title: Case T-163/02: Action brought on 27 May 2002 by Montan Gesellschaft Voss mbH Stahlhandel and three other companies against the Commission of the European Communities

text:
C 191/28               EN                     Official Journal of the European Communities                                      10.8.2002
—     in the alternative, amend the quota for the product group          Furthermore, the Commission acted in breach of primary and
      ‘alloy hot rolled flat products’ to 468 000 tonnes (2001           secondary Community legislation, the principle of equal
      import volume);                                                    treatment and the WTO Agreement.
                                                                         (1) Commission Regulation (EC) No 560/2002 of 27 March 2002
—     in the alternative, amend the quota for the product group              imposing provisional safeguard measures against imports of
      ‘alloy hot rolled flat products’ to 118 916 tonnes.                    certain steel products (OJ L 85, 28.3.2002, p. 1).
Pleas in law and main arguments
                                                                         Action brought on 27 May 2002 by Montan Gesellschaft
                                                                         Voss mbH Stahlhandel and three other companies against
                                                                                the Commission of the European Communities
The applicants are importers of steel products affected by the                                     (Case T-163/02)
contested regulation. That regulation opened tariff quotas in
respect of the importation of 15 products into the Community.
Imports of those products in excess of the volume laid down                                        (2002/C 191/49)
by the relevant tariff quota will incur additional customs
duties.
                                                                                (Language of the case: German)
The applicants claim that the levels set for the free tariff quotas,     An action against the Commission of the European Communi-
in particular in respect of product group 4, cannot be                   ties was brought before the Court of First Instance of the
reconciled with the recitals in the preamble to the regulation.          European Communities on 27 May 2002 by Montan Gesell-
For product group 4 alone there is a shortfall of 95 129 tonnes.         schaft Voss mbH Stahlhandel, Planegg (Germany), Jepsen
No reason is given for why the tariff quotas set in the                  Stahl GmbH, Nittendorf (Germany), LNS-Lothar Niemeyer
regulation do not comply with the regulation’s aims, as                  Stahlhandel GmbH & Co. KG, Essen (Germany) and Metal
determined by the defendant itself, or with its own formula for          Traders Stahlhandel GmbH, Düsseldorf (Germany), represented
the calculation of those quotas.                                         by K. Friedrich, lawyer, with an address for service in Luxem-
                                                                         bourg.
                                                                         The applicants claim that the Court should:
In addition, the applicants submit that the statement of reasons
for the regulation is also defective in that in the recitals in the      —     annul Commission Regulation (EC) No 560/2002 of
preamble there is no examination whatever of the interests of                  27 March 2002 (1);
all market operators affected by the regulation. No reasons are
given for why the purported aim of the regulation can be                 —     declare that the defendant must pay compensation to the
achieved only by the measures set out therein, why only the                    applicants for the present and future damage suffered by
interests of Community manufacturers are protected while the                   them as a result of the nullity of Regulation (EC) No 560/
interests of other market actors are not take into account, or                 2002 of 27 March 2002;
why the measures adopted in the regulation took effect
immediately and without any vacatio legis. All those deficiencies        —     order the defendant to pay the costs of the proceedings.
in the statement of reasons constitute a material breach
of procedural requirements which renders the contested
regulation void.
                                                                         Pleas in law and main arguments
                                                                         The applicants import steel products from countries outside
The applicants additionally claim that the regulation pursues            the European Communities. They object to Commission
different aims to those stated in the preamble and that the              Regulation (EC) No 560/2002 and claim that the conditions
Commission misused its discretionary powers. The failure to              for the introduction of provisional safeguard measures within
observe the purported aim of ‘maintaining the current import             the meaning of Council Regulation (EC) No 3285/94 of
level plus 10 % thereof ’ is particularly clear evidence that            22 December 1994 (2), as the basic regulation on which the
other aims are being pursued.                                            contested regulation is based, are not met.
 ---pagebreak--- 10.8.2002               EN                        Official Journal of the European Communities                                        C 191/29
The applicants claim that the contested regulation is unlawful               The applicant claims that the Court should:
and infringes their rights. The Commission was not em-
powered to issue the regulation in its present form. In addition,
the required investigation procedure was not implemented                     —     annul Commission Decision 2002/229/EC of 13 Novem-
before, but at the same time as, or only after, the regulation                     ber 2001 on the aid scheme which the Sardinia Region
was issued.                                                                        (Italy) is planning to implement for the restructuring of
                                                                                holdings in difficulty in the protected crops sector (OJ
                                                                                2002 L 77, p. 29)
The applicants further submit that the regulation, and
Annexes 1.1 to 2.1 thereto, have a dubious factual basis. On                 —     order the Commission of the European Communities to
27 March 2002, the data listed in those annexes were, in fact,                     pay the costs.
not yet available to the Commission, because EUROSTAT had
not yet received all the information for 2001.
In addition, the applicants claim that the contested regulation
is also unlawful on substantive grounds as the measures it                   Pleas in law and main arguments
lays down are disproportionate. The additional duties are
prohibitively high and, with the exception of developing
countries, the safeguard measures apply without distinction to
all countries.                                                               The decision which is at issue in the present case concerns a
                                                                             regional aid scheme for the restructuring of holdings in
                                                                             difficulty in the protected crops sector (flowers and vegetables)
Finally, the applicants claim that, given the circumstances, the             in Sardinia, adopted pursuant to Law No 4/98 of the Sardinian
provisional safeguard measures are incompatible with the rules               Region, which specifically concerns action to be taken in
laid down by the World Trade Organisation and GATT, and                      favour of small and medium-sized agricultural holdings in
infringe European Agreements concluded by the Council and                    difficulty.
the Commission with certain non-member countries.
(1) Commission Regulation (EC) No 560/2002 of 27 March 2002                  In support of its arguments, the applicant alleges:
    imposing provisional safeguard measures against imports of
    certain steel products (OJ L 85, 28.3.2002, p. 1).
(2) Council Regulation (EC) No 3285/94 of 22 December 1994 on                —     breach or misapplication of Article 88(3) of the Treaty,
    the common rules for imports and repealing Regulation (EC)                     the Community guidelines on State aid for rescuing and
    No 518/94 (OJ L 349, 31.12.1994, p. 53).                                       restructuring firms in difficulty (1) and of the principle of
                                                                                legitimate expectations. Moreover the time spent
                                                                                assessing whether the aid was compatible with the
                                                                                common market was unreasonably long.
                                                                             —     breach or misapplication of Article 87 of the Treaty and
                                                                                of the abovementioned guidelines, lack of a proper
                                                                                inquiry and inadequate statement of reasons.
Action brought on 6 June 2002 by Regione Autonoma
della Sardegna against Commission of the European
                            Communities
                                                                             In that regard, the applicant points out that, although the
                                                                             Commission first became aware of the regional plan in
                          (Case T-171/02)                                    question on 15 January 1998, the decision finding the aid
                                                                             unlawful was not adopted until 13 November 2001. During
                                                                             that time, there was an exchange of correspondence between
                          (2002/C 191/50)                                    the defendant and the Italian authorities with the purpose of
                                                                             clarifying the scope and effects of the notified aid project.
                                                                             However, by the contested decision, the Commission has
                     (Language of the case: Italian)
                                                                             firmly declared the project unlawful, furthermore, according
                                                                             to the applicant, by reference to aspects which were perfectly
                                                                             clear from the earliest exchanges.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 June 2002 by the Regione                           The applicant further claims that the contested scheme is
Autonoma della Sardegna, represented by Giacomo Aiello of                    compatible with the guidelines for rescuing and restructuring
the Avvocatura dello Stato.                                                  firms in difficulties and that there was no basis in the inquiry


title: Case T-348/03 RENV: Order of the Court of 14 January 2010 — Koninklijke Friesland Campina v Commission

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/51

         Order of the Court of 14 January 2010 — Koninklijke Friesland Campina v Commission
   (Case T-348/03 RENV) (1)

   2010/C 63/89

      Language of the case: Dutch

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

      (1)  OJ C 21, 24.1.2004.


title: Case C-419/16: Request for a preliminary ruling from the Tribunale di Bolzano/Landesgericht Bozen (Italy) lodged on 28 July 2016 — Sabine Simma Federspiel v Provincia autonoma di Bolzano, Equitalia Nord SpA

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/8

         Request for a preliminary ruling from the Tribunale di Bolzano/Landesgericht Bozen (Italy) lodged on 28 July 2016 — Sabine Simma Federspiel v Provincia autonoma di Bolzano, Equitalia Nord SpA
   (Case C-419/16)
   (2016/C 392/10)
   Language of the case: Italian

      Referring court

   Tribunale di Bolzano/Landesgericht Bozen

      Parties to the main proceedings

      Applicant: Sabine Simma Federspiel

      Defendants: Provincia autonoma di Bolzano, Equitalia Nord SpA

      Questions referred

               1.

