title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 May 1998 in Case T-334/94: Sarrió SA v. Commission of the European Communities (Competition - Article 85(1) of the EC Treaty - Concept of single infringement - Information exchange - Order - Fine - Determination of the amount - Method of calculation - Statement of reasons - Mitigating circumstances)

text:
4.7.98               EN                Official Journal of the European Communities                                C 209/33
    successor, shall be so conducted as to exclude any              JUDGMENT OF THE COURT OF FIRST INSTANCE
    information from which the behaviour of individual                                   of 14 May 1998
    producers can be identified.'.
                                                                  in Case T-327/94: SCA Holding Ltd v. Commission of the
                                                                                European Communities (1)
3. Sets the amount of the fine imposed on the applicant
    by Article 3 of Decision 94/601/EC at ECU 2 500 000.          (Competition Ð Article 85(1) of the EC Treaty Ð
                                                                  Liability for the infringement Ð Fine Ð Statement of
                                                                              reasons Ð Mitigating circumstances)
4. Dismisses the application as regards the remaining                                     (98/C 209/70)
    claims.
                                                                                (Language of the case: English)
5. Orders each party to bear its own costs.
                                                                  In Case T-327/94: SCA Holding Ltd, established at
(1) OJ C 380, 31.12.1994.
                                                                  Aylesford, United Kingdom, represented by Giuseppe
                                                                  Scasselati-Sforzolini, of the Bologna Bar, and Laurent
                                                                  Garzaniti, of the Brussels Bar, with an address for service
                                                                  in Luxembourg at the Chambers of Elvinger, Hoss and
                                                                  Prussen, 15 Côte d'Eich v. Commission of the European
                                                                  Communities (Agents: Julian Currall and Richard Lyal) Ð
                                                                  application for annulment of Commission Decision 94/
  JUDGMENT OF THE COURT OF FIRST INSTANCE                         601/EC of 13 July 1994 relating to a proceeding under
                      of 14 May 1998                              Article 85 of the EC Treaty (IV/C/33.833 Ð Cartonboard,
                                                                  OJ L 243 of 19.9.1994, p. 1) Ð the Court (Third
in Case T-319/94: Fiskeby Board AB v. Commission of               Chamber, Extended Composition), composed of:
                the European Communities (1)                      B. Vesterdorf, President of the Chamber, C. P. BrieÈt,
(Competition Ð Article 85(1) of the EC Treaty Ð Fines             P. Lindh, A. Potocki and J. D. Cooke, Judges; J. Palacio
Ð Determination of the amount Ð Mitigating                        GonzaÂlez, Administrator, for the Registrar, has given a
           circumstances Ð Statement of reasons)                  judgment on 14 May 1998, in which it:
                        (98/C 209/69)
                                                                  1. Dismisses the application.
               (Language of the case: English)
                                                                  2. Orders the applicant to pay the costs.
In Case T-319/94: Fiskeby Board AB, established at                (1) OJ C 380, 31.12.1994.
Norrköping, Sweden, represented by Carl Wetter, of the
Stockholm Bar, and Christopher Vajda, Barrister, of the
Bar of England and Wales, with an address for service in
Luxembourg at the Chambers of Elvinger, Hoss &
Prussen, 15 Côte d'Eich v. Commission of the European
Communities (Agents: Julian Currall and Richard Lyal) Ð
application for a reduction in the fine imposed on the              JUDGMENT OF THE COURT OF FIRST INSTANCE
applicant by Commission Decision 94/601/EC of 13 July
1994 relating to a proceeding under Article 85 of the                                    of 14 May 1998
EC Treaty (IV/C/33.833 Ð Cartonboard, OJ L 243 of                 in Case T-334/94: Sarrió SA v. Commission of the
19.9.1994, p. 1) Ð the Court (Third Chamber, Extended                               European Communities (1)
Composition), composed of B. Vesterdorf, President of the
Chamber, C. P. BrieÈt, P. Lindh, A. Potocki and J. D.             (Competition Ð Article 85(1) of the EC Treaty Ð
Cooke, Judges; J. Palacio GonzaÂlez, Administrator, for the       Concept of single infringement Ð Information exchange
Registrar, has given a judgment on 14 May 1998 in which           Ð Order Ð Fine Ð Determination of the amount Ð
it:                                                               Method of calculation Ð Statement of reasons Ð
                                                                                Mitigating circumstances)
1. Dismisses the application.                                                             (98/C 209/71)
                                                                                (Language of the case: Italian)
2. Orders the applicant to pay the costs.
(1) OJ C 380, 31.12.1994.                                         In Case T-334/94: Sarrió SA, established at Pamplona,
                                                                  Spain, represented by Antonio Creus Carreras, of the
                                                                  Barcelona Bar, Alberto Mazzoni, of the Milan Bar,
                                                                  Antonio Tizzano and Gian Michele Roberti, of the Naples
 ---pagebreak--- C 209/34              EN                Official Journal of the European Communities                                     4.7.98
Bar, with an address for service in Luxembourg at                    JUDGMENT OF THE COURT OF FIRST INSTANCE
the Chambers of Alain Lorang, 51 Rue Albert 1er v.                                        of 14 May 1998
Commission of the European Communities (Agents:
Richard Lyal and Alberto Dal Ferro) Ð application for              in Case T-337/94: Enso-Gutzeit Oy v. Commission of the
annulment of Commission Decision 94/601/EC of 13 July                                European Communities (1)
1994 relating to a proceeding under Article 85 of the EC
                                                                    (Article 85(1) of the EC Treaty Ð Infringement Ð Proof)
Treaty (IV/C/33.833 Ð Cartonboard, OJ 1994, L 243,
p. 1) Ð the Court (Third Chamber, Extended                                                 (98/C 209/72)
Composition), composed of: B. Vesterdorf, President of
the Chamber, C. P. BrieÈt, P. Lindh, A. Potocki and J. D.
                                                                                (Language of the case: English)
Cooke, Judges; J. Palacio GonzaÂlez, Administrator, for the
Registrar, has given a judgment on 14 May 1998, in
which it:                                                          In Case T-337/94: Enso-Gutzeit Oy, established at
                                                                   Helsinki, represented by Ivo Van Bael and Jean-FrancËois
                                                                   Bellis, of the Brussels Bar, and CiaraÂn Keaney, Solicitor of
1. Annuls, as regards the applicant, the first to fourth           the Law Society of Ireland, with an address for service in
    paragraphs of Article 2 of Commission Decision 94/             Luxembourg at the Chambers of Freddy Brausch, 11 Rue
    601/EC of 13 July 1994 relating to a proceeding under          Goethe v. Commission of the European Communities
    Article 85 of the EC Treaty (IV/C/33.833 Ð                     (Agents: Hans Gerald Crossland and Richard Lyal) Ð
    Cartonboard) save and except the following passages:           application for annulment of Commission Decision 94/
                                                                   601/EC of 13 July 1994 relating to a proceeding under
                                                                   Article 85 of the EC Treaty (IV/C/33.833 Ð Cartonboard,
    The undertakings named in Article 1 shall forthwith           OJ L 243 of 19.9.1994 p. 1), the Court (Third Chamber,
    bring the said infringement to an end, if they have not        Extended Composition), composed of B. Vesterdorf,
    already done so. They shall henceforth refrain in              President of the Chamber, C. P. BrieÈt, P. Lindh, A. Potocki
    relation to their cartonboard activities from any              and J. D. Cooke, Judges; J. Palacio GonzaÂlez,
    agreement or concerted practice which may have the             Administrator, for the Registrar, has given a judgment on
    same or a similar object or effect, including any              14 May 1998 in which it:
    exchange of commercial information:
                                                                   1. Annuls, as regards the applicant, Commission
    (a) by which the participants are directly or                      Decision 94/601/EC of 13 July 1994 relating to a
          indirectly informed of the production, sales, order          proceeding under Article 85 of the EC Treaty (IV/C/
          backlog, machine utilisation rates, selling prices,          33.833 Ð Cartonboard).
          costs or marketing plans of other individual
          producers.                                               2. Orders the Commission to pay the costs.
                                                                   (1) OJ C 392, 31.12.1994.
    Any scheme for the exchange of general information
    to which they subscribe, such as the Fides system or its
    successor, shall be so conducted as to exclude any
    information from wich the behaviour of individual
    producers can be identified.'.
                                                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
2. Sets the amount of the fine imposed on the applicant                                   of 14 May 1998
    by Article 3 of Decision 94/601/EC at ECU
    14 000 000.                                                    in Case T-338/94: Finnish Board Mills Association
                                                                   Ð Finnboard v. Commission of the European
                                                                                Communities (1)
3. Dismisses the application as regards the remaining              (Competition Ð Article 85(1) of the EC Treaty Ð
    claims.                                                        Information exchange Ð Order Ð Fine Ð Determination
                                                                   of the amount Ð Statement of reasons Ð Cooperation
                                                                                during the administrative procedure)
4. Orders the applicant to bear its costs and to pay one-
    half of the Commission's costs;                                                        (98/C 209/73)
                                                                                (Language of the case: German)
5. Orders the Commission to bear one-half of its costs.
                                                                   In Case T-338/94: Finnish Board Mills Association Ð
(1) OJ C 380, 31.12.1994.                                          Finnboard, established at Helsinki, represented initially by
                                                                   Hans Hellmann and Hans-Joachim Voges, Rechtsanwälte,
                                                                   Cologne, then solely by Hans Hellmann, with an address
                                                                   for service in Luxembourg at the Chambers of Loesch and


title: Case C-335/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Republic of Austria

