nationale du renseignement et des enquêtes douanières

      Respondent: Humeau Beaupreau SAS

      Question referred

   In the process of manufacturing footwear, must the operations of shaping the counter of an upper and of roughing of that upper and an outer sole, prior to their assembly, be classified as ‘assembly operations’ or ‘working operations for completion into the finished state’, within the meaning of point VII of the Explanatory Notes to General Rule 2(a) on the Interpretation of the Harmonised System?


title: Joined Cases C-152/07 to C-154/07: Judgment of the Court (Grand Chamber) of 17 July 2008 (references for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Arcor AG & Co. KG (C-152/07), Communication Services TELE2 GmbH (C-153/07), Firma 01051 Telekom GmbH (C-154/07) v Bundesrepublik Deutschland (Telecommunications — Networks and services — Tariff rebalancing — Article 4c of Directive 90/388/EEC — Article 7(2) of Directive 97/33/EC — Article 12(7) of Directive 98/61/EC — Regulatory authority — Direct effect of directives — Triangular situation)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/13

         Judgment of the Court (Grand Chamber) of 17 July 2008 (references for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Arcor AG & Co. KG (C-152/07), Communication Services TELE2 GmbH (C-153/07), Firma 01051 Telekom GmbH (C-154/07) v Bundesrepublik Deutschland
   (Joined Cases C-152/07 to C-154/07) (1)

   (Telecommunications - Networks and services - Tariff rebalancing - Article 4c of Directive 90/388/EEC - Article 7(2) of Directive 97/33/EC - Article 12(7) of Directive 98/61/EC - Regulatory authority - Direct effect of directives - Triangular situation)
   (2008/C 223/20)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicants: Arcor AG & Co. KG (C-152/07), Communication Services TELE2 GmbH (C-153/07), Firma 01051 Telekom GmbH (C-154/07)

      Defendant: Bundesrepublik Deutschland

      Intervening Party: Deutsche Telekom AG
   Re:
   Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10) and Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ 1997 L 199, p. 32) — National legislation prescribing, in addition to interconnection charges calculated on the basis of the cost of the service, a financial contribution from other operators to cover the ‘connection cost deficit’ incurred by the incumbent operator as a result of providing the local loop — Obligation of the Member States to remove obstacles to the rebalancing of tariffs by former telecommunications organisations following the interconnection of networks — Ability of an individual to rely on the direct effect of a directive before the courts of a Member State in order to secure the annulment of an administrative decision laying down a financial obligation in favour of another individual
   Operative part of the judgment

               1.

               Article 12(7) of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP), as amended by Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998, and Article 4c of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, as amended by Commission Directive 96/19/EC of 13 March 1996, the latter article read in conjunction with recitals 5 and 20 in the preamble to Directive 96/19, must be interpreted as precluding a national regulatory authority from requiring an operator of a network interconnected with a public network to pay to the market-dominant subscriber network operator a connection charge which is additional to an interconnection charge and is intended to compensate the latter operator for the deficit incurred as a result of providing the local loop for the year 2003.

               2.

               Article 4c of Directive 90/388, as amended by Directive 96/19, and Article 12(7) of Directive 97/33, as amended by Directive 98/61, produce direct effect and can be relied on directly before a national court by individuals to challenge a decision of the national regulatory authority.

      (1)  OJ C 140, 23.6.2008.


title: Case T-344/03: Judgment of the Court of First Instance of  5 April 2006  — Saiwa v OHMI (Community trade mark — Application for a figurative mark including the word element  SELEZIONE ORO Barilla  — Opposition — Earlier word marks ORO and ORO SAIWA — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Opposition rejected)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/39

         Judgment of the Court of First Instance of 5 April 2006 — Saiwa v OHMI
   (Case T-344/03) (1)

   (Community trade mark - Application for a figurative mark including the word element ‘SELEZIONE ORO Barilla’ - Opposition - Earlier word marks ORO and ORO SAIWA - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Opposition rejected)
   (2006/C 131/72)
   Language of the case: Italian
   Parties

      Applicant: Saiwa SpA (Genoa Italy) (represented by: G. Sena, P. Tarchini, J.-P. Karsenty and M. Karsenty-Ricard, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: M. Capostagno and O. Montalto, acting as Agents)
   Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Barilla Alimentare SpA (Parma, Italy) (represented by: A. Vanzetti and S. Bergia, lawyers)
   Re:
   Action against the decision of the Fourth Board of Appeal of OHIM of 18 July 2003 (R 480/2002-4) concerning opposition proceedings between Saiwa SpA and Barilla Alimentare SpA
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 304, 13.12.2003.