               Are Article 2(1)(c) of Directive 75/363/EEC, (1) as amended by Directive 82/76/EEC, (2) and the annex referred to therein to be interpreted as precluding a provision of national law, such as that applicable in the main proceedings, which makes disbursement of the remuneration for doctors studying to become specialists subject to presentation of a declaration by the recipient doctor undertaking to work for at least five years in the public health service of the Autonomous Province of Bolzano/Bozen within ten years of completing training as a specialist and which, in the event of a total failure to honour that undertaking, expressly permits the Autonomous Province of Bolzano/Bozen, as the body funding the remuneration, to reclaim up to 70 % of the allowance paid together with statutory interest calculated from the moment at which the administration paid each individual instalment?

               2.

               If the first question is answered in the negative: does the principle of freedom of movement for workers under Article 45 TFEU preclude a provision of national law, such as that applicable in the main proceedings, which makes disbursement of the remuneration for doctors studying to become specialists subject to presentation of a declaration by the recipient doctor undertaking to work for at least five years in the public health service of the Autonomous Province of Bolzano/Bozen within ten years of completing training as a specialist and which, in the event of a total failure to honour that undertaking, expressly permits the Autonomous Province of Bolzano/Bozen, as the body funding the remuneration, to reclaim up to 70 % of the allowance paid together with statutory interest calculated from the moment at which the administration paid each individual instalment?

      (1)  Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14).

      (2)  Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1982 L 43, p. 21).


title: Case T-384/09: Action brought on 1 October 2009 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/23

         Action brought on 1 October 2009 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission
   (Case T-384/09)
   2009/C 297/35
   Language of the case: German

      Parties

      Applicants: SKW Stahl-Metallurgie Holding AG (Unterneukirchen, Germany) and SKW Stahl-Metallurgie GmbH (Unterneukirchen, Germany) (represented by: A. Birnstiel, S. Janka and S. Dierckens, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul the contested decision, insofar as it concerns the applicants;

               —

               in the alternative, amend Article 2 of the contested decision, which imposes a fine on the applicants, to the effect that the fine is lifted or at least substantially reduced;

               —

               order the defendant to bear its own costs and to pay those incurred by the applicants.

      Pleas in law and main arguments

   The applicants have brought an action against Commission Decision C(2009) 5791 final of 22 July 2009 in Case COMP/39.396 — Calcium Carbide and magnesium based reagents for the steel and gas industries. The contested decision imposes a fine on the applicants and other undertakings in respect of an infringement of Article 81 EC as well as Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sectors in the whole of the European Economic Area, with the exception of Spain, Portugal, Ireland and the United Kingdom, taking the form of market sharing, agreements on quotas, customer allocation, price fixing and the exchange of confidential information relating to prices, customers and sales volumes.
   In support of their actions, the applicants have submitted six pleas.
   First, the applicants claim that the defendant infringed the applicants’ rights of defence when it failed to give the applicants the opportunity of a hearing for the submission of oral arguments.
   Second, the applicants claim that the Commission committed an error of law in the application of Article 81(1) EC. In this respect, the applicants claim that the Commission wrongly attributed the actions of SKW Stahl-Metallurgie GmbH to SKW Stahl-Metallurgie Holding AG. Further, the applicants claim that it is impossible to meet the conditions for the rebuttal of the presumption that a parent company has decisive influence over its subsidiary. At the same time, the defendant’s conduct breached the principle of ex officio investigation.
   Third, the applicant claims that the Commission infringed its obligation to state reasons pursuant to Article 253 EC, since it did not explain why the applicants’ submission did not suffice to refute the presumption that SKW Stahl-Metallurgie Holding AG had decisive influence over SKW Stahl-Metallurgie GmbH.
   Fourth, the applicants claim that, as regards the calculation of the fines, the Commission in several respects infringed the principle of equal treatment.
   Fifth, the applicants claim that, as regards the calculation of the fines, the Commission infringed Articles 7 and 23 of Regulation (EC) No 1/2003 (1) as well as the principle of proportionality and the principle that penalties must have a proper legal basis.
   Finally, the applicants claim that there has been an infringement of Article 23(2) of Regulation (EC) No 1/2003, since the fine the Commission imposed on SKW Stahl-Metallurgie GmbH exceeded 10 % of the turnover of that company.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p.1).


title: Case C-334/00: Reference for a preliminary ruling by the Corte Suprema di Cassazione — Sezione Unite Civile by order of that court of 9 June 2000 in the case of Fonderie Officine Meccaniche Tacconi SpA against HWS Heinrich Wagner Sinto Maschinenfabrik GmbH

text:
21.10.2000              EN                    Official Journal of the European Communities                                         C 302/21
2.    If not, is the manner in which these provisions are                sation — United Civil Chambers) of 9 June 2000, which was
      interpreted and applied in practice by the Conseil Supé-           received at the Court Registry on 11 September 2000, for a
      rieur de l’Audiovisuel contrary to Article 59 of the EC            preliminary ruling in the case of Fonderie Officine Meecaniche
      Treaty (now Article 49 EC) insofar as they prevent or              Tacconi SpA against HWS Heinrich Wagner Sinto Maschinen-
      restrict (a) the advertising of alcoholic drinks at sporting       fabrik GmbH on the following question:
      events taking place in Member States other than France
      when the events are to be televised in France and (b) the
      broadcasting in France of sporting events taking place in          Does an action against a defendant for pre-contractual liability
      other Member States at which there is advertising of               fall within the scope of matters relating to delict or quasi-delict
      alcoholic beverages?                                               (Article 5(3)? If not, does it fall within the scope of matters
                                                                         relating to a contract (Article 5(1) (1)? If it does, what is ‘the
                                                                         obligation in question’? Otherwise, is the general criterion of
                                                                         ‘domicile of the defendant’ the only criterion applicable?
Reference for a preliminary ruling by the Unabhängiger                   (1) Article 5(1) and (3) of the Brussels Convention 1968 on Jurisdic-
                                                                             tion and the Enforcement of Judgments in Civil and Commercial
Verwaltungssenat Salzburg by order of that court of
                                                                             Matters (consolidated version) (OJ 1998 C 27, p. 1).
23 August 2000 in the appeal concerning Merkurbau-
Grundstücksverwertungs GmbH & Co KG, Manfred
Wander, Grundverkehrsbeauftragter des Landes Salzburg
and Grundverkehrslandeskommission des Landes Salz-
                                burg
                         (Case C-319/00)
                         (2000/C 302/40)
                                                                                Removal from the register of Case C-525/99 (1)
Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängiger Verwal-                                          (2000/C 302/42)
tungssenat Salzburg of 23 August 2000, received at the Court
Registry on 28 August 2000, for a preliminary ruling in
the appeal concerning Merkurbau-Grundstücksverwertungs                   By order of 3 April 2000, the President of the Court of Justice
GmbH & Co KG, Manfred Wander, Grundverkehrsbeauftragter                  of the European Communities has ordered the removal from
des Landes Salzburg and Grundverkehrslandeskommission des                the register of Case C-525/99 (Reference for a preliminary
Landes Salzburg on the following question:                               ruling from the Unabhängiger Verwaltungssenat Salzburg):
                                                                         Neubau GmbH and Herbert Bogensberger.
Are the provisions of Article 56 et seq. of the EC Treaty to be
interpreted as precluding the application of Paragraphs 12 to
14 of the Salzburger Grundverkehrsgesetz (Salzburg Land                  (1) OJ C 79 of 18.3.2000.
Transfer law) of 1997 in the version published in LGBl.
No. 11/1999, whereby any person who wishes to acquire a
building plot in the federal Land of Salzburg must comply
with a notification or authorisation procedure in respect of the
acquisition of that plot, with the consequence that one of the
fundamental freedoms of the acquirer of title as guaranteed by
the laws of the European Union has been infringed in this
case?
                                                                                Removal from the register of Case C-38/00 (1)
                                                                                (2000/C 302/43)
Reference for a preliminary ruling by the Corte Suprema
di Cassazione — Sezione Unite Civile by order of that                    By order of 10 May 2000, the President of the Court of Justice
court of 9 June 2000 in the case of Fonderie Officine                    of the European Communities has ordered the removal from
Meccaniche Tacconi SpA against HWS Heinrich Wagner                       the register of Case C-38/00 (Reference for a preliminary
                  Sinto Maschinenfabrik GmbH                             ruling from the Deputy Traffic Commissioner, North Western
                                                                         Traffic Area): Public enquiry concerning Aaron Theophilus
                         (Case C-334/00)                                 Joseph, trading under the name of Woodcroft Haulage.
                         (2000/C 302/41)
                                                                         (1) OJ C 122 of 29.4.2000.
Reference has been made to the Court of Justice of the
European Communities by order of the Corte Suprema di
Cassazione — Sezione Unite Civile (Supreme Court of Cas-


title: Case T-499/10: Judgment of the General Court of 12 November 2013 — MOL v Commission (State aid — Agreement between the Hungarian State and the oil and gas company MOL relating to mining fees in connection with the extraction of hydrocarbons — Subsequent change in the statutory system of fees — Decision declaring the aid incompatible with the internal market — Selective nature)

text:
               21.12.2013

               EN

               Official Journal of the European Union

               C 377/11

         Judgment of the General Court of 12 November 2013 — MOL v Commission
   (Case T-499/10) (1)

