title: Case T-69/06: Action brought on  23 February 2006  — Aughinish Alumina v Commission

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/29

         Action brought on 23 February 2006 — Aughinish Alumina v Commission
   (Case T-69/06)
   (2006/C 96/47)
   Language of the case: English
   Parties

      Applicant: Aughinish Alumina Ltd (Askeaton, Ireland) [represented by: J. Handoll and C. Waterson, Solicitors]

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Decision of 7 December 2005, registered under document number C (2005) 4436 def. concerning the exemption from excise duty on mineral oils used as fuel for alumina production in, among others, the Shannon region, implemented by Ireland, insofar as it relates to the applicant (C 78/2001 (ex NN/2001) — Ireland);

               —

               order the Commission to pay the costs incurred by the applicant in the current proceedings.

         Pleas in law and main arguments
   By the contested Decision the Commission found that the exemption from excise duty granted by, among other Member States, Ireland in respect of heavy fuel oils used in the production of alumina until 31 December 2003, constitute State aid within the meaning of Article 87(1) EC. Whilst concluding that aid granted between 17 July 1990 and 2 February 2002, to the extent that it was incompatible with the common market, should not be recovered and that aid granted between 3 February 2002 and 31 December 2003 is compatible with the common market, within the meaning of Article 87(3) EC, insofar as the beneficiaries pay at least a rate of EUR 13.01 per 1 000 kg of heavy fuel oils, the Commission also decided that the same aid was incompatible with the common market insofar as the beneficiaries did not pay that rate and instructed, among others, Ireland, to take all necessary measures to recover from the beneficiaries the incompatible aid.
   The applicant, an Irish company who was a beneficiary of the alleged aid, requests the annulment of the contested Decision. In support of its application it alleges, first of all, that the Commission wrongly failed to treat the aid in question as existing aid falling under Article 88(1) EC. In this respect, the applicant advances three alternative submissions: The aid was the subject of a binding commitment given before the accession of Ireland; the aid was notified in January 1983 and it was not until 2000 that the Commission even considered initiating proceedings and; even if the aid was to be regarded as unlawful aid, the Commission wrongly concluded that it could only partially be deemed to be existing aid pursuant to Article 15 of Regulation 659/99 (1).
   The applicant also contends that the contested Decision violates the principle of legal certainty as it undermines authorisations granted by the Council under Article 93 EC and the Commission failed to use the procedures available to it under Article 8 of Directive 92/81 (2) to resolve State aid or other concerns, or indeed to seek the annulment of the relevant Council Decisions.
   Further, according to the applicant the Commission failed to take account of the fundamental requirements of Articles 3 and 157 EC, to strengthen the competitiveness of Community industry and to ensure the existence of necessary conditions for it.
   The applicant also invokes the principles of protection of legitimate expectations and legal certainty. In this respect the applicant points again to the fact that the Commission took no negative action for a period of 17 years after the aid's notification and failed to challenge the Council's Decisions extending the exemption until December 2006.
   The applicant argues further that the procedure under Article 88(2) EC lasted 43 months, according to the applicant an excessively long time violating the principles of good administration and legal certainty.
   Finally, the applicant considers that the Commission failed properly to analyse the relevant markets and their competitive structure, as it was required to do in view of the fact that it had itself accepted earlier that there was no distortion of competition and taking into account the fact that the Council had authorised the exemptions until 31 December 2006.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ L 83, 27/03/1999 p. 1

      (2)  Council Directive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils, OJ L 316, 31/10/1992 p.12


title: Reference for a preliminary ruling by the Bundessozialgericht by order of that court of 17 February 1998 in the case of Ibrahim Kocak against Landesversicherungsanstalt Oberfranken und Mittelfranken (Case C-102/98)