title: Case T-496/13: Action brought on 16 September 2013 — McCullough v Cedefop

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/61

         Action brought on 16 September 2013 — McCullough v Cedefop
   (Case T-496/13)
   2013/C 344/113
   Language of the case: English

      Parties

      Applicant: Colin Boyd McCullough (Thessaloniki, Greece) (represented by: G. Matsos, Lawyer)

      Defendant: European Centre for the Development of Vocational Training

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Cedefop’s refusal dated 15 July 2013, to grant to the applicant access to certain documents;

               —

               Order Cedefop to provide to the applicant the requested documents;

               —

               Authorise according to Article 1(3) of the Protocol on the Privileges and Immunities of the European Union that the Greek national authorities may violate the premises and buildings of Cedefop, with the purpose of locating and providing the documents at issue and of investigating possible crimes, which may have been committed by any person in relation thereto; and

               —

               Order Cedefop to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that Cedefop has infringed EU law in the contested decision through erroneous interpretation of Art. 4(1)(b) of Regulation (EC) No 1049/2001.

               2.

               Second plea in law, alleging that Cedefop has infringed EU law through erroneous interpretation of Art. 4(3) of Regulation (EC) No 1049/2001.

               3.

               Third plea in law, alleging that the behaviour of the Acting Director of Cedefop is at least questionable, when he claims that it is questionable whether the KMS-Steering Group Meetings Minutes, among the requested documents, have ever existed, as he should be aware of their existence (or non-existence), because he was Deputy Director of Cedefop during a long period (one year) that such documents were being produced. Such behaviour makes the investigation of the premises of Cedefop by the competent national authorities necessary.

               4.

               Fourth plea in law, alleging that Cedefop has failed to adopt practical arrangements for implementing Council Regulation (EC) No 1049/2001 and that the respective Detailed Rules, which the Commission has adopted should be applied by analogy.

               5.

               Fifth plea in law, alleging that Cedefop’s refusal to provide access to the requested documents violates the applicant’s rights as a Defendant in criminal proceedings.


title: Case T-14/17: Action brought on 12 January 2017 — Landesbank Baden Württemberg v SRB

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/41

         Action brought on 12 January 2017 — Landesbank Baden Württemberg v SRB
   (Case T-14/17)
   (2017/C 063/54)
   Language of the case: German

      Parties

      Applicant: Landesbank Baden Württemberg (Stuttgart, Germany) (represented by: H. Berger and K. Rübsamen, lawyers)

      Defendant: Single Resolution Board (SRB)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Single Resolution Board of 15 April on the 2016 ex-ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/06) and the decision of the Single Resolution Board of 20 May 2016 on the adjustment of the 2016 ex-ante contributions to the Single Resolution Fund, supplementing the decision of the Board of 15 April 2016 on the 2016 ex-ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/13), in so far as the contested decisions concern the applicant’s contribution;

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an infringement of Article 296(2) TFEU and Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) due to a lack of sufficient reasons given for the contested decisions

               2.

               Second plea in law, alleging an infringement of the right to be heard under Article 41(1) and (2)(a) of the Charter due to the absence of a hearing of the applicant before the adoption of the contested decisions

               3.

               Third plea in law, alleging an infringement of Article 103(7)(h) of Directive 2014/59/EU (1), Article 113(7) of Regulation (EU) No 575/2013 (2), the first sentence of Article 6(5) of Delegated Regulation (EU) 2015/63 (3), Article 16 and 20 of the Charter and the principle of proportionality due to the application of the multiplier of 0.556 for the IPS (Institutional Protection Scheme) — Indicator
               The applicant claims in the context of the third plea in law that the defendant had not fully applied the IPS-Indicator with respect to it. The protection offered by an institutional protection scheme applies to all member institutions fully and equally. Discrimination between the institutions at the level of IPS-Indicators is inconsistent with the system and arbitrary.

               4.

               Fourth plea in law, alleging an infringement of Article 16 of the Charter and the principle of proportionality due to the application of the risk adjustment multiplier
               The applicant also relies on the fact that the Board infringed its freedom to conduct a business and the principle of proportionality, in so far as it calculated risk adjustment multipliers that are incompatible with the applicant’s risk profile which, relative to the other contributor-institutions, is better than average .

      (1)  Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council Text with EEA relevance (OJ 2014 L 173, p. 190).

