title: Case T-439/05: Action brought on  13 December 2005  — Royal Bank of Scotland/OHIM

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/22

         Action brought on 13 December 2005 — Royal Bank of Scotland/OHIM
   (Case T-439/05)
   (2006/C 74/44)
   Language in which the application was lodged: English
   Parties

      Applicant: The Royal Bank of Scotland Group plc (Edinburgh, United Kingdom) [represented by: J. Hull, Solicitor]

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

      Other party/parties to the proceedings before the Board of Appeal: Lombard Risk Systems Limited and Lombard Risk Consultants limited (London, United Kingdom)
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 21 July 2005 (Case R 370/2004-4) relating to Opposition Proceedings No. B 370959, notification of which was dated 13 October 2005; and

               —

               order the OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘LOMBARD DIRECT’ for services in classes 35, 36 and 42 — application No 1 523 992

      Proprietor of the mark or sign cited in the opposition proceedings: Lombard Risk Systems Limited and Lombard Risk Consultants Limited

      Mark or sign cited: The Community and national word marks ‘LOMBARD RISK’ and ‘LOMBARD GROUP OF COMPANIES’ for goods and services in classes 9, 36 and 41

      Decision of the Opposition Division: Opposition upheld for part of the contested services

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal applied an incorrect legal test when considering whether there was a likelihood of confusion between the conflicting marks in as much as it found it conceivable that confusion would occur and that the possibility of confusion could not be excluded. According to the applicant the Board thereby reversed the burden of proof, requiring the applicant to prove that there was no likelihood of confusion. Furthermore, the Board of Appeal failed to give proper reasons for its decision contrary to Article 73 of the Regulation.


               26.10.2006

               EN

               Official Journal of the European Union

               C 258/27

         Action brought on 31 July 2006 by the EFTA Surveillance Authority against the Kingdom of Norway
   (Case E-2/06)
   (2006/C 258/11)
   An action against the Kingdom of Norway was brought before the EFTA Court on 31 July 2006 by the EFTA Surveillance Authority, represented by Niels Fenger, acting as Agent of the EFTA Surveillance Authority, 35, Rue Belliard, B-1040 Brussels.
   The applicant claims that the Court should:

               1.

               Declare that the Kingdom of Norway, by maintaining in force measures, as laid down in Act 16 of 14 December 1917, which grant a time limited concession on the acquisition of waterfalls for energy production to private and all undertakings from other Contracting Parties to the EEA Agreement and require them to give all installations to the Norwegian State without compensation, at the expiry of the concession, to the exclusion of Norwegian public undertakings which benefit from concessions for an unlimited period of time, Norway has infringed Articles 31 and 40 of the EEA Agreement.
               and

               2.

               Order the Kingdom of Norway to bear the costs of the proceedings.

      Legal and factual background and pleas in law adduced in support:

               —

               The case concerns transfer of property rights to hydroelectric power plants to the Norwegian State without compensation at the expiry of the concession period. This transfer is referred to in Norwegian law as ‘reversion’ (‘hjemfall’ in Norwegian), even if the State never held any property rights to the waterfall or hydroelectric installation in the past.

               —

               Under Act No 16 of 14 December 1917 (the ‘Industrial Licensing Act’), the duration of a concession to use waterfalls and hydroelectric installations is unlimited to companies owned at least 2/3 by the Norwegian State, county municipalities or municipalities, but is limited to all others, including all companies in which owners from other EEA States, alone or together with Norwegian private owners, hold more than 1/3 of the share capital.

               —

               The consequence is that reversion only applies to the latter category.

               —

               This, according to the EFTA Surveillance Authority, means that reversion as it now operates discriminates against owners from other EEA States, which is an infringement of Articles 31 and 41 of the EEA Agreement.

               —

               The EFTA Surveillance Authority pleads that this difference in treatment is not objectively justified, nor falling within the ambit of Article 125 of the EEA Agreement.


title: Case C-258/00: Action brought on 28 June 2000 by the Commission of the European Communities against the French Republic

