title: Case C-411/16 P: Order of the Court (Tenth Chamber) of 7 June 2017 — Holistic Innovation Institute, SLU v European Commission (Appeal — Article 181 of the Rules of Procedure of the Court — Research projects financed by the European Union — Seventh Framework programme for research and technological development (2007-2013) — Project eDIGIREGION — Decision of the European Commission to refuse the applicant’s participation — Action for annulment and a declaration of liability)

text:
               31.7.2017

               EN

               Official Journal of the European Union

               C 249/13

         Order of the Court (Tenth Chamber) of 7 June 2017 — Holistic Innovation Institute, SLU v European Commission
   (Case C-411/16 P) (1)

   ((Appeal - Article 181 of the Rules of Procedure of the Court - Research projects financed by the European Union - Seventh Framework programme for research and technological development (2007-2013) - Project eDIGIREGION - Decision of the European Commission to refuse the applicant’s participation - Action for annulment and a declaration of liability))
   (2017/C 249/19)
   Language of the case: Spanish

      Parties

      Appellant: Holistic Innovation Institute, SLU (represented by: J.J. Marín López, abogado)

      Other party to the proceedings: European Commission (represented by: R. Lyal, acting as Agent, and J. Rivas Andrés, avocat)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Holistic Innovation Institute, SLU shall pay the costs.

      (1)  OJ C 364, 3.10.2016.


title: Case C-93/03: Action brought on 28 February 2003 by Commission of the European Communities against Portuguese Republic

text:
C 101/26               EN                        Official Journal of the European Union                                           26.4.2003
            Article 1(3) thereof private-law undertakings fulfil-              for civil uses ( 1), or in any event by failing to inform the
            ling the criteria referred to in the three indents of              Commission of those provisions, the Grand-Duchy of
            the second subparagraph of Article 1(b) of each of                 Luxembourg has failed to fulfil its obligations under that
            the abovementioned directives;                                     directive;
      —     by providing an absolute exclusion from the scope            —     order the Grand-Duchy of Luxembourg to pay the costs.
            of the Public Contracts Law by Article 3(1)(c)
            thereof for cooperation agreements between public
            authorities and other public undertakings including,
            therefore, agreements which are public contracts for         Pleas in law and main arguments
            the purposes of the directives; and
                                                                         The period within which the directive had to be transposed
      —     by permitting, in Article 141(a) and Article 182(a)
            and (g) of the Public Contracts Law, the negotiated          expired on 30 June 1994.
            procedure to be used in two cases which are not
            provided for in the directives;                              (1 ) OJ L 121 of 15.5.1993, p. 20.
      the Kingdom of Spain has failed to fulfil its obligations
      under Community law;
2.    order the Kingdom of Spain to pay the costs.
                                                                         Action brought on 28 February 2003 by Commission of
Pleas in law and main arguments                                           the European Communities against Portuguese Republic
                                                                                (Case C-93/03)
These are apparent from the form of order sought.
                                                                                (2003/C 101/44)
( 1) OJ L 199 of 9.8.1993, p. 1.
( 2) OJ L 199 of 9.8.1993, p. 54.
                                                                         An action against the Portuguese Republic was brought
                                                                         before the Court of Justice of the European Communities on
                                                                         28 February 2003 by the Commission of the European
                                                                         Communities, represented by Karen Banks and Miguel França,
                                                                         acting as Agents, with an address for service in Luxembourg.
Action brought on 27 February 2003 by the Commission
of the European Communities against the Grand-Duchy                      The applicant claims that the Court should:
                         of Luxembourg
                                                                         —     declare that, by failing to adopt and bring into force the
                                                                               laws, regulations and administrative provisions necessary
                          (Case C-89/03)
                                                                               to comply with Directive 98/71/EC (1) of the European
                                                                               Parliament and of the Council of 13 October 1998 on
                         (2003/C 101/43)                                       the legal protection of designs or, in any event, by failing
                                                                               to communicate those provisions to the Commission, the
                                                                               Portuguese Republic has failed to fulfil its obligations
                                                                               under Article 19 of that directive;
An action against the Grand-Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-             —     order the Portuguese Republic to pay the costs.
ties on 27 February 2003 by the Commission of the European
Communities, represented by L. Ström and B. Stromsky, acting
as Agents, with an address for service in Luxembourg.
                                                                         Pleas in law and main arguments
The Commission of the European Communities claims that
the Court should:                                                        The period prescribed for implementation of the directive
                                                                         expired on 28 October 2001.
—     declare that, by failing to bring into force the laws,
      regulations and administrative provisions necessary to
      comply with Council Directive 93/15/EEC of 5 April                 (1 ) OJ L 289 of 28 october 1998, p. 28.
      1993 on the harmonisation of the provisions relating to
      the placing on the market and supervision of explosives


title: Case C-103/14: Judgment of the Court (Fourth Chamber) of 12 November 2015 (request for a preliminary ruling from the Vilniaus apygardos administracinis teismas — Lithuania) — Bronius Jakutis, Kretingalės kooperatinė ŽŪB v Nacionalinė mokėjimo agentūra prie Žemės ūkio ministerijos, Lietuvos valstybė (Reference for a preliminary ruling — Agriculture — Regulation (EC) No 73/2009 — Articles 7(1), 10(1), 121 and 132(2) — Acts implementing that regulation — Validity, in the light the TFEU Treaty, the 2003 Act of Accession and the principles of non-discrimination, legal certainty, the protection of legitimate expectations and sound administration — Modulation of direct payments granted to farmers — Reduction of the amounts — Level of direct payments applicable in the Member States of the European Community as constituted on 30 April 2004 and in the Member States that joined it on 1 May 2004 — No publication and no statement of reasons)

text:
               18.1.2016

               EN

               Official Journal of the European Union

               C 16/5

         Judgment of the Court (Fourth Chamber) of 12 November 2015 (request for a preliminary ruling from the Vilniaus apygardos administracinis teismas — Lithuania) — Bronius Jakutis, Kretingalės kooperatinė ŽŪB v Nacionalinė mokėjimo agentūra prie Žemės ūkio ministerijos, Lietuvos valstybė
   (Case C-103/14) (1)

   ((Reference for a preliminary ruling - Agriculture - Regulation (EC) No 73/2009 - Articles 7(1), 10(1), 121 and 132(2) - Acts implementing that regulation - Validity, in the light the TFEU Treaty, the 2003 Act of Accession and the principles of non-discrimination, legal certainty, the protection of legitimate expectations and sound administration - Modulation of direct payments granted to farmers - Reduction of the amounts - Level of direct payments applicable in the Member States of the European Community as constituted on 30 April 2004 and in the Member States that joined it on 1 May 2004 - No publication and no statement of reasons))
   (2016/C 016/05)
   Language of the case: Lithuanian

      Referring court

   Vilniaus apygardos administracinis teismas

      Parties to the main proceedings

      Applicants: Bronius Jakutis, Kretingalės kooperatinė ŽŪB

      Defendants: Nacionalinė mokėjimo agentūra prie Žemės ūkio ministerijos, Lietuvos valstybė

      Intervening parties: Lietuvos Respublikos Vyriausybė, Lietuvos Respublikos žemės ūkio ministerija

      Operative part of the judgment

               1.

               Articles 7(1), 10(1) and 121 of Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003, must be interpreted as meaning that the concept of ‘level of direct payments applicable in the Member States other than new Member States’ must be interpreted as meaning that that level was, in 2012, equal to 90 % of the level of all direct payments and that the concept of ‘level of direct payments in the new Member States’ must be interpreted as meaning that that level was, in 2012, equal to that in the Member States of the European Community as constituted on 30 April 2004.

               2.

               Commission Implementing Decision C(2012) 4391 final of 2 July 2012 authorising the granting of complementary national direct payments in Lithuania in respect of the year 2012, is invalid since the consideration of the questions referred has disclosed no factor of such a kind as to affect the validity of the end of Article 10(1) and the end of the final subparagraph of Article 132(2) of Regulation No 73/2009.

               3.

               The consideration of those questions has not revealed any factor capable of affecting the validity of the final subparagraph of Article 132(2) of Regulation No 73/2009, as worded following the corrigendum published in the Official Journal of the European Union on 18 February 2010.

               4.

               The meaning of the word ‘dydis’, used in the Lithuanian language version of the final subparagraph of Article 1c(2) of Council Regulation (EC) No 1259/1999 of 17 May 1999 establishing common rules for direct support schemes under the common agricultural policy, which was inserted into the regulation by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded is the same as that of the word ‘lygis’, used in the Lithuanian language version of the final subparagraph of Article 132(2) of Regulation No 73/2009.