      (2)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

      (3)  Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).


title: Reference for a preliminary ruling by the Bundessozialgericht by order of that court of 8 February 1996 in the case of 1. Manuela Gomez Rodriguez and 2. Gregorio Gomez Rodriguez v. Landesversicherungsanstalt Rheinprovinz (Case C-113/96)

text:
1 . 6 . 96           I EN     |            Official Journal of the European Communities                                      No C 158/7
      necessary in order to comply fully with Council                 Action brought on 3 April 1996 by the Commission of the
      Directive 91 /674/EEC of 19 December 1991 on the                     European Communities against the Hellenic Republic
      annual accounts and consolidated accounts of insurance
                                                                                ( Case C-1 12/96
      undertakings (');
                                                                                ( 96/C 158 / 15 )
— order the Hellenic Republic to pay the costs .
                                                                      An action against the Hellenic Republic was brought before
Pleas in law and main arguments                                       the Court of Justice of the European Communities on
                                                                      3 April 1996 by the Commission of the European
Under Article 189 ( 3 ) of the Treaty establishing the                Communities, represented by Dimitrios Gouloussis, Legal
European Community directives are to be binding upon                  Adviser at the Commission, with an address for service in
each Member State to which they are addressed . The                   Luxembourg at the office of Carlos Gomez de la Cruz, of the
Hellenic Republic has not yet adopted the measures                    Commission's Legal Service, Wagner Centre, Kirchberg.
necessary to incorporate the relevant Directive fully into
Greek law and has also failed to communicate any such                 The applicant claims that the Court should :
measures to the Commission .
                                                                      — declare that the Hellenic Republic has failed to fulfil its
(') OJ No L 374 , 1991 , p . 7 .                                            obligations under the EC Treaty by failing to adopt and
                                                                            also to communicate to the Commission in due time
                                                                            the laws, regulations and administrative provisions
                                                                            necessary in order to comply fully with Council
                                                                            Directive 92/96/EEC of 10 November 1992 on the
Action brought on 3 April 1996 by the Commission of the                     coordination of laws, regulations and administrative
     European Communities against the Hellenic Republic                     provisions relating to direct life assurance (') and
                        ( Case C-111 /96                                    amending Directives 79/267/EEC ( 2 ) and 90/619/EEC ( 3 )
                          ( 96/C 158/ 14 )                                  ( third life assurance directive );
An action against the Hellenic Republic was brought before            — order the Hellenic Republic to pay the costs .
the Court of Justice . of the European Communities on
3 April 1996 by the Commission of the European                        Pleas in law and main arguments
Communities, represented by Dimitrios Gouloussis, Legal
Adviser at the Commission, with an address for service in             Under Article 189 ( 3 ) of the Treaty establishing the
Luxembourg at the office of Carlos Gômez de la Cruz, of the           European Community directives are to be binding upon
Commission's Legal Service, Wagner Centre, Kirchberg.                 each Member State to which they are addressed . The
                                                                      Hellenic Republic has not yet adopted the measures
The applicant claims that the Court should :                          necessary to incorporate the relevant Directive fully into
                                                                      Greek law and has also failed to communicate any such
— declare that the Hellenic Republic has failed to fulfil its         measures to the Commission .
      obligations under the EC Treaty by failing to adopt and
      also to communicate to the Commission in due time               (') OJ No L 360, 1992 , p . 1 .
      the laws, regulations and administrative provisions             ( 2 ) OJ No L 63 , 1979 , p . 1 .
      necessary in order to comply fully with Council                 ( 5 ) OJ No L 330 , 1990 , p . 50.
      Directive 92/49/EEC of 18 June 1992 on the
      coordination of laws, regulations and administrative
      provisions relating to direct insurance other than life
      assurance (') and amending Directives 73/239/EEC ( 2 )
      and     88/357/EEC ( 3 )     ( third non-life   insurance       Reference for a preliminary ruling by the Bundessozial
      directive );                                                    gericht by order of that court of 8 February 1996 in the case
— order the Hellenic Republic to pay the costs .                      of 1 . Manuela Gomez Rodriguez and 2 . Gregorio Gomez
                                                                          Rodriguez v. Landesversicherungsanstalt Rheinprovinz
Pleas in law and main arguments                                                                  ( Case C-113 /96 )
                                                                                ( 96/C 158/ 16 )
Under Article 189 ( 3 ) of the Treaty establishing the
European Community directives are to be binding upon
each Member State to which they are addressed . The                   Reference has been made to the Court of Justice of the
Hellenic Republic has not yet adopted the measures                    European Communities by order of the Bundessozialgericht
necessary to incorporate the relevant Directive fully into             ( Federal Social Court ), Thirteenth Chamber, of 8 February
Greek law and has also failed to communicate any such                  1996 , which was received at the Court Registry on 5 April
measures to the Commission .                                           1996 , in the case of 1 . Manuela Gomez Rodriguez and
                                                                      2 . Gregorio Gomez Rodriguez v. Landesversicherungs
(') OJ No L 228 , 1992 , p . 1 .                                      anstalt ( Regional Insurance Office ) Rheinprovinz, on the
( 2 ) OJ No L 228 , 1973 , p . 3 .                                    following questions :
( 3 ) OJ No L 172 , 1988 , p . 1 .
                                                                       1 . Is Article 78 ( 2 ) ( b ) of Regulation ( EEC ) No 1408/71 ( )
                                                                             to be as meaning that the provision contained therein on