text:
C 209/18              EN                  Official Journal of the European Communities                                     4.7.98
Justice) of 5 March 1998, which was received at the Court            date of birth which results from the first information given
Registry on 9 April 1998, for a preliminary ruling in the            by the insured person to the social security institution of
case of Union Deutsche Lebensmittelwerke GmbH v.                     the Member State in question or to the employer in that
Schutzverband gegen Unwesen in der Wirtschaft e.V. on                State (in so far as he is under a duty to notify the social
the following questions:                                             security institution)?
(a) Is Article 3(1) of Council Regulation (EEC) No 1898/
     87 (1) of 2 July 1987 on the protection of
     designations used in marketing of milk and milk
     products, read in conjunction with Article 3(2) of
     Council Directive 89/398/EEC (2) of 3 May 1989 on
                                                                     Reference for a preliminary ruling from the Oberster
     the approximation of the laws of the Member States
                                                                     Gerichtshof by order of that court of 31 March 1998 in
     relating to foodstuffs intended for particular
                                                                     the case of Johann Buchner and 12 others v. Sozialver-
     nutritional uses, to be interpreted as meaning that a
                                                                                sicherungsanstalt der Bauern
     milk product, in which milk fat has been replaced on
     dietary grounds by vegetable fat, cannot be described                                  (Case C-104/98)
     as cheese?                                                                               (98/C 209/35)
(b) If Question (a) is answered in the affirmative, is it
     significant that the designation dietary cheese                Reference has been made to the Court of Justice of the
     (dietary soft cheese) containing vegetable oil for a fat-       European Communities by an order of the Oberster
     modified diet' is complemented by additional                    Gerichtshof (Supreme Court, Austria) of 31 March 1998,
     descriptive material on the packaging, such as this            which was received at the Court Registry on 14 April
     dietary cheese is rich in polyunsaturated fats¼' or             1998, for a preliminary ruling in the case of Johann
     this dietary cheese is ideal for a cholesterol-conscious       Buchner and 12 others v. Sozialversicherungsanstalt der
     lifestyle¼'?                                                    Bauern on the following questions:
(1) OJ L 182, 3.7.1987, p. 36.                                       1. Is Article 7(1)(a) of Directive 79/7/EEC (1) to be
(2) OJ L 186, 30.6.1989, p. 27.                                          interpreted as allowing Member States to determine
                                                                         different pensionable ages only for pension rights
                                                                         which are granted exclusively on the basis of the risk
                                                                         of old age, or is that derogation applicable also to
                                                                         pension rights which are granted only from a specified
Reference for a preliminary ruling by the Bundessozial-                  age but in addition are granted only because of
gericht by order of that court of 17 February 1998 in the                invalidity (incapacity for work)?
case of Ibrahim Kocak against Landesversicherungsanstalt
               Oberfranken und Mittelfranken                         2. Is Article 7(1)(a) and (2) of Directive 79/7/EEC to the
                       (Case C-102/98)                                   interpreted as allowing a Member State to alter a
                                                                         previously existing identical provision on pensionable
                         (98/C 209/34)                                   age (in this case completion of the 55th year for men
                                                                         and women) after the end of the transposition period,
Reference has been made to the Court of Justice of the                   in such a way that a different pensionable age for men
European Communities by order of the Thirteenth Senate                   and women (in this case completion of the 57th year
of the Bundessozialgericht (Federal Social Court) of                     for men and the 55th year for women) is now
17 February 1998, received at the Court Registry on                      determined?
9 April 1998, for a preliminary ruling in the case of
Ibrahim      Kocak     against    Landesversicherungsanstalt         (1) OJ L 6, 10.1.1979, p. 24.
(Regional Insurance Office) Oberfranken und Mittel-
franken on the following question:
Is the law relating to the association between the
European Economic Community and Turkey (in particular
Article 9 of the Agreement establishing an Association
between the European Economic Community and Turkey                   Appeal brought on 14 April 1998 by Günther Bühring
of 12 September 1963, Article 37 of the Additional                   against the judgment delivered on 4 February 1998 by the
Protocol to that agreement of 23 November 1970,                      First Chamber of the Court of First Instance of the
Article 10 of Decision No 1/80 of the Council of                     European Communities in Case T-246/93 between
Association of 19 September 1980 and Article 3(1) of                 Günther Bühring and the Council of the European Union
Decision No 3/80 of the Council of Association of                        and the Commission of the European Communities
19 September 1980) to be interpreted as not permitting                                     (Case C-105/98 P)
the legislature of a Member State to adopt rules under                                        (98/C 209/36)
which the applicable date of birth for use in the insurance
number allocated to an insured person and for the grant
of old-age pension is in principle, in the case of Turkish           An appeal against the judgment delivered on 4 February
migrant workers also Ð without regard to particular                  1998 by the First Chamber of the Court of First Instance
characteristics of the Turkish register of civil status Ð the        of the European Communities in Case T-246/93 between


title: Case T-361/07 P: Appeal brought on 19 July 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-25/06, Ider and Others v Commission