      (1)  OJ C 142, 12.5.2014.


title: Case F-55/15: Order of the Civil Service Tribunal of 11 November 2015 — HA v Commission

text:
               21.12.2015

               EN

               Official Journal of the European Union

               C 429/30

         Order of the Civil Service Tribunal of 11 November 2015 — HA v Commission
   (Case F-55/15) (1)

   (2015/C 429/41)
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 213, 29/6/2015, p. 45.


title: Case F-105/06: Order of the Civil Service Tribunal (First Chamber) of 27 September 2011 — Lübking and Others v Commission (Civil Service — Officials — Promotion — 2005 promotion exercise — New career structure — Extension of career by the introduction of new grades with no equivalents in the old Staff Regulations — Application of Article 45 of the Staff Regulations, Annex XIII to the Staff Regulations and the GIP applicable with effect from 2005 — Principle of equal treatment — Retroactive effect of promotion decisions to a date prior to 1 May 2004 — Transitional measures — Action manifestly bound to fail)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/38

         Order of the Civil Service Tribunal (First Chamber) of 27 September 2011 — Lübking and Others v Commission
   (Case F-105/06) (1)

   (Civil Service - Officials - Promotion - 2005 promotion exercise - New career structure - Extension of career by the introduction of new grades with no equivalents in the old Staff Regulations - Application of Article 45 of the Staff Regulations, Annex XIII to the Staff Regulations and the GIP applicable with effect from 2005 - Principle of equal treatment - Retroactive effect of promotion decisions to a date prior to 1 May 2004 - Transitional measures - Action manifestly bound to fail)
   2011/C 340/78
   Language of the case: French

      Parties

      Applicants: Johannes Lübking and Others (Brussels, Belgium) (represented by: B. Cortese and C. Cortese, lawyers)

      Defendant: European Commission (represented by: J. Currall and G. Berscheid, Agents)

      Intervener in support of the defendant: Council of the European Union (represented: initially by M. Simm and B. Driessen, and subsequently by M. Bauer, J. Monteiro and K. Zieleśkiewicz, Agents)

      Re:

   Annulment of the Commission’s decision published in Administrative Notices No 85 2005 of 23 November 2005 in so far as it provided for promotion of the applicants to grade A*9 and not grade A*10 in the 2005 promotion exercise.

      Operative part of the order

               1.

               The application is dismissed.

               2.

               The applicants and the European Commission shall each bear their own costs.

               3.

               The Council of the European Union, the intervener, shall bear its own costs.

      (1)  OJ C 281 of 18.11.06, p. 45.


title: Case C-312/15 P: Order of the Court (Ninth Chamber) of 10 March 2016 — SolarWorld AG v Solsonica SpA, European Commission (Appeals — Article 181 of the Rules of Procedure of the Court — Appeal manifestly unfounded — Regulation (EU) No 513/2013 — Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells and wafers) originating in or consigned from China — Provisional anti-dumping duty — Definitive anti-dumping duty — No need to adjudicate — Loss of interest in bringing proceedings)

text:
               6.6.2016

               EN

               Official Journal of the European Union

               C 200/3

         Order of the Court (Ninth Chamber) of 10 March 2016 — SolarWorld AG v Solsonica SpA, European Commission
   (Case C-312/15 P) (1)

   ((Appeals - Article 181 of the Rules of Procedure of the Court - Appeal manifestly unfounded - Regulation (EU) No 513/2013 - Dumping - Imports of crystalline silicon photovoltaic modules and key components (cells and wafers) originating in or consigned from China - Provisional anti-dumping duty - Definitive anti-dumping duty - No need to adjudicate - Loss of interest in bringing proceedings))
   (2016/C 200/03)
   Language of the case: English

      Parties

      Appellant: SolarWorld AG (represented by: L. Ruessmann, avocat, and J. Beck, Solicitor)

      Other parties to the proceedings: Solsonica SpA, European Commission (represented by: J-F. Brakeland, T. Maxian Rusche and A. Stobiecka-Kuik, acting as Agents)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               SolarWorld AG shall pay the costs.

      (1)  OJ C 302, 14.9.2015.


title: Case T-44/13 R: Order of the President of the General Court of 29 April 2013 — AbbVie v EMA (Application for interim measures — Access to documents — Regulation (EC) No 1049/2001 — Documents held by the EMA containing information submitted by an undertaking as part of its application for authorisation to place a medicinal product on the market — Decision to grant a third party access to the documents — Application for suspension of operation of a measure — Urgency — Prima facie case — Weighing up of interests)

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/24

         Order of the President of the General Court of 29 April 2013 — AbbVie v EMA
   (Case T-44/13 R)
   (Application for interim measures - Access to documents - Regulation (EC) No 1049/2001 - Documents held by the EMA containing information submitted by an undertaking as part of its application for authorisation to place a medicinal product on the market - Decision to grant a third party access to the documents - Application for suspension of operation of a measure - Urgency - Prima facie case - Weighing up of interests)
   2013/C 189/51
   Language of the case: English

      Parties

      Applicants: AbbVie, Inc. (Wilmington, Delaware, United States); and AbbVie Ltd (Maidenhead, United Kingdom) (represented by: P. Bogaert and G. Berrisch, lawyers, B. Kelly, G. Castle, Solicitors, D. Anderson QC and D. Scannell, Barrister)

      Defendant(s): European Medicines Agency (EMA) (represented by: T. Jablonski, N. Rampal Olmedo and A. Spina, Agents)

      Re:

   Application, in essence, for suspension of operation of EMA Decision EMA/748792/2012 of 14 January 2013, granting a third party access to certain documents containing information submitted as part of an application for authorisation to place the medicinal product Humira, used to treat Crohn’s Disease, on the market, 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).

      Operative part of the order

               1.

               The operation of EMA Decision EMA/748792/2012 of 14 January 2013 of the European Medicines Agency (EMA), granting a third party access to Clinical Study Reports M02-404, M04-691 and M05-769, submitted as part of an application for authorisation to place the medicinal product Humira, used to treat Crohn’s Disease, on the market, 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, is suspended.

               2.

               The EMA is ordered not to disclose the documents referred to in point 1 of the operative part of this order.

               3.

               Costs are reserved.


title: Case F-28/08: Order of the Civil Service Tribunal (First Chamber) of 15 July 2008 — Pouzol v European Court of Auditors (Staff — Officials — Pensions — Transfer of pension rights acquired before entry into the Communities' service — Confirmatory decisions — Inadmissibility)

text:
               11.10.2008

               EN

               Official Journal of the European Union

               C 260/20

         Order of the Civil Service Tribunal (First Chamber) of 15 July 2008 — Pouzol v European Court of Auditors
   (Case F-28/08) (1)

   (Staff - Officials - Pensions - Transfer of pension rights acquired before entry into the Communities' service - Confirmatory decisions - Inadmissibility)
   (2008/C 260/37)
   Language of the case: French
   Parties

      Applicant: Michel Pouzol (Combaillaux, France) (represented by: D. Grisay, I. Andoulsi and D. Piccininno, lawyers)

      Defendant: European Court of Auditors (represented by: T. Kennedy, J.-M. Stenier and G. Corstens, acting as Agents)
   Re:
   Annulment of the Court of Auditors' decision of 29 November 2007 and the proposals made by it to the applicant on 10 May 2007 concerning the transfer of his pension rights acquired in France — Claim for damages
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Mr Pouzol is ordered to pay the costs.

      (1)  OJ C 116, 9.5.2008, p. 35.


title: Judgment of the Court of 20 March 2013 in Case E-3/12 — The Norwegian State, represented by the Ministry of Labour v Stig Arne Jonsson (Regulation (EEC) No 1408/71 — Social security for migrant workers — Unemployment benefits — Residence in the territory of another EEA State — Condition of actual presence in the State of last employment for entitlement to unemployment benefits)

text:
               26.9.2013

               EN

               Official Journal of the European Union

               C 277/9

         JUDGMENT OF THE COURT
   of 20 March 2013
   in Case E-3/12
   The Norwegian State, represented by the Ministry of Labour v Stig Arne Jonsson
   (Regulation (EEC) No 1408/71 — Social security for migrant workers — Unemployment benefits — Residence in the territory of another EEA State — Condition of actual presence in the State of last employment for entitlement to unemployment benefits)
   2013/C 277/07
   In Case E-3/12 the Norwegian State, represented by the Ministry of Labour v Stig Arne Jonsson — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Borgarting lagmannsrett (‘Court of Appeal’) concerning the rules on free movement of workers within the European Economic Area, the Court, composed of Per Christiansen, Acting President and Páll Hreinsson, (Judge-Rapporteur) and Martin Ospelt (ad hoc), Judges, gave judgment on 20 March 2013, the operative part of which is as follows:

               1.