 ---pagebreak---  No C 158/8               EN                    Official Journal of the European Communities                                          1 . 6 . 96
      the legislation applicable for the grant of benefits is to                  assimilation and simplification thresholds a detailed
      apply permanently even if the right to orphans' pension                     declaration of all its intra-Community imports and
      first arose in the Member State which is competent                          exports, has Council Regulation ( EEC ) No 3330/91 of
      thereunder ( in this case the State of residence ) but has                  7 November 1991 (') introduced a measure having an
      subsequently been lost by reason of the attainment of an                    effect equivalent to a quantitative restriction on trade
      age limit, while in another Member State whose                              in goods between Member States prohibited by
      legislation was also applicable to the insured person, a                    Articles 30 and 34 of the EEC Treaty ?
      right to orphan's pension would run beyond that time
      in pursuance of Article 79 of Regulation ( EEC )                     ( b ) Does the obligation to provide the data required under
      No 1408/71 , or is there in such a case a change                            the Intrastat collection system in both the importing
      of the legislation applicable in accordance with                            and the exporting country, breach of which is subject to
      Article 78 ( 2 ) ( b ) ( ii ) of the Regulation ?                           criminal sanctions under Luxembourg law in the event
                                                                                of non-submission of the information requested to
 2 . Does the expectation of continuing to receive orphans '                      the Service central de la statistique et des études
      pension already granted by a Member State under a                           économiques ( Central Statistics and Economics Unit ),
      convention concluded between two Member States and                          constitute for traders a constraint that is unjustified and
      transposed into national law for a longer period ( for                      disproportionate in relation to the general-interest
      example in the case of education or vocational training                     objective pursued and is it therefore contrary to the
      extending beyond the completion of the 18th year ) than                     third paragraph of Article 3b of the EEC Treaty as
      the orphans' pension which is to be granted pursuant to                     inserted by Article G ( 5 ) of the Treaty on European
      the legislation of another Member State, applicable                         Union signed at Maastricht on 7 February 1992 ?
      under Article 78 ( 2 ) ( b ) of Regulation ( EEC )
      No 1408/71 , constitue one of the social security                    C ) OJ No L 316 , 16 . 11 . 1991 , p . 1 .
      advantages which orphans must not lose by virtue of
      the fact that the said convention lias been rendered
      inapplicable by the entry into force of Regulation ( EEC )
      No 1408 /71 ?
 3 . If Question 2 is answered in the affirmative : Can
      orphans who were already entitled, before Regulation                 Reference for a preliminary ruling from the Tullilautakunta
      ( EEC ) No 1408/71 came into force, to orphans'                     by interim order of that body of 27 March 1996 in the
      pensions according to the law of a Member State in                               proceedings brought by Outokumpu Oy
      pursuance of a social insurance convention concluded                                          ( Case C-1 15/96 )
      between two Member States again rely on that
      entitlement where there is no longer any right to                                               ( 96/C 158 / 18 )
      a benefit which first arose under the legislation
      of another Member State applicable under                             Reference has been made to the Court of Justice of the
      Article 78 ( 2 ) ( b ) of Regulation ( EEC ) No 1408/71 ?            European Communities by an interim order of the
                                                                          Tullilautakunta ( Customs Committee ) of 27 March 1996 ,
(') OJ , English Special Edition 1971 ( II ), p . 416 .                   which was received at the Court Registry on 10 April 1 996 ,
                                                                          for a preliminary ruling in the proceedings brought by
                                                                           Outokumpu Oy on the following questions :
                                                                           1 . Is the duty levied on electricity to be regarded as a
                                                                                customs duty or other charge having equivalent effect
                                                                                prohibited by Articles 9 and 12 of the EC Treaty, if the
Reference for a preliminary ruling from the Tribunal de                         electricity duty is determined with respect to electricity
Police, Luxembourg, by judgment of that court of 2 April                        imported from another Member State on the basis of the
1996 in the case of Ministère Public v. René Kieffer and                        amount of electricity received by the recipient of
                               Romain Thill                                     electricity during a tax period, whereas with respect to
                            ( Case C-1 14/96 )                                  domestically produced electricity the duty is determined
                                                                                on the basis of the amount produced during a tax
                              ( 96/C 158/17)                                    period ?
Reference has been made to the Court of Justice of the                          What effect does it have on the assessment of the matter
European Communities by a judgment of the Tribunal de                           that the rate of duty is different for electricity produced
Police ( Local Criminal Court ), Luxembourg, of 2 April                          by different production methods ? Duty of 2,4 p/kWh is
1996 , which was received at the Court Registry on 9 April                      levied on electricity produced by nuclear power, and the
 1 996 , for a preliminary ruling in the case of Ministère Public               rate of duty levied on imported electricity is 2,2 p/kWh .
( Public Prosecutor's Office ) v . René Kieffer and Romain                      Duty of 0,4 p/kWh is levied on electricity produced by
Thill on the following questions :                                              water power .
( a ) In so far as it requires Member States to obtain from               2 . Is the tax system described in Question 1 to be regarded
       every undertaking exceeding the stipulated exclusion,                    as an internal taxation system of a Member State ,