text:
C 247/24               EN                      Official Journal of the European Communities                                       26.8.2000
Reference for a preliminary ruling by the Immigration                     Action brought on 28 June 2000 by the Commission of
Appeal Tribunal, by order of that court of 28 April 2000,                  the European Communities against the French Republic
in the case of Nani Givane and others against the Secretary
               of State for the Home Department
                                                                                (Case C-258/00)
                         (Case C-257/00)
                                                                                (2000/C 247/36)
                         (2000/C 247/35)
                                                                          An action against the French Republic was brought before the
Reference has been made to the Court of Justice of the                    Court of Justice of the European Communities on 28 June
European Communities by an order of the Immigration Appeal                2000 by the Commission of the European Communities,
Tribunal of 28 April 2000, which was received at the Court                represented by Michel Nolin, of its Legal Service, with an
Registry on 26 June 2000, for a preliminary ruling in the case            address for service in Luxembourg at the office of Carlos
of Nani Givane and others against the Secretary of State for              Gómez de la Cruz, of its Legal Service, Wagner Centre,
the Home Department, on the following questions:                          Kirchberg.
1.    Whether Article 3(2) of Regulation 1251/70 (1) requires
                                                                          The Commission of the European Communities claims that
      that two-year period of continuous residence to be
                                                                          the Court should:
      established in the period immediately prior to a worker’s
      death, or whether it may be established by a period of
      continuous residence which occurs at an earlier point in            —     declare that, by failing to take appropriate steps to identify
      the worker’s life;                                                        waters affected by pollution and, in consequence, to
                                                                                designate the corresponding vulnerable zones, as pro-
2.    If the said two year period is not required to be established             vided for by Article 3 and Annex I to Directive 91/676/
      immediately prior to the worker’s death, then, once such                  EEC (1), the French Republic has failed to fulfil its obli-
      a two year period of residence has been established by                    gations under that directive;
      the worker, can the benefit of the accrued rights deriving
      from that period be retained after periods of absence               —     order the French Republic to pay the costs.
      from the host EU state in excess of the three months
      specified in Article 4(1) (which have the effect of breaking
      the period of continuous residence in the host State in
      question);                                                          Pleas in law and main arguments
3.    If the answer to question 2 is in the affirmative, whether
      the consequential right to retain the benefit of past               Incomplete identification of waters which are or could be
      periods of continuous residence, despite subsequent                 affected by pollution, resulting in an incomplete designation
      breaks in residence, is subject to any limitations;                 of vulnerable zones.
4.    If the answer to question 3 is in the affirmative, what             —     Eutrophication has not been taken into account in a
      those limitations are; and what factors must be considered                precise fashion. By limiting the identification of eutrophic
      by the national court in seeking to establish whether                     waters pursuant to Directive 91/676/EEC to circum-
      breaks in the continuity of residence have broken the                     stances in which nitrogen causing pollution by nitrates
      entitlement to rely on past periods of residence.                         constitutes the ‘key factor’ giving rise to eutrophication,
                                                                                that is to say, the factor in respect of which a deficit will
5.    Whether the benefit of Article 3(2) may be claimed by                     be the first thing to become apparent (compared to
      the deceased worker’s family members, in circumstances                    phosphorus), and thus by specifically limiting it to coastal
      in which the worker’s 10-month period of absence                          waters and stagnant, brackish shallow waters, and by
      represents less than a third of the period of continuous                  contrariwise excluding such identification where the key
      residence prior to the absence, and less than a fifth of the              factor is the presence of phosphorus rather than nitrogen,
      total time spent by the worker in the host state prior to                 the circular issued by the Minister for the Environment
      his death.                                                                on 5 November 1992 concerning the initial designation
                                                                                of vulnerable zones gives the competent authorities
                                                                                instructions which do not correspond to a proper appli-
                                                                                cation of Article 3 and Annex I to the directive. Although,
(1) Regulation (EEC) No 1251/70 of the Commission of 29 June                    in consequence of the judgment delivered by the Court
    1970 on the right of workers to remain in the territory of a
    Member State after having been employed in that State (OJ L 142,
                                                                                in Case C-293/97 (2), the French authorities expressly
    30.6.1970, p. 24[SE SER1 70 (II) p. 402]).                                  acknowledged the validity of the interpretation advocated
                                                                                by the Commission, that circular has not been amended
                                                                                or cancelled. The Commission states that, on a proper
                                                                                application of the directive, the Seine bay should have
                                                                                been identified as eutrophic.
 ---pagebreak--- 26.8.2000              EN                   Official Journal of the European Communities                                     C 247/25
—     The Commission confirms the finding made in the                  received at the Court Registry on 29 June 2000, for a
      reasoned opinion, to the effect that the subterranean            preliminary ruling in the case of Gründerzentrum-Betriebs-
      waters of the department of the Oise should have been            GmbH against Land Baden-Württemberg on the following
      identified as affected by pollution within the meaning of        question:
      Article 3(1) of the directive.
                                                                       In the case of operations to which Article 4(3) of Directive
                                                                       69/335/EEC (1) refers, are fees for the recording and certifi-
(1) OJ L 375 of 31.12.1991, p. 1.
                                                                       cation of documents by notaries in the civil service of the Land
(2) [1999] ECR I-2603.
                                                                       Baden-Württemberg in the Higher Regional Court District of
                                                                       Karlsruhe caught by the prohibition under Article 10 of that
                                                                       directive so that the fees may be charged only in accordance
                                                                       with the actual costs incurred by the notaries for the service in
                                                                       question?
Reference for a preliminary ruling by the Finanzgericht                (1) OJ, English Special Edition 1969 (II), p. 412.
München by order of that court of 19 April 2000 in
the case of Biochem Zusatzstoffe Handels-Produktions
GmbH v Oberfinanzdirektion Nürnberg, Außenstelle
                             München
                         (Case C-259/00)                               Reference for a preliminary ruling by the Benelux Court
                                                                       of Justice by judgment of 26 June 2000 in the case of
                                                                            Campina Melkunie B.V. v Benelux-Merkenbureau
                         (2000/C 247/37)
                                                                                (Case C-265/00)
Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht Münch-                                        (2000/C 247/39)
en (Financial Court, Munich) of 19 April 2000, received at the
Court Registry on 28 June 2000, for a preliminary ruling in            Reference has been made to the Court of Justice of the
the case of Biochem Zusatzstoffe Handels- Produktions GmbH             European Communities by judgment of 26 June 2000 by the
v Oberfinanzdirektion Nürnberg, Außenstelle München, on                Benelux Court of Justice, which was received at the Court
the following question:                                                Registry on 29 June 2000, for a preliminary ruling in the case
                                                                       of Campina Melkunie B.V. v Benelux-Merkenbureau (Benelux
Is the combined nomenclature in the version of Annex I to              Trade Marks Office) on the following questions:
Regulation (EC) No 2086/97 (1) (OJ L 312) of 4 November
1997 amending Annex I to Council Regulation (EEC)                      A.   Must Articles 2 and 3(1) of First Council Directive
No 2658/87 (2) on the tariff and statistical nomenclature and               89/104/EEC of 21 December 1988 to approximate the
on the Common Customs Tariff to be interpreted as meaning                   laws of the Member States relating to trade marks (1) be
that immunoglobulin concentrates from dried, defatted and                   construed as meaning that, in determining whether a sign
decaseinated colostrum, standardised by means of lactose, are               consisting of a new word made up of a number of
to be classified as pharmaceutical products in chapter 30?                  component parts has a sufficiently distinctive character
                                                                            to be capable of serving as a mark for the goods in
                                                                            question, one has to proceed on the assumption that this
(1) OJ L 312 of 14.11.1997, p. 1.                                           question is in principle to be answered in the affirmative
(2) OJ L 256 of 7.9.1987, p. 1.                                             even if each of those component parts is in itself devoid
                                                                            of any distinctive character for those goods, and that the
                                                                            position will be different only if there are attendant
                                                                            circumstances, for instance if the new word constitutes
                                                                            an indication, which is obvious and directly comprehen-
                                                                            sible for any person, of a commercially essential combi-
                                                                            nation of properties which cannot be indicated otherwise
Reference for a preliminary ruling by the Amtsgericht                       than through use of the new word?
Mülheim/Baden by order of that court of 20 June 2000 in
the case of Gründerzentrum-Betriebs-GmbH against Land                  B.   If Question A is to be answered in the negative: must it
                      Baden-Württemberg                                     then be assumed that a sign consisting of a new word
                                                                            which is made up of different component parts, each of
                                                                            which is in itself devoid of any distinctive character for
                         (Case C-264/00)
                                                                            the goods in question within the meaning of Article 3(1)
                                                                            of the Directive, is itself also devoid of any distinctive
                         (2000/C 247/38)                                    character, and that the situation may be different only if
                                                                            there are attendant circumstances which result in the
Reference has been made to the Court of Justice of the                      combination of the component parts being greater than
European Communities by order of the Amtsgericht Müllheim/                  the sum of those parts, for instance where the new word
Baden (Local Court, Müllheim/Baden) of 20 June 2000,                        indicates a certain creativity?


title: Case T-675/14: Judgment of the General Court of 3 March 2016 — Spain v Commission (EAGGF — Guarantee Section — EAGF and EAFRD — Expenditure excluded from financing — Expenditure incurred by the Kingdom of Spain — Flat rate financial corrections — Specific financial corrections — Extension of the financial correction to a period after the communication provided for in Article 11(1) of Regulation (EC) No 885/2006)

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/31

         Judgment of the General Court of 3 March 2016 — Spain v Commission
   (Case T-675/14) (1)

   ((EAGGF - Guarantee Section - EAGF and EAFRD - Expenditure excluded from financing - Expenditure incurred by the Kingdom of Spain - Flat rate financial corrections - Specific financial corrections - Extension of the financial correction to a period after the communication provided for in Article 11(1) of Regulation (EC) No 885/2006))
   (2016/C 136/44)
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: M. J. García-Valdecasas Dorrego, abogado del Estado)

      Defendant: European Commission (represented by: I. Galindo Martín and D. Triantafyllou, acting as Agents)

      Intervener in support of the applicant: Republic of Latvia (represented by: I. Kalniņš and D. Pelše, acting as Agents)

      Re:

   Application for annulment of Commission Implementing Decision 2014/458/EU of 9 July 2014 excluding from EU financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 205, p. 62) in so far as it concerns certain expenditure incurred by the Kingdom of Spain in the amount of EUR 2 713 208,07.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Kingdom of Spain to bear its own costs and to pay the costs incurred by the European Commission.

               3.

               Orders the Republic of Latvia to bear its own costs.

      (1)  OJ C 388, 3.11.2014.


title: Case C-422/17: Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 13 July 2017 — Szef Krajowej Administracji Skarbowej v Skarpa Travel sp. z o.o. w Krakowie

text:
               23.10.2017

               EN

               Official Journal of the European Union

               C 357/3

         Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 13 July 2017 — Szef Krajowej Administracji Skarbowej v Skarpa Travel sp. z o.o. w Krakowie
   (Case C-422/17)
   (2017/C 357/04)
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Appellant: Szef Krajowej Administracji Skarbowej

      Respondent: Skarpa Travel sp. z o.o. w Krakowie

      Questions referred

               1.

               Must Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) be interpreted as meaning that tax becomes chargeable on payments on account received by a taxable person supplying tourist services, which are taxed under the special scheme for travel agents provided for in Articles 306 to 310 of Directive 2006/112/EC, at the time defined in Article 65 of Directive 2006/112/EC?

               2.

               If the answer to the first question is in the affirmative, must Article 65 of Directive 2006/112/EC be interpreted as meaning that, for taxation purposes, a payment on account received by a taxable person supplying tourist services, taxed under the special scheme for travel agents provided for in Articles 306 to 310 of Directive 2006/112/EC, is reduced by the cost referred to in Article 308 of Directive 2006/112/EC actually incurred by the taxable person up to the time when he receives the payment on account?