   (State aid - Agreement between the Hungarian State and the oil and gas company MOL relating to mining fees in connection with the extraction of hydrocarbons - Subsequent change in the statutory system of fees - Decision declaring the aid incompatible with the internal market - Selective nature)
   2013/C 377/25
   Language of the case: English

      Parties

      Applicant: MOL Magyar Olaj- és Gázipari Nyrt. (Budapest, Hungary) (represented by: N. Niejahr, lawyer, F. Carlin, Barrister, and C. van der Meer, lawyer)

      Defendant: European Commission (represented by: L. Flynn and K. Talabér-Ritz, Agents)

      Re:

   Principally, application for annulment of Commission Decision 2011/88/EU of 9 June 2010 on State aid C 1/09 (ex NN 69/08) granted by Hungary to MOL Nyrt. (OJ 2011 L 34, p. 55) and, in the alternative, for annulment of that decision in so far as it orders the recovery of amounts from the latter.

      Operative part of the judgment

   The Court:

               1.

               Annuls European Commission Decision 2011/88/EU of 9 June 2010 on State aid C 1/09 (ex NN 69/08) granted by Hungary to MOL Nyrt;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 346, 18.12.2010.


title: Case C-575/12: Judgment of the Court (Fourth Chamber) of 4 September 2014 (request for a preliminary ruling from the Administratīvā apgabaltiesa — Latvia) — Air Baltic Corporation AS v Valsts robežsardze (Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EC) No 810/2009 — Articles 24(1) and 34 — Uniform visa — Annulment or revocation of a uniform visa — Validity of a uniform visa affixed to a travel document which has been cancelled — Regulation (EC) No 562/2006 — Articles 5(1) and 13(1) — Border checks — Entry conditions — National legislation requiring a valid visa affixed to a valid travel document)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/8

      Judgment of the Court (Fourth Chamber) of 4 September 2014 (request for a preliminary ruling from the Administratīvā apgabaltiesa — Latvia) — Air Baltic Corporation AS v Valsts robežsardze
      (Case C-575/12) (1)

      ((Reference for a preliminary ruling - Area of freedom, security and justice - Regulation (EC) No 810/2009 - Articles 24(1) and 34 - Uniform visa - Annulment or revocation of a uniform visa - Validity of a uniform visa affixed to a travel document which has been cancelled - Regulation (EC) No 562/2006 - Articles 5(1) and 13(1) - Border checks - Entry conditions - National legislation requiring a valid visa affixed to a valid travel document))
      (2014/C 395/09)
      Language of the case: Latvian

         Referring court

      Administratīvā apgabaltiesa

         Parties to the main proceedings

         Applicant: Air Baltic Corporation AS

         Defendant: Valsts robežsardze

         Operative part of the judgment

                  1)

                  On a proper construction of Articles 24(1) and 34 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), the cancellation of a travel document by an authority of a third country does not mean that the uniform visa affixed to that document is automatically invalidated.

                  2)

                  On a proper construction of Article 5(1) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as amended by Regulation (EU) No 265/2010 of the European Parliament and of the Council of 25 March 2010, read in conjunction with Article 13(1) of Regulation No 562/2006, the entry of third-country nationals into the territory of Member States is not subject to the condition that, at the border check, the valid visa presented must necessarily be affixed to a valid travel document.

                  3)

                  Article 5(1) of Regulation No 562/2006, as amended by Regulation No 265/2010, read in conjunction with Article 13(1) of Regulation No 562/2006, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which makes the entry of third-country nationals to the territory of the Member State concerned subject to the condition that, at the border check, the valid visa presented must necessarily be affixed to a valid travel document.

         (1)  OJ C 38, 9.2.2013.


title: Case T-436/10: Action brought on 15 September 2010 — Hit Groep BV v European Commission

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/41

         Action brought on 15 September 2010 — Hit Groep BV v European Commission
   (Case T-436/10)
   ()
   2010/C 317/75
   Language of the case: Dutch

      Parties

      Applicant: Hit Groep BV (Haarlem, Netherlands) (represented by: G. van der Wal, G. Oosterhuis and H. Albers, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Decision in so far as it is directed against the applicant, in particular Article 1(9)(b), Article 2(9) and Article 4(22), in the alternative, set the fine imposed on the applicant in Article 2(9) at nil or reduce it equitably;

               —

               Order the Commission to pay the applicant’s costs in these proceedings, including its costs of legal assistance.

      Pleas in law and main arguments

   The applicant’s application is directed at the Commission’s Decision of 30 June 2010 in Case COMP/38.344 — Prestressing steel.
   In support of its application the applicant puts forward five pleas in law:

               —

               First, the Commission found in Article 1 of the Decision, wrongly and contrary to law, or without stating sufficient reasons, that the applicant infringed Article 101 TFEU and Article 53 EEA from 1 January 1998 to 17 January 2002.
               According to the applicant, the Commission has given insufficient reasons as to why it infringed Article 101 TFEU and has been drawn into this case by the Commission, otherwise than as a shareholder with ‘decisive influence’ in the period from 1 January 1998 to 17 January 2002.

               —

               Second, the Commission, wrongly and contrary to law, imposed a fine on the applicant. According to the applicant, the fine imposed by the Decision of 30 June 2010 on an undertaking such as the applicant which has not been economically active since 1 November 2004 is contrary to the aims of Article 101 TFEU, Community policy on fines, and the principle of proportionality.

               —

               Third, the Commission, wrongly and contrary to law, found in Article 1(9) of the contested decision that the applicant had infringed Article 101 TFEU and Article 53 EEA and on that basis imposed a fine on it of EUR 6 934 000 because the applicant was, in the Commission’s opinion, jointly liable with Nedri Spanstaal BV for the period from 1 January 1998 to 17 January 2002.
               The applicant submits that from 1 January 1998 to 17 January 2002 it was a private equity company which had no “decisive influence” over Nedri Spanstaal and for that reason cannot be held responsible for the infringement by Nedri Spanstaal of competition law.

               —

               Fourth, and in the alternative, the applicant submits that the Commission, wrongly and contrary to law, imposed a fine on the applicant of EUR 6 934 000 and should have imposed no fine or a considerably lower fine on it.

                           —

                           According to the applicant, the Commission should not have taken its 2003 turnover into account as the criterion for the purposes of fixing the 10 % ceiling for its fine; in any event, if the main rule in Article 23(2) of Regulation (EC) No 1/2003 was not applied, the Commission should have considered its consequences in the specific case in the light of the purpose of that provision. The fine is therefore not proportionate to the size of the undertaking and does not fulfil the requirements of the case-law.

                           —

                           The Commission should also have granted the applicant the reduction for leniency which it granted Nedri Spanstaal.

                           —

                           The Commission wrongly calculated the applicant’s fine separately and should have limited that fine to a fraction of the fine imposed on Nedri Spanstaal. The Decision in regard to the applicant is based on the applicant’s shareholding in Nedri Spanstaal during a 48/224th part of the total period of Nedri Spanstaal’s infringement; the fine does not satisfy the principal of proportionality.

                           —

                           By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for Nedri Spanstaal’s infringement, the relatively limited quality of the applicant’s liability and its limited turnover, the Commission infringed the principle of proportionality.

                           —

                           By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for the infringement in comparison with Nedri Spanstaal, the Commission infringed the principle of equal treatment. It follows from the case-law that the amount of the fine is also determined by the length of the infringement during which the fined undertaking is jointly responsible. The fact that the applicant’s fine is higher than Nedri Spanstaal’s fine is incompatible with this.