title: Case C-191/15: Judgment of the Court (Third Chamber) of 28 July 2016 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Verein für Konsumenteninformation v Amazon EU Sàrl (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulations (EC) No 864/2007 and (EC) No 593/2008 — Consumer protection — Directive 93/13/EEC — Data protection — Directive 95/46/EC — Online sales contracts concluded with consumers resident in other Member States — Unfair terms — General terms and conditions containing a choice-of-law term applying the law of the Member State in which the company is established — Determination of the applicable law for assessing the unfairness of terms in those general terms and conditions in an action for an injunction — Determination of the law governing the processing of personal data of consumers)

text:
               26.9.2016

               EN

               Official Journal of the European Union

               C 350/8

         Judgment of the Court (Third Chamber) of 28 July 2016 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Verein für Konsumenteninformation v Amazon EU Sàrl
   (Case C-191/15) (1)

   ((Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulations (EC) No 864/2007 and (EC) No 593/2008 - Consumer protection - Directive 93/13/EEC - Data protection - Directive 95/46/EC - Online sales contracts concluded with consumers resident in other Member States - Unfair terms - General terms and conditions containing a choice-of-law term applying the law of the Member State in which the company is established - Determination of the applicable law for assessing the unfairness of terms in those general terms and conditions in an action for an injunction - Determination of the law governing the processing of personal data of consumers))
   (2016/C 350/10)
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Verein für Konsumenteninformation

      Defendant: Amazon EU Sàrl

      Operative part of the judgment

               1.

               Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted as meaning that, without prejudice to Article 1(3) of each of those regulations, the law applicable to an action for an injunction within the meaning of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests directed against the use of allegedly unfair contractual terms by an undertaking established in a Member State which concludes contracts in the course of electronic commerce with consumers resident in other Member States, in particular in the State of the court seised, must be determined in accordance with Article 6(1) of Regulation No 864/2007, whereas the law applicable to the assessment of a particular contractual term must always be determined pursuant to Regulation No 593/2008, whether that assessment is made in an individual action or in a collective action.

               2.

               Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a term in the general terms and conditions of a seller or supplier which has not been individually negotiated, under which the contract concluded with a consumer in the course of electronic commerce is to be governed by the law of the Member State in which the seller or supplier is established, is unfair in so far as it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract, without informing him that under Article 6(2) of Regulation No 593/2008 he also enjoys the protection of the mandatory provisions of the law that would be applicable in the absence of that term, this being for the national court to ascertain in the light of all the relevant circumstances.

               3.

               Article 4(1)(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the processing of personal data carried out by an undertaking engaged in electronic commerce is governed by the law of the Member State to which that undertaking directs its activities, if it is shown that the undertaking carries out the data processing in question in the context of the activities of an establishment situated in that Member State. It is for the national court to ascertain whether that is the case.

      (1)  OJ C 221, 6.7.2015.


               20.11.2010

               EN

               Official Journal of the European Union

               C 317/5

         Taking of the oath by a new Member of the General Court
   2010/C 317/09
   Following his appointment as Judge at the General Court of the European Union for the period from 1 September 2010 to 31 August 2016 by decision of the Representatives of the Governments of the Member States of the European Union of 8 July 2010, (1) Mr van der Woude took the oath before the Court of Justice on 13 September 2010.