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/8

         Action brought on 30 July 2004 by the Commission of the European Communities against the Republic of Austria
   (Case C-335/04)
   (2004/C 239/15)
   An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 30 July 2004 by the Commission of the European Communities, represented by Denis Martin, of its legal service and Horstpeter Kreppel, Judge of the Arbeitsgericht (Labour Court) seconded to the Commission's legal service as part of an exchange programme with national civil servants, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or to notify the Commission of any such provisions, the Republic of Austria has failed to fulfil its obligations under that directive;

               2.

               order the Republic of Austria to pay the costs of the proceedings.

         Pleas in law and main arguments:
   The period for transposition of Directive 2000/43/EC expired on 19 July 2003.

      (1)  OJ L 180, 19.7.2000, p. 22.


5.12.98              EN                   Official Journal of the European Communities                                   C 378/15
     to it on 20 December 1996, the Kingdom of Belgium               The applicant claims that the Court should:
     has failed to fulfil its obligations under the fourth
     paragraph of Article 189 of the EC Treaty and                   1. Declare that, by failing to adopt and bring into force
     Articles 2 and 3 of the said decision; and                          within the prescribed period the laws, regulations or
                                                                         administrative provisions necessary to comply with
Ð order the Kingdom of Belgium to pay the costs.                         Council Directive of 22 June 1994 on the protection
                                                                         of young persons at work (1), and/or by failing to
Pleas in law and main arguments adduced in support:                      inform the Commission thereof, the Italian Republic
                                                                         has failed to fulfil its obligations under the EC Treaty;
The action for annulment of the Commission's Decision of                 and
4 December 1996 (1) does not have a suspensive effect.
The only argument on which a Member State may rely in                2. Order the Italian Republic to pay the costs.
order not to comply with a decision ordering recovery of
aid unlawfully paid is that it is absolutely impossible for          Pleas in law and main arguments adduced in support:
the decision to be complied with correctly.
                                                                     Under Article 189 of the EC Treaty, according to which a
The Commission maintains, first, that, the Kingdom of                directive is to be binding, as to the result to be achieved,
Belgium has not truly complied with its duty to cooperate            upon each Member State to which it is addressed,
in good faith. Even although it had established contacts             Member States are required to observe the time-limits laid
with the Commission in order to explain the possible                 down in directives for their transposition. That time-limit
problems caused by the recovery of the aid unlawfully                expired on 22 June 1996 without the Italian Republic
paid out and to outline a proposal for staggered                     having brought into force the necessary provisions in
repayment, and even although the Commission had not                  order to comply with the directive referred to in the
objected to that proposal, the Kingdom of Belgium                    Commission's application.
suddenly took the step of abandoning the framework of
                                                                     (1) OJ L 216, 20.8.1994, p. 12.
cooperation with the Commission in good faith and of
arguing before the Court that it was absolutely impossible
for the decision to be complied with.
Second, the Commission maintains that the Kingdom of
Belgium has not made the slightest approach to the                          Removal from the register of Case C-51/98 (1)
undertakings in issue with a view to recovering the aid.
Third, it maintains that the Kingdom of Belgium has not                                       (98/C 378/26)
proposed any alternative means of implementing the
decision whereby the difficulties encountered could have             By order of 8 September 1998 the President of the Court
been resolved.                                                       of Justice of the European Communities has ordered the
                                                                     removal from the register of Case C-51/98 (reference for a
(1) Case C-75/97 (OJ C 131, 26.4.1997, p. 5).                        preliminary ruling from the Arbeitsgericht Wiesbaden):
                                                                     Urlaubs- und Lohnausgleichskasse der Bauwirtschaft v.
                                                                     Works in The World Srl.
                                                                     (1) OJ C 137, 2.5.1998.
Action brought on 26 October 1998 by the Commission
 of the European Communities against the Italian Republic
                       (Case C-385/98)
                        (98/C 378/25)                                      Removal from the register of Case C-255/98 (1)
                                                                                (98/C 378/27)
An action against the Italian Republic was brought before
the Court of Justice of the European Communities on                  By order of 12 October 1998 the President of the Court of
26 October 1998 by the Commission of the European                    Justice of the European Communities has ordered the
Communities, represented by Pieter Jan Kuijper and                   removal from the register of Case C-255/98: Kingdom of
Antonio Aresu, Legal Advisers acting as Agents, with an              Spain v. Commission of the European Communities.
address for service in Luxembourg at the Office of Carlos
Gómez de la Cruz, Wagner Centre, Kirchberg.                          (1) OJ C 278, 5.9.1998.


title: Action brought on 4 April 1995 by the Commission of the European Communities against the Italian Republic (Case C-117/95)