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/32

         Appeal brought on 19 July 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-25/06, Ider and Others v Commission
   (Case T-361/07 P)
   (2007/C 283/59)
   Language of the case: French
   Parties

      Appellant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios, Agents)

      Other party to the proceedings: B. Ider (Halle, Belgium), M.-C. Desorbay (Meise, Belgium) and L. Noschese (Braine-le-Château, Belgium)
   Form of order sought by the appellant

               —

               Annul the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-25/06;

               —

               refer the case back to the Civil Service Tribunal;

               —

               reserve the costs;

               —

               in the alternative, annul the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-25/06 and, in determining the present case itself, grant the forms of order sought by the defendant at first instance, and therefore, dismiss the action in Case F-25/06; order the defendant in the appeal to pay the costs.

         Pleas in law and main arguments
   By judgment of 5 July 2007 in Case F-25/06, Ider and Others v Commission, the Civil Service Tribunal (CST) annulled the decision by which the Commission fixed Ms Ider's remuneration under a contract for a member of the contract staff. The applicants, former salaried employees under Belgian law, were engaged as temporary members of staff entrusted with executive duties following a change to the regime applicable to other servants of the Communities.
   The Commission's first plea in support of its appeal alleges an error of law in that the Civil Service Tribunal misconstrued the scope of the principle of equal treatment in its interpretation of the applicable provisions, in particular in relation to the definition used by the Commission to include family allowances in the definition of remuneration.
   The second plea alleges breach of the principle of the obligation to state reasons in that the Civil Service Tribunal did not rule on the concept of remuneration.


title: Action brought on 29 October 1996 by Teresa Maria Rodrigues Gomes De Oliveira against the Commission of the European Communities (Case T-173/96)