               —

               Fifthly, and in the alternative, the applicant submits that the Commission infringed its obligation to adopt a decision within a reasonable period, contrary to Article 6(1) of the EHRC and Article 41 of the Charter of Fundamental Rights of the EU. When setting the fine, the Commission wrongly failed to take account of the failure to act within a reasonable period. The duration of the proceedings in question is 94 months and thus unreasonably long.


title: Case C-492/15: Order of the President of the Third Chamber of the Court of 21 June 2016 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — S, T v R

text:
               5.9.2016

               EN

               Official Journal of the European Union

               C 326/19

         Order of the President of the Third Chamber of the Court of 21 June 2016 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — S, T v R
   (Case C-492/15) (1)

   (2016/C 326/34)
   Language of the case: German
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 398, 30.11.2015.


title: Joined Cases C-55/11, C-57/11 and C-58/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Vodafone España SA v Ayuntamiento de Santa Amalia (C-55/11), Ayuntamiento de Tudela (C-57/11), and France Telecom España SA v Ayuntamiento de Torremayor (C-58/11) (Directive 2002/20/EC — Electronic communications networks and services — Authorisation — Article 13 — Fees for rights of use and rights to install facilities)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/8

         Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Vodafone España SA v Ayuntamiento de Santa Amalia (C-55/11), Ayuntamiento de Tudela (C-57/11), and France Telecom España SA v Ayuntamiento de Torremayor (C-58/11)
   (Joined Cases C-55/11, C-57/11 and C-58/11) (1)

   (Directive 2002/20/EC - Electronic communications networks and services - Authorisation - Article 13 - Fees for rights of use and rights to install facilities)
   2012/C 287/13
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicants: Vodafone España SA (C-55/11 and C-57/11), France Telecom España SA (C-58/11)

      Defendants: Ayuntamiento de Santa Amalia (C-55/11), Ayuntamiento de Tudela (C-57/11), Ayuntamiento de Torremayor (C-58/11)

      Re:

   Reference for preliminary ruling — Tribunal Supremo — Interpretation of Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21) — Fees for rights of use and the right to install equipment — Municipal public property

      Operative part of the judgment

               1.

               Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) must be interpreted as precluding the imposition of a fee for the right to install facilities on, over or under public or private property on operating undertakings which, without being proprietors of those facilities, use them to provide mobile telephony services;

               2.

               Article 13 of Directive 2002/20 has direct effect and therefore it grants individuals the right to rely upon it before the national courts to dispute the application of a decision by the public authority that is incompatible with that article.

      (1)  OJ C 139, 7.5.2011.


title: Case T-580/15: Action brought on 6 October 2015 — Flamagas v OHIM — MatMind (CLIPPER)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/62

         Action brought on 6 October 2015 — Flamagas v OHIM — MatMind (CLIPPER)
   (Case T-580/15)
   (2016/C 038/84)
   Language in which the application was lodged: English

      Parties

      Applicant: Flamagas, SA (Barcelona, Spain) (represented by: I. Valdelomar Serrano, G. Hinarejos Mulliez and D. Gabarre Armengol, lawyers)

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

      Other party to the proceedings before the Board of Appeal: MatMind Srl (Formello, Italy)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community tridimensional mark (Shape of lighter containing the word element ‘CLIPPER’) — Community trade mark No 4 758 652

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the First Board of Appeal of OHIM of 30 July 2015 in Case R 924/2013-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               confirm the decision of 22/03/2013 of the Cancellation Division in Cancellation Proceedings No. C 5642 against Community trademark registration No. 4 758 652;

               —

               order the other party to the proceedings to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(a) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(e)(ii) of Regulation No 207/2009.


title: Case F-39/15: Order of the Civil Service Tribunal (3rd Chamber) of 15 June 2016 — Marinozzi v Commission (Civil service — Members of the contract staff — Pensions — Transfer of national pension rights — Proposals concerning additional pensionable years — Act not having an adverse effect — Inadmissibility of the action — Application for a decision not going to the substance of the case — Article 83 of the Rules of Procedure)

text:
               7.11.2016

               EN

               Official Journal of the European Union

               C 410/40

         Order of the Civil Service Tribunal (3rd Chamber) of 15 June 2016 — Marinozzi v Commission
   (Case F-39/15) (1)

   ((Civil service - Members of the contract staff - Pensions - Transfer of national pension rights - Proposals concerning additional pensionable years - Act not having an adverse effect - Inadmissibility of the action - Application for a decision not going to the substance of the case - Article 83 of the Rules of Procedure))
   (2016/C 410/71)
   Language of the case: French

      Parties

      Applicant: Gabrio Marinozzi (Santo Domingo, Dominican Republic) (represented by: J.-N. Louis and N. de Montigny, lawyers)

      Defendant: European Commission (represented by: J. Currall and G. Gattinara, Agents, then G. Gattinara, Agent, and, lastly, G. Gattinara and F. Simonetti, Agents)

      Re:

   Application for annulment of the proposal to transfer the applicant’s pension rights to the EU pension scheme which applies the new general implementing provisions (GIP) of 3 March 2011 for Article 11(2) of Annex VIII to the Staff Regulations.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Mr Gabrio Marinozzi shall bear his own costs and pay those incurred by the European Commission.

      (1)  OJ C 178, 1/6/2015, p. 27.


title: Case F-19/05: Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2006 — Sanchez Ferriz v Commission (Officials — Career Development Report — Assessment procedure for 2003)

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/32

         Judgment of the Civil Service Tribunal (Second Chamber) of 28 June 2006 — Sanchez Ferriz v Commission
   (Case F-19/05) (1)

   (Officials - Career Development Report - Assessment procedure for 2003)
   (2006/C 190/58)
   Language of the case: French
   Parties

      Applicant: Carlos Sanchez Ferriz (Brussels, Belgium) (represented by: G. Bouneou and F. Frabetti, lawyers, then only F. Frabetti)

      Defendant: Commission of the European Communities (represented by: G. Berscheid and L. Lozano Palacios, Agents)
   Re:
   Annulment of the assessment procedure for 2003 in relation to the applicant, or, in the alternative, annulment of the applicant's Career Development Report for 2003
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the action.

               2.

               Orders each of the parties to bear its own costs.

      (1)  OJ C 155 of 25.06.2005 (case initially registered before the Court of First Instance of the European Communities under number T-153/05 and transferred to the European Civil Service Tribunal by order of 15.12.2005).


title: Case T-239/00: Action brought on 28 August 2000 by SCI UK Limited against the Commission of the European Communities

text:
25.11.2000            EN                     Official Journal of the European Communities                                        C 335/45
Furthermore, the Executive Board of the ECB was not com-                The applicant submits that the two conditions laid down
petent to adopt Articles 1.4.2, 1.4.3 and 1.4.7 of the Staff            in Article 13 are satisfied, namely the existence of special
Rules. The same is true of the refusal of the application to            circumstances and the absence of any obvious negligence or
insert in the Conditions of Employment, by decision of the              deception. It claims that it was the Japanese producer who
Governing Council of the ECB, provisions on collective                  failed properly to execute the undertaking measure. The
agreements. The refusal of the applicants’ requests in that             applicant exercised all due care and was an innocent victim of
respect could not issue from the Vice-President of the ECB.             fraud.
The applicants submit, finally, that the decision does not              Moreover, the Commission failed to comply with its obligation
contain a sufficient statement of reasons. It merely states that        effectively to monitor the undertaking measures. It is inequi-
the defendant finds the applicants’ proposal inappropriate.             table to require the applicant to bear a loss that it would not
There is no explanation as to the considerations on which the           otherwise have incurred had the Commission and the Japanese
defendant bases that statement.                                         producers properly carried out their obligations as defined in
                                                                        the price-undertaking measures.
                                                                        (1) Council Regulation (EEC) No 2112/90 of 23 July 1990 imposing
                                                                            a definitive anti-dumping duty on imports of certain types of
                                                                            electronic microcircuits known as DRAMs (dynamic random
                                                                            access memories) originating in Japan and collecting definitively
                                                                            the provisional duty, OJ 1990 L 193, p. 1.
                                                                        (2) Council Regulation (EEC) No 1430/79 of 2 July 1979 on the
Action brought on 28 August 2000 by SCI UK Limited                          repayment or remission of import or export duties, OJ 1979
  against the Commission of the European Communities                        L 175, p. 1.
                        (Case T-239/00)
                        (2000/C 335/85)
                                                                        Action brought on 14 September 2000 by Compagnia
                  (Language of the case: English)                       Lavoratori Portuali s.c.a r.l. and Others against Com-
                                                                                mission of the European Communities
An action against the Commission of the European Communi-               (Cases T-242/00, T-243/00, T-257/00, T-258/00, T-259/00,
ties was brought before the Court of First Instance of the                                   T-265/00 and T-267/00)
European Communities on 28 August 2000 by SCI UK Limited
(Irvine, United Kingdom), represented by Mr. Leslie Allen, of                                     (2000/C 335/86)
Ernst & Young, London.
                                                                                (Language of the case: Italian)
The applicant claims that the Court should:
                                                                        An action against the Commission of the European Communi-
—     annul the Commission decision of 29 June 2000                     ties was brought before the Court of First Instance of the
      (C(2000) 1684 final) addressed to the United Kingdom              European Communities on 14 September 2000 by Compagnia
      of Great Britain and Northern Ireland concerning an               Lavoratori Portuali San Marco Venezia a r.l. and Others,
      application for the repayment of import duty.                     represented by Andrea Bortoluzzi and Chiara Montagner, of
                                                                        the Venice Bar.
Pleas in law and main arguments:                                        The applicants claim that the Court should:
The applicant imported computer components, including                   —     annul Articles 1 and 2 of Commission Decision
dynamic random access memories (‘DRAMS’) originating in                       2000/394/EEC;
Japan. Pursuant to Council Regulation No 2112/90 (1), those             —     in the alternative, annul Article 5 of the decision
imports were subject to a 60 % anti-dumping duty, which
was, however, not levied upon the presentation of price-                —     order the Commission to pay the costs.
undertaking documents issued by the Japanese producers.
Subsequent to a criminal investigation it appeared that some
certificates issued to the applicant were invalid for various           Pleas in law and main arguments
reasons and had been fraudulently used. HM Customs & Excise
therefore issued to the applicant post clearance demands in             The pleas in law and main arguments are those relied upon in
the amount of anti-dumping duty unpaid. Subsequently, the               Cases T-234/00 Fondazione Opera S. Maria della Carità v
British authorities submitted an application to the Commission          Commission and T-235/00 Codess Sociale and Others (1).
for a decision as to whether the repayment of import
duties was justified on the basis of Article 13 of Regulation           (1) not yet published.
No 1430/79 (2). That application was rejected by the contested
decision.