      (1)  OJ 2006 L 347, p. 1.


title: Case F-113/11: Order of the Civil Service Tribunal (First Chamber) of 21 February 2013 — Marcuccio v Commission (Civil service — Article 34(1) and (6) of the Rules of Procedure — Application lodged by fax within the time-limit for bringing proceedings — Lawyer’s hand-written signature different from that on the original application received by post — Action lodged out of time — Manifestly inadmissible)

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/46

         Order of the Civil Service Tribunal (First Chamber) of 21 February 2013 — Marcuccio v Commission
   (Case F-113/11) (1)

   (Civil service - Article 34(1) and (6) of the Rules of Procedure - Application lodged by fax within the time-limit for bringing proceedings - Lawyer’s hand-written signature different from that on the original application received by post - Action lodged out of time - Manifestly inadmissible)
   2013/C 114/70
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Defendant: European Commission (represented by: C. Berardis-Kayser and J. Banquero Cruz, Agents, and A. Dala Ferro, lawyer)

      Re:

   Civil service — Application for annulment of the Commission’s implied decision rejecting the applicant’s claim for payment of arrears of remuneration owing for the month of August 2010.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

      (1)  OJ C 25, 28.1.2012, p. 69.


title: Case C-195/02: Action brought on 27 May 2002 by the Commission of the European Communities against the Kingdom of Spain

text:
C 191/18              EN                     Official Journal of the European Communities                                    10.8.2002
Action brought on 27 May 2002 by the Commission of                      —    The mandatory exchange of the licence on grounds of
the European Communities against the Kingdom of Spain                        lack of space in which to record data is not provided for
                                                                             in Point 4 of Annex I to the directive: That provision does
                                                                             not provide for an exchange in such circumstances, nor
                        (Case C-195/02)                                      does Article 8, which deals precisely with the exchange
                                                                             of driving licences. Since the directive regulates these
                                                                             matters exhaustively, it must be concluded that it pre-
                                                                             cludes a provision which requires exchange under the
                        (2002/C 191/29)                                      terms laid down in Article 25(2) of the Regulations on
                                                                             Drivers.
                                                                        —    Transitional provision number 7 of the Regulations on
An action against Kingdom of Spain was brought before the                    Drivers is contrary to Annex III to the directive: Directive
Court of Justice of the European Communities on 27 May                       91/439/EEC does not provide for the recognition of
2002 by the Commission of the European Communities,                          acquired rights. According to Article 7(1)(a), the holder
represented by Fernando Castillo de la Torre and Wouter Wils,                of a driving licence must be able to meet minimum
acting as Agents, with an address for service in Luxembourg at               standards of physical and mental fitness for driving
the office of Luis Escobar Guerrero, also of the Legal Service,              power-driven vehicles, as laid down in Annex III to the
Wagner Centre.                                                               directive. Accordingly, when renewing the driving licence,
                                                                             the holder must meet those minimum standards. The
                                                                             Commission does not accept the argument put forward
                                                                             by the Spanish authorities that the absence of any kind of
                                                                             ‘grandfather clause’ is due to an oversight.
The applicant claims
that the Court should declare that the Kingdom of Spain:
                                                                        (1) OJ 1991 L 237, p. 1.
—     by adopting Articles 22 and 24 of the Regulations on
      Drivers, has infringed Article 1(2) of Directive 91/439/
      EEC (1);
—     by adopting Article 25(2) of the Regulations on Drivers,
      has infringed point 4 of Annex I to Directive 91/439/
      EEC;
—     by adopting transitional provision number 7 of the
      Regulations on Drivers, has infringed Article 7(19(a) of
      Directive 91/439/EEC;
                                                                        Action brought on 27 May 2002 by the Commission of
                                                                        the European Communities against the Kingdom of Spain
and order the Kingdom of Spain to pay the costs.
                                                                                (Case C-197/02)
Pleas in law and main arguments
                                                                                (2002/C 191/30)
—     The obligation to enter the driving licence in a register of
      Drivers and Offenders is contrary to Article 1(2) of
      the Directive: the system of mandatory registration is
      disproportionate to the objective it pursues because the
      consequences of its non-observance are so severe. Use of
      the power conferred by the directive to apply Spanish
      rules on duration and medical checks is in no way                 An action against the Kingdom of Spain was brought before
      hindered or diluted by failure to register. Furthermore, in       the Court of Justice of the European Communities on 27 May
      order to ensure the effectiveness of a points system or           2002 by the Commission of the European Communities,
      any system which takes note of recidivism it is sufficient,       represented by Gregorio Valero Jordana, acting as Agent, with
      for example, for the details of the licence in question to        an address for service in Luxembourg at the office of Luis
      be recorded upon the first offence.                               Escobar Guerrero, also of the Legal Service, Wagner Centre.


title: Case C-529/10: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 16 November 2010 — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Safilo SpA

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/22

         Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 16 November 2010 — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Safilo SpA
   (Case C-529/10)
   ()
   2011/C 30/36
   Language of the case: Italian

      Referring court

   Corte Suprema di Cassazione (Italy)

      Parties to the main proceedings

      Appellants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

      Respondent: Safilo SpA

      Questions referred

               1.

               Does the abuse of rights principle in taxation matters, as defined in Cases C-255/02 Halifax and Others [2006] ECR I-1609 and C-425/06 Part Service [2008] ECR I-897, constitute a fundamental principle of Community law only in the field of harmonised taxes and in matters governed by secondary Community law provisions, or does it extend, as a category of abuse of fundamental freedoms, to matters involving non harmonised taxes, such as direct taxes, where the tax relates to cross-border financial matters, such as the acquisition by a company of rights of usufruct over the shares of a second company established in another Member State or in a non-Member State?

               2.

               Irrespective of the answer to the first question, is there a Community interest in provision being made by the Member States for adequate anti-avoidance measures in the field of non-harmonised taxes, and is such an interest thwarted by the failure to apply — in the context of a tax amnesty measure — the abuse of rights principle which is also recognised as a rule of national law and, if so, are the principles that may be inferred from Article 4(3) of the Treaty on European Union infringed?

               3.

               Do the principles governing the single market impliedly preclude not only extraordinary measures in the form of a total waiver of a tax claim, but also a special measure for concluding tax disputes, the application of which is limited in time and conditional upon payment of only part of the tax due, which is considerably less than the full amount?

               4.

               Do the principle of non-discrimination and the rules governing State aid preclude the system for concluding tax disputes at issue in the present case?

               5.

               Does the principle of the effective application of Community law preclude extraordinary procedural rules of limited duration which remove the power to review legality (in particular concerning the correct interpretation and application of Community law) from the court of last instance, which is under an obligation to refer questions of validity and interpretation requiring a preliminary ruling to the Court of Justice of the European Union?


title: Case T-200/06: Action brought on 26 July 2006 — IBERDROLA v Commission of the European Communities

text:
               30.9.2006

               EN

               Official Journal of the European Union

               C 237/9

         Action brought on 26 July 2006 — IBERDROLA v Commission of the European Communities
   (Case T-200/06)
   (2006/C 237/17)
   Language of the case: Spanish
   Parties

      Applicant: IBERDROLA S.A. (Bilbao, Spain) (represented by: J. Alfaro Aguila-Real, P. Liñán Hernández, S. Martínez Lage, H. Brokelmann and J. Ruiz Calzado, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the contested decision;

               —

               Order the Commission to pay all the costs of the proceedings.

         Pleas in law and main arguments
   The present action is directed against the Decision of the European Commission of 25 April 2006 (Case No COMP/M.4110 — E.ON/ENDESA) declaring compatible with the common market the concentration whereby E.ON AG proposes to acquire control of the whole of the shares in ENDESA SA.
   The applicant claims in that regard that, in its opinion, the contested decision disregards the serious risks that coordinated effects will be produced in the relations of competition between the principal operators with a pan-European presence, which must be examined in a transaction of this magnitude and having these characteristics, that it affects the dominant undertakings in two of the main national energy markets.
   In support of its claims, the applicant maintains that the defendant has:

               —

               infringed the principle of sound administration by carrying out a biased and inadequate investigation of the operation of the affected markets and of the impact of the transaction in those markets;

               —

               made an error of law by basing its examination of the transaction on a consideration of the national markets, contrary to the Merger Regulation and the Community case-law;

               —

               failed to fulfil its obligation to ensure the coherent application of the rules on the control of concentrations and the abuse of a dominant position in examining the notified transaction, authorising it without having examined the origin of the funds which E.ON proposed to use for the acquisition of ENDESA, in order to determine whether such a concentration could be the result of an abuse of a dominant position;

               —

               made a series of manifest errors of assessment and ignored certain relevant elements by concluding that the compatibility of the transaction does not raise serious doubts and adopting the decision authorising it in Phase 1. The applicant emphasises in that regard that, although it was adopted on the basis of the new Merger Regulation, which requires a more sophisticated and rigorous analysis, the contested decision:

                           —

                           wholly ignores the negative impact which the transaction will have on the process of the integration of the national wholesale markets, which will culminate in the completion of the single European market in gas and electricity,

                           —

                           did not sufficiently evaluate the impact of the proposed transaction on the emergent pan-European market for the supply of electricity to multinational undertakings,

                           —

                           considers that, in spite of its pan-European objective and its economic strength, E.ON was not a significant potential competitor of ENDESA in the Spanish markets for electricity generation and the supply of gas,

                           —

                           concludes that the transaction will not strengthen a dominant position in the German market and that the disappearance of a recent entrant, ENDESA, does not alter the competitive context.