      (1)  OJ L 186 of 20.7.2010.


title: Judgment of the Court of First Instance of 18 September 2003 in Case T-73/01: Spyridon de Athanassios Pappas v Committee of the Regions of the European Union (Officials — Recruitment — Post of Secretary General of the Committee of the Regions — Vacancy notice — Recruitment procedure)

text:
C 289/20                EN                          Official Journal of the European Union                                             29.11.2003
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 10 September 2003
                       of 18 September 2003
                                                                            in Case T-165/01 Hans McAuley v Council of the Euro-
                                                                                pean Union (1)
in Case T-73/01: Spyridon de Athanassios Pappas v                           (Staff report — Guide to staff reports — Change of assessor
    Committee of the Regions of the European Union (1)                      during the period covered by the report — Substantial
                                                                                irregularities)
(Officials — Recruitment — Post of Secretary General                                                  (2003/C 289/42)
of the Committee of the Regions — Vacancy notice —
                       Recruitment procedure)                                                   (Language of the case: French)
                          (2003/C 289/41)                                   In Case T-165/01: Hans McAuley, an official of the Council of
                                                                            the European Union, residing in Brussels, represented by J.-
                                                                            N. Louis and S. Orlandi, lawyers, with an address for service in
                                                                            Luxembourg, against Council of the European Union (Agents:
                     (Language of the case: French)                         F. Anton and A. Pillette) — application for annulment of the
                                                                            Council’s decision of 15 September 2000 drawing up the
                                                                            applicant’s final staff report for the period 1 July 1997 to
                                                                            30 June 1999 — the Court of First Instance (Fourth Chamber),
                                                                            composed of V. Tiili, President, P. Mengozzi and M. Vilaras,
                                                                            Judges; I. Natsinas, Registrar, has given a judgment on 10 Sep-
In Case T-73/01, Spyridon de Athanassios Pappas, former                     tember 2003, in which it:
official of the Commission of the European Communities,
residing in Brussels (Belgium), represented by M.-A. Lucas,                 1.    Annuls the Council’s decision of 15 September 2000 drawing
lawyer, v Committee of the Regions of the European Union,                         up the applicant’s final staff report for the period 1 July 1997
(Agents: P. Cervilla and D. Waelbroeck) — application for                         to 30 June 1999;
annulment of the decision of the Committee of the Regions of
13 June 2000 appointing Mr Vincenzo Falcone to the post of                  2.    Orders the Council to pay the costs.
Secretary General of the Committee of the Regions (Recruit-
ment notice 2000/C 28 A/01) and rejecting the applicant’s                   (1) OJ C 289 of 13 October 2001.
candidature for that post, and of the decision rejecting the
applicant’s complaint, — the Court of First Instance (Third
Chamber), composed of K. Lenaerts, President of the Chamber,
J. Azizi and M. Jaeger, Judges; Registrar: D. Christensen,
Administrator, delivered a judgment on 18 September 2003,
the operative part of which is as follows:
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 30 September 2003
1.    The decision of the Committee of the Regions of 13 June 2000
      appointing Mr Vincenzo Falcone to the post of Secretary               in Case T-243/01: Sony Computer Entertainment Europe
      General of the Committee of the Regions (Recruitment notice               Ltd v Commission of the European Communities (1)
      2000/C 28 A/01) and rejecting the candidature of Mr Pappas
      for that post is annulled.                                            (Action for annulment — Common Customs Tariff — Tariff
                                                                            headings — Game console — Classification in the Combined
                                                                                Nomenclature)
2.    The Committee of the Regions shall pay the costs.
                                                                                (2003/C 289/43)
(1) OJ 2001 C 161 of 2.6.01.                                                                   (Language of the case: English)
                                                                            In Case T-243/01, Sony Computer Entertainment Europe Ltd,
                                                                            established in London (United Kingdom), represented by P. De