text:
No C 159/ 10              EN                     Official Journal of the European Communities                                     24 . 6 . 95
6 . In view of the fact that it follows from the established                The applicant claims that the Court should :
     case-law of the Court of Justice that the repayment of
     duties levied in breach of Community law must have                     1 , declare that by failing to adopt by law, regulation or
     regard to the substantive and formal requirements laid                     administrative action within the prescribed time limit
     down in national legislation, and that the Court of                        the necessary provisions to comply with Council
     Justice held at paragraph 12 of its judgment in Case                       Directive 92/48/EEC of 16 June 1992 laying down the
      1 99/82 Amministrazione delle Finanze dello Stato v . San
                                                                                minimum hygiene rules applicable to fishery products
      Giorgio of 9 November 1983 ( 4 ) that entitlement to the                  caught on board certain vessels in accordance with
     repayment of charges levied by a Member State contrary                     Article 3 ( 1 ) ( a ) (i ) of Directive 91/493/EEC O , the
      to the rules of Community law is a consequence of, and                    Italian Republic has failed to fulfil its obligations under
      an adjunct to, the rights conferred on individuals by the                 the EC Treaty;
      Community provisions prohibiting charges having an
      effect equivalent to customs duties or, as the case may
      be, the discriminatory application of internal taxes, the             2 , order the Italian Republic to pay the costs .
      following question arises :
                                                                            Pleas in law and main arguments adduced in support:
      must the case-law of the Court of Justice be understood
      as meaning that Community law contains an                             The pleas in law and main arguments are the same as in Case
      unconditional obligation to repay duties which,                       C-79/95 ; the time limit for implementation expired on
      according to the replies to Questions 1 to 4 , may be                 1 January 1993 .
      contrary to Community law, but that this obligation is
      such that the detailed conditions for the actual
                                                                            (!) OJ No L 187, 7. 7. 1992 , p . 41 .
      processing of the claim for repayment are subject, within
      certain limits laid down in the case-law of the Court of
      Justice, to relevant national legislation ?
7. If it is held that the 40 % surcharge on the general goods
      duty is contrary to Community law, including
      ( free-trade ) agreements entered into, it is compatible              Action brought on 4 April 1995 by the Commission of the
      with Community law that a limitation period laid down                     European Communities against the Italian Republic
      in national law for repayment claims runs from an                                              ( Case C-117/95 )
      earlier point in time than that from which the Member
                                                                                ( 95/C 159/21 )
      State in question discontinued the duty which was
      contrary to Community law ?
                                                                            An action against the Italian Republic was brought before
                                                                            the Court of Justice of the European Communities on
(M   OJ No    L 172 , 22 . 7 . 1968 , p . 1 .
                                                                            4 April 1995 by the Commission of the European
(2 ) OJ No    L 256 , 7 . 9 . 1987, p . 1 .
(')  OJ No    L 378 , 31 . 12 . 1986 , p . 1 .
                                                                            Communities, represented by Eugenio de March, Legal
(4 ) [ 1983 ] ECR, p . 3595 .                                               Adviser, acting as Agent, with an address for service in
                                                                            Luxembourg at the office of Georgios Kremlis, Wagner
                                                                            Centre, Kirchberg .
                                                                            The applicant claims that the Court should :
                                                                            1 , declare that by failing to adopt by law, regulation or
                                                                                administrative action within the prescribed time limits
                                                                                the necessary provisions to comply with Council
                                                                                Directive 92/35/EEC of 29 April 1992 laying down
Action brought on 4 April 1995 by the Commission of the                          control rules and measures to combat African horse
     European Communities against the Italian Republic
                                                                                sickness (*) and Council Directive 92/40/EEC of 19 May
                             ( Case C- 1 16/95 )                                 1992 introducing Community measures for the control
                               ( 95/C 159/20 )                                   of avian influenza ( 2 ) the Italian Republic has failed to
                                                                                fulfil its obligations under the EC Treaty;
An action against the Italian Republic was brought before                   2 , order the Italian Republic to pay the costs .
the Court of Justice of the European Communities on
4 April 1995 by the Commission of the European
Communities, represented by Eugenio de March, Legal                         Pleas in law and main arguments adduced in support:
Adviser, acting as Agent, with an address for service in
Luxembourg at the office of Georgios Kremlis, Wagner                        The pleas in law and main arguments are the same as in Case
Centre, Kirchberg .                                                         C-79/95 ; the time limits for implementation expired on
 ---pagebreak---  24 . 6 . 95             EN                  Official Journal of the European Communities                                      No C 159/ 11
 31 December 1992 ( Directive 92/35/EEC ) and 1 January                 preliminary ruling in the case of The Queen against the
 1993 ( Directive 92/40/EEC ).                                          Secretary of State for the Home Department, ex-parte :
                                                                        Mann Singh Shingara, on the following questions :
 H OJ No L 157, 10 . 6 . 1992 , p . 19 .
 ( 2 ) OJ No L 167, 22 . 6 . 1992, p . 1 .
                                                                        1 . ( 1 ) In Article 8 of Council Directive 64/221 /EEC of
                                                                                25 February 1964 on the coordination of special
                                                                                measures concerning the movement and residence
                                                                                of foreign nationals which are justified on grounds
                                                                                of public policy, public security or public health ( l ),
Action brought on 4 April 1995 by the Commission of the                           do the words 'the same legal remedies . . . as are
       European Communities against the Italian Republic                          available to nationals of the State concerned in
                          ( Case C-118/95 )                                       respect of acts of the administration ' refer (a ) to
                                                                                specific remedies available in respect of decisions
                             ( 95/C 159/22 )                                      concerning entry by nationals of the State
                                                                                concerned ( in casu, an appeal to an immigration
An action against the Italian Republic was brought before                         adjudicator ) or ( b ) do they refer only to remedies
the Court of Justice of the European Communities on                               available in respect of acts of the administration
4 April 1995 by the Commission of the European                                    generally ( in casu, an application for judicial
Communities, represented by Eugenio de March, Legal                               review )?
Adviser, acting as Agent, with an address for service in
Luxembourg at the office of Georgios Kremlis, Wagner ,
                                                                            ( 2 ) If the answer to ( 1 ) is ( a ), do the words quoted from
Centre, Kirchberg.
                                                                                Article 8 of Directive 64/221 refer only to the legal
                                                                                remedies available to nationals of the               State
The applicant claims that the Court should :                                      concerned in the same circumstances ( in casu,
                                                                                refusal of entry on grounds of national security), or
 1 , declare that by failing to adopt by law, regulation or                       do they also refer to the specific remedies available
       adminstrative action within the prescribed time limit the                  in analogous or similar circumstances to nationals
       necessary provisions to implement Council Directive                        of the State concerned ; and, if so , how similar or
        92/33/EEC of 28 April 1992 on the marketing of                            analogous must the circumstances be ?
       vegetable propagating and planting material, other than
       seed ( 1 ) and Council Directive 92/34/EEC of 28 April
        1992 on the marketing of fruit plant propagating                2 . In the light of the answer to Question 1 , where a
       material and fruit plants intended for fruit                         Community national is refused entry into the United
       production (2 ) the Italian Republic has failed to fulfil its        Kingdom on grounds of national security does Article 8
       obligations under the EC Treaty;                                     of Directive 64/221/EEC require that national to have a
                                                                            right of appeal to an immigration adjudicator if, on the
2 , order the Italian Republic to pay the costs .                           correct construction of the relevant provisions of
                                                                            national law, a British national refused entry to the
Pleas in law and main arguments adduced in support:                         United Kingdom on grounds of national security has a
                                                                            right of appeal for the purpose of establishing that he is a
The pleas in law and main arguments are the same as in Case                 British national and is therefore entitled to enter the
C-79/95 ; the time limit for implementation expired on                      United Kingdom irrespective of whether his presence in
31 December 1992 .                                                          the United Kingdom is undesirable for reasons of
                                                                            national security ?
(') OJ No L 157, 10 . 6 . 1992 , p . 1 .
( 2 ) OJ No L 157, 10 . 6 . 1992 , p . 10 .
                                                                        3 . Do the opening words of Article 9 ( 1 ) of Directive
                                                                            64/221 /EEC ('where there is no right of appeal to a court
                                                                            of law, or where such appeal may be only in respect of
                                                                            the legal validity of the decision, or where the appeal
                                                                            cannot have suspensory effect') apply equally to
Reference for a preliminary ruling by the High Court of                     Article 9 ( 2 )?
Justice, Queen's Bench Division, by order of that court of
3 February 1995 , in the case of The Queen against the
Secretary of State for the Home Department, ex-parte:                  4 . Where a        decision has been taken to exclude a
                       Mann Singh Shingara                                  Community national from the territory of a Member
                           ( Case C-65/95 )                                 State other than his own on public policy or public
                                                                            security grounds and the Community national has left
                              95/C 159/23 )                                 that territory without there having been an appeal or
                                                                            reference for an advisory opinion to an independent
Reference has been made to the Court of Justice of the                      competent authority pursuant to Articles 8 or 9 of
European Communities by an order of the High Court of                       Council Directive 64/221 /EEC, does that Community
Justice, Queen's Bench Division, of 3 February 1995 , which                 national have a right of reference to an independent
was received at the Court Registry on 13 March 1995 , for a                 competent authority under Article 9 ( 2 ) if that national