title: Action brought on 29 July 1998 by the Commission of the European Communities against the French Republic (Case C-296/98)

text:
26.9.98               EN                Official Journal of the European Communities                                  C 299/21
directives for their implementation. In the present case,          the European Communities was brought before the Court
when the time limits expired, the Italian Republic had not         of Justice of the European Communities on 29 July 1998
adopted the measures necessary to comply with the                  by Metsä-Serla OYJ and Others, represented by Hans
Directives named in the Commission's application.                  Hellmann, Am Morsdorfer Hof 16, D-50933 Cologne,
                                                                   and Hans-Joachim Hellmann LL.M., Schilling, Zutt &
(1) OJ L 148, 30.6.1995, p. 52.                                    Anschütz, Otto-Beck Straûe 42, D-68165 Mannheim,
(2) OJ L 49, 28.2.1996, p. 29.                                     Rechtsanwälte, with an address for service in Luxembourg
                                                                   at the Chambers of Loesch & Wolter, 11 rue Goethe, B.P.
                                                                   1107, L-1011 Luxembourg.
                                                                   The appellants claim that the Court should:
Reference for a preliminary ruling by the Juzgado de               1. declare void, in so far as it concerns the appellants, the
Primera Instancia e Instrucción No 5, Oviedo, by order of              Commission Decision of 13 July 1994 relating to a
that Court of 1 June 1998 in the Case of Entidad de                    proceeding under Article 85 of the EC Treaty (IV/C
Gestión de Derechos de los Productores Audiovisuales                   33.833 Ð Cartonboard), notified to the appellants on
      (EGEDA) v. Hostelería Asturiana, SA (HOASA)                      8 August 1994 and published in the Official Journal
                       (Case C-293/98)                                 of the European Communities of 19 September 1994;
                         (98/C 299/32)
                                                                   2. order the Commission to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by an order of the Juzgado de                 Pleas in law and main arguments adduced in support:
Primera Instancia e Instrucción (Court of First Instance)
No 5, Oviedo, of 1 June 1998, which was received at the            Infringement of Community law: there is no legal basis for
Court Registry on 29 July 1998, for a preliminary ruling           an order that the appellants should bear joint and several
in the Case of Entidad de Gestión de Derechos de los               liability for the fine imposed on Finnboard. Article 15(2)
Productores Audiovisuales (EGEDA) v. Hostelería                    of Council Regulation No 17 does not impose liability for
Asturiana, SA (HOASA), on the following question.                  infringements of third parties. Neither the Commission
                                                                   nor the Court of First Instance found that the appellants
Must Article 1(2)(a) and (3) of Directive 93/83/EEC (1) be         had themselves infringed Article 85(1) of the EC Treaty.
interpreted as meaning that the reception by a hotel               The Court's view that an undertaking may be held jointly
establishment of satellite or terrestrial television signals       and severally liable for payment of a fine where the
and their retransmission by cable to the various rooms of          Commission finds in the same instrument that the
the hotel is an act of communication to the public' or            infringement could have been established also in the case
reception by the public'?                                         of that undertaking infringes the principle of nulla poena
                                                                   sine lege, or the prohibition which follows by analogy
                                                                   from that principle, and the principle of the presumption
(1) OJ L 248, 6.10.1993, p. 15.                                    of innocence; it is incompatible with the principles of the
                                                                   rule of law and contravenes the appellants' fundamental
                                                                   rights of defence.
                                                                   The Court of First Instance wrongly relies on the case-law
                                                                   of the Court of Justice on the determination of fines in
Appeal brought on 29 July 1998 by Metsä-Serla OYJ,                 regard to undertakings which form an economic unit.
UPM-Kymmene OYJ (formerly United Paper Mills Ltd),                 Joint and several liability cannot be derived from the
Tamrock OY (formerly Tampella Corporation) and Kyro                principles of economic unity. Moreover, the preconditions
OYJ ABP (formerly OY Kyro AB) against the judgment                 for a finding that there was economic unity do not exist.
delivered on 14 May 1998 by the Third Chamber
(extended composition) of the Court of First Instance of
the European Communities in Joined Cases T-339/94,
T-340/94, T-341/94 and T-342/94 Metsä-Serla OYJ and
Others against the Commission of the European
                          Communities
                      (Case C-294/98 P)                            Action brought on 29 July 1998 by the Commission of the
                                                                       European Communities against the French Republic
                         (98/C 299/33)
                                                                                (Case C-296/98)
                                                                                (98/C 299/34)
An appeal against the judgment delivered on 14 May
1998 by the Third Chamber (extended composition) of the
Court of First Instance of the European Communities in             An action against the French Republic was brought before
Joined Cases T-339/94, T-340/94, T-341/94 and T-342/94             the Court of Justice of the European Communities on
Metsä-Serla OYJ and Others against the Commission of               29 July 1998 by the Commission of the European
 ---pagebreak--- C 299/22               EN                 Official Journal of the European Communities                                   26.9.98
Communities, represented by Christina Tufvesson, Legal               Appeal brought on 29 July 1998 by SCA Holding Ltd
Adviser, and Bernard Mongin, of its Legal Service, acting            against the judgment delivered on 14 May 1998 by the
as Agents, with an address for service in Luxembourg at              Third Chamber, extended composition, of the Court of
the office of Carlos Gómez de la Cruz, Wagner Centre,                First Instance of the European Communities in Case
Kirchberg.                                                           T-327/94 (1) between SCA Holding Ltd and the
                                                                              Commission of the European Communities
The Commission of the European Communities claims                                          (Case C-297/98 P)
that the Court should:
                                                                                (98/C 299/35)
Ð declare that, by maintaining in force Articles L 310-8
    and A 310-1 of the Code des Assurances (Insurance                An appeal against the judgment delivered on 14 May
    Code), according to which:                                       1998 by the Third Chamber, extended composition, of the
                                                                     Court of First Instance of the European Communities in
    (a) insurance and capitalisation undertakings are
                                                                     Case T-327/94 between SCA Holding Ltd and the
           required, when marketing a standard form
                                                                     Commission of the European Communities, was brought
           insurance contract for the first time in France, to
                                                                     before the Court of Justice of the European Communities
           notify it to the Minister responsible for economic
                                                                     on 29 July 1998 by SCA Holding Ltd, whose registered
           and financial affairs in accordance with the
                                                                     office is at SCA Packaging House, 543 New Hythe Lane,
           conditions laid down by order issued by that
                                                                     Larkfield, Aylesford, Kent ME20 7PE, United Kingdom,
           Minister;
                                                                     represented by John Pheasant and Nicholas Bromfield,
    (b) the information referred to in the first paragraph           solicitors of the Supreme Court of England and Wales, of
           of Article L 310-8 is to take the form of a note          Lovell White Durrant, with an address for service in
           drawn up in the French language containing the            Luxembourg at the Chambers of Loesch & Wolter, 11, rue
           information mentioned in the Annex to that                Goethe.
           Article,
                                                                     The appellant claims that the Court should:
    the French Republic has failed to fulfil its obligations
    under the Treaty establishing the European                       (a) set aside the judgment of the Court of First Instance
    Community, under Articles 6(3), 29 and 39 of Council                   of the European Communities in Case T-327/94, SCA
    Directive 92/49/EEC of 18 June 1992 on the                             Holding Ltd v. Commission of the European
    coordination of laws, regulations and administrative                   Communities, of 14 May 1998;
    provisions relating to direct insurance other than life
    assurance and amending Directives 73/239/EEC and
    88/357/EEC (third non-life insurance Directive) (1) and          (b) annul Article 1 of Commission Decision 94/601/EC
    under Articles 5(3), 29 and 39 of Council Directive                    of 13 July 1994, as amended by Commission
    92/96/EEC of 10 November 1992 on the coordination                      Decision C(94) 2135 of 26 July 1994, relating to a
    of laws, regulations and administrative provisions                     proceeding under Article 85 of the EC Treaty (IV/C/
    relating to direct life assurance and amending                         33.833 Ð Cartonboard) (2), in so far as it concerns
    Directives 79/267/EEC and 90/619/EEC (third life                       the appellant, or, in the alternative, annul or
    assurance Directive) (2),                                              substantially reduce the fine imposed on the appellant
                                                                           at Article 3 thereof;
Ð order the French Republic to pay the costs.
                                                                     (c)   order that the Commission should bear the costs.
Pleas in law and main arguments adduced in support:
                                                                     Pleas in law and main arguments adduced in support:
The Commission considers that the provisions of Articles
L 310-8 and A 310-1 of the French Insurance Code are
                                                                     The legal pleas of SCA Holding Ltd fall into two
not in accordance with the obligations imposed on the
                                                                     categories, those which relate to the issue of the proper
Member States by the third life assurance and non-life
                                                                     addressee of the Cartonboard Decision and those which
assurance Directives, in that they require the systematic
                                                                     relate to the fines imposed.
notification of the general conditions of contracts which
insurance undertakings wish to market for the first time
on French territory. That practice is tantamount to a                Addressee of the Decision:
hidden regime of systematic control. French law does not
require the prior approval of general and special policy             The Court of First Instance's findings on this question
conditions, of scales of premiums or of forms, but it does           raise the following issues of law:
provide for the systematic notification of general
conditions      governing      contracts   which     insurance       (a) whether the Court of First Instance was right to
undertakings wish to market for the first time on French                   conclude that no question of succession arose in the
territory.                                                                 circumstances of this case,
(1) OJ L 228, 11.8.1992, p. 1.
(2) OJ L 360, 9.12.1992, p. 1.                                       (b) whether the Court of First Instance was right to
                                                                           consider that the Commission had a choice of
                                                                           addressee, and, if so