         Finally the applicant claims that there has been a breach of the duty to state the reasons on which measures are based.


title: Case C-170/15 P: Appeal brought on 14 April 2015 by Enercon GmbH against the judgment of the General Court (Fourth Chamber) of 28 January 2015 in Case T-655/13, Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/6

         Appeal brought on 14 April 2015 by Enercon GmbH against the judgment of the General Court (Fourth Chamber) of 28 January 2015 in Case T-655/13, Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-170/15 P)
   (2016/C 136/10)
   Language of the case: German

      Parties

      Appellant: Enercon GmbH (represented by: R. Böhm, Rechtsanwalt)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   By order of 21 January 2016 the Court of Justice of the European Union (Sixth Chamber) dismissed the appeal and ordered the appellant to bear its own costs.


title: Case C-36/16: Judgment of the Court (Second Chamber) of 11 May 2017 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Minister Finansów v Posnania Investment SA (Reference for a preliminary ruling — Taxation — Common system of value added tax — Directive 2006/112/EC — Article 2(1)(a) — Article 14(1) — Taxable transactions — Meaning of ‘supply of goods for consideration’ — Transfer to the State or to a local authority of immovable property in order to settle a tax debt — Not included)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/10

         Judgment of the Court (Second Chamber) of 11 May 2017 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Minister Finansów v Posnania Investment SA
   (Case C-36/16) (1)

   ((Reference for a preliminary ruling - Taxation - Common system of value added tax - Directive 2006/112/EC - Article 2(1)(a) - Article 14(1) - Taxable transactions - Meaning of ‘supply of goods for consideration’ - Transfer to the State or to a local authority of immovable property in order to settle a tax debt - Not included))
   (2017/C 239/12)
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Applicant: Minister Finansów

      Defendant: Posnania Investment SA

      Operative part of the judgment

   Articles 2(1)(a) and 14(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the transfer of ownership of immovable property by a person subject to value added tax, for the benefit of the State Treasury or a local authority of a Member State, occurring, as in the main proceedings, in payment of tax arrears, does not constitute a supply of goods for consideration that is subject to value added tax.

      (1)  OJ C 145, 25.4.2016.


title: Case C-584/12 P: Appeal brought on 13 December 2012 by El Corte Inglès, S.A. against the judgment of the General Court (Sixth Chamber) of 27 September 2012 in Case T-357/09 Pucci International/OHIM v El Corte Inglès (Emidio Tucci)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/10

         Appeal brought on 13 December 2012 by El Corte Inglès, S.A. against the judgment of the General Court (Sixth Chamber) of 27 September 2012 in Case T-357/09 Pucci International/OHIM v El Corte Inglès (Emidio Tucci)

   (Case C-584/12 P)
   2013/C 63/17
   Language of the case: Spanish

      Parties

      Appellant: El Corte Inglès, S.A. (represented by: J.L. Rivas Zurdo y E. Seijo Veiguela, lawyers)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Emilio Pucci International BV

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court in Case T-357/09 of 27 September 2012 in its entirety

               —

               order OHIM to pay the costs of El Corte Inglés, S.A.

               —

               order Emilio Pucci International BV to pay the costs of El Corte Inglés, S.A.

      Pleas in law and main arguments

   The opposing party has not proved use for glasses, as established by the Board of Appeal of OHIM. In addition, that criterion in particular, i.e. non-consideration of genuine use in relation to the mere appearance of the trademark on or next to photographs, was specifically considered by the General Court in the judgment in Case T-39/10, (1) in paragraph 31. Accordingly, the judgment should not have considered proved the use for glasses of class 9 of previously mentioned trademark 274991.
   Concerning the risk of confusion, Article 8(1) of Regulation No 40/94 (2) and the relevant case-law require it to be assessed globally taking into account all factors relevant to the circumstances of the case. The Second Board of Appeal of OHIM found that those factors differed in their nature, in their purpose and in their method of use, adequately substantiating that argument (paragraph 102 of the contested decision). Whilst cosmetics or jewellery may retain a link with the broad and at the same time heterogeneous fashion sector, it does not mean they have a link with or should be considered similar to the goods contained in classes 18, 24 and 25.
   The extension of the effects of Article 8(5) of Regulation No 207/2009 (3) to other goods of class 9 (glasses) and 14 (jewellery, imitation jewellery and watches) and to toilet paper (class 16) is inadequately reasoned and is based on presumptions which have not been proved by the applicant in Case T-357/09. (4) Especially in such cases, as noted by that very judgment at paragraphs 70 and 71, mere hypotheses cannot be admitted and nor can marks of great repute benefit from that extension per se, as the existence of future risks needs to be proved, which the applicant has not done.

      (1)  Judgment of the General Court in Case T-39/10 El Corte Inglès v OHIM of 27 September 2012, not yet published

      (2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 011 p. 1)

      (3)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1)

      (4)  Judgment of the General Court in Case T-357/09 Pucci International v OHIM/El Corte Inglès (Emidio Tucci) of 27 September 2012, not yet published


title: Case C-517/04: Judgement of the Court (Second Chamber) of  8 June 2006  (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — Visserijbedrijf D.J. Koornstra & Zn. vof v Productschap Vis (Charge on the landing of shrimp with fishing vessels registered in a Member State intended to finance shrimp sieving and peeling equipment in the same Member State — Article 25 EC — Charges having an effect equivalent to customs duties — Article 90 EC — Internal taxation)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/4

         Judgement of the Court (Second Chamber) of 8 June 2006 (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — Visserijbedrijf D.J. Koornstra & Zn. vof v Productschap Vis
   (Case C-517/04) (1)

   (Charge on the landing of shrimp with fishing vessels registered in a Member State intended to finance shrimp sieving and peeling equipment in the same Member State - Article 25 EC - Charges having an effect equivalent to customs duties - Article 90 EC - Internal taxation)
   (2006/C 178/06)
   Language of the case: Dutch
   Referring court
   College van Beroep voor het bedrijfsleven
   Parties to the main proceedings

      Applicant: Visserijbedrijf D.J. Koornstra & Zn. vof

      Defendant: Productschap Vis
   Re:
   Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Compatibility with Community law, in particular Articles 25 EC and 90 EC, of a charge imposed in a Member State on operators landing shrimp with a vessel registered in that State — Charge also payable by such an operator in respect of shrimp transported elsewhere in the Community — Charge intended to finance shrimp sieving and peeling in that State — Charge having an equivalent effect — Whether a charge applicable to operators or to products
   Operative part of the judgment
   A charge levied by an association governed by public law of a Member State, on the basis of identical criteria, on national products intended for the national market or for export to other Member States constitutes a charge having an effect equivalent to an export duty, prohibited by Articles 23 EC and 25 EC, if the revenue from that charge is used to finance activities which benefit only the national products intended for the national market and the advantages stemming from the use of the revenue from that charge fully offset the burden borne by those products. On the other hand, if the advantages accruing to the national products processed or marketed on the national market from the use of the revenue generated by that charge offset only partially the burden borne by those products, such a charge would constitute a breach of the prohibition on discrimination laid down by Article 90 EC.

      (1)  OJ C 69, 19.3.2005.


title: Case C-621/15: Request for a preliminary ruling from the Cour de cassation (France) lodged on 23 November 2015 –W and Others v Sanofi Pasteur MSD SNC, Caisse primaire d’assurance maladie des Hauts-de-Seine, Caisse Carpimko

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/18

         Request for a preliminary ruling from the Cour de cassation (France) lodged on 23 November 2015 –W and Others v Sanofi Pasteur MSD SNC, Caisse primaire d’assurance maladie des Hauts-de-Seine, Caisse Carpimko
   (Case C-621/15)
   (2016/C 048/25)
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicants: W and Others

      Defendant: Sanofi Pasteur MSD SNC, Caisse primaire d’assurance maladie des Hauts-de-Seine, Caisse Carpimko

      Questions referred

               1.