               Article 71(1)(b)(i) of Regulation (EEC) No 1408/71 precludes a provision of national law pursuant to which entitlement to payment of unemployment benefits is conditional on actual presence in the EEA State concerned. Such a provision may not be relied upon against the persons referred to in Article 71(1)(b)(i) of that regulation.

                           (a)

                           It is not relevant for the answer to this question whether the unemployed person lives in a country near the State of last employment.

                           (b)

                           Moreover, in circumstances such as those of the defendant in the main proceedings, it is of no consequence for the application of Article 71(1)(b)(i) that an unemployed person registers as a job seeker and applies for unemployment benefits in his State of residence.


title: Case C-427/07: Action brought on 14 September 2007 — Commission of the European Communities v Ireland

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/36

         Action brought on 14 September 2007 — Commission of the European Communities v Ireland
   (Case C-427/07)
   (2007/C 269/62)
   Language of the case: English
   Parties

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

      Defendant: Ireland
   The applicant claims that the Court should:

               —

               declare that by failing to adopt, in conformity with Article 2(1) and Article 4 paragraphs (2), (3) and (4) of Council Directive 85/337/EEC (1) on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC, all measures to ensure that, before consent is given, projects likely to have significant effects on the environment in the road construction category covered by Class 10(e) of Annex II to Directive 85/337/EEC are made subject to a requirement for development consent and to an assessment with regard to their effects in accordance with Articles 5 to 10 of the Directive, has failed to fulfil its obligations under Council Directive 85/337/EEC

               —

               declare that by failing to adopt the laws, regulations or administrative provisions necessary to comply with Articles 3(1), (3), (4), (5), (6) and (7) and 4(1), (2), (3), (4), (5) and (6) of Directive 2003/35/EC (2) of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directive 85/337/EEC and 96/61/EC or, in any event, by failing to adequately notify such provisions to the Commission, Ireland has failed to fulfil its obligations under Article 6 of that Directive.

               —

               order Ireland to pay the costs.

         Pleas in law and main arguments
   Transposition of directive 85/337/EEC
   The Commission considers that Ireland has failed to fully transpose directive 85/337/EEC because it fails to make provision for measures to achieve the results of Articles 2(1) and 4 in respect of private road projects. The Commission considers that private road projects (proposed by private developers) fall within the scope of directive 85/337/EEC. Moreover, there is no basis for a presumption that such projects will not have significant effects upon the environment. The failure to include road projects proposed by private developers amounts to a breach of Ireland's obligations under the aforementioned Articles of the directive.
   Transposition of directive 2003/35/EC
   The Commission contends that there has been a failure on the part of Ireland, in accordance with Article 6 of directive 2003/35/EC, to adopt and inform the Commission of all the national measures necessary to comply with Articles 3 and 4 of the directive. More specifically, Article 3, paras. 1, 3, 4, 5 and 6 of the directive set out specific amendments to several Articles of directive 85/337/EEC. Ireland does not dispute that transposition needs to be effected by changes to both Irish planning legislation and legislation governing other consent systems. Ireland did not communicate any amendments to its planning legislation within the time-frame set by the additional reasoned opinion, and, in any case it has not yet communicated legislation governing all other consent systems. Articles 3(7) and 4(4) of the directive require not only systems of review of decision-making, but systems that provide specific guarantees. To the extent that Ireland claims that its existing system of judicial review meets the requirements of Articles 3(7) and 4(4), it has failed to provide enough information to satisfy the requirements of the second sentence of the first paragraph of Article 6 of the directive.

      (1)  OJ L 175, p. 40.

      (2)  OJ L 156, p. 17.


title: Case C-136/03: Reference for a preliminary ruling by the Verwaltungsgerichtshof by order of that Court of 18 March 2003 in the joint appeals lodged by (1) Georg Dörr and by (2) Ibrahim Ünal

text:
7.6.2003                 EN                       Official Journal of the European Union                                          C 135/13
      information, which is intended to protect ‘the interests of               Article 9(1) of the directive (for which no provision is
      shareholders and third parties’, permits only shareholders                made in the Austrian legal system) — save in cases of
      and creditors to apply for the imposition of penalties, thus              urgency — where appeals against its decisions may be
      depriving third parties generally of effective protection?                lodged with the courts of public law only subject to the
                                                                                following limitations: such appeals have no suspensory
4.    Must the directives mentioned, and in particular the                      effect from the outset and the courts are not barred from
      provisions of Article 44(2)(g) of the Treaty Establishing                 taking a decision on appropriateness and are able merely
      the European Community, Article 2(1)(f) and Article 6 of                  to annul the contested decision. Moreover, is one court
      the First Directive and Article 2(2), (3) and (4) of the                  (the Verwaltungsgerichtshof — the Higher Administrative
      Fourth Directive, as amended by Directive 83/349/EEC                      Court) limited, as regards the findings of the facts, to
      and Directive 90/605/EEC, be interpreted as precluding                    an examination of conclusiveness, and the other (the
      the legislation of a Member State under which, in the case                Verfassungsgerichtshof — the Constitutional Court) also
      of breach of the duty to publish true and fair company                    limited to an examination of the infringement of rights
      information, which is intended to protect ‘the interests of               guaranteed by the constitution?
      shareholders and third parties’, lays down rules for the
      prosecution of offences and a system of penalties which             2.    Are the guarantees of judicial protection provided by
      are differentiated, reserving to cases where material                     Articles 8 and 9(1) of the directive referred to in
      damage or loss is caused to shareholders or creditors the                 paragraph 1 to be applied to Turkish nationals who enjoy
      right to submit a complaint and apply for the imposition                  legal status under Article 6 or Article 7 of Decision No 1/
      of sanctions and reserving to such cases sanctions which                  80 of the Association Council — set up by the Agreement
      are serious and effective?                                                establishing an Association between the European Econ-
                                                                                omic Community and Turkey — of 19 September 1980
                                                                                on the development of the Association (‘the Association
( 1) OJ, English Special Edition 1968 (I), p. 41.                               Council decision’)?
( 2) OJ L 222 of 14.08.1978, p. 11.
( 3) OJ L 193 of 18.07.1983, p. 1.
( 4) OJ L 317 of 16.11.1990, p. 60.                                       (1 ) OJ L 56 of 04.04.1964, p. 850.
                                                                          Action brought on 27 March 2003 by Italian Republic
Reference for a preliminary ruling by the Verwaltungsge-                       against Commission of the European Communities
richtshof by order of that Court of 18 March 2003 in the
joint appeals lodged by (1) Georg Dörr and by (2) Ibrahim
                                  Ünal                                                             (Case C-138/03)
                                                                                (2003/C 135/19)
                           (Case C-136/03)
                           (2003/C 135/18)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
                                                                          Communities on 27 March 2003 by the Italian Republic,
                                                                          represented by Umberto Leanza, acting as Agent, assisted by
Reference has been made to the Court of Justice of the                    Ivo Maria Braguglia and Antonio Cingolo, Avvocati dello
European Communities by order of the Verwaltungsgerichts-                 Stato, with an address for service in Luxembourg.
hof (Higher Administrative Court [Austria]) of 18 March 2003,
received at the Court Registry on 26 March 2003, for a
preliminary ruling in the joint appeals lodged by (1) Georg               The applicant claims that the Court should:
Dörr and by (2) Ibrahim Ünal on the following questions:
                                                                          —     annul the memorandum of 20 January 2003 No 100629
1.    Are Articles 8 and 9 of Council Directive 64/221/EEC of                   (doc. 19), received on 21 January 2003, by which the
      25 February 1964 (1) on the co-ordination of special                      Commission’s Directorate General Regional Policy —
      measures concerning the movement and residence of                         Regional intervention in France, Greece, Italy, communi-
      foreign nationals which are justified on grounds of public                cated its decision to deduct part of the amount requested
      policy, public security or public health (‘the directive’)                by way of assistance in the context of the POP ‘Ricerca,
      to be interpreted as meaning that the administrative                      Sviluppo Tecnologico e Alta Formazione’ (Research,
      authorities may not — notwithstanding the existence of                    Technological development and Higher Education) 2000-
      an internal appeal facility — take a decision ordering                    2006; the memorandum of 3 March 2003 No 102627
      expulsion from the territory without obtaining an opinion                 (doc. 21) quantifying the amount to be deducted; and all
      from a competent authority within the meaning of                          other measures connected therewith and entailed thereby;


title: Case T-429/05: Judgment of the General Court of 3 March 2010 — Artegodan v Commission (Non-contractual liability — Medicinal products for human use — Decision requiring the withdrawal of marketing authorisations — Annulment of the decision by a judgment of the Court of First Instance — Sufficiently serious breach of a rule of law conferring rights on individuals)