title: Case T-313/04: Action brought on 30 July 2004 by Hewlett-Packard GmbH against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/45

         Action brought on 30 July 2004 by Hewlett-Packard GmbH against the Commission of the European Communities
   (Case T-313/04)
   (2004/C 262/86)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 July 2004 by Hewlett-Packard GmbH, having its registered office in Böblingen (Germany), represented by Fabienne Boulanger, Marius Mrozek and Michael Tervooren, lawyers.
   The applicant claims that the Court should:

               —

               annul Commission Decision REM 06/02 of 7 April 2004 holding that a refund is not justified in a specific case.

         Pleas in law and main arguments:
   On 21 December 1995 the applicant released from its customs warehouse certain goods (printers and printer cartridges) originating in Singapore for free circulation within the Community. A customs debt arose in respect of those goods at the time of their release for free circulation. According to the applicant, the goods were released for free circulation on 21 December 1995 in order to ensure that the preferential customs rates in force up to 31 December 1995 could be claimed. Otherwise, at the time when the goods were released for free circulation, higher customs rates in respect of their release would have applied with effect from 1 January 1996. By Regulation No 3009/95 (1) goods having the same customs tariff number as those of the applicant were zero-rated with effect from 1 January 1996.
   In November 1996 the applicant applied to the German customs authorities for a refund of the amount that had been charged. Its application was turned down. The German customs authorities, with the agreement of the applicant, referred the matter to the Commission.
   The applicant invokes Article 239 of the Customs Code and submits that, in view of the delay in the publication of, and failure timeously to notify, Regulation No 3009/95, and by reason of its deliberate back-dating and reference to a Council Regulation No 3093/95 (2) of 22 December 1995 which was not published until 21 February 1996, the Commission has infringed the principle that Community institutions must act in a foreseeable manner and has consequently infringed the principle of legal certainty.
   The applicant submits further that there has been a breach of Article 12 of Council Regulation No 2658/87, (3) which prescribes that the full text of the Combined Nomenclature for a particular year must be published by no later than 31 October of the preceding year. The purpose of that provision is specifically to provide market participants with reliable information on imminent financial consequences and it thus establishes a basis on which Community citizens can make informed plans enabling them to act in an appropriate manner.
   The applicant also submits that the Commission breached its duty of care towards the applicant by failing to inform it in good time of the imminent further amendment to the Combined Nomenclature. The Commission also proceeded, when issuing the contested decision, on the basis of circumstances which did not objectively obtain. By so doing, the Commission exceeded the scope of the discretionary power which it enjoys in this context, thereby adversely affecting the applicant. The applicant concludes by stating that it did not act in a patently negligent manner or with any deceitful intention.

      (1)  Commission Regulation (EC) No 3009/95 of 22 December 1995 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1995 L 319, p. 1).

      (2)  Council Regulation (EC) No 3093/95 of 22 December 1995 laying down the rates of duty to be applied by the Community resulting from negotiations under GATT Article XXIV.6 consequent upon the accession of Austria, Finland and Sweden to the European Union (OJ 1995 L 334, p. 1).

      (3)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).


title: Case C-231/15: Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Prezes Urzędu Komunikacji Elektronicznej, Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o. (Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/21/EC — Article 4(1) — Right of appeal against a decision taken by a national regulatory authority — Effective appeal mechanism — Decision of a national regulatory authority to continue to apply pending the outcome of the appeal — Temporal effects of a decision of a national court annulling a decision of a national regulatory authority — Possibility of annulling a decision of the national regulatory authority with retroactive effect — Principles of legal certainty and protection of legitimate expectations)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/5

         Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Prezes Urzędu Komunikacji Elektronicznej, Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o.
   (Case C-231/15) (1)

   ((Reference for a preliminary ruling - Electronic communications networks and services - Directive 2002/21/EC - Article 4(1) - Right of appeal against a decision taken by a national regulatory authority - Effective appeal mechanism - Decision of a national regulatory authority to continue to apply pending the outcome of the appeal - Temporal effects of a decision of a national court annulling a decision of a national regulatory authority - Possibility of annulling a decision of the national regulatory authority with retroactive effect - Principles of legal certainty and protection of legitimate expectations))
   (2016/C 462/06)
   Language of the case: Polish

      Referring court

   Sąd Najwyższy

      Parties to the main proceedings

      Appellants: Prezes Urzędu Komunikacji Elektronicznej, Petrotel sp. z o.o. w Płocku

      Respondent: Polkomtel sp. z o.o.

      Operative part of the judgment

   Article 4(1), first subparagraph, first and third sentences, and second subparagraph, of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, is to be interpreted as meaning that a national court hearing an appeal against a decision of the national regulatory authority must be able to annul that decision with retroactive effect if it finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal.