               Must Article 4 of Council Directive 85/374/EEC (1) of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products be interpreted as precluding, in the area of liability of pharmaceutical laboratories for the vaccines that they manufacture, a method of proof by which the court ruling on the merits, in the exercise of its exclusive jurisdiction to appraise the facts, may consider that the facts relied on by the applicant constitute serious, specific and consistent presumptions capable of proving the defect in the vaccine and the existence of a causal relationship between it and the disease, notwithstanding the finding that medical research does not establish a relationship between the vaccine and the occurrence of the disease?

               2.

               If the answer to Question 1 is in the negative, does Article 4 of Directive 85/374, cited above, preclude a system of presumptions by which the existence of a causal relationship between the defect attributed to a vaccine and the damage suffered by the injured person will always be considered to be established where certain indications of causation are found?

               3.

               If the answer to Question 1 is in the affirmative, must Article 4 of Directive 85/374, cited above, be interpreted as meaning that proof, the burden of which rests on the person injured, of the existence of a causal relationship between the defect attributed to a vaccine and the damage suffered by that person cannot be considered to have been adduced unless the causal relationship is established scientifically?

      (1)  OJ L 210, p. 29.


title: Case C-225/13: Judgment of the Court (Second Chamber) of 9 April 2014 (request for a preliminary ruling from the Conseil d’État — Belgium) — Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix v Région Wallonne (Reference for a preliminary ruling — Environment — Waste — Directive 75/442/EEC — Article 7(1) — Management plan — Suitable sites or installations for the disposal of waste — Concept of waste management plan — Directive 1999/31/EC — Articles 8 and 14 — Landfills which have been granted a permit, or which are already in operation at the time of transposition of that directive)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/13

         Judgment of the Court (Second Chamber) of 9 April 2014 (request for a preliminary ruling from the Conseil d’État — Belgium) — Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix v Région Wallonne
   (Case C-225/13) (1)

   ((Reference for a preliminary ruling - Environment - Waste - Directive 75/442/EEC - Article 7(1) - Management plan - Suitable sites or installations for the disposal of waste - Concept of waste management plan - Directive 1999/31/EC - Articles 8 and 14 - Landfills which have been granted a permit, or which are already in operation at the time of transposition of that directive))
   2014/C 175/15
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix

      Defendant: Région wallonne

      Intervening party: Shanks SA

      Re:

   Request for a preliminary ruling — Conseil d’État — Interpretation of Article 7(1) of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39) and Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30) — Disposal of waste — Concept of waste management plan — National rule that no landfills may be authorised except on the sites provided for in the waste management plan — Derogating rule that authorises landfill permits issued before the entry into force of the waste management plan to be renewed — Concept of plan and programme

      Operative part of the judgment

   Article 7(1) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Commission Decision 96/350/EC of 24 May 1996, must be interpreted as meaning that a national legislative provision, such as that at issue in the main proceedings, which provides that, in derogation from the rule that no landfills may be authorised except on the sites provided for in the waste management plan required by that article, landfills authorised before that waste management plan entered into force may, after such entry into force, be granted new permits in respect of the plots covered by the authorisation, does not constitute a ‘waste management plan’ within the meaning of that provision of Directive 2001/42, as amended by Decision 96/350.
   Article 8 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, as amended by Council Directive 2011/97/EU of 5 December 2011, does not, however, preclude such a national legislative provision which may be based on Article 14 of that directive and apply to landfills which have been granted a permit or which are already in operation at the date of the transposition thereof, provided that the other conditions set out in Article 14 are met, which it is for the referring court to ascertain.

      (1)  OJ C 207, 20.7.2013.


title: Case F-137/14: Action brought on 8 December 2014  — ZZ v Commission

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/54

         Action brought on 8 December 2014 — ZZ v Commission
   (Case F-137/14)
   (2015/C 034/67)
   Language of the case: German

      Parties

      Applicant: ZZ (represented by: H. Tettenborn, lawyer)

      Defendant: Commission

      Subject-matter and description of the proceedings

   Annulment of the decision of the European External Action Service of 29 January 2014 to terminate the applicant’s employment under a contract of indefinite duration and a claim for damages for the moral prejudice and non-pecuniary harm suffered by him.

      Form of order sought

               —

               Annul the decision notified to the applicant by letter of the EEAS of 29 January 2014, by which the applicant’s employment was terminated on seven months’ notice at midnight on 31 August 2014;

               —

               Order the EEAS to pay the applicant compensation of an appropriate amount, as assessed by the Tribunal, in respect of the moral prejudice and non-pecuniary harm suffered by him as a result of the decision of the EEAS referred to above;

               —

               Order the EEAS to compensate the applicant in full for the material harm suffered by him, in particular by payment of all outstanding remuneration and all other expenses caused to the applicant by the unlawful conduct of the EEAS (net of unemployment benefit received or income from work);
               In the alternative, in the event that, for legal or factual reasons, the applicant is not reinstated in the service and/or further employed under the previous conditions, order the EEAS to pay the applicant compensation for material harm suffered by him as a result of the unlawful termination of his employment in the amount of the difference between his actual expected income and the income which the applicant would have received had the contract continued to run, having regard to pension benefits and other entitlements; and

               —

               Order the EEAS to pay the costs of the proceedings.


title: Case F-79/15: Action brought on 26 May 2015 — ZZ v ECB

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/57

         Action brought on 26 May 2015 — ZZ v ECB
   (Case F-79/15)
   (2015/C 279/73)
   Language of the case: French

      Parties

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

      Defendant: European Central Bank

      Subject-matter and description of the proceedings

   Annulment of the decision of the European Central Bank to close the procedure for recognition of the occupational source of the applicant’s disease and claim for damages in respect of the material and non-material harm allegedly suffered.

      Form of order sought

               —

               Annul the contested decision;

               —

               Order the European Central Bank to pay her EUR 30  000 in respect of the material and non-material harm suffered;

               —

               Order the European Central Bank to pay the costs.


title: Case C-63/06: Reference for a preliminary ruling from the Lietuvos Vyriausiasis Administracinis Teismas by order of that court of  20 December 2005  in UAB  Profisa  v Muitines Departamentas prie Lietuvos Respublikos Finansų Ministerijos

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/14

         Reference for a preliminary ruling from the Lietuvos Vyriausiasis Administracinis Teismas by order of that court of 20 December 2005 in UAB ‘Profisa’ v Muitines Departamentas prie Lietuvos Respublikos Finansų Ministerijos
   (Case C-63/06)
   (2006/C 86/26)
   Language of the case: Lithuanian
   Reference has been made to the Court of Justice of the European Communities by order of the Lietuvos Vyriausiasis Administracinis Teismas (Supreme Administrative Court of Lithuania) (Lithuania) of 20 December 2005, received at the Court Registry on 3 February 2006, for a preliminary ruling in the proceedings between UAB 'Profisa' and Muitines Departamentas prie Lietuvos Respublikos Finansų Ministerijos (Customs Department of the Ministry of Finances of the Republic of Lithuania) on the following question:
   Having regard to the differences in various language versions in the wording of Council Directive 92/83/EEC (1) of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages, is Article 27(1)(f) of that directive to be understood as imposing an obligation on Member States to exempt from excise duty ethyl alcohol imported into the customs territory of the European Communities and contained in chocolate products intended for direct use, where the alcohol content does not exceed 8.5 litres for every 100 kilograms of the chocolate products?

      (1)  OJ L 316, p. 21.


title: Case C-145/06 and C-146/06: Judgment of the Court (Third Chamber) of 5 July 2007 (reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento, Italy) — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento (Directive 2003/96/EC — Community framework for the taxation of energy products and electricity — Scope of the directive — Mineral oils — Lubricating oils used for purposes other than as motor fuels or as heating fuels — Not included — Repeal of Directive 92/81/EEC — National taxation scheme)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/11

         Judgment of the Court (Third Chamber) of 5 July 2007 (reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento, Italy) — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento
   (Case C-145/06 and C-146/06 (1))
   (Directive 2003/96/EC - Community framework for the taxation of energy products and electricity - Scope of the directive - Mineral oils - Lubricating oils used for purposes other than as motor fuels or as heating fuels - Not included - Repeal of Directive 92/81/EEC - National taxation scheme)
   (2007/C 199/17)
   Language of the case: Italian
   Referring court
   Commissione tributaria di secondo grado di Trento
   Parties to the main proceedings

      Applicant: Fendt Italiana Srl

      Defendant: Agenzia Dogane Ufficio Dogane di Trento
   Re:
   Reference for a preliminary ruling — Commissione tributaria di secondo grado di Trento — Interpretation of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) — Compatibility of a national law providing for taxation of lubricating oils intended for use other than as motor fuels or as heating fuels
   Operative part of the judgment
   Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/75/EC of 29 April 2004, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides for the levying of a tax on the consumption of lubricating oils, where they are intended for use, offered for sale or used other than as motor fuels or as heating fuels.