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/36

         Judgment of the General Court of 3 March 2010 — Artegodan v Commission
   (Case T-429/05) (1)

   (Non-contractual liability - Medicinal products for human use - Decision requiring the withdrawal of marketing authorisations - Annulment of the decision by a judgment of the Court of First Instance - Sufficiently serious breach of a rule of law conferring rights on individuals)
   2010/C 100/55
   Language of the case: German

      Parties

      Applicant: Artegodan GmbH (Lüchow, Germany) (represented by: U. Doepner, then A. Lensing-Kramer and subsequently by U. Reese and A. Sandrock, lawyers)

      Defendant: European Commission (represented by: B. Stromsky and M. Heller)

      Intervening in support of the form of order sought by the defendant: Federal Republic of Germany (represented by: M. Lumma and U. Forsthoff, Agents)

      Re:

   Application for compensation under Article 235 EC and the second paragraph of Article 288 EC for damage allegedly suffered by the applicant as a result of the adoption of Commission Decision C (2000) 453 of 9 March 2000 concerning the withdrawal of marketing authorisations for medicinal products for human use containing amfepramone

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Artegodan GmhH to bear its own costs and to pay those incurred by the European Commission.

               3.

               Orders the Federal Republic of Germany to bear its own costs.

      (1)  OJ C 48, 25.2.2006.


title: Case F-26/11: Order of the Civil Service Tribunal of 18 November 2011 — AC v Council

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/40

         Order of the Civil Service Tribunal of 18 November 2011 — AC v Council
   (Case F-26/11) (1)

   2012/C 138/103
   Language of the case: French
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 179, 18.6.2011, p. 21.


title: Case C-270/07: Action brought on 6 June 2007 — Commission of the European Communities v Federal Republic of Germany

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/20

         Action brought on 6 June 2007 — Commission of the European Communities v Federal Republic of Germany
   (Case C-270/07)
   (2007/C 199/31)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: F. Erlbacher and A. Szmytkowska, acting as Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               Declare that the Federal Republic of Germany has failed, or is continuing to fail, to fulfil its obligations under Article 1 and Article 5(3) and (4) of Directive 85/73 (1) and — as from 1 January 2007 — under Article 27(2), (4) and (10) of Regulation No 882/2004 (2) by failing to amend Paragraph 4 of the Ausführungsgesetz zum Fleischhygienerecht und zum Geflügelfleischrecht (Law on the implementation of the meat hygiene and poultrymeat laws) of the Land of Schleswig-Holstein to conform to those Community rules.

               —

               order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments
   Under Article 1(1) of Directive 85/73/EEC, the Member States are to ensure that fees are collected for the costs occasioned by the health controls and inspections of meat provided for under the various directives. The detailed rules for the calculation and collection of those Community fees, which are to replace any other charge or fee for health inspections and controls that is collected by the State, regional or local authorities of the Member States, are set out in the annexes to the Directive. Article 5(1) of Directive 85/73 provides that the Community fees are to be set at a level which covers the costs borne by the competent authority in carrying out the controls and inspections. According to Article 5(3), the Member States are to be authorised to charge a greater amount, provided that the total fees charged by each Member State do not exceed the actual cost of inspection. In its judgment in Joined Cases C-284/00 and C-288/00 Stratmann, the Court has already determined that it is clear from the wording and purpose of Directives 85/73 and 64/433 that the costs of bacteriological examinations are covered by the Community fee. The legal position remains substantially unchanged following the replacement of Directive 85/73 by Regulation No 882/2004 with effect from 1 January 2007.
   The Commission takes the view that the provisions of the Ausführungsgesetz (Law on Implementation) of the Land Schleswig-Holstein, which provide for the collection of fees for bacteriological examinations in addition to the flat-rate fees for meat inspections, do not comply with those Community law provisions and fail to take account of the Court's interpretation of those provisions in Stratmann.
   In particular, it should be noted that bacteriological examinations are included in the health inspections and controls provided for in Regulation No 854/2004, the costs of which are to be covered by the Community fee. Although the Member States can collect a greater fee than is laid down in the annex to Directive 85/73/EEC, provided that the total fees charged by each Member State do not exceed the actual cost of inspection, every increase imposed by a Member State must apply to the flat-rate fee itself. Special fees exceeding the level of the Community fee must cover all of the costs actually incurred. That provision for higher costs cannot be said to apply to a rule of domestic law which provides for the costs of bacteriological examinations to be charged in addition to the flat-rate fees, as that is not a general increase in the flat-rate Community fee, which incorporates all of the costs actually incurred.
   A provision such as the rule of the Ausführungsgesetz of the Land Schleswig-Holstein in the present case also runs counter to the relevant Community rules' practical effectiveness. These harmonised provisions are, after all, intended to eliminate the distortion of competition in the financing of health inspections and controls of fresh meat which is to be expected where there are differences between the Member States in that area. The Court of Justice took the view also that this objective might not be achieved if certain inspections laid down by Community law could fall outside that harmonised system of Community financing and instead be subject to special national fees.

      (1)  OJ 1985 L 32, p. 14.

      (2)  OJ 2004 L 165, p. 1.


title: Order of the President of the Court of First Instance of 20 July 1999 in Case T-59/99 R: Ventouris Group Enterprises SA v Commission of the European Communities (Competition - Payment of the fine - Bank guarantee - Procedure for interim measures - Suspension of enforcement)

text:
30.10.1999            EN                       Official Journal of the European Communities                                          C 314/9
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               the harm allegedly suffered by the applicant in the context of
                                                                          the implementation of the ‘Baardaheere Agricultural Exper-
                     of 21 September 1999                                 imental Station’ project, as a result of events occurring in the
                                                                          Democratic Republic of Somalia — the Court of First Instance
                                                                          (First Chamber), composed of: B. Vesterdorf, President, and
in Case T-157/98: Graça Oliveira v European Parliament (1)                J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar, made an
                                                                          order on 4 August 1999, the operative part of which is as
(Officials — Promotion — Examination of comparative                       follows:
                               merits)
                                                                          1. The action is dismissed as inadmissible;
                         (1999/C 314/20)
                                                                          2. The applicant is to bear its own costs and to pay the costs of the
                                                                               Commission.
                   (Language of the case: French)
                                                                          (1) OJ C 312 of 10.10.1998.
In Case T-157/98: Graça Oliveira, an official of the European
Parliament, residing in Luxembourg, represented by Jean-Noël
Louis and Françoise Parmentier, of the Brussels Bar, with an
address for service in Luxembourg at the offices of Fiduciaire
Myson SARL, 30 Rue de Cessange, v European Parliament
(Agent: Joao Sant’Anna) — application for annulment of the
Parliament’s decision not to promote the applicant to grade
B 4 in the course of the 1997 promotions procedure — the                  ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Court of First Instance (Third Chamber), composed of: M. Jae-                                        INSTANCE
ger, President, and K. Lenaerts and J. Azizi, Judges; B. Pastor,
Principal Administrator, for the Registrar, has given a judgment
on 21 September 1999, in which it:                                                                 of 20 July 1999
1. Dismisses the action;                                                  in Case T-59/99 R: Ventouris Group Enterprises SA v
                                                                                Commission of the European Communities
2. Orders the parties to bear their own costs.
                                                                          (Competition — Payment of the fine — Bank guarantee —
(1) OJ C 378 of 5.12.1998.                                                Procedure for interim measures — Suspension of enforce-
                                                                                ment)
                                                                                (1999/C 314/22)
                                                                                (Language of the case: Greek)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                          In Case T-59/99 R: Ventouris Group Enterprises SA, established
                                                                          in Panama, represented by Maria Proestou and Maria Velma-
                        of 4 August 1999                                  chou, of the Athens Bar, with an address for service in
                                                                          Luxembourg at the Chambers of Claude Medernach, 8-10 Rue
in Case T-106/98: Fratelli Murri SpA v Commission of the                  Mathias Hardt, v Commission of the European Communities
                  European Communities (1)                                (Agents: Dimitris Triantafyllou and Richard Lyal) — appli-
                                                                          cation, first, for suspension of enforcement of Commission
(Action for damages — Non-contractual liability — Limi-                   Decision 1999/271/EC of 9 December 1998 relating to a
                           tation period)                                 proceeding pursuant to Article 85 of the EC Treaty (IV/34.466
                                                                          — Greek Ferries) (OJ 1999 L 109, p. 24), in that it imposes on
                                                                          the applicant a fine of ECU 1.01 million for breach of
                         (1999/C 314/21)                                  Article 85 of the EC Treaty (now Article 81 EC), and, second,
                                                                          for the unconditional release of the applicant from its obli-
                                                                          gation to furnish a bank guarantee as a condition of the
                  (Language of the case: German)                          non-immediate recovery of the amount of the fine imposed by
                                                                          the decision — the President of the Court of First Instance
In Case T-106/98: Fratelli Murri SpA, established in Rome,                made an order on 20 July 1999, the operative part of which is
represented by Karl-Gustav von Luschka, Rechtsanwalt, Dres-               as follows:
den, with an address for service in Luxembourg at the
Chambers of Claude Medernach, 8-10 Rue Mathias Hardt, v                   1. The application for interim measures is dismissed.
Commission of the European Communities (Agents: Etienne
Lasnet and Barbara Brandtner) — application for damages                   2. The costs are reserved.
pursuant to Article 178 of the EC Treaty (now Article 235 EC)
and the second paragraph of Article 215 of the EC Treaty
(now the second paragraph of Article 288 EC) on account of