title: Case T-261/03: Action brought on 18 July 2003 by Euro Style '94 S.r.l. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
C 264/28                 EN                        Official Journal of the European Union                                            1.11.2003
Pleas in law and main arguments                                                  and its final report and thus denied her any possibility of
                                                                                exercising her rights of defence effectively.
                                                                           (1) Regulation (EC) No 1073/1999 of the European Parliament and
An investigation in relation to the applicant was ordered and                  of the Council of 25 May 1999 concerning investigations
carried out by the European Anti-Fraud Office (OLAF). After                    conducted by the European Anti-Fraud Office (OLAF) (OJ L 136,
the investigation had been completed, certain items appeared                   31.5.1999, p. 1).
in the European press referring to the applicant and the                   (2) Directive 95/46/EC of the European Parliament and of the Council
investigation of her, such that the applicant considers them                   of 24 October 1995 on the protection of individuals with regard
disparaging and offensive. In addition, OLAF issued a press                    to the processing of personal data and on the free movement of
release concerning the investigation and also included a                       such data (OJ L 281, 23.11.1995, p. 31).
                                                                           (3) Regulation (EC) No 45/2001 of the European Parliament and of
reference to it in its annual activity report. Although she was
                                                                               the Council of 18 December 2000 on the protection of individuals
not referred to by name in the documents made public by                        with regard to the processing of personal data by the Community
OLAF, the applicant considers that the information which was                   institutions and bodies and on the free movement of such data
given made it particularly easy to identify her, so that it was                (OJ L 8, 12.1.2001, p. 1).
clear who was in question. Also, after the investigation had
been completed, the applicant requested OLAF to disclose to
her the file which it had drawn up on her, its final report and
any other information concerning what its findings were on
the accusations against her. However, OLAF refused to disclose
anything at all to her.
                                                                           Action brought on 18 July 2003 by Euro Style ’94 S.r.l.
The applicant seeks, by her action, compensation for the non-              against the Office for Harmonisation in the Internal
material damage and harm to her health which she claims to                           Market (Trade Marks and Designs) (OHIM)
have suffered for the abovementioned reasons. She pleads in
support of her action:
                                                                                (Case T-261/03)
—     Infringement by OLAF of the second subparagraph
      of Article 12(3) of Regulation No 1073/1999 (1), in                                           (2003/C 264/50)
      conjunction with Directive 95/46 (2) and Regulation
      No 45/2001 (3). The applicant submits that it follows, on
                                                                           (Language of the case to be determined pursuant to Article 131(2)
      reading the foregoing provisions in conjunction with
                                                                           of the Rules of Procedure — language in which the application was
      each other, that OLAF is obliged, when publishing reports
                                                                                submitted: English)
      of its activities, to provide information in such a way that
      the identity of the person to whom the investigation
      relates is not revealed, directly or indirectly.
                                                                           An action against Office for Harmonisation in the Internal
—     Infringement by OLAF of Article 8(2) of Regulation                   Market (Trade Marks and Designs) (OHIM) was brought before
      No 1073/1999 in that it accepted or acquiesced in, and               the Court of First Instance of the European Communities on
      ultimately allowed, the leaking of information to the                18 July 2003 by Euro Style ’94 S.r.l., Barletta, (Italy), represent-
      press regarding the investigation in relation to the                 ed by G. Pica, lawyer, with an address for service in Luxem-
      applicant.                                                           bourg. RCN-Companhia de Importaçao e Esportaçao de Texte-
                                                                           is, LDA. was also a party to the proceedings before the Board
                                                                           of Appeal.
—     Infringement of Article 8(2) and (3) of Regulation
      No 1073/1999 which, in the applicant’s submission,
      prohibits OLAF from publishing press releases relating to            The applicant claims that the Court should:
      investigations which it carries out.
                                                                           —     cancel or amed the decision of the Second Board of
                                                                                Appeal of OHIM no. R0067/2001-2;
—     Infringement by OLAF of Articles 4(1) and (2) and 6 of
      Regulation No 1073/1999, of Article 4 of Decision 99-
                                                                           —     consequently to order the registration of the trademark
      50 of the Court of Auditors of 16 December 1999, and
      of the more general obligation to observe the right to                     ‘GLOVE’ also for class 25 as requested by the firm Euro
                                                                                Style ’94 S.r.l.;
      good administration in accordance with Article 41 of the
      Charter of Fundamental Rights of the European Union,
      since it refused to disclose to the applicant the file on her        —     order to bear the costs according to regulation.
 ---pagebreak--- 1.11.2003             EN                          Official Journal of the European Union                                         C 264/29
Pleas in law and main arguments                                           The applicant claims that the Court should:
Applicant for Com-            The applicant.                              —     annul the defendant’s decision of 21 May 2003, published
munity trade mark:                                                              under Case No C(2003)1536 final;
Community trade mark          Figurative colour mark ‘GLOVE’
sought:                       — Application No 464016 for a               —     in the alternative, reduce the fine imposed in Article 3 of
                              range of goods and services in                    the decision at the Court’s discretion;
                              Classes 25, 35 and 41.
Proprietor of mark or         RCN-Companhia de importaçao e               —     order the defendant to pay the costs, including pre-
sign cited in the oppo-       esportaçao de Texteis, Lda.                       litigation costs.
sition proceedings:
Mark or sign cited in the     Spanish                 (registration
opposition:                   No 1.629.840) and international
                              (registration No 651.424) figurat-
                              ive trade mark ‘GLOIBE’ and por-            Pleas in law and main arguments
                              tuguese (registration No 310.796)
                              and        spanish      (registration
                              No 1.981.850) word trade mark
                              ‘GLOBE’ for goods in Class 25               By the contested decision the Commission decided that the
                              (clothing, footwear and belts).             applicant had infringed Article 82a of the EC Treaty by
                                                                          charging its competitors and final customers excessive monthly
Decision of the Oppo-         Refusal of the application for              and flat-rate fees for access to its fixed network, thereby
sition Division:              goods in class 25 (namely cloth-            impeding competition for access to the network on the market.
                              ing, footwear and belts) and                The applicant was fined EUR 12,6 million.
                              admission of the Community tra-
                              de mark application for the
                              remaining services in Classes 35
                              and 41.                                     The applicant claims that the Commission infringed Article 82
                                                                          EC on the basis that it could not be accused of anti-competitive
Decision of the Board of      Rejection of the appeal.                    conduct because the amount of the contested fees could not
Appeal:                                                                   be excessive since there was no restriction of competition.
                                                                          Contrary to the Commission’s view, the cost/price discrepancy
Pleas in law:                 Incorrect        application        of      according to the method it used is neither appropriate nor
                              Article 8(1) of Regulation (EC)             sufficient to support a finding that the applicant’s advance and
                              No 40/94 (Absence of confusion,             final-customer fees were anti-competitive. The Commission’s
                              lack of any risk of association and         analysis of the cost/price discrepancy was misconceived in its
                              slight similarity of the products).         methods and there was no restriction of competition.
                                                                          The applicant also claims that the Commission exceeded its
                                                                          discretion in adopting the contested decision. By its decision
                                                                          the Commission is impinging on the competencies conferred
                                                                          by Community law on the German regulatory authority for
Action brought on 30 July 2003 by Deutsche Telekom AG                     post and telecommunications and attempting to correct the
against the Commission of the European Communities                        way in which the contested fees are regulated. For the same
                                                                          reason the decision is disproportionate. Its effect is to subject
                                                                          the applicant’s fees for access to the network to twofold
                        (Case T-271/03)                                   regulation and it therefore undermines the legal certainty
                                                                          intended to be created by the allocation of competence
                        (2003/C 264/51)                                   established by Community law in respect of fees in the
                                                                          telecommunications sector.
                  (Language of the case: German)
                                                                          Finally, by imposing a fine on the applicant, the defendant
                                                                          infringed essential procedural requirements and Article 15(2)
An Action against the Commission of the European Communi-                 of Regulation No 17/62.
ties was brought before the Court of First Instance of the
European Communities on 30 July 2003 by Deutsche Telekom
AG, Bonn (Germany), represented by K. Quack, U. Quack and
S. Ohlhoff, lawyers.


title: Case T-721/15: Judgment of the General Court of 27 April 2017 — BASF v EUIPO — Evonik Industries (DINCH) (EU trade mark — Invalidity proceedings — EU word mark DINCH — Absolute grounds for refusal — Descriptiveness — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Article 52(1)(a) of Regulation No 207/2009)

text:
               19.6.2017

               EN

               Official Journal of the European Union

               C 195/21

         Judgment of the General Court of 27 April 2017 — BASF v EUIPO — Evonik Industries (DINCH)
   (Case T-721/15) (1)

   ((EU trade mark - Invalidity proceedings - EU word mark DINCH - Absolute grounds for refusal - Descriptiveness - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 - Article 52(1)(a) of Regulation No 207/2009))
   (2017/C 195/29)
   Language of the case: German

      Parties

      Applicant: BASF SE (Ludwigshafen, Germany) (represented by: A. Schulz and C. Onken, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: R. Pethke and M. Fischer, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Evonik Industries AG (Essen, Germany) (represented by A. Schabenberger, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 23 September 2015 (Case R 2080/2014-1), relating to invalidity proceedings between Evonik Industries and BASF.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders BASF SE to pay the costs.