      (1)  OJ C 294, 7.9.2015.


title: Case T-99/04: Action brought on 16 March 2004 by AC-Treuhand AG against the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/43

         Action brought on 16 March 2004 by AC-Treuhand AG against the Commission of the European Communities
   (Case T-99/04)
   (2004/C 118/96)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 March 2004 by AC-Treuhand AG, Zürich (Switzerland), represented by M. Karl, C. Steinle and J. Drolshammer, lawyers.
   The applicant claims that the Court should:

               —

               annul the decision of the Commission of the European Communities of 10 December 2003 (rectified on 7 January 2004) in Case COMP/E-2/37.857 – Organic Peroxides insofar as it relates to the applicant;

               —

               order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments:
   By the contested decision, the Commission found that the applicant and five other undertakings and groups of undertakings had infringed Article 81(1) EC by participating in a series of agreements and coordinated practices on the market for organic peroxides. A fine of EUR 1 000 was imposed on the applicant.
   The applicant submits that it neither produces nor distributes organic peroxides and that it was at no time active on the market affected by the infringement. Its action is directed against the Commission's finding that it infringed Article 81 by providing services to three producers of organic peroxides. The Commission's erroneous legal assessment is based on incorrect factual allegations. The Commission adopted those false allegations without criticism because the applicant was unable to comment on them during the Commission's investigation. In doing so, the Commission infringed the applicant's rights of defence and acted in breach of the fundamental right to due process.
   Moreover, the applicant states that, although the Commission imposed only a symbolic fine on it, it considers itself compelled to bring an action against the decision in order to obtain legal certainty for its business activities. In the words of the Commission, the decision sets a precedent by which the Commission enters new territory. If the decision were to become final, there would be a risk that, in future, services provided by the applicant which have thus far been lawful and which do not restrict competition would be prohibited and subject to a financial penalty.
   The applicant submits further that the Commission has acted in breach of the principle of nullum crimen, nulla poena sine lege since the applicant was neither a party, as an undertaking, to the agreement restricting competition nor is it a group of undertakings. With respect to the applicant, the Commission's legal assessment is not only erroneous but also very unclear and inconsistent. The contested decision is also inconsistent with the need for clarity of measures and infringes the principle of legal certainty and the principle of the protection of legitimate expectations.


title: Case C-371/08: Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Nural Ziebell, formerly Nural Örnek v Land Baden-Württemberg (EEC-Turkey Association Agreement — Freedom of movement for workers — Second indent of first paragraph of Article 7 and Article 14(1) of Decision No 1/80 of the Association Council — Directives 64/221/EEC, 2003/109/EC and 2004/38/EC — Right of residence of a Turkish national born in the territory of a Member State and having resided there for more than 10 years without interruption as the child of a Turkish worker — Convictions for criminal offences — Lawfulness of an expulsion decision — Conditions)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/2

         Judgment of the Court (First Chamber) of 8 December 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Nural Ziebell, formerly Nural Örnek v Land Baden-Württemberg
   (Case C-371/08) (1)

   (EEC-Turkey Association Agreement - Freedom of movement for workers - Second indent of first paragraph of Article 7 and Article 14(1) of Decision No 1/80 of the Association Council - Directives 64/221/EEC, 2003/109/EC and 2004/38/EC - Right of residence of a Turkish national born in the territory of a Member State and having resided there for more than 10 years without interruption as the child of a Turkish worker - Convictions for criminal offences - Lawfulness of an expulsion decision - Conditions)
   2012/C 32/03
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof Baden-Württemberg

      Parties to the main proceedings

      Applicant: Nural Ziebell, formerly Nural Örnek

      Defendant: Land Baden-Württemberg

      Re:

   Reference for a preliminary ruling — Verwaltungsgerichtshof Baden-Württemberg — Interpretation of Article 14(1) of Decision No 1/80 of 19 September 1980 of the Association Council on the Development of the Association between the European Economic Community and Turkey — Extension to Turkish nationals of the scope of application of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77), authorising expulsion of Union citizens only on imperative grounds of public security — Expulsion decision taken as a result of numerous criminal convictions of a Turkish national who was born in Germany and has resided there for 34 years

      Operative part of the judgment

   Article 14(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that

               —

               protection against expulsion conferred by that provision on Turkish nationals does not have the same scope as that conferred on citizens of the Union under Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, with the result that the scheme of protection against expulsion enjoyed by the latter cannot be applied mutatis mutandis to Turkish nationals for the purpose of determining the meaning and scope of Article 14(1) of Decision No 1/80;

               —

               that provision of Decision No 1/80 does not preclude an expulsion measure based on grounds of public policy from being taken against a Turkish national whose legal status derives from the second indent of the first paragraph of Article 7 of that decision, in so far as the personal conduct of the individual concerned constitutes at present a genuine and sufficiently serious threat affecting a fundamental interest of the society of the host Member State and that measure is indispensable in order to safeguard that interest. It is for the national court to determine, in the light of all the relevant factors relating to the situation of the Turkish national concerned, whether such a measure is lawfully justified in the main proceedings.

      (1)  OJ C 285, 8.11.2008.


title: Case T-388/04: Judgment of the Court of First Instance of  5 April 2006  — Kachakil Amar v OHIM (Community trade mark — Figurative mark in the form of a longitudinal line ending with a triangle — Refusal to register — Lack of distinctive character — Acquisition of a distinctive character through use)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/40

         Judgment of the Court of First Instance of 5 April 2006 — Kachakil Amar v OHIM
   (Case T-388/04) (1)

   (Community trade mark - Figurative mark in the form of a longitudinal line ending with a triangle - Refusal to register - Lack of distinctive character - Acquisition of a distinctive character through use)
   (2006/C 131/74)
   Language of the case: Spanish
   Parties

      Applicant: Habib Kachakil Amar (Valencia, Spain) (represented by: J. C. Heder, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Mondéjar, agent)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 20 July 2004 (R 175/2004-1) which refused to register the figurative mark ‘Longitudinal line ending with a triangle’ as a Community trade mark
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 284 of 20.11.2004.


title: Case T-199/14: Judgment of the General Court of 29 October 2015 — Vanbreda Risk & Benefits v Commission (Public services contracts — Tendering procedure — Supply of insurance services for property and persons — Rejection of a tender — Award of the contract to another tenderer — Equal treatment — Sufficiently serious infringement of a rule of law conferring rights on individuals — Non-contractual liability — Loss of an opportunity — Interim judgment)

text:
               21.12.2015

               EN

               Official Journal of the European Union

               C 429/19

         Judgment of the General Court of 29 October 2015 — Vanbreda Risk & Benefits v Commission
   (Case T-199/14) (1)

   ((Public services contracts - Tendering procedure - Supply of insurance services for property and persons - Rejection of a tender - Award of the contract to another tenderer - Equal treatment - Sufficiently serious infringement of a rule of law conferring rights on individuals - Non-contractual liability - Loss of an opportunity - Interim judgment))
   (2015/C 429/25)
   Language of the case: French

      Parties

      Applicant: Vanbreda Risk & Benefits (Antwerp, Belgium) (represented initially by: P. Teerlinck and P. de Bandt, then by P. Teerlinck, P. de Bandt and M. Gherghinaru, lawyers)

      Defendant: European Commission (represented by: S. Delaude and L. Cappelletti, acting as Agents)

      Re:

   First, action for annulment of the decision of 30 January 2014 by which the Commission rejected the tender submitted by the applicant for Lot 1 in the context of call for tenders No OIB.DR.2/PO/2013/062/591 relating to the insurance of property and persons (OJ 2013/S 155-269617) and awarded it to another company, and, second, an action for damages.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of 30 January 2014 by which the Commission rejected the tender submitted by the applicant for Lot 1 in the context of call for tenders No OIB.DR.2/PO/2013/062/591 relating to the insurance of property and persons (OJ 2013/S 155-269617) and awarded Lot 1 to another company;

               2.

               Orders the European Union to pay compensation for the harm suffered by Vanbreda Risk & Benefits for the loss of the opportunity to be awarded the abovementioned contract and to obtain the corresponding references for the award of the contract;

               3.

               Dismisses the claim for compensation as to the remainder;

               4.

               Orders the parties to inform the Court, within six months from the delivery of the present judgment, of the amount of compensation arrived at by agreement for that loss suffered;

               5.

               Orders that, in the absence of agreement, the parties shall transmit to the Court, within the same period, a statement of their views with supporting figures;

               6.

               Reserves the costs.

      (1)  OJ C 159, 26.5.2014.


title: Case F-114/10: Action brought on 4 November 2010 — Bowles and Others v ECB

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/37

         Action brought on 4 November 2010 — Bowles and Others v ECB
   (Case F-114/10)
   2011/C 55/69
   Language of the case: French

      Parties

      Applicants: Carlos Bowles and Others (Frankfurt-am-Main, Germany) (represented by: L. Lévi and M. Vandenbussche, lawyers)

      Defendant: European Central Bank

      Subject-matter and description of the proceedings

   Annulment of the applicants’ salary slips for January 2010 and the following months in so far as they apply a salary increase of 2 % as a result of the 2010 salary adjustment procedure and compensation for the material loss suffered by the applicants.

      Form of order sought

               —

               Annul the applicants’ salary slips for January 2010 and the following months in so far as they apply a salary increase of 2 %, in order to apply an increase of 2.1 %, calculated on the basis of an adjustment of 3.6 % at the Commission

               —

               In so far as is necessary, annul the decisions rejecting the applications for reconsideration and the complaints brought by the applicants;

               —

               Compensate the applicants for their material loss, consisting of the difference between the salary increase of 2 % improperly awarded from January 2010 and the 2.1 % increase to which they should have been entitled, that is to say, a increase of 0.1 % per month from January 2010 in salary and in all other amounts derived from it (including pension rights). Interest must be paid on those amounts from the respective dates on which they became due until they are actually paid, the interest to be calculated on the basis of a rate two points above that applied by the European Central Bank to main refinancing operations during the period concerned.