title: Case T-330/15: Judgment of the General Court of 15 December 2016 — Keil v EUIPO — NaturaFit Diätetische Lebensmittelproduktion (BasenCitrate) (EU trade mark — Invalidity proceedings — EU word mark BasenCitrate — Absolute ground for refusal — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/30

         Judgment of the General Court of 15 December 2016 — Keil v EUIPO — NaturaFit Diätetische Lebensmittelproduktion (BasenCitrate)
   (Case T-330/15) (1)

   ((EU trade mark - Invalidity proceedings - EU word mark BasenCitrate - Absolute ground for refusal - Descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))
   (2017/C 038/40)
   Language of the case: German

      Parties

      Applicant: Rudolf Keil (Grevenbroich, Germany) (represented by: J. Sachs, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: S. Hanne, D. Walicka and A. Schifko, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: NaturaFit Diätetische Lebensmittelproduktions GmbH (Röttenbach, Germany) (represented by N. Reber, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 15 April 2015 (Case R 1541/2014-1), relating to invalidity proceedings between NaturaFit Diätetische Lebensmittelproduktions GmbH and Mr Keil.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Rudolf Keil to pay the costs.

      (1)  OJ C 279, 24.8.2015.


title: Case C-142/10 P: Appeal brought on 17 March 2010 by Francisco Pérez Guerra against the order of the General Court (Fourth Chamber) delivered on 11 February 2010 in Case T-3/10 Pérez Guerra v BNP Paribas and Spain

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/10

         Appeal brought on 17 March 2010 by Francisco Pérez Guerra against the order of the General Court (Fourth Chamber) delivered on 11 February 2010 in Case T-3/10 Pérez Guerra v BNP Paribas and Spain
   (Case C-142/10 P)
   ()
   2010/C 328/16
   Language of the case: Spanish

      Parties

      Appellant: Francisco Pérez Guerra (represented by: G. Soriano Bel, abogado)

      Other parties to the proceedings: BNP Paribas and Kingdom of Spain
   By order of 24 September 2010, the Court of Justice (Eighth Chamber) dismissed the appeal.


title: Case C-286/11 P: Appeal brought on 7 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-382/06: Tomkins plc v European Commission

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/9

         Appeal brought on 7 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-382/06: Tomkins plc v European Commission
   (Case C-286/11 P)
   2011/C 238/14
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: F. Castillo de la Torre, V. Bottka, R. Sauer, Agents)

      Other party to the proceedings: Tomkins plc

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the Judgment under Appeal;

               —

               dismiss the action before the General court in its entirety;

               —

               require the applicant to bear the entirety of the costs of these proceedings and those of the proceedings at first instance.

      Pleas in law and main arguments

   The Commission raises the following five grounds of appeal:

               In the first ground of appeal it is submitted that by annulling part of the duration established in the Decision on the basis of elements never raised by Tomkins, the General Court clearly ruled ultra petita. The case law of the Union Courts does not recognise exceptions to the rule defined in the C-310/97 P AssiDomän case law on the basis that two applicants belonged to the same undertaking. Recently, the Court of Justice has made it clear in ArcelorMittal Luxembourg (Joined Cases C-201/09 P and C-216/09 P) that a case lodged by one entity within a group does not affect the legal position of other entities within the same undertaking.

               In its second ground of appeal the Commission contends that the General Court equally erred in law in finding that the forms of order of Pegler (the subsidiary, in Case T-386/06) and Tomkins (the parent company, in Case T-382/06) had the ‘same object’. Although, the period contested by Tomkins was much shorter than that contested in the separate case by Pegler, the same reduction in terms of duration was granted to both companies. However, Pegler not only challenged a much longer period, but it also based its Application on different and even opposing pleas to those of Tomkins. In contesting the initial period of the duration, Pegler's object was to exculpate itself and inculpate Tomkins, whereas Tomkins' aim was a rather limited one, i.e. to contest the evidence related to the first 38 days (which would not even have affected the duration taken into account for the fine).

               Moreover the assessment of the General Court is based on the factually incorrect premiss that Tomkins would have claimed that ‘if that decision were to be annulled with respect to Pegler, it should also be annulled in so far as it relates to the applicant’ (paragraph 42 of the Judgment under Appeal). Tomkins made no such plea either in the Application or in its Reply (which in any event would have been too late). This constitutes a distortion of the applicant's plea which is in itself sufficient to set aside the Judgment under Appeal

               The third ground of appeal relates to disregarding that Tomkins was part of an undertaking which admittedly committed an infringement. The General Court committed an error of law because it reduced the liability of an entity (the parent company Tomkins) within the ‘Tomkins undertaking’ for the reason that for another part of that undertaking, the subsidiary Pegler, the duration was reduced. However, the reduction of Pegler's liability for the infringement was based on Pegler's status as a ‘dormant company’ and was not based on the fact that the group in question did not participate in the infringement. In the Commission's view the fact that this particular subsidiary (Pegler) of the group may not have been the right addressee within the group for a certain period concerns only that subsidiary and does not exonerate the entire ‘undertaking’. This holds especially true in a situation where it was not contested by the General Court (nor by Tomkins itself) that the undertaking headed by Tomkins participated in the infringement during much of the relevant period.

               The Commission bases its fourth ground of appeal on lack of motivation and contradictions in the judgment under appeal. The fourth ground of appeal is subsidiary to the first, that is even if the General Court did not act ultra petita, the judgment should still be annulled because it fails to provide sufficient and clear reasoning for the partial annulment (lack of motivation). There are at least two important instances on which the Judgment under Appeal lacks clarity.

                           —

                           o First, when describing the exception that the General Court considers should be made from the AssiDomän case law the conditions of such departure are unclear and contradictory.

                           —

                           o The second incoherence or unclear aspect in the reasoning of the General Court is the fact that at paragraph 57 of the Judgment under Appeal on the multiplier for deterrence the Commission is asked ‘in accordance with Article 266 TFEU, to draw the appropriate conclusions from that mistake and from the joint and several liability for the fine so far as concerns the applicant.’ However, at paragraph 59 the General Court exercises its unlimited jurisdiction on the fine and determines the fine amount applicable to Tomkins. The operative part of the Judgment under Appeal repeats the final amount of the fine without any mentioning of the need to modify that amount further. Regardless of the exact meaning of paragraph 57, the Commission notes that the annulment of the multiplier for deterrence in Case T-386/06 Pegler v Commission should be of no consequence for the multiplier of Tomkins.

               Finally, in the fifth ground of appeal it is submitted that the General Court breached the ‘principe du contradictoire’ and the right to a fair hearing because it failed to give an opportunity to the Commission to comment on its intention to reduce Tomkins' fine on the basis of pleas raised in a separate case by Pegler.


title: Judgment of the Court (Fifth Chamber) of 29 April 2004 in Case C-308/01 (reference for a preliminary ruling from the VAT and Duties Tribunal, London): GIL Insurance Ltd and Others v Commissioners of Customs and Excise (Sixth VAT Directive — Tax on insurance premiums — Higher rate applicable to certain insurance contracts — Insurance connected with the rental or sale of domestic appliances — State aid)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/11

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 29 April 2004
   in Case C-308/01 (reference for a preliminary ruling from the VAT and Duties Tribunal, London): GIL Insurance Ltd and Others v Commissioners of Customs and Excise (1)

   (Sixth VAT Directive - Tax on insurance premiums - Higher rate applicable to certain insurance contracts - Insurance connected with the rental or sale of domestic appliances - State aid)
   (2004/C 118/20)
   Language of the case: English
   In Case C-308/01: reference to the Court under Article 234 EC from the VAT and Duties Tribunal, London (United Kingdom) for a preliminary ruling in the proceedings pending before that court between GIL Insurance Ltd, UK Consumer Electronics Ltd, Consumer Electronics Insurance Co. Ltd, Direct Vision Rentals Ltd, Homecare Insurance Ltd, Pinnacle Insurance plc and Commissioners of Customs and Excise — on the interpretation of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and of Articles 87 EC and 88 EC — the Court (Fifth Chamber), composed of: C.W.A. Timmermans, acting for the President of the Fifth Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges; L.A. Geelhoed, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it has ruled:

               1.