      (1)  OJ C 68, 22.2.2016.


title: Case C-207/11: Judgment of the Court (First Chamber) of 19 December 2012 (request for a preliminary ruling from the Commissione tributaria regionale di Milano — Italy) — 3D I srl v Agenzia delle Entrate — Ufficio di Cremona (Taxation — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Articles 2, 4 and 9 — Transfer of assets — Taxation of the capital gains obtained by the transferring company at the time of the transfer of assets — Deferral of taxation — Requirement that a reserve fund for the suspended tax corresponding to the value of the capital gains obtained be carried over in the balance sheet of the transferring company)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/4

         Judgment of the Court (First Chamber) of 19 December 2012 (request for a preliminary ruling from the Commissione tributaria regionale di Milano — Italy) — 3D I srl v Agenzia delle Entrate — Ufficio di Cremona
   (Case C-207/11) (1)

   (Taxation - Directive 90/434/EEC - Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States - Articles 2, 4 and 9 - Transfer of assets - Taxation of the capital gains obtained by the transferring company at the time of the transfer of assets - Deferral of taxation - Requirement that a reserve fund for the suspended tax corresponding to the value of the capital gains obtained be carried over in the balance sheet of the transferring company)
   2013/C 46/07
   Language of the case: Italian

      Referring court

   Commissione tributaria regionale di Milano

      Parties to the main proceedings

      Appellant: 3D I srl

      Respondent: Agenzia delle Entrate — Ufficio di Cremona

      Re:

   Request for a preliminary ruling — Commissione tributaria regionale di Milano — Interpretation of Articles 2, 4 and 8(1) and (2) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1) — Transfer of assets — National legislation providing for the taxation of the capital gains arising from a transfer of assets and for the capital gain to correspond to the difference between the initial cost of acquiring the assets in exchange for the shares or holdings transferred and their current market value — Exemption where the transferring company carries over in its own balance sheet a special reserve fund equivalent to the capital gains arising upon the transfer

      Operative part of the judgment

   Articles 2, 4 and 9 of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States must be interpreted as not precluding, in a situation such as the one at issue in the main proceedings, the consequence of a transfer of assets being the taxation of the transferring company on the capital gain arising from that transfer, unless the transferring company carries over in its own balance sheet an appropriate reserve fund equivalent to the capital gain arising upon that transfer.

      (1)  OJ C 211, 16.7.2011.


title: Case F-137/12: Action brought on 14 November 2012 — ZZ v Commission

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/75

         Action brought on 14 November 2012 — ZZ v Commission
   (Case F-137/12)
   2013/C 26/156
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Pappas, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision of EPSO not to include the applicant in the list of persons who have passed the tests at the end of the training programme which is part of the certification procedure and a claim for damages.

      Form of order sought

               —

               Declare the action admissible and well-founded;

               —

               annul the contested measure;

               —

               order the Commission to pay the applicant EUR 10 000 as compensation for the damage suffered;

               —

               order the Commission to pay the costs.


title: Case T-19/05: Action brought on 20 January 2005 by Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ S.A. against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/34

         Action brought on 20 January 2005 by Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ S.A. against the Commission of the European Communities
   (Case T-19/05)
   (2005/C 82/64)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 January 2005 by Boliden AB, established in Stockholm (Sweden), Outokumpu Copper Fabrication AB, established in Västerås (Sweden) and Outokumpu Copper BCZ S.A., established in Liège (Belguim) represented by C. Wetter and O. Rislund, lawyers.
   The applicants claim that the Court should:

               —

               annul Articles 1(a), 1 (b) and 1 (c) of the Commission's Decision of 3 September 2004 (Case COMP/E-1/38.069 - Copper Plumbing Tubes) insofar as these articles relate to the periods from 1 July 1995 until 27 August 1998 and from 10 December 1998 until 7 October 1999;

               —

               amend Article 2 of the contested decision, and reduce the fine imposed on the applicants;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   In the contested decision the Commission found that the applicants, among other undertakings, infringed Article 81(1) EC by participating in a complex of agreements and concerted practices consisting of price fixing and market sharing in the copper plumbing tubes sector.
   In support of their application the applicants claim that the Commission committed an error of law in the application of Article 81(1) EC when concluding that the applicants participated in one single continuous infringement which lasted from 3 June 1998 until 22 March 2001. The applicants further argue that even if their infringement should be qualified as single and continuous, the Commission infringed the principle of proportionality by not taking into account the applicants' reduced participation during a substantial period of that infringement. The applicants also claim that the Commission erroneously considered as inapplicable to the applicants' case the rules on limitation periods and that, therefore, no fine should have been imposed for infringements that ceased prior to 22 March 1996 given that the Commission's investigation started on 22 March 2001. Finally, they claim that the Commission did not correctly apply its Leniency Notice and the 1998 Guidelines on the method of setting fines in their regard, since the reduction of the fine granted by the Commission does not correctly reflect the applicants' co-operation. In the same context, the applicants also invoke a violation of the principle of equal treatment on the grounds that they were granted the same reduction as another participant to the infringement in question even though the applicants' cooperation went further than that of the other company.


title: Case F-16/07: Action brought on 27 February 2007 — Dragoman v Commission

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/26

         Action brought on 27 February 2007 — Dragoman v Commission
   (Case F-16/07)
   (2007/C 129/44)
   Language of the case: Romanian
   Parties

      Applicant: Adriana Dragoman (Brussels, Belgium) (represented by: G. Dinulescu, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the verbal decision of the selection board of Competition EPSO/AD/34/06 of 28 November 2006 by which that selection board awarded the applicant an ‘eliminating mark ’for the first oral interpretation test, which mark, pursuant to the notice of that competition, did not permit the applicant to take the following oral interpretation tests or the final oral test;

               —

               Annul the written decision confirming the abovementioned decision, which was added to the applicant's EPSO file on 12 December 2006;

               —

               Run the competition again especially for the applicant, in strict compliance with all the provisions of Community law and the provisions of the notice of competition;

               —

               Find and declare that Article 6 of Annex III to the Staff Regulations of Officials is unlawful;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of her claim, the applicant raises three pleas in law, the first of which alleges infringement of the principle of equality and non-discrimination. In the first part of that plea, the applicant alleges that she was the subject of discrimination by reason of nationality, contrary inter alia to Article 27 of the Staff Regulations. After having supplied evidence of her Belgian nationality, she was requested to prove her Romanian nationality. In the second part, she argues that the selection board discriminated against candidates who, like her, did not already work for the institutions as temporary or contractual agents.
   In her second plea, the applicant alleges infringement of the provisions of the notice of competition and of the principle of sound administration. Firstly, during her test, she was asked to speak about her professional experience even though no professional experience was required of candidates who, like her, held a university degree in conference interpreting. Secondly, the selection board established and applied pass quotas based on the linguistic combinations chosen by the candidates without such a possibility being provided for in the notice of competition.
   In her third plea, the applicant alleges infringement of the duty to give reasons.


title: Joined Cases T-168/10 and T-572/10: Judgment of the General Court of 19 September 2012 — Commission v SEMEA and Commune of Millau (Arbitration clause — Grant contract concerning a local development plan consisting in the performance of work for the preparation and launching of a European local enterprise centre in Millau (France) — Repayment of part of the advance payments made — Admissibility of an action brought against a company established under French law removed from the companies register — Application of French law — Administrative contract — Recovery of sum overpaid — Time-bar — Enforceability of an arbitration clause — Assumption of debt — Incidental debts rule — Stipulation in favour of third party)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/18

      Judgment of the General Court of 19 September 2012 — Commission v SEMEA and Commune of Millau
      (Joined Cases T-168/10 and T-572/10) (1)

      (Arbitration clause - Grant contract concerning a local development plan consisting in the performance of work for the preparation and launching of a European local enterprise centre in Millau (France) - Repayment of part of the advance payments made - Admissibility of an action brought against a company established under French law removed from the companies register - Application of French law - Administrative contract - Recovery of sum overpaid - Time-bar - Enforceability of an arbitration clause - Assumption of debt - Incidental debts rule - Stipulation in favour of third party)
      (2012/C 331/29)
      Language of the case: French

         Parties

         Applicant: European Commission (represented by: S. Petrova, agent, assisted by E. Bouttier, lawyer)

         Defendant: Société d'économie mixte d'équipement de l’Aveyron (SEMEA) (Millau, France) and Commune de Millau (France) (represented by: L. Hincker and F. Bleykasten, lawyers)

         Re:

      Applications for repayment of the principal sum of EUR 41 012 paid by the Commission as a guarantee agreed by it in the context of the funds granted to the SEMEA, increased by interest accrued and accruable, and all other sums in compensation for the harm suffered by it.

         Operative part of the judgment

      The Court rules:

                  1.

                  Cases T-168/10 and T-572/10 are joined for the purposes of judgment;

                  2.

                  The Société d’économie mixte d'équipement de l’Aveyron (SEMEA) and the commune of Millau (France) are ordered jointly and severally to pay the principal sum of EUR 41 012 to the European Commission, increased by default interest at the annual legal rate applied in France from 27 April 1993 until full payment of that sum. The interest accrued by the date of 15 April 2010, and at yearly intervals thereafter, shall be capitalised and itself bear interest;

                  3.