      (1)  OJ C 143, 17.6.2006.


title: Case T-38/06: Order of the Court of First Instance of 11 September 2008 — Italy v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/62

         Order of the Court of First Instance of 11 September 2008 — Italy v Commission
   (Case T-38/06) (1)

   (2008/C 301/110)

      Language of the case: Italian

   The President of the Court of First Instance (Second Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 74, 25.3.2006.


title: Case T-358/11: Action brought on 27 June 2011 — Italy v Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/44

         Action brought on 27 June 2011 — Italy v Commission
   (Case T-358/11)
   2011/C 252/96
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: P. Marchini, avvocato dello Stato)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the following measures: (i) as not being in conformity with the rules of the European Union: European Commission Implementing Decision C(2011) 2517 of 15 April 2011 … excluding from European Union financing the expenditure incurred by Italy under the EAGGF Guarantee Section in relation to the Public Storage — Sugar measure for the financial year 2006 (10 % flat-rate adjustment, amounting to EUR 171 418,00, the reason being ‘35 % increase in storage costs’), the financial year 2007 (10 % flat-rate adjustment, amounting to EUR 182 006,00, the reason being ‘35 % increase in storage costs’), the financial year 2008 (10 % flat-rate adjustment, amounting to EUR 111 062,00, the reason being ‘35 % increase in storage costs’), the financial year 2009 (10 % flat-rate adjustment, amounting to EUR 34 547,00, the reason being ‘35 % increase in storage costs’), the financial year 2006 (5 % flat-rate year adjustment, amounting to EUR 781 044,00, the reason being ‘late inventory controls’) indicated in the Annex to that decision, which relates to Article 1 thereof; (ii) as measures constituting a sine qua non for Decision C(2011) 2517: the letter of the European Commission Directorate-General for Agriculture and Rural Development (Directorate J: Audit of Agricultural Expenditure), No ARES (2011) 2287 of 3 January 2011, and point 2 of the Annex thereto, setting out the definitive reasons in support of the final position following the report of the Dispute Settlement Body in Case 10/IT/435; (iii) as measures constituting a sine qua non for Decision C(2011) 2517: the letter of the European Commission Directorate-General for Agriculture and Rural Development (Directorate J: Audit of Agricultural Expenditure), No ARES (2010) 57525 of 3 February 2010 and the Annex thereto setting out the reasons for the exclusion from Community financing;

               —

               (as an incidental claim) uphold the preliminary plea of illegality in respect of Regulation (EC) No 915/2006.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to carry out a preliminary investigation in relation to the financial adjustment of the costs itemised as ‘35 % increase in storage costs for the financial years 2006, 2007, 2008, 2009’
               According to the Italian Government, the Commission did not adequately investigate the evidence produced by the AGEA [Agricultural Payments Agency], which shows that the market survey had been carried out and that there was awareness of the causes underlying the increase in the prices charged for the rental of silos, which stemmed from the difficult situation prevailing since 2005 in the market for the rental of storage space for the sugar stocks.

               2.

               Second plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to state reasons in relation to the financial adjustment of the costs itemised as ‘35 % increase in storage costs for the financial years 2006, 2007, 2008, 2009’
               According to the Italian Government, the Commission did not explain the failure to treat the statements made by the AGEA officials or the tariff of one of the major warehousing operators as appropriate documentary evidence for showing that there had been a general request on the part of the sugar companies for a price increase of up to 50 %.

               3.

               Third plea in law, alleging infringement and misinterpretation of Article 8 of Regulation (EC) No 884/2006, and Annex I thereto, and of Article 4 of Regulation (EC) No 2148/1996, as amended by the Annex to Commission Regulation (EC) No 915/2006, and breach of the principle of legal certainty, the principle that legislation must not be retroactive and the principle of the protection of legitimate expectations, in relation to the 5 % flate-rate financial adjustment for the 2006 financial year, owing to ‘late inventory controls’.
               The Italian Government submits that the Commission acted in breach of the transitional rules provided for in Point 5 of Section AII of Annex I to Regulation No 884/2006. Given that the AGEA had already carried out those activities as part of the inspections required under the Italian legislation, and had furnished proof of this to Commission staff, by handing over all the loading and discharge registers and the related records to the Commission delegation in the course of the May 2007 inspection visit, the transitional rules should have applied and, accordingly, no penalty should have been imposed on the Italian State, which — owing to genuine organisational difficulties regarding coordination with Agecontrol — could be regarded as entitled to submit only the summary documents in February 2007. The Italian Government alleges breach of the principle of legal certainty, the principle that legislation must not be retroactive, the principle of the protection of legitimate expectations and the principle of proportionality, on the ground that it is inconsistent with those principles to apply an inventory obligation immediately in respect of operations which had long been completed by the time that those regulations entered into force on 23 and 24 June 2006 (in particular, the Annex to Regulation No 915/2006) and shortly before the accounts were closed in respect of the EAGGF year on 30 September 2006.

               4.

               Fourth plea in law, alleging breach of essential procedural requirements (Article 2[96] T[F]EU, formerly Article 253 TEC): specifically, failure to state reasons in relation to the 5 % flat-rate financial adjustment for the 2006 financial year, owing to ‘late inventory controls’
               According to the Italian Government, the Commission did not state adequate reasons for declining to implement the proposal put forward by the Dispute Settlement Body in so far as, under that proposal, the new rule laid down in Regulation (EC) No 915/2006 fixing the inventory deadline was to be applied to sugar movements only with effect from the entry into force of that regulation and not retroactively to the entire financial year 2006, with the effect that the financial adjustment imposed would have been commensurately reduced (by approximately 8 months).

               5.

               Fifth plea in law, alleging that Regulation (EC) No 915/2006 is unlawful
               The Italian Government alleges that Regulation (EC) No 915/2006 is unlawful in so far as it imposes the obligation to inventory the remaining stocks for the 2004/2005 marketing year (30 September 2005), the initial stocks for the 2005/2006 marketing year (1 October 2005) and the remaining stocks for the 2005/2006 marketing year (30 September 2006), in the course of the 2006 financial year, approximately only three months before the new inventory deadline. According to the Italian Government, it is contrary to the general principles of Community law to make actions compulsory, by means of a regulation, in respect of events which are past and complete and, as a consequence, to penalise their omission by means of the financial adjustment procedure.

               6.

               Sixth plea in law, alleging breach of essential procedural requirements: specifically, failure to state reasons and failure to produce sufficient evidence (Article 2[96] T[F]EU, formerly Article 253 TEC)
               According to the Italian Government, the Commission distorts the facts in so far as it applies a financial adjustment on the mistaken premise, proposed by DG AGRI, to the effect that there was no AGEA monitoring of‘sugar in’ and ‘sugar out’, and that ‘approximately 127 000 tons of sugar were moved (without the weight being officially checked’. The Italian Government also submits that insufficient evidence has been produced to substantiate the allegation ‘of not undertaking the annual inventory inspection … when the warehousing operations were carried out’ or the allegation that ‘approximately 127 000 tons of sugar were moved (without being officially checked or weighed) between 30 September 2006 (the date by which the inventory should have been made) and February 2007’. Given the documentary evidence offered by the AGEA, that is to say, the accounting records — handed over to Commission staff — showing the figures relating to the movement and stocking of the sugar, for each single consignment placed in storage, the Commission services cannot maintain the contrary without proving it.

               7.