               A tax on insurance premiums such as that at issue in the main proceedings is compatible with Article 33 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment.

               2.

               Article 13(B)(a) of the Sixth Directive 77/388, under which insurance transactions are exempt from value added tax, does not preclude, in the case of a tax on insurance premiums such as that at issue in the main proceedings, the introduction of a special rate which is identical to the standard rate of value added tax, since that tax is compatible with Article 33 of the Sixth Directive 77/388, so that the procedure provided for in Article 27 of that directive, which obliges any Member State wishing to introduce special measures for derogation from that directive to seek prior authorisation from the Council of the European Union, does not have to be complied with before the introduction of that rate.

      (1)  OJ C 303, 27.10.2001.


title: Case C-65/12: Judgment of the Court (First Chamber) of 6 February 2014 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Leidseplein Beheer BV, H.J.M. de Vries v Red Bull GmbH, Red Bull Nederland BV (Request for a preliminary ruling — Trade marks — Directive 89/104/EEC — Rights conferred by a trade mark — Trade mark with a reputation — Protection extended to non-similar goods or services — Use by a third party, without due cause, of a sign identical with or similar to the trade mark with a reputation — Definition of ‘due cause’ )

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/4

         Judgment of the Court (First Chamber) of 6 February 2014 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Leidseplein Beheer BV, H.J.M. de Vries v Red Bull GmbH, Red Bull Nederland BV
   (Case C-65/12) (1)

   (Request for a preliminary ruling - Trade marks - Directive 89/104/EEC - Rights conferred by a trade mark - Trade mark with a reputation - Protection extended to non-similar goods or services - Use by a third party, without due cause, of a sign identical with or similar to the trade mark with a reputation - Definition of ‘due cause’)
   2014/C 93/05
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicants: Leidseplein Beheer BV, H.J.M. de Vries

      Defendants: Red Bull GmbH, Red Bull Nederland BV

      Re:

   Request for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Rights conferred by the mark — Trade mark with a reputation — Protection extended to non-similar goods or services — Use by a third party, without due cause, of a sign identical with, or similar to, the trade mark with a reputation which enables that third party to take unfair advantage of, or which causes detriment to, the distinctive character or the repute of the trade mark — Concept of due cause.

      Operative part of the judgment

   Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the proprietor of a trade mark with a reputation may be obliged, pursuant to the concept of ‘due cause’ within the meaning of that provision, to tolerate the use by a third party of a sign similar to that mark in relation to a product which is identical to that for which that mark was registered, if it is demonstrated that that sign was being used before that mark was filed and that the use of that sign in relation to the identical product is in good faith. In order to determine whether that is so, the national court must take account, in particular, of:

               —

               how that sign has been accepted by, and what its reputation is with, the relevant public;

               —

               the degree of proximity between the goods and services for which that sign was originally used and the product for which the mark with a reputation was registered; and

               —

               the economic and commercial significance of the use for that product of the sign which is similar to that mark.

      (1)  OJ C 126, 28.4.2012.


title: Judgment of the Court (Fourth Chamber) of 30 September 2004 in Case C-496/03: Commission of the European Communities v French Republic (Failure of Member State to fulfil obligations — Directive 2001/59/EC — Failure to transpose)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/6

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 30 September 2004
   in Case C-496/03: Commission of the European Communities v French Republic (1)

   (Failure of Member State to fulfil obligations - Directive 2001/59/EC - Failure to transpose)
   (2004/C 284/12)
   Language of the case: French
   In Case C-496/03: Commission of the European Communities (Agents: C.-F. Durand and F. Simonetti) v French Republic (Agents: G. de Bergues and C. Mercier) — action under Article 226 EC for failure to fulfil obligations, brought on 24 November 2003 — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, N. Colneric and E. Juhász (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 30 September 2004, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2001/59/EC of 6 August 2001 adapting to technical progress for the 28th time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, the French Republic has failed to fulfil its obligations under that directive.

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 21, 24.1.2004.


title: Case C-327/09: Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Mensch und Natur AG v Freistaat Bayern (Fourth paragraph of Article 249 EC — Measures adopted by the institutions — Commission decision addressed to a particular person — Regulation (EC) No 258/97 — Novel food or novel food ingredient — Decision 2000/196/EC — ‘Stevia rebaudiana Bertoni: plants and dried leaves’ — Refusal to authorise placing on the market — Effects in relation to a person other than the addressee)

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/4

         Judgment of the Court (Third Chamber) of 14 April 2011 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Mensch und Natur AG v Freistaat Bayern
   (Case C-327/09) (1)

   (Fourth paragraph of Article 249 EC - Measures adopted by the institutions - Commission decision addressed to a particular person - Regulation (EC) No 258/97 - Novel food or novel food ingredient - Decision 2000/196/EC - ‘Stevia rebaudiana Bertoni: plants and dried leaves’ - Refusal to authorise placing on the market - Effects in relation to a person other than the addressee)
   2011/C 179/04
   Language of the case: German

      Referring court

   Bayerischer Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Mensch und Natur AG

      Defendant: Freistaat Bayern

      Re:

   Reference for a preliminary ruling — Bayerischer Verwaltungsgerichtshof — Interpretation of the fourth paragraph of Article 249 EC and of Commission Decision 2000/196/EC of 22 February 2000 refusing the placing on the market of ‘Stevia rebaudiana Bertoni: plants and dried leaves’ as a novel food or novel food ingredient in accordance with European Parliament and Council Regulation (EC) No 258/97 (OJ 2000 L 61, p. 14) — Commission decision addressed to a particular person — Effect in relation to a person other than the addressee

      Operative part of the judgment

   A Commission decision taken on the basis of Article 7 of Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients and refusing authorisation to place on the market of the European Union a food or food ingredient is not binding on any persons other than the person or persons whom that decision specifies as its addressees. By contrast, the competent authorities of a Member State must establish whether a product marketed in the territory of that Member State, the characteristics of which appear to match those of the product which was the subject-matter of that Commission decision, is a novel food or novel food ingredient within the meaning of Article 1(2) of that regulation and, where necessary, they must require the person concerned to comply with the provisions of that regulation.

      (1)  OJ C 282, 21.11.2009.


C 333/22              EN                  Official Journal of the European Communities                                 20.11.1999
       Removal from the register of Case C-331/98 (1)                ordered the removal from the register of Case C-345/98:
                                                                     Commission of the European Communities v Ireland.
                       (1999/C 333/50)
                                                                     (1) OJ C 327 of 24.10.1998.
By order of 21 June 1999 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-331/98: Commission of the European
Communities v Ireland.
(1) OJ C 327 of 24.10.1998.                                                 Removal from the register of Case C-20/98 (1)
                                                                                (1999/C 333/53)
                                                                     By order of 30 June 1999 the President of the Court of Justice
                                                                     of the European Communities has ordered the removal from
       Removal from the register of Case    C-39/99 (1)              the register of Case C-20/98 (reference for a preliminary
                                                                     ruling from the Unabhängiger Verwaltungssenat Salzburg):
                       (1999/C 333/51)                               Karl-Heinz Meinert v Bezirkshauptmannschaft Salzburg-
                                                                     Umgebung.
By order of 22 June 1999 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-39/99: Commission of the European             (1) OJ C 94 of 28.3.1998.
Communities v United Kingdom of Great Britain and Northern
Ireland.
(1) OJ C 86 of 27.3.1999.
                                                                            Removal from the register of Case C-106/99 (1)
                                                                                (1999/C 333/54)
       Removal from the register of Case C-345/98 (1)                By order of 5 July 1999 the President of the Court of Justice of
                                                                     the European Communities has ordered the removal from the
                       (1999/C 333/52)                               register of Case C-106/99: Commission of the European
                                                                     Communities v Portuguese Republic.
By order of 29 June 1999 the President of the Fourth Chamber
of the Court of Justice of the European Communities has              (1) OJ C 160 of 5.6.1999.