                  The actions of the Commission in Cases T-168/10 and T-572/10 are dismissed as to the remainder;

                  4.

                  The counterclaim by the SEMEA in Case T-168/10 and the counterclaim by the commune of Millau in Case T-572/10 are dismissed;

                  5.

                  The SEMEA shall bear its own costs and those of the Commission in Case T-168/10;

                  6.

                  The commune of Millau shall bear its own costs and those of the Commission in Case T-572/10.

         (1)  OJ C 161, 19.6.2010.


title: Case C-3/10: Reference for a preliminary ruling from the Tribunale di Rossano (Italy) lodged on 5 January 2010 — Franco Affatato v Azienda Sanitaria Provinciale di Cosenza, Azienda Sanitaria n. 3 di Rossano

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/34

         Reference for a preliminary ruling from the Tribunale di Rossano (Italy) lodged on 5 January 2010 — Franco Affatato v Azienda Sanitaria Provinciale di Cosenza, Azienda Sanitaria n. 3 di Rossano
   (Case C-3/10)
   2010/C 63/55
   Language of the case: Italian

      Referring court

   Tribunale di Rossano

      Parties to the main proceedings

      Applicant: Franco Affatato

      Defendants: Azienda Sanitaria Provinciale di Cosenza, Azienda Sanitaria n.3 di Rossano

      Questions referred

               1.

               Does Clause 2(1) of the Framework Agreement put into effect by Directive 1999/70/EC (1) preclude domestic rules, such as those laid down for SUW workers [socially useful workers — lavoratori socialmente utili]/PUW workers [publicly useful workers — lavoratori di pubblica utilità] by Article 8(1) of Legislative Decree No 468/97 and Article 4(1) [of Legislative Decree] No 81/00, which, by excluding the workers governed by these rules these rules from the right to establish an employment relationship, has the effect of precluding the application of legislation governing fixed-term employment in implementation of Directive 1999/70/EC?

               2.

               Does Clause 2(2) of the Framework Agreement put into effect by Directive 1999/70/EC permit the exclusion of workers, such as SUW/PUW workers governed by Legislative Decree No 468/97 and Law No 81/00, from the scope of application of Directive 1999/70/EC?

               3.

               Do the workers referred to in question 2 fall within the definitions set out in Clause 3(1) of the Framework Agreement put into effect by Directive 1999/70/EC?

               4.

               Do Clause 5 of the Framework Agreement put into effect by Directive 1999/70/EC and the principles of equality [and] non-discrimination preclude rules governing workers in the schools sector (see in particular Article 4(1) of Law No 124/99 and Article 1(1)(a) of Ministerial Decree No 430/00), under which it is permissible not to specify the justification for the first fixed-term contract, which is a general requirement under national law for every other fixed-term employment relationship, and to renew contracts irrespective of the existence of fixed and permanent requirements, and which do not stipulate a total maximum duration for fixed-term contracts or employment relationships, the number of times such contracts or relationships can be renewed, or, normally do not provide that there should be periods between renewals or, in the case of supply teaching for the whole school year, that that period should correspond to the summer holidays, when there is no, or very little, teaching activity?

               5.

               Can the body of legislation governing the schools sector, as described, be regarded as being equivalent to a set of rules for the prevention of abuse?

               6.

               Can Legislative Decree No 368/01 and Article 36 of Legislative Decree No 165/01 be regarded, for the purpose of Article 2 of Directive 1999/70/EC, as measures with the characteristics of provisions transposing Directive 1999/70/EC with regard to fixed-term employment relationships in the schools sector?

               7.

               Must a body with the characteristics of Poste Italiane S.p.a., namely:

                           —

                           which is State owned;

                           —

                           which is subject to State control;

                           —

                           for which the Minister of Communications chooses the universal service provider and in general carries out all activities connected with the substantive monitoring and control of the accounts, setting the objectives for the universal service provided;

                           —

                           which provides an essential public service of overriding general interest;

                           —

                           whose budget is linked with the State budget;

                           —

                           for which the costs of the service provided are determined by the State, which transfers to the body [the] amounts required to cover the additional costs incurred in providing the service,

                     be regarded as a State body for the purposes of the direct application of Community law?

               8.

               If the answer to question 7 is in the affirmative: can the company in question be considered, for the purpose of Clause 5, to constitute a sector, namely can the personnel which may be employed by it, considered as a whole, be regarded as a specific category of workers for the purposes of the distinction made as to the prohibitions imposed?

               9.

               If the answer to question 7 is in the affirmative: does Clause 5 of Directive 1999/70/EC of itself, or in conjunction with Clauses 2 and 4 and the principle of equal treatment [and] non-discrimination, preclude a provision such as Article 2(1a) of Legislative Decree No 368/01, which permits the inclusion of a fixed term in an employment contract in relation to a specific individual without any requirement to give reasons, thereby placing that person, in contrast with the prohibition ordinarily imposed under national law (Article 1 of Legislative Decree No 68/01), beyond the protection of the requirement to state in writing and prove, where disputed, the technical reasons or reasons related to imperative requirements of production, organisation or replacement of workers which justified the inclusion of a fixed term in the employment contract, bearing in mind that it is possible to extend the original contract where so required on objective grounds and for the same work as that for which the fixed-term contract was concluded?

               10.

               Do Legislative Decree No 368/01 and Article 36(5) of Legislative Decree No 165/01 constitute general legislation transposing Directive 1999/70/EC for State employees, regard being had to the exceptions to such general provisions as defined in the light of the responses to questions 1 to 9?

               11.

               In the absence of provision for penalties in relation to SUW and PUW-type workers and workers in schools as described, does Directive 1999/70/EC, in particular Clause 5(2)(b) [of the Framework Agreement], preclude the application, by analogy, of rules simply intended to provide compensation, such as those in Article 36(5) of Legislation Decree No 165/01, that is to say does Clause 5(2)(b) establish a principle of preference for contracts or relationships to be deemed to be contracts or relationships of indefinite duration?

               12.

               Do the Community principle of equal treatment [and] non-discrimination, Clause 4 and Clause 5(1) preclude a difference in treatment with regard to the penalties imposed in the ‘State employee’ sector on the basis of circumstances in which the relationship came about, or of the employer body, or, similarly, in the schools sector?

               13.

               On the assumption that the extent to which Directive 1999/70/EC has been transposed in domestic law with regard to the State and quasi-State bodies has been established in the light of the response to the previous questions, does Clause 5 preclude a rule, such as that laid down in Article 36(5) of Legislative Decree No 165/01, which imposes an absolute ban on the conversion of employment relationships as regards the State; that is to say, what further checks must be carried out by the national court in order to preclude the application of the prohibition on establishing employment relationships of indefinite duration with public authorities?

               14.

               Must Directive 1999/70/EC apply in its entirety to Italy, that is to say, does the conversion of employment relationships involving the public authorities appear to run contrary to the fundamental principles of national law and, therefore, Clause 5 must not be applied in that respect, since the effect of this would be contrary to Article 1-5 of the Treaty of Lisbon, insofar as the fundamental structures, political and constitutional, that is the essential functions of Italy, would not be respected?

               15.

               Does Clause 5 of Directive 1999/70/EC, in providing, for cases in which there is a prohibition on the conversion of employment relationships, that it is necessary to adapt measures offering effective and equivalent guarantees for the protection of workers, in comparison with that afforded in similar situations under national law, in order duly to punish abuses resulting from the infringement of Clause 5 and to nullify the consequences of the breach of Community law, require that an employment relationship of indefinite duration with the State, to which the worker would be entitled in the absence of Article 36, and an employment relationship of indefinite duration with a private employer, with regard to which the employment relationship would be characterised by the stability comparable to that of an employment relationship with the State, must be considered as analagous under national law?

               16.

               Does Clause 5 of Directive 1999/70/EC, in providing, for cases in which there is a prohibition on the conversion of employment relationships, that it is necessary to adopt measures offering effective and equivalent guarantees for the protection of workers, in comparison with that afforded in similar situations under national law, in order duly to punish abuses resulting from the infringement of Clause 5 and to nullify the consequences of the breach of Community law, require, when determining penalties, to be taken into account:

                           (a)

                           the time needed to find new employment and the fact that it is not possible to take up employment which has the characteristics mentioned in question 15;

                           (b)

                           or, on the other hand, the amount of remuneration which would have been paid had the employment relationship been converted from a fixed-term relationship into relationships of indefinite duration?