               Seventh plea in law, alleging breach of essential procedural requirements: specifically, failure to state reasons and failure to produce sufficient evidence (Article 2[96] T[F]EU, formerly Article 253 TEC), in relation to the alleged risk that the Fund would sustain damage
               According to the Italian Government, the decision is flawed by failure to state adequate reasons for not appraising the useful effect of the inspections and controls which the AGEA nevertheless undertakes of ‘sugar in’ to storage and‘sugar out’ of storage, and of their monthly stocks.


title: Appeal brought on 22 November 1995 by the Commission of the European Communities against the judgment delivered on 18 September 1995 by the First Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-548/93 between Ladbroke Racing Ltd and the Commission of the European Communities, supported by the French Republic (Case C-359/95 P)

text:
No C 31 / 10            EN                    Official Journal of the European Communities                                    3 . 2 . 96
The appellant claims that the Court should:                              1995 by the Commission of the European Communities,
                                                                         represented by Francisco Enrique Gonzalez-Diaz and
1 . set aside the judgment of the Court of First Instance of             Richard Lyal, members of the Legal Service, acting as agents,
      13 September 1995 in Joined Cases T-244/93 and                     with an address for service in Luxembourg at the office of
     T-486/93 TWD Textilwerke Deggendorf GmbH v.                         Carlos Gomez de la Cruz, Centre Wagner, Kirchberg.
     Commission ( ! );
                                                                         The appellant claims that the Court should :
2.   declare     void   Article    2  of   Commission       Decision
     91/391 /EEC of 26 March 1991 on aid granted by the                  — quash the judgment of the Court of First Instance ( First
     German Government to TWD Textilwerke Deggendorf                          Chamber, extended composition ) of 18 September 1995
     GmbH ( OJ 1991 No L 215 , p. 16 ) and Article 2 of                       in Case T-548/93 , Ladbroke Racing Limited v.
     Commission Decision 92/330/EEC of 18 December                            Commission of the European Communities in so far
      1991 on aid by Germany to that undertaking ( OJ 1992                    as it annuls the Commission's decision contained in the
     No L 183 , p. 36 );                                                      letter dated 29 July 1993 rejecting the Ladbroke
                                                                              Racing Limited complaint of 24 November 1989
3 . order the Commission to pay the costs .                                   ( IV/33.374 ),
                                                                         — dismiss       the   application      under Article 173     as
Pleas in law and main arguments adduced in support:                           unfounded,
Infringement of Community law: the appellant repeats the                 — order the applicant to pay the costs in both levels of
pleas advanced by it in the proceedings at first instance (2 )                jurisdiction.
and further complains that the Court of First Instance
reinterpreted the contested decisions in an inadmissible
manner as meaning that the Commission had declared the                   Pleas in law and main arguments adduced in support:
new aid incompatible with the common market until such
time as the old aid was repaid . The Court of First Instance             The Commission submits that the judgment of the Court of
                                                                         First Instance is vitiated by errors of law and should be set
should in that regard have disregarded the wording and
scheme of the Commission decisions, and was entitled to                  aside . First, the judgment erred in law in formulating a
rely only on the considerations set out in the Commission's              general principle according to which the Commission must
statement of reasons; however, such considerations are                   examine the compatibility with the Treaty of legislation
                                                                         imposing obligations previously included in private
subordinate to the operative part of a decision . Moreover,
the reinterpretation applied to Article 1 of the decisions is in
                                                                         agreements before examining the applicability of Articles 85
                                                                         and 86 to these agreements . Second, the judgment ignores
any event inadmissible since it is only Article 2 thereof which
is being contested.                                                      the fact that, irrespective of the compatibility of French
                                                                         legislation with the Treaty, the Commission found that
                                                                         there were no infringements of Articles 85 and 86 of the
(') OJ No C 286 , 28 . 10 . 1995 , p . 8 .                               Treaty. That is to say, the Commission had sufficient
(2 ) As to those advanced in Case T-244/93 ( previously Case             grounds to reject the Applicant's complaint relating to the
     C-161 /91 ), see OJ No C 212 , 14 . 8 . 1991 , p. 10; as to those   alleged infringement of Articles 85 and 86 by the
     advanced in Case T-486/93 ( previously Case C-220/92 ), see
     OJ No C 167, 4 . 7 . 1992 , p. 8 .
                                                                         undertakings without having to determine whether or not
                                                                         the French legislation was incompatible with the Treaty.
                                                                         Third, the judgment is not adequately reasoned .
                                                                         (') OJ No C 286 , 28 . 10 . 1995 , p . 12 .
Appeal brought on 22 November 1995 by the Commission
of the European Communities against the judgment
delivered on 18 September 1995 by the First Chamber
( extended composition ) of the Court of First Instance of the           Reference for a preliminary ruling by order of the Tribunale
European Communities in Case T-548/93 ( J ) between                      di Salerno of 12 October 1995 in the proceedings brought
Ladbroke Racing Ltd and the Commission of the European                   before that court by Somalfruit SpA and Camar SpA against
       Communities, supported by the French Republic                     the Ministero delle Finanze and Ministero del Commercio
                         ( Case C-359/95 P)                                                         con l'Estero
                             ( 96/C 31/19 )                                                      ( Case C-369/95 )
                                                                                96/C 31 /20 )
An appeal against the judgment delivered on 18 September
 1995 by the First Chamber ( extended composition ) of the                Reference has been made to the Court of Justice of the
 Court of First Instance of the European Communities in                   European Communities by order of the Tribunale di Salerno
 Case T-548/93 between Ladbroke Racing Ltd and the                        ( Regional Court, Salerno ) of 12 October 1995 , which was
 Commission of the European Communities, supported by                     received at the Court Registry on 28 November 1995 , for a
the French Republic, was brought before the Court of                      preliminary ruling in the proceedings brought before that
Justice of the European Communities on 22 November                        court by Somalfruit SpA and Camar SpA against the


title: Appeal brought on 6 July 1998 by Dorsch Consult Ingenieurgesellschaft mbH against the judgment delivered on 28 April 1998 by the Second Chamber of the Court of First Instance of the European Communities in Case T-184/95 Dorsch Consult Ingenieurgesellschaft mbH and Council of the European Union and Commission of the European Communities (Case C-237/98 P)