               —

               Compensate for the loss of purchasing power, fixed, ex aequo et bono, at EUR 5 000 for each applicant;

               —

               Compensate the applicants for their non-material loss, calculated, ex aequo et bono, at EUR 5 000 for each applicant;

               —

               Order the European Central Bank to pay the costs.


title: Case C-331/13: Judgment of the Court (Grand Chamber) of 15 October 2014 (request for a preliminary ruling from the Tribunalul Sibiu — Romania) — Ilie Nicolae Nicula v Administraţia Finanţelor Publice a Municipiului Sibiu, Administraţia Fondului pentru Mediu (Reference for a preliminary ruling — Repayment of taxes levied by a Member State in breach of EU law)

text:
               22.12.2014

               EN

               Official Journal of the European Union

               C 462/7

         Judgment of the Court (Grand Chamber) of 15 October 2014 (request for a preliminary ruling from the Tribunalul Sibiu — Romania) — Ilie Nicolae Nicula v Administraţia Finanţelor Publice a Municipiului Sibiu, Administraţia Fondului pentru Mediu
   (Case C-331/13) (1)

   ((Reference for a preliminary ruling - Repayment of taxes levied by a Member State in breach of EU law))
   (2014/C 462/12)
   Language of the case: Romanian

      Referring court

   Tribunalul Sibiu

      Parties to the main proceedings

      Applicant: Ilie Nicolae Nicula

      Defendants: Administraţia Finanţelor Publice a Municipiului Sibiu, Administraţia Fondului pentru Mediu

      Operative part of the judgment

   EU law must be interpreted as precluding a system of repayment of a tax levied in breach of EU law such as the system at issue in the main proceedings.

      (1)  OJ C 260, 7.9.2013.


title: Case T-395/13: Action brought on 31 July 2013 — Miettinen v Council

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/23

         Action brought on 31 July 2013 — Miettinen v Council
   (Case T-395/13)
   2013/C 274/38
   Language of the case: English

      Parties

      Applicant: Samuli Miettinen (Espoo, Finland) (represented by: O. Brouwer and E. Raedts, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               Annul the decision of the Council of 21 May 2013 refusing to grant full access to Document 12979/12 pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), as communicated to the applicant on 21 May 2013 in a letter bearing the reference ‘06/c/02/1 3’ (the contested decision) as well as its renewed refusal of 23 July 2013;

               Order the defendant to pay the applicant’s costs pursuant to Article 87 of the Rules of procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

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

               First plea in law, alleging breach of Article 4(2) 2nd indent and Article 4(3) 1st subparagraph of Regulation (EC) No 1049/2001, as the contested decision is based on a wrong interpretation and application of the said provisions, which relate to the protection of court proceedings and legal advice and to the protection of the on-going decision-making process respectively:

               Firstly, the Council failed to demonstrate that disclosure of Document 12979/12 prejudices its legal service’s ability to defend it in future legal proceedings, and undermines the legislative process;

               Secondly, the Council failed to demonstrate that Document 12979/12 is particularly sensitive and/or of a wide scope justifying the setting aside of the presumption favouring disclosure of legal opinions in the legislative context;

               Thirdly, the Council’s theory of harm is purely hypothetical. It is factually, as well as legally, unfounded considering that the content of the advice contained in Document 12979/12 was already in the public domain when the contested decision was taken; and

               Fourthly, the Council failed to apply the overriding public interest test when invoking Article 4(3) 1st subparagraph when it considered only the perceived risks to its decision-making process associated to disclosure and not the positive effects of such disclosure, inter alia, for the legitimacy of the decision-making process and failed to apply the test when invoking Article 4(2) 2nd indent.

         Second plea in law, alleging breach of the obligation to state adequate reasons under Article 296 TFEU, as the Council did not fulfil its obligation to state sufficient and adequate reasons for the contested decision.


title: Case C-487/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/9

         Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic
   (Case C-487/04)
   (2005/C 31/19)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 November 2004 by the Commission of the European Communities, represented by C. Cattabriga and A. Bordes, acting as Agents.
   The applicant claims that the Court should:

               —

               Declare that, by unilaterally instituting a system of traceability of powder milk for certain uses, not provided for by fully harmonised provisions of Community law applicable to the sector, the Italian Republic has failed to fulfil its obligations under Council Regulation (EC) No 1255/1999 of 17 May 1999 (1) on the common organisation of the market in milk and milk products and Commission Regulation (EC) No 2799/1999 of 17 December 1999 (2) laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder.

               —

               Order the Italian Republic to pay the costs.

         Pleas and main arguments

               1.

               In order to prevent abuses in the receipt of aid for skimmed-milk powder intended for animal feed, Regulations (EC) No 1255/1999 and (EC) No 2799/1999 lay down detailed machinery for monitoring undertakings using that product. Although that machinery leaves to the Member States the power to adopt supplementary supervisory measures in order to ensure observance of the provisions concerning the grant of the aid, it none the less does not allow them to impose on operators in the sector additional obligations of a different nature from those which Regulation No 2799/1999 imposes on the undertakings in receipt of the aid.

               2.

               In particular, it must be regarded as not open to the Member States unilaterally to impose conditions affecting the composition of the powder milk which forms the subject matter of Regulation No 2799/1999, such as the admixture of colour tracers intended to make it plain that the product is intended for animal feed.

               3.

               Such condition cannot but impede trade in skimmed-milk powder between the Member States. In fact, since the intended use of the product is not normally known at the time of production, the requirement to add tracers imposed by Italian legislation requires undertakings which are engaged in trade in skimmed-milk powder on the Italian market to conduct complicated operations in regard to consignments intended for that market. However, as has been consistently held, common organisations of the market are based, as regards intracommunity trade, on freedom of commerce and preclude any national legislation which, as in the present case, impedes trade between the Member States.

               4.

               Furthermore, the Italian legislation at issue is damaging to the functioning of the common organisation of the markets in the milk sector which, as regards the aid schemes introduced by it, is based on uniform requirements applicable erga omnes. Indeed it is plain that if all the Member States considered themselves, in the same way as Italy, authorised unilaterally to introduce ad hoc tracing rules for skimmed milk-powder intended for animal feed, that would involve insuperable difficulties for the operators in the sector who would be subject to different sets of rules and would have to differentiate their products depending on the rules applied in 25 different national markets.

               5.

               Nor, moreover, can the Italian Government rely on the case-law according to which introduction of a common organisation of markets does not prevent the Member States from applying national provisions pursuing a public-interest objective which differs from the objectives pursued by the common organisation of the markets. In fact it is clear from a reading of the preparatory documents to Law No 250/2000 that the aim of the provisions contained therein is to prevent the unlawful diversion of skimmed-milk powder away from its stated use. Accordingly, that law seeks to achieve the same aims as those underlying Articles 9 et seq. of Regulation No 2799/1999.

               6.

               It is also stated in those preparatory documents that the decision by the Italian authorities to depart from the supervisory regime provided for in Regulation No 2799/1999 is justified owing to the ineffectiveness in the Italian context of the monitoring machinery provided for by the regulation.

               7.

               That justification runs counter to settled case-law according to which, whenever the Community has established a common organisation of the market in a given sector, the Member States must refrain from any unilateral measure, even if it serves to support the common policy. Secondly, practical difficulties coming to light in the implementation of a Community act do not permit the Member State unilaterally to dispense with observance of its own obligations.

               8.

               Finally, the Italian authorities cannot rely on the fact that Law No 250/2000 has never in fact been applied owing to the fact that the Ministerial decree which was to specify the tracers and to determine detailed rules concerning their use was never adopted. As the Court has consistently held, the fact that legislation contrary to Community law is scarcely or indeed never applied cannot have the effect of nullifying the infringement in that connection.

      (1)  OJ 1999 L 160, p. 48

      (2)  OJ 1999 L 340, p. 3


title: Case F-67/09: Action brought on 10 July 2009 — Angulo Sanchez v Council

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/43

         Action brought on 10 July 2009 — Angulo Sanchez v Council
   (Case F-67/09)
   2009/C 220/90
   Language of the case: French

      Parties

      Applicant: Nicolas Angulo Sanchez (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the defendant’s decisions refusing applications for special leave made by the applicant because of the serious illness of his parents.

      Form of order sought

               —

               annul the Council’s decisions of 8 October and 8 December 2008 refusing the applications for special leave made by the applicant because of the very serious illness of his parents;

               —

               order the Council of the European Union to pay the costs.