No C 158/ 12          EN                 Official Journal of the European Communities                                     1 . 6 . 96
        Removal from the register of Case C-83/95 ( )                      Removal from the register of Case C- 1 5 9/95 ( )
                         ( 96/C 158/28 )                                                       ( 96/C 158/29 )
By order of 26 February 1996 the President of the Court of
Justice of the European Communites ordered the removal              By order of 9 February 1 996 the President of the Court of
from the register of Case C-83/95 : Commission of the               Justice of the European Communities ordered the removal
European Communities v. Hellenic Republic .                         from the register of Case C-159/95 : Commission of the
                                                                    European Communities v. Hellenic Republic .
(') OJ No C 137, 3 . 6 . 1995 .
                                                                    C ) OJ No C 208 , 12 . 8 . 1995 .
                                                   COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                            2 , orders the Economic and Social Committee to pay all
                                                                         the costs .
                       of 18 April 1996
in Case T-13/95 : Nicolaos Kyrpitsis v. Economic and Social
         Committee of the European Communities ( 1 )                C ) OJ No C 74, 25 . 3 . 1995 .
(Officials — Notice of vacancy — Transfer — Interests of
the service — Rejection of application — Statement of
                             reasons)
                         ( 96/C 158/30 )
                                                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 23 April 1996
                (Language of the case: French)
                                                                    in Case T-l 13/95 : Giuseppe Mancini v. Commission of the
                                                                                European Communities O
                                                                      (Officials — Admissibility — Time limit for complaints)
In Case T-13/95 : Nicolaos Kyrpitsis, an official of the                                      ( 96/C 158/31 )
Economic and Social Committee of the European
Communities, residing at Châtelineau ( Belgium ),
represented by Jean-Noël Louis, of the Brussels Bar, with an                         (Language of the case: Italian)
address for service in Luxembourg at the offices of
Fiduciaire Myson SARL, 1 rue Glesener, v . Economic and             In Case T-l 13/95 : Giuseppe Mancini, an official of the
Social Committee of the European Communities ( Agents :             Commission of the European Communities, residing at
Bermejo Garde and Denis Waelbroeck ) — application for             Varese ( Italy ), represented by Giuseppe Marchesini,
annulment of the decisions rejecting the applications by the        advocate with a right of audience before the Italian Court of
applicant for the grade D 3/D 2 post of skilled employee            Cassation, with an address for service in Luxembourg at the
( messenger ) in the Personnel , Administration and Finance         Chambers of Ernest Arendt, 8-10 Rue Matthias Hardt, v.
Directorate of the Economic and Social Committee,                   Commission of the European Communites ( Agent:
advertised in vacancy notices Nos 2/94, 3/94 and 4/94 — the         Gianluigi Valsesia ) — application for annulment of the
Court of First Instance ( Fifth Chamber ), composed of:             decision relieving the applicant of his duties — the Court of
R. Schintgen, President, and R. Garcia-Valdecasas and               First Instance ( Third Chamber ), composed of: C. P. Briët,
J. Azizi, Judges; J. Palacio Gonzalez, Administrator, for the      President, and B. Vesterdorf and A. Potocki, Judges;
Registrar, has given a judgment on 18 April 1996 , in which         B. Pastor, Principal Administrator, for the Registrar, has
it :                                                               given a judgment on 23 April 1 996 , in which it:
                                                                    1 , dismisses the action as inadmissible;
1 , annuls the decisions of the Secretary-General of the
     Economic and Social Committee of30 March 1 994 and            2 , orders the Commission to bear its own costs and to pay
     25 October 1995 rejecting the applications by the                  two thirds of the applicant's costs.
     applicant for the grade D 3/D 2 post ofskilled employee
     (messenger) in the Personnel, Administration and
                                                                    (') OJ No C 229 , 2 . 9 . 1995 .
     Finance Directorate of the Economic and Social
     Committee, advertised in vacancy notices Nos 2/94,
     3 /94 and 4/94 :


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 27 April 1995 in Case T-443/93: Casillo Grani snc v. Commission of the European Communities (State aids - Applicant declared bankrupt - Interest in bringing the proceedings - No need to give a decision)