title: Judgment of the Court of First Instance of 21 October 2004 in Case T-36/99: Lenzing AG v Commission of the European Communities (State aid — Action for annulment — Admissibility — Act of individual concern to the applicant — Article 87(1) EC — Agreements on the rescheduling and repayment of debts — Private creditor test)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/12

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 21 October 2004
   in Case T-36/99: Lenzing AG v Commission of the European Communities (1)

   (State aid - Action for annulment - Admissibility - Act of individual concern to the applicant - Article 87(1) EC - Agreements on the rescheduling and repayment of debts - Private creditor test)
   (2004/C 314/30)
   Language of the case: German
   In Case T-36/99: Lenzing AG, established in Lenzing (Austria), represented initially by H.-J. Niemeyer, then by I. Brinker and U. Soltész, lawyers, against Commission of the European Communities (Agents: V. Kreuschitz and D. Triantafyllou, assisted by M. Núñez-Müller, lawyer, with an address for service in Luxembourg), supported by Kingdom of Spain (Agent: N. Díaz Abad, with an address for service in Luxembourg) — application for partial annulment of Commission Decision 1999/395/EC of 28 October 1998 on State aid implemented by Spain in favour of Sniace, SA, located in Torrelavega, Cantabria (OJ 1999 L 149, p. 40), as amended by Commission Decision 2001/43/EC of 20 September 2000 (OJ 2001 L 11, p. 46) — the Court of First Instance (Fifth Chamber, Extended Composition), composed of R. García-Valdecasas, President, P. Lindh, J.D. Cooke, H. Legal and M.E. Martins Ribeiro, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 21 October 2004, in which it:

               1.

               Annuls Article 1(1) of Commission Decision 1999/395/EC of 28 October 1998 on State aid implemented by Spain in favour of Sniace, SA, located in Torrelavega, Cantabria, as amended by Commission Decision 2001/43/EC of 20 September 2000;

               2.

               Orders the Commission to bear its own costs and to pay those incurred by the applicant;

               3.

               Orders the Kingdom of Spain to bear its own costs.

      (1)  OJ C 160 of 5.6.1999.


title: Case C-228/16 P: Appeal brought on 22 April 2016 by Dimosia Epicheirisi Ilektrismou A.E. (DEI) against the order made by the General Court (Fourth Chamber) on 9 February 2016 in Case T-639/14 Dimosia Epicheirisi Ilektrismou A.E. (DEI) v European Commission

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/39

      Appeal brought on 22 April 2016 by Dimosia Epicheirisi Ilektrismou A.E. (DEI) against the order made by the General Court (Fourth Chamber) on 9 February 2016 in Case T-639/14 Dimosia Epicheirisi Ilektrismou A.E. (DEI) v European Commission
      (Case C-228/16 P)
      (2016/C 211/50)
      Language of the case: Greek

         Parties

         Appellant: Dimosia Epicheirisi Ilektrismou A.E. (DEI) (represented by: Efthymios Bourtzalas, Anargyros Oikonomou, Efstathia Salaka, Charalampos Synodinos, Charisios Tagaras, Denis Waelbroeck, lawyers)

         Other party to the proceedings: European Commission

         Form of order sought

                  —

                  set aside the order under appeal;

                  —

                  refer the case back to the General Court in order for it to rule on the appellant’s claims seeking annulment of the contested measure of 12 June 2014;

                  —

                  order the defendant to pay all the costs, that is to say, the costs at first instance and on appeal.

         Pleas in law and main arguments

      The appellant submits that the order under appeal is vitiated by material errors of law and must be set aside on the following grounds:

                  (1)

                  manifest error of law and a failure to state reasons so far as concerns the finding that Case T-639/14 became devoid of purpose, inasmuch as that finding is based on the supposed ‘replacement’ of the contested measure by the Commission’s measure of 25 March 2015;

                  (2)

                  infringement of the principles of good administration, legal certainty and effective judicial protection in holding that the measure of 25 March 2015 replaces the contested measure;

                  (3)

                  manifest error of law so far as concerns interpretation and application of the principle that acts of the institutions of the European Union are lawful;

                  (4)

                  distortion of the facts and infringement of the right to be heard so far as concerns the finding that the contested measure’s reasoning ‘does not refer at all to the issue whether any aid in the form of the arbitral award is of State origin’ and manifest error of assessment so far as concerns the finding that the legal defects in the contested measure which are put forward by DEI ‘will necessarily be assessed in … Case T-352/15’;

                  (5)

                  distortion of DEI’s reasoning regarding the criteria on the basis of which it should be decided whether or not there is a need to adjudicate in the present case as regards the complaint of 2012 and manifest error of law so far as concerns the finding that the complaint of 2012 was rejected ‘implicitly’ by the Commission’s measure of 25 March 2015; and

                  (6)

                  error of law and manifest error of assessment in holding that each party is to bear its own costs.


title: Case C-543/03: Reference for a preliminary ruling by the Oberlandesgericht Innsbruck by order of that Court of 16 December 2003 in the case of 1) Christine Dodl, 2) Petra Oberhollenzer against Tiroler Gebietskrankenkasse

text:
3.4.2004                 EN                           Official Journal of the European Union                                           C 85/13
Reference for a preliminary ruling by the Oberlandesger-                      1.   Do the facts as found in Judgment No 2199 of the
icht Innsbruck by order of that Court of 16 December                               Consiglio di Stato (Council of State) of 23 April 2002 and
2003 in the case of 1) Christine Dodl, 2) Petra Oberhol-                           in Judgment No 6139 of the Tribunale Amministrativo
         lenzer against Tiroler Gebietskrankenkasse                                Regionale (Regional Administrative Court), Lazio (Rome)
                                                                                of 5 July 2001, which are deemed to be set out here in
                          (Case C-543/03)                                          full, and the decision of the Italian AGCM to which both
                                                                                those judicial decisions refer (concerning a cartel set up
                           (2004/C 85/19)                                          by various insurance companies in the area of civil
                                                                                liability for road accidents), constitute infringements of
                                                                                Community law, in particular of Articles 81 EC and 82
                                                                                EC?
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                        2.   Does an infringement of Articles 81 EC and 82 EC imply
Innsbruck (Higher Regional Court Innsbruck) of 16 December                         an obligation on the part of the person committing it to
2003, received at the Court Registry on 29 December 2003,                          compensate end users, and all those who are third
for a preliminary ruling in the case of 1) Christine Dodl, 2)                      parties not involved in the agreement or the abuse but
Petra Oberhollenzer against Tiroler Gebietskrankenkasse on                         demonstrate that they have suffered injury, for damage
the following questions:                                                           suffered?
1)    Is Article 73 of Regulation (EEC) No 1408/71 of the                     3.   In assessing the amount of damages, in addition to the
      Council of 14 June 1971 (1) on the application of social                     restitution of sums charged in breach of Community
      security schemes to employed persons, to self-employed                       rules, is the national court required (again as a matter of
      persons and to members of their families moving within                       Community law) to award the injured party a sum by way
      the Community, in conjunction with Article 13 of that                        of punitive damages against those persons responsible
      regulation, as amended, to be interpreted as extending                       for the prohibited agreement or abuse of a dominant
      even to employed persons whose employment relation-                          position?
      ships are still in existence but do not involve any duty to
      carry out work or pay remuneration (unpaid leave) or                    4.   Does Community law also require the payment of
      any social security obligations under national law?                          damages for non-material loss?
2)    If the answer to the first question should be in the
      affirmative:                                                            5.   As a matter of Community law, is the national court
                                                                                required of its own motion to order the payment of
      Is the State of the place of employment responsible for                      punitive damages or damages for non-material loss?
      the benefit payment in such a case even if the employed
      person and those members of his or her family for whom                  6.   Is the limitation period of one year for bringing an action
      family benefit such as Austrian ‘Kinderbetreuungsgeld’                       for damages for breach of Articles 81 EC and 82 EC
      (child-care allowance) might be payable have not lived in                    under Italian law too short and therefore in conflict with
      the State of the place of employment, particularly during                    Community law?
      the period of unpaid leave?
                                                                              7.   As a matter of Community law, for the purposes of the
                                                                                limitation period for bringing an action for damages,
(1) English special edition: Series I Chapter 1971(II) P. 0416.
                                                                                does time begin to run from the day on which the
                                                                                infringement of Articles 81 EC and 82 EC was committed
                                                                                or the day on which that infringement came to an end?
                                                                              8.   Is there a conflict between Community competition law
                                                                                and/or the fundamental principles of Community law
Reference for a preliminary ruling by the Magistrates’                             (with reference in particular to Article 6(1) and Article 13
Court, Bitonto, by order of that court of 20 December                              of the European Convention on Human Rights) and a
2003 in the case of Nicolò Tricarico against Assitalia                             national provision having an effect similar to that in the
                            Assicurazioni                                          second paragraph of Article 3 of Italian Law No 287 of
                                                                                10 October 1990 which requires a consumer or a third
                            (Case C-2/04)                                          party who has suffered damage as a result of an agreement
                                                                                which is unlawful and void under Article 81 EC or an
                                                                                abuse of a dominant position unlawful under Article 82
                           (2004/C 85/20)
                                                                                EC and who seeks to obtain damages to make an
                                                                                application to a court other than the one which has
                                                                                jurisdiction ratione loci, ratione materiae and for the
Reference has been made to the Court of Justice of the                             value of the dispute in accordance with the ordinary
European Communities by order of the Magistrates’ Court,                           national rules on jurisdiction, Article 33 of Law No 287/
Bitonto, of 20 December 2003, received at the Court Registry                       90 involving an increase in the cost and duration of the
on 5 January 2004, for a preliminary ruling in the case of                         case which would not occur had the ordinary national
Nicolò Tricarico against Assitalia Assicurazioni on the follow-                    rules on jurisdiction ratione loci, ratione materiae and for
ing questions:                                                                     the value of the dispute applied?