text:
5.9.98               EN                 Official Journal of the European Communities                                C 278/19
Reference for a preliminary ruling from the Arbetsdomstol          5. In answering question 4, is significance to be attached
by order of that court of 2 July 1998 in the case brought              to the fact that the midwives, but not the clinical
by Jämställdhetsombudsmannen Lena Svenaeus against                     technician, perform shift work which, under the terms
                   Örebro Läns Landsting                               of the collective agreement, affords entitlement to
                      (Case C-236/98)                                  reduced working hours?
                       (98/C 278/32)                               (1) OJ L 45, 19.2.1975, p. 19.
Reference has been made to the Court of Justice of the
European Communities by an order of the Arbetsdomstol
of 2 July 1998, which was received at the Court Registry
on 6 July 1998, for a preliminary ruling in the case
brought by Jämställdhetsombudsmannen Lena Svenaeus                 Appeal brought on 6 July 1998 by Dorsch Consult
against Örebro Läns Landsting on the following questions:          Ingenieurgesellschaft mbH against the judgment delivered
                                                                   on 28 April 1998 by the Second Chamber of the Court of
                                                                   First Instance of the European Communities in Case
1. Under Article 119 of the Treaty of Rome and Council             T-184/95 Dorsch Consult Ingenieurgesellschaft mbH and
    Directive 75/117/EEC (1) on the approximation of the           Council of the European Union and Commission of the
    laws of the Member States relating to the application                             European Communities
    of the principle of equal pay for men and women,                                     (Case C-237/98 P)
    must compensation for unsocial working hours be
    included in the basis for a pay comparison in relation                                  (98/C 278/33)
    to a pay discrimination claim? What difference does it
    make that the compensation for unsocial working
    hours varies from month to month depending on the              An appeal against the judgment delivered on 28 April
    working schedule?                                              1998 by the Second Chamber of the Court of First
                                                                   Instance in Case T-184/95 between Dorsch Consult
                                                                   Ingenieurgesellschaft mbH and Council of the European
2. In answering question 1 should significance be                  Union and Commission of the European Communities was
    attached to the fact that as part of their tasks the           brought before the Court of Justice of the European
    midwives must regularly work hours which entitle               Communities on 6 July 1998 by Dorsch Consult
    them to compensation for working during unsocial               Ingenieurgesellschaft mbH, represented by Professor Dr
    working hours, whereas the clinical technician does            Karl M. Meessen, with an address for service in
    not regularly perform work during times which afford           Luxembourg at the Chambers of Patrick Kinsch, 100
    entitlement to such compensation?                              Boulevard de la PeÂtrusse, L-2320 Luxembourg.
3. In determining the question whether compensation                The appellant claims that the Court should:
    for unsocial working hours is to be included in
    the basis for a pay comparison in relation to a pay
    discrimination claim, must significance be attached to         Ð set aside the judgment of the Court of First Instance of
    the fact that, under national law, such compensation is            22 April 1998 in Case T-184/95 (1),
    included in basic pay for the purpose of determining
    pensions, sickness pay, damages and other pay related          Ð allow the application,
    compensation?
                                                                   Ð in the alternative, refer the case back to the Court of
4. Must a reduction in working time, representing the                  First Instance, and
    difference in standard working time for daytime work
    and work under a continuous three-shift regime, be
    taken into account when a pay comparison is made in            Ð order the defendants and respondents to pay the costs
    relation to a pay discrimination claim, in accordance              of the proceedings.
    with Article 119 of the Treaty of Rome and Council
    Directive 75/117/EEC on the approximation of the
    laws of the Member States relating to the application          Pleas in law and main arguments adduced in support:
    of the principle of equal pay for men and women? If
    the answer is in the affirmative: what significance does       (As to the existence of actual and certain damage)
    it have that under the collective agreement the lower
    standard working time applying under a continuous
    three-shift regime constitutes full-time working? If           Ð The Court's view that the facts found by it should not
    reduced working hours are to be given a particular                 be characterised as actual and certain damage' is
    value, is that value to be regarded as being comprised             wrong in law. If a correct characterisation were made,
    in the fixed monthly pay or as constituting special                the existence of such damage would follow from facts
    compensation which is to be included in the pay                    found in the judgment or in the minutes of the oral
    comparison?                                                        procedure,
 ---pagebreak--- C 278/20              EN                Official Journal of the European Communities                                      5.9.98
Ð the above view of the Court is based exclusively on                  legislature failed to exercise its discretion when setting
    grounds that are either irrelevant, represent incorrect            the amount of the compensation.
    views of the law or distort the facts emerging from the
    judgment and the documents before the Court,
                                                                   (1) OJ C 184, 13.6.1998, p. 9.
    contrary to law,
Ð (alternatively) the Court did not attempt to clarify the
    uncertainty which itself found regarding the actual
    situation, since it did not appraise, discuss or, to an
    extent, even mention the relevant evidence submitted
    by the plaintiff.                                              Action brought on 7 July 1998 by the Commission of the
                                                                       European Communities against the French Republic
                                                                                (Case C-239/98)
(As to the existence of a direct and foreseeable causal link)
                                                                                (98/C 278/34)
Ð The Court's view that the facts found by it should not
    be characterised as a direct [and foreseeable] causal         An action against the French Republic was brought before
    link between the alleged damage and the adoption of            the Court of Justice of the European Communities on 7 July
    Regulation (EEC) No 2340/90' constitutes an error of           1998 by the Commission of the European Communities,
    law. If a correct characterisation were made, the              represented by Christina Tufvesson, Legal Adviser, and
    existence of such a causal link would follow from the          Bernard Mongin, of its Legal Service, acting as Agents,
    facts found by the Court,                                      with an address for service in Luxembourg at the office of
                                                                   Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Ð the grounds given by the Court for the above view are
    either irrelevant, based on an incorrect view of the law       The Commission of the European Communities claims
    or should not be applied because they are based on a           that the Court should:
    finding of facts which constitutes an error of law,
                                                                   Ð declare that, by failing to adopt (or implement) and
Ð (alternatively) the Court did not attempt to clarify the             communicate all of the laws, regulations and
    uncertainty which itself found regarding the actual                administrative measures necessary in order to comply
    situation, since it did not appraise, discuss or, to an            fully with Council Directive 92/49/EEC of 18 June
    extent, even mention the relevant evidence submitted               1992 on the coordination of laws, regulations and
    by the plaintiff.                                                  administrative provisions relating to direct insurance
                                                                       other than life assurance and amending Directives 73/
                                                                       239/EEC and 88/357/EEC (third non-life insurance
                                                                       Directive) (1) and with Council Directive 92/96/EEC
(As to the existence of unusual and special damage)                    of 10 November 1992 on the coordination of laws,
                                                                       regulations and administrative provisions relating
                                                                       to direct life assurance and amending Directives 79/
Ð If a correct characterisation were made, the existence               267/EEC and 90/619/EEC (third life assurance
    of unusual and special damage would follow from the                Directive) (2), and, in particular, by omitting to
    Court's findings of fact.                                          transpose those directives as regards mutuelles reÂgies
                                                                       par le code de la mutualiteÂ', the French Republic has
                                                                       failed to fulfil its obligations under the EC Treaty and
(As to the alternative claim for compensation for damage               under those Directives,
resulting from an unlawful act)
                                                                   Ð order the French Republic to pay the costs.
Ð The Court's view that the claim made in the
    application cannot be based on the applicant's
    alternative ground regarding the amount of the                 Pleas in law and main arguments adduced in support:
    damage, because a claim for compensation for a
    lawful act does not exist on the merits, is based on an
    error of law. The plaintiff, which did not make an             The transposition by France of Directives 92/49/EEC
    alternative plea in law but which, as is clear from the        and 92/96/EEC is incomplete, since it does not extend
    documents before the Court, merely submitted an                to mutuelles reÂgies par le code de la mutualiteÂ' in
    alternative ground for its plea, has, contrary to the          accordance with Article 8 of Directives 73/239/EEC (3) and
    Court's view, on the merits at least a claim for               79/267/EEC (4). Mere communication of a draft law which
    damages for a lawful act and can therefore claim               has not yet been adopted and is still being discussed
    full damages in this case because the Community                with the economic operators concerned cannot constitute


title: Case T-516/08: Order of the General Court of 24 March 2010 — Eriksen v Commission (Action for damages — Public health implications of the nuclear accident at Thule (Greenland) — Directive 96/29/Euratom — Commission’s failure to adopt measures against a Member State — Action manifestly lacking any foundation in law)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/34

         Order of the General Court of 24 March 2010 — Eriksen v Commission
   (Case T-516/08) (1)

   (Action for damages - Public health implications of the nuclear accident at Thule (Greenland) - Directive 96/29/Euratom - Commission’s failure to adopt measures against a Member State - Action manifestly lacking any foundation in law)
   2010/C 134/58
   Language of the case: English

      Parties

      Applicant: Heinz Helmuth Eriksen (Ebeltoft, Denmark) (represented by: I. Anderson, lawyer)

      Defendant: European Commission (represented by: E. White and M. Patakia, Agents)

      Re:

   Action for compensation for damage suffered as a result of the Commission’s alleged failure to adopt the measures necessary to ensure that the Kingdom of Denmark adopted the legislative and administrative provisions enabling it to comply with Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation (OJ 1996 L 159, p. 1) and applied those provisions to workers involved in the nuclear accident at Thule (Greenland).

      Operative part of the order

   The Court hereby:

               1.

               Dismisses the action;

               2.

               Orders Mr Heinz Helmuth Eriksen to pay the costs.

      (1)  OJ C 44, 21.2.2009.


title: Case C-207/04: Reference for a preliminary ruling by the Commissione Tributaria Provinciale (Provincial Tax Court), Novara (Italy), by order of that court of 26 April 2004, in the case of Paolo Vergani against Agenzia Entrate Ufficio Arona (Revenue Agency, Arona Office)

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/6

         Reference for a preliminary ruling by the Commissione Tributaria Provinciale (Provincial Tax Court), Novara (Italy), by order of that court of 26 April 2004, in the case of Paolo Vergani against Agenzia Entrate Ufficio Arona (Revenue Agency, Arona Office)
   (Case C-207/04)
   (2004/C 179/13)
   Reference has been made to the Court of Justice of the European Communities by order of the Commissione Tributaria Provinciale (Provincial Tax Court), Novara (Italy), of 26 April 2004, received at the Court Registry on 10 May 2004, for a preliminary ruling in the case of Paolo Vergani against Agenzia Entrate Ufficio Arona (Revenue Agency, Arona Office) on the following question:

      Does Article 17(4a) of Decree No 917/86 of the President of the Republic infringe, conflict with or in any event create conditions of unequal treatment as between men and women prohibited by Article 141 of the European Union Treaty (previously Article 119) in so far as, in like circumstances, it grants the advantage of taxation of voluntary redundancy incentives and of sums paid in connection with termination of employment relationships at a rate reduced to one-half (50 %) for workers who have passed the age of 50 years in the case of women and the age of 55 years in the case of men (1)?

      (1)  OJ L 39, 14 February 1976, p. 40.