      (1)  OJ 1999 L 175, p. 43.


title: Judgment of the Court (Grand Chamber) of  10 January 2006  in Case C-344/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division, The Queen on the application of International Air Transport Association, European Low Fares Airline Association v Department for Transport (Carriage by air — Regulation (EC) No 261/2004 — Articles 5, 6 and 7 — Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Validity — Interpretation of Article 234 EC)

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/7

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 10 January 2006
   in Case C-344/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division, The Queen on the application of International Air Transport Association, European Low Fares Airline Association v Department for Transport (1)

   (Carriage by air - Regulation (EC) No 261/2004 - Articles 5, 6 and 7 - Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights - Validity - Interpretation of Article 234 EC)
   (2006/C 60/14)
   Language of the case: English
   In Case C-344/04: reference for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court), made by decision of 14 July 2004, received at the Court on 12 August 2004, in the proceedings between The Queen, on the application of the International Air Transport Association and European Low Fares Airline Association, and the Department for Transport — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Schiemann and J. Malenovský (Rapporteur), Presidents of Chambers, C. Gulmann, R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász, G. Arestis and A. Borg Barthet, Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 10 January 2006, the operative part of which is as follows:

               1.

               Where a court against whose decisions there is a judicial remedy under national law considers that one or more arguments for invalidity of a Community act which have been put forward by the parties or, as the case may be, raised by it of its own motion are well founded, it must stay proceedings and make a reference to the Court of Justice for a preliminary ruling on the act's validity.

               2.

               Examination of the questions referred to the Court has revealed no factor of such a kind as to affect the validity of Articles 5, 6 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.

      (1)  OJ C 251 of 09.10.2004.


title: Action brought on 7 February 1995 by 'Atlanta' Handelsgesellschaft Harder & Co GmbH and Internationale Fruchtimport Gesellschaft Weichert & Co against the Commission of the European Communities (Case T-18/95)

text:
22 . 4. 95            | EN                    Official Journal of the European Communities                                 No C 101 /9
           the period there specified, the applicant should be           — award him compensation of ECU 13 900 for damage
           wound-up by court order without having provided                    sustained .
           that balance.
                                                                         Pleas in law and main arguments adduced in support:
4.    The costs are reserved.
                                                                         The applicant challenges the decision of the Commission,
t 1 ) OJ No L 243 , 19 . 9 . 1994, p . 1 .                               dated 26 April 1994, by which the Commission rejected his
                                                                         application for a fellowship at the University of London, in
                                                                         the field of research and technological development, on the
                                                                         basis that, having both British and Greek nationality, he
                 ORDER OF THE PRESIDENT                                  would not satisfy the eligibility requirements, according to
           OF THE COURT OF FIRST INSTANCE                                which the applicant must be :
                       of 24 February 1995                               ( a ) a national of a Community Member State or an
in Case T-40/95 R: Philippe Guebels v. Commission of the                       associated State or a natural person resident in the
                     European Communities                                      Community; and
                             ( 95/C 101 /23
                                                                         ( b ) a national of a country other than that in which the
                  (Language of the case: French)                               laboratory is established and must not have carried out
                                                                               his/her normal activity in that country for more than
(Provisional translation; the definitive translation will be                   two years prior to the date of submission of the
           published in the European Court Reports)                            application.
In Case T-40/95 R: Philippe Guebels, an official of the                  The applicant has neither Greek nor British nationality, is a
Commission of the European Communities, residing at                      'British overseas citizen', and as such, belongs to a specific
Arlon, represented by Jean-Noël Louis, Thierry Demaseure                 category of aliens who need both a residence and a work
and Ariane Tournel, of the Brussels Bar, with an address for             permit in order to live and work in the United Kingdom.
service in Luxembourg at the offices of Fiduciaire Myson                 'British overseas citizens' are not treated as European Union
Sari, 1 Rue Glesener, v. Commission of the European                      nationals in any Member State .
Communities (Agent: A. M. Alves Vieira ) — application for
suspension of the implementation of the decision of the
Commission of 18 January 1995 imposing on the applicant                  Consequently, the applicant fulfilled both the nationality
                                                                         and the mobility criteria of eligibility laid down in the
the disciplinary measure of removal from post — the
President of the Court of First Instance made an order on                ' General Conditions Governing Research Training
24 February 1995 , the operative part of which is as                     Fellowships ', since he is a natural person not having the
follows :                                                                nationality of any EC Member State, resident in Greece,
                                                                         seeking to move to the United Kingdom and having never in
 1 , implementation of the decision of the Commission is                 his life carried out a normal activity in the United
      suspended until delivery of the final order in the                 Kingdom.
      proceedings for interim relief;
2 , the costs are reserved.
                                                                         Action brought on 7 February 1995 by 'Atlanta'
                                                                         Handelsgesellschaft Harder & Co GmbH and
Action brought on 10 January 1995 by Frederick Farrugia                  Internationale Fruchtimport Gesellschaft Weichert & Co
    against the Commission of the European Communities                      against the Commission of the European Communities
                          (Case T-230/94 )                                                       (Case T-18/95 )
                               95/C 101 /24 )                                                     ( 95/C 101/25
                  (Language of the case: English)                                         (Language of the case: German)
An action against the Commission of the European
Communities was brought before the Court of First                        An action against the Commission of the European
Instance of the European Communities on 10 January 1995                  Communities was brought before the Court of First
 by Frederick Farrugia, represented by L. Sissilianos, of the            Instance of the European Communities on 7 February 1995
Athens Bar, Kanari 4, Athens, Greece.                                    by 'Atlanta ' Handelsgesellschaft Harder & Co GmbH of
                                                                         Bremen ( Federal Republic of Germany) and Internationale
The applicant claims that the Court should:                              Frachtimport Gesellschaft Weichert & Co of Hamburg
                                                                          ( Federal Republic of Germany), represented by Erik A.
— annul the decision of the Commission to reject his                     Undritz and Gerrit Schohe, Rechtsanwàlte, with an address
      application for a research training fellowship on                  for service in Luxembourg at the Chambers of Marc Baden,
      eligibility grounds,                                               24 Rue Marie-Adelaide .
 ---pagebreak--- No C 101 /10            EN                     Official Journal of the European Communities                                   22 . 4 . 95
The applicants claim that the Court should :                              Action brought on 14 February 1995 by SA Cimenteries
                                                                          CBR against the Commission of the European
                                                                                Communities
( 1 ) annul Commission Regulation (EC ) No 2791 /94 of
      16 November 1994 on the exceptional allocation of a                                       (Case T-25/95 )
      quantity additional to the tariff quota for imports of                                     ( 95/C 101/26 )
      bananas in 1994 as a result of tropical storm Debbie ( 1 )
      save for Article 1 ( 1 ) thereof;                                                  (Language of the case: French)
( 2 ) order the defendant to pay the costs .                              An action against the Commission of the European
                                                                          Communities was brought before the Court of First
                                                                          Instance of the European Communities on 14 February
Pleas in law and main arguments adduced in support:                       1995 by SA Cimenteries CBR, the head office of which is in
                                                                          Brussels, represented by Michel Waelbroeck, Alexandre
                                                                          Vandencasteele and Denis Waelbroeck, of the Brussels Bar,
The applicants, two German companies importing bananas,
                                                                          with an address for service in Luxembourg at the Chambers
contest the way in which the quantity additional to the tariff
                                                                          of Ernest Arendt, 8—10 Rue Mathias Hardt.
quota for that product in 1994 has been allocated by
Regulation ( EEC ) No 2791/94 .
                                                                          The applicant claims that the Court should:
That Regulation was enacted following the severe damage                   — annul Articles 1 , 4, 7, 8 , 9 and 10 of the Commission
caused by tropical storm Debbie on 10 September 1994 to                       Decision of 30 November 1994 relating to a procedure
the banana plantations in the Community regions of                            under Article 85 of the EC Treaty ( Cases IV/33.126 and
Martinique and Guadeloupe and in the ACP States of Saint                      33.322 — Cement), inasmuch as it is stated therein that
Lucia and Dominica . It is intended to avert the risk of a steep              CBR has participated in agreements or concerted
rise in prices in several Community regions which may result                  practices contrary to Article 85 of the EC Treaty and it
from that damage .                                                            has been fined in that regard,
The applicants maintain that there is no legal basis whatever             — in the alternative, annul or at least reduce the fines
for the introduction of the exceptional allocation scheme at                  imposed on the applicant in Articles 9 and 10 of the
issue . Whilst it is true that Article 16 ( 3 ) of Regulation (EEC )          Decision,
No 404/93 on the common organization of the market in
bananas constitutes a legal basis for an increase in the quotas           — order the Commission to pay the costs.
in question, regard should be had in that connection to the
allocation rules laid down in Article 19 ( 1 ) of that                    Pleas in law and main arguments adduced in support:
Regulation. Nor does Article 20 of Regulation ( EEC )
No 404/93 constitute a legal basis for the Regulation at                  The applicant pleads, first, procedural defects, inasmuch as
issue. First, the modification of the allocation rules does not           the contested decision :
involve an implementing provision within the meaning of
Article 20; and, second, that Article merely provides for a               — was taken without the applicant having been given
system for forecasting demand, in relation to which it refers,                access to the majority of the documents in the
as regards the procedure to be applied, to Article 27 of the                  Commission's file or to the findings of fact based on
basic Regulation. Lastly, Article 30 of the basic Regulation                  those documents which are contained in the Statement
is concerned merely with transitional measures to facilitate                  of Objections,
the adaptation of the former national market organizations
to the new common organization of the market;                             — is vitiated by the absence of a statement of reasons
consequently, the contested regulation cannot fall within its                 and/or by contradictory reasoning,
scope .
                                                                          — contains allegations against the applicant based on
                                                                              numerous documents prepared in various languages
Since Regulation ( EEC ) No 404/93 is thus incapable of                       without translations of those documents having been
constituting the legal basis for the regulation at issue,                     provided in the Statement of Objections, with the result
recourse must be had to Article 43 of the EC Treaty.                          that it was not until the Decision was adopted that
However, since that provision confers legislative powers                      the applicant was able to assess the precise significance
only on the Council, and since the subject-matter of the                      given to them, by means of translation, by the
Regulation at issue cannot be regarded as an implementing                     Commission,
measure, it has been enacted in breach of Article 43 , and also
of Articles 145 and 155 , of the Treaty.                                  — may be vitiated by a failure to comply with the
                                                                              procedural requirements for the adoption of decisions,
H OJ No L 296 , 17. 11 . 1994, p . 33 .                                       since the Commission acknowledges that it encountered
                                                                              a problem which warranted the renotification of the
                                                                              Decision but which it dealt with, without any
                                                                              explanation or justification whatever, at the stage of
                                                                              authentication of the Decision .