title: Case T-50/16: Order of the General Court of 21 October 2016 — Hungary v Commission

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/25

         Order of the General Court of 21 October 2016 — Hungary v Commission
   (Case T-50/16) (1)

   (2016/C 475/38)
   Language of the case: Hungarian
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 145, 25.4.2016.


title: Order of the Court of First Instance of 29 June 2005 in Case T-274/03: Focus Magazin Verlag GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Withdrawal of the application for registration — No need to proceed to judgment)

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/18

      ORDER OF THE COURT OF FIRST INSTANCE

   of 29 June 2005
   in Case T-274/03: Focus Magazin Verlag GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Opposition - Withdrawal of the application for registration - No need to proceed to judgment)
   (2005/C 229/38)
   Language of the case: French
   In Case T-274/03: Focus Magazin Verlag GmbH, established in Munich (Germany), represented by U. Gürtler, lawyer, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: B. Müller and A. Folliard-Monguiral), the other party before the Board of Appeal of OHIM and intervener before the Court of First Instance being France Télécom SA, established in Paris (France), represented by D. Marty, lawyer — against brought against the decision of the Fourth Board of Appeal of OHIM of 30 April 2003 (Case R 849/2001-4), concerning opposition proceedings between Focus Magazin Verlag GmbH and France Télécom SA — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges; H. Jung, Registrar, made an order on 29 June 2005, the operative part of which is as follows:

               1.

               There is no longer any need to adjudicate on the application.

               2.

               The parties shall bear their own costs.

      (1)  OJ C 264 of 1.11.2003.


title: Case T-430/13 P: Appeal brought on 19 August 2013 by the Comité économique et social européen (CESE) against the judgment of 26 June 2013 of the Civil Service Tribunal in Case F-21/12 Achab v CESE

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/38

         Appeal brought on 19 August 2013 by the Comité économique et social européen (CESE) against the judgment of 26 June 2013 of the Civil Service Tribunal in Case F-21/12 Achab v CESE
   (Case T-430/13 P)
   2013/C 325/63
   Language of the case: French

      Parties

      Appellant: Comité économique et social européen (CESE) (represented by: M. Arsène, acting as Agent, assisted by D. Waelbroeck and A. Duron, lawyers)

      Other party to the proceedings: Mohammed Achab (Brussels, Belgium)

      Form of order sought by the appellant

   The appellant requests the General Court to:

               —

               set aside the judgment of the Civil Service Tribunal in Case F-21/12 in so far as it annuls the CESE's decision of 9 June 2011 concerning the repayment of the expatriation allowance paid to Mr Achab after 1 July 2010 and orders the CESE to bear its own costs and half of the costs incurred by the applicant at first instance;

               —

               uphold the order sought by the appellant on appeal, that is to say dismiss the action as wholly unfounded;

               —

               order the respondent in the appeal to pay the costs of the present proceedings and of the proceedings before the Civil Service Tribunal.

      Pleas in law and main arguments

   In support of its appeal, the appellant relies on five grounds:

               1.

               First ground, alleging errors of law in so far as the Civil Service Tribunal erred in holding that the conditions for the repayment of the amount received in error were not fulfilled.

               2.

               Second ground, alleging an error of law in so far as the judgment under appeal contributes to the unjust enrichment of the applicant at first instance.

               3.

               Third ground, alleging a manifest error of assessment, the Civil Service Tribunal having wrongly considered that the CESE had never communicated with its staff in order to draw their attention to the consequences of naturalisation.

               4.

               Fourth ground, alleging an error of law owing to the fact that the Civil Service Tribunal breached the principle according to which financial provisions are to be applied strictly and the principle that provisions which lay down exceptions must be interpreted in a limited and restrictive way.

               5.

               Fifth ground, alleging an error of law with regard to the allocation of expenses.


title: Case C-354/12 P: Order of the Court (Tenth Chamber) of 11 April 2013 — Asa sp. z o.o. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Article 181 of the Rules of Procedure — Community trade mark — Article 8(1)(b) of Regulation (EC) No 207/2009 — Relative ground for refusal — Word mark FEMIFERAL — Opposition by the proprietor of the earlier word and figurative mark feminatal)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/47

         Order of the Court (Tenth Chamber) of 11 April 2013 — Asa sp. z o.o. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-354/12 P) (1)

   (Appeal - Article 181 of the Rules of Procedure - Community trade mark - Article 8(1)(b) of Regulation (EC) No 207/2009 - Relative ground for refusal - Word mark FEMIFERAL - Opposition by the proprietor of the earlier word and figurative mark feminatal)
   2013/C 225/82
   Language of the case: Polish

      Parties

      Appellant: Asa sp. z o.o. (represented by: M. Chimiak, adwokat)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, Agent)

      Re:

   Appeal brought against the judgment of the General Court (Third Chamber) of 25 May 2012 in Case T-110/11 Asa v OHIM — Merck (FEMIFERAL), by which the General Court dismissed as unfounded the action brought by Asa sp. z o.o., applicant for the word mark ‘FEMIFERAL’, seeking the annulment of Decision R 0182/2010-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM), of 19 November 2010, annulling the decision of the Opposition Division, which rejected the opposition brought by the proprietor of the national word mark ‘Feminatal’ and of the national figurative mark containing the verbal element ‘feminatal’ for goods classified in Class 5 — Infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Asa sp. z o.o. is ordered to pay the costs.

      (1)  OJ C 295, 29.9.2012.


title: Case C-360/06: Judgment of the Court (Second Chamber) of 2 October 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Heinrich Bauer Verlag Beteiligungs GmbH v Finanzamt für Großunternehmen in Hamburg (Freedom of establishment — Tax legislation — Corporation tax — Valuation of unlisted shares in limited companies)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/5

         Judgment of the Court (Second Chamber) of 2 October 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Heinrich Bauer Verlag Beteiligungs GmbH v Finanzamt für Großunternehmen in Hamburg
   (Case C-360/06) (1)

   (Freedom of establishment - Tax legislation - Corporation tax - Valuation of unlisted shares in limited companies)
   (2008/C 301/09)
   Language of the case: German
   Referring court
   Finanzgericht Hamburg
   Parties to the main proceedings

      Applicant: Heinrich Bauer Verlag BeteiligungsGmbH

      Defendant: Finanzamt für Großunternehmen in Hamburg

      Intervener: Heinrich Bauer Verlag KG
   Re:
   Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 52 of the EC Treaty (now, after amendment, Article 43 EC) and Article 58 of the EC Treaty (now Article 48 EC) — Valuation of unlisted shares in limited companies — Difference between the valuation of a share in a national partnership and a share in a partnership established in another Member State
   Operative part of the judgment
   In the absence of valid justification, Articles 52 of the EEC Treaty (subsequently Article 52 of the EC Treaty, and now, after amendment, Article 43 EC) and 58 of the EEC Treaty (subsequently Article 58 of the EC Treaty, and now Article 48 EC) preclude the application of tax legislation of a Member State which, for the purposes of valuing the unlisted shares of a company in circumstances such as those in the main proceedings, causes that company's holding in a partnership established in another Member State, subject to the condition that such a holding is capable of allowing it a definite influence on the decisions of the partnership established in the other Member State and enabling it to determine its activities, to be assigned a greater value than its holding in a partnership established in the Member State concerned.

      (1)  OJ C 310, 16.12.2006.