text:
3 . 6 . 95            EN                  Official Journal of the European Communities                               No C 137/21
the EEC Treaty ( IV/3 1.553 — Welded steel mesh, OJ 1989 L                ORDER OF THE COURT OF FIRST INSTANCE
260, p. 1 ) — the Court of First Instance ( First Chamber ),                                 of 8 March 1995
composed of H. Kirschner, President, C. W. Bellamy, B.
Vesterdorf, R. Garcfa-Valdecasas and K. Lenaerts, Judges,            in Case T-2/93 DEP: Société Anonyme à Participation
H. Jung, Registrar, gave a judgment on 6 April 19 95 , in            Ouvrière Compagnie Nationale Air France v. Commission
which the Court :                                                                  of the European Communities (*)
                                                                                (Competition — Taxation of costs)
I. dismisses the application;                                                                   ( 95/C 137/52 )
2 . orders the applicant to pay the costs.                                          (Language of the Case: French)
(') OJ No C 306 , 5 . 12 . 1989 .                                    In Case T-2/93 : Societe Anonyme a Participation Ouvriere
                                                                     Compagnie Nationale Air France , established in Paris,
                                                                     represented by Eduard Marissens, of the Brussels Bar, with
                                                                     an address for service in Luxembourg at the Chambers of
                                                                     Lucy Dupong, 14a Rue des Bains, v. Commission of the
                                                                     European Communities ( Agents : F. E. Gonzalez Diaz and G.
                                                                     de Bergues ), supported by United Kingdom of Great Britain
 JUDGMENT OF THE COURT OF FIRST INSTANCE                             and Northern Ireland ( Agents : J. D. Colahan and C. Vajda ),
                       of 27 April 1995                              with an address for service in Luxemburg at the British
                                                                     Embassy, 14 Boulevard Roosevelt, TAT SA, established at
in Case T-443/93 : Casillo Grani snc v. Commission of the
                                                                     Tours ( France ), represented by Antoine Winckler, of the
                  European Communities ( l )                         Paris Bar, and Romano Subiotto, Solicitor, with an address
 (State aids — Applicant declared bankrupt — Interest in             for service in Luxembourg at the Chambers of Elvinger and
  bringing the proceedings — No need to give a decision)             Hoss, 15 Cote d'Eich, and Britisch Airways pic, established
                          (9 SIC 137/51 )                            at Hounslow (United Kingdom ), represented by William
                                                                     Allan and James E. Flynn, Solicitor, with an address for
                                                                     service in Luxembourg at the Chambers of Loesch and
                (Language of the case: Italian)                      Wolter, 11 Rue Goethe — application for taxation of the
                                                                     costs payable by the applicant to the intervener TAT SA
In Case T-443/93 : Casillo Grani snc , established in San            pursuant to the judgment of the Court of 19 May 1994 in
Giuseppe Vesuviano, Italy, represented by Mario Siragusa,            Case T-2/93 Air France v. Commission [ 1994] ECR 11-323
Maurizio D'Albora and Giuseppe Scassellati-Sforzolini,               — the Court of First Instance ( Second Chamber, extended
respectively of the Bars of Rome , Naples and Bologna, with          composition ), composed of B. Vesterdorf, President, and
an address for service in Luxembourg at the Chambers of              D. P. M. Barrington, A. Saggio, H. Kirschner and A.
Ernest Arendt, 8— 10 Rue Mathias Hardt v. Commission of              Kalogeropoulos , Judges; H. Jung, Registrar, made an order
the European Communities ( Agents : M. Nolin, D. Calleja y           on 6 March 1995 , the operative part of which is as
                                                                     follows :
Crespo and R. Lyal ), supported by Italgrani SpA,
established in Naples, Italy, represented by Aurelio
Pappalardo , of the Trapani Bar, Luigi Sico and Felice                The total costs payable by the applicant to the intervener
Casucci , of the Naples Bar, Massimo Annesi and Massimo               TAT SA are fixed in the sum of FF 220 000.
Merola, of the Rome Bar with an address for service in
                                                                      (') OJ No C 45 , 17 . 2 . 1993 .
Luxembourg at the Chambers of Alain Lorang, 51 Rue
Albert l er — application for the annulment of Commission
Decision No 91/474/EEC of 16 August 1991 concerning
aids granted by the Italian Government to Italgrani SpA for
the setting up of an agri-foodstuffs complex in the
Mezzogiorno ( OJ 1991 L 254, p. 14 ) — the Court of First                           ORDER OF THE PRESIDENT
Instance ( Second Chamber, extended composition ),                             OF THE COURT OF FIRST INSTANCE
composed of B. Vesterdorf, President, D. P. M. Barrington,                                 of 24 February 1995
A. Saggio, H. Kirschner and A. Kalogeropoulos, Judges, J.
Palacio Gonzalez, Administrator, for the Registrar, has              in Case T-2/95 R: Industrie des Poudres Sphériques v.
given a judgment on 27 April 1995 , in which it:                                    Council of the European Union
                                                                                ( 95/C 137/53 )
 1 . ordered Case T-443/93 to be removed from the
      Register;                                                                      (Language of the case: French)
 2 . ordered the applicant to bear the costs including those         In Case T-2/95 R: Industrie des Poudres Spheriques,
      incurred by the intervener.                                    Annemasse ( France ), represented by Chantal Momege, of
                                                                     the Paris Bar, with an address for service in Luxembourg at
 (M OJ No C 47, 21 . 2 . 1992 .
                                                                     the Chambers of Alex Schmitt, 62 Avenue Guillaume, v.
                                                                      Council of the European Union (Agents : R. Torrent, J.
                                                                     Monteiro and P. Bentley) — application for suspension of
                                                                     the operation, in so far as concerns the applicant, of Council