title: Case C-650/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 19 December 2016 — A/S Bevola, Jens W. Trock ApS v Skatteministeriet

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/18

         Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 19 December 2016 — A/S Bevola, Jens W. Trock ApS v Skatteministeriet
   (Case C-650/16)
   (2017/C 063/25)
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicants: A/S Bevola, Jens W. Trock ApS

      Defendant: Skatteministeriet

      Question referred

   Does Article 49 TFEU preclude a national taxation scheme, such as that at issue in the main proceedings, under which it is possible to make deductions for losses in domestic branches, whilst it is not possible to make deductions for losses in branches situated in other Member States, including in conditions equivalent to those in the EU Court of Justice’s judgment in Marks & Spencer, C-446/03, (1) paragraphs 55 and 56, unless the group has elected international joint taxation on the terms as set out in the main proceedings?

      (1)  (EU:C:2005:763)


title: Case C-301/04 P: Appeal brought on 14 July 2004 by the Commission of the European Communities against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/13

         Appeal brought on 14 July 2004 by the Commission of the European Communities against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01
   (Case C-301/04 P)
   (2004/C 262/25)
   An appeal was brought before the Court of Justice of the European Communities on 14 July 2004 by the Commission of the European Communities, represented by Walter Mölls, Wouter Wils and Heike Gading, with an address for service in Luxembourg, against the judgment of 29 April 2004 by the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission of the European Communities, in regard to Case T-239/01.
   The appellant claims that the Court should:

               1.

               set aside the judgment delivered by the Court of First Instance of the European Communities on 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01, T-245/01, T-246/01, T-251/01 and T-252/01 (1) in regard to paragraph 2 of its operative part;

               2.

               order SGL Carbon AG to pay the costs.

         Pleas in law and main arguments:
   The judgment of the Court of First Instance of 29 April 2004 concerns Commission Decision 2002/271/EC relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002 L 100, p. 1) (‘the Decision’).
   The judgment confirmed that the seven applicants, which were members of the graphite electrode cartel between 1992 and 1998 and to which the Decision was addressed, breached Article 81 EC and Article 53 of the EEA Agreement, and also confirmed the scope of the infringement. The judgment did, however, reduce to varying degrees the fines imposed.
   The appeal relates to the reduction explained in paragraphs 401 to 412 of the judgment and accorded to the company SGL (Case T-239/01, paragraph 2 of the operative part of the judgment). It concerns in particular the findings of the Court of First Instance regarding the extent of the right of the undertakings not to incriminate themselves, findings which also indirectly impinge on the limits of the Commission's powers to conduct investigations.
   The Court of First Instance found in paragraphs 407 to 409 and in paragraph 412 of the judgment that SGL's responses to the request for information addressed to it pursuant to Article 11(2) of Regulation No 17 entitled that company — contrary to the view expressed by the Commission in the Decision — to a reduction in its fine, in accordance with the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’). Furthermore, the Court of First Instance rejected the Commission's argument that any reduction because of SGL's replies would in any event have to be smaller than would have been the case had the undertaking itself made a voluntary disclosure (paragraph 410 of the judgment).
   In the Commission's view, the passages in the judgment just cited are defective in law and the judgment is to that extent at variance with Articles 15 and 11 of Regulation No 17 in conjunction with the Leniency Notice.
   The question as to whether specific answers to requests by the Commission for information in principle provided grounds for a reduction in the fine
   According to settled case-law, replies to requests for information under Article 11(2) of Regulation No 17 (now Article 18(2) of Regulation No 1/2003) need not in principle be regarded as constituting cooperation in respect of which a reduction must be granted. If undertakings do not comply with such a request, the Commission may, in accordance with Article 11(5) of Regulation No 17 (Article 18(3) of Regulation No 1/2003), require them by way of a decision to provide the information sought. Certain answers, however, may provide grounds for a reduction by reason of cooperation in the investigations, that is to say, if the question put could not have been included in a decision under Article 11(5) of Regulation No 17 on the ground that it interfered in an inadmissible manner with the rights of defence of the undertakings involved.
   The criteria governing the demarcation between questions that are admissible in this regard and those that are not were elaborated by the Court in its judgment in Case 374/87 Orkem [1989] ECR 3283. According to those criteria, the Commission can without restriction insist that documents that already exist and relate to the subject-matter of the investigations be handed over. It can also demand ‘information concerning such facts as may be known to [the undertaking]’ (Orkem judgment, paragraph 34). However, ‘the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove’ (Orkem judgment, paragraph 35).
   The Court of First Instance failed to draw that distinction in paragraph 408 of the present judgment. Paragraph 408 concerns solely the handing over of already existing documents which it was possible to request without infringing SGL's rights of defence.
   Similar arguments hold true in regard to the other request for information, which is dealt with in paragraph 412 of the judgment. As the Commission knew that SGL had warned a separate undertaking that an investigation was imminent, the Commission had, inter alia, asked SGL to which other undertaking it had provided that information. SGL named another undertaking but failed to disclose that it had also warned a third undertaking, as the Commission learned subsequently. By that question the Commission requested information ‘concerning … facts’ and did not compel the undertaking to provide ‘an admission on its part of the existence of an infringement’. In order to classify the information provided by SGL in its reply as constituting an aggravating circumstance, which is the point on which the Court of First Instance focuses, the Commission first of all had to prove that there had been an infringement.
   Concerning the extent of the reduction in the case of contributions that have been preceded by a request for information
   In so far as part of the cooperation provided by SGL could be deemed to constitute an answer to a question which, in the context of a binding request for information, that is to say, a request for information in the form of a decision, might be regarded as inadmissible, the Court of First Instance failed, in paragraph 410 of the judgment, to take account of the fact that any reduction can be granted only in proportion to the additional value by which the Commission is aided in its investigations. This additional value will be comparatively greater if it is derived from a voluntary contribution which, having been made at an early stage, saves the Commission in advance from being required to take specific investigative measures, such as the planning and drafting of a request for information (even if it is not binding).

      (1)  Not yet published in the European Court Reports.