text:
No c 388/ 10           Len                     Official Journal of the European Communities                                    21 . 12 . 96
      at all correspond to the qualifications and competence              defendant observes that Article 6 of Annex V to the Staff
      acquired in her previous post.                                      Regulations uses in this regard the expression ' may' grant,
                                                                          and that consequently, in so far as that provision gives it a
She further considers that the decision in question caused                discretion, it does not confer any right on officials to
her material damage, first, because her chances of                        special leave in the event of a serious illness of a child. In
promotion are greatly reduced as a result of her transfer                 stating its reasons for refusing her application, the
and, secondly, because the aforementioned health                          Commission also refers to internal directives requiring the
problems entail an additional financial burden for her.                   applicant to submit medical certificates attesting to a
                                                                          serious illness .
The applicant concludes that the Commission's liability is
thereby established and that it must make good the                        The applicant argues in the first place that, apart from
damage caused.                                                            annual leave, which is an automatic entitlement, the Staff
                                                                          Regulations provide for special leave which must be
                                                                          granted in so far as the conditions for entitlement thereto
As regards the delay in drawing up her staff report for the               are fulfilled and the official applies for it. Accordingly, the
period 1991 to 1993 , the applicant observes that the draft               expressions ' may be granted ' or 'may grant' do not mean
report was not presented to her until 13 September 1995 ,                 that the institution has a discretion in the matter, but
and then only after she had formally required the                         simply declares that it has the legal capacity to grant such
appointing authority to fulfil its duties towards her. In                 leave .
consequence of that delay, it was not possible for her to be
taken into consideration by the Promotion Committee
when considering promotions from one career bracket to                    As far as the internal directives are concerned, the
another for 1994 and 1995 . The delay thus adversely                      applicant categorically denies that they may be relied upon
affected her legitimate expectations and rights in respect                against her. She is completely ignorant of those directives.
of promotions and the defendant should make good the                      What is more, the Commission has not provided her with
material damage arising therefrom.                                        any information which would enable her to identify them
                                                                          or refer to them . Accordingly, she does not know which
                                                                          authority adopted those directives or under what
f 1 ) Case T-78/96 , OJ No C 233 , 19 . 8 . 1996 , p. 12 .
                                                                          procedure they were issued. By the same token, she does
                                                                          not know what the legal force of those directives may be .
Action brought on 29 October 1996 by Teresa Maria
Rodrigues Gomes De Oliveira against the Commission of                     Action brought on 4 November 1996 by Cornelis Volger
                     the European Communities                                            against the European Parliament
                          ( Case T-173 /96 )
                                                                                Case T-l 76/96 )
                            ( 96/C 388/ 19 )
                                                                                ( 96/C 388/20 )
                  (Language of the case: French)                                            (Language of the case: French)
An action against the Commission of the European                          An action against the European Parliament was brought
Communities was brought before the Court of First                         hefore the Court of First Instance of the European
Instance of the European Communities on 29 October                        Communities on 4 November 1996 by Cornelis Volger,
 1996 by Teresa Maria Rodrigues Gomes De Oliveira,                        resident at Heffingen ( Luxembourg ), represented by Jean
resident in Luxembourg, represented by Alain Lorang, of                   Noel Louis, Thierry Demaseure And Ariane Tornel, of the
the Luxembourg Bar, with an address for service at his                    Brussels Bar, with an address for service in Luxembourg at
Chambers, 51 Rue Albert l er.                                             Fiduciaire Myson Sari, 30 Rue de Cessange .
The applicant claims that the Court should:                               The applicant claims that the Court should :
— annul the decision of the Commission,                                   — annul the decision of 1 December 1995 assigning the
                                                                               applicant to non-active status with effect from the
— order the Commission to pay the costs .                                      evening of 30 November 1995 and all subsequent
                                                                               decisions relating thereto, in particular the decision no
Pleas in law and main arguments adduced in support:                            longer to pay him the remuneration and the
                                                                               allowances to which he is entitled,
The applicant, an official of grade LA 6 , challenges the
appointing authority's refusal to grant her three days'                   — annul, in so far as necessary,              the decision of
special leave, corresponding to the period covered by three                    3 September 1996 fixing 1 February 1996 as the date
medical certificates relating to a serious illness of her two                  on which the aforementioned decision took effect,
children which stressed the need for the mother to remain
with them . In the decision refusing her request, the                     — order the defendant to pay the costs.


title: Order of the Court of 26 April 2002 in Case C-454/00 (reference for a preliminary ruling from the Corte d'Appello di Milano): VIS Farmaceutici Istituto scientifico delle Venezie SpA v Duphar International Research BV (Preliminary ruling — Inadmissibility)

text:
10.8.2002                EN                       Official Journal of the European Communities                                           C 191/13
between Buchhändler-Vereinigung GmbH and Saur Verlag                         p. 1) — the Court, composed of: G.C. Rodrı́guez Iglesias,
GmbH & Co. KG, Die Deutsche Bibliothek, on the interpret-                    President, P. Jann, F. Macken, N. Colneric and S. von Bahr,
ation of Articles 1 and 8 of Council Directive 92/50/EEC of                  Presidents of Chamber, C. Gulmann (rapporteur),
18 June 1992 relating to the coordination of procedures for                  D. A. O. Edward, A. La Pergola, J.-P. Puissochet, M. Wathelet,
the award of public service contracts (OJ 1992 L 209, p. 1), as              V. Skouris, J. N. Cunha Rodrigues and C. W. A. Timmermans,
amended by European Parliament and Council Directive 97/                     Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar,
52/EC of 13 October 1997 (OJ 1997 L 328, p. 1), the Court                    has made an order on 26 April 2002, in which it has ruled:
(Second Chamber) composed of: N. Colneric, President of the
Chamber, R. Schintgen and V. Skouris (Rapporteur), Judges;
C. Stix-Hackl, Advocate General; R. Grass, Registrar, has made               The question referred by the Corte d’Appello di Milano by order of
an order on 30 May 2002, the operative part of which is as                   25 October 2000 is inadmissible.
follows:
                                                                             (1) OJ C 17, 19.1.2002.
A concession contract for public publishing services is excluded, under
Community law as it stands at present, from the scope of Council
Directive 92/50/EEC of 18 June 1992 relating to the coordination
of procedures for the award of public service contracts, as amended by
European Parliament and Council Directive 97/52/EC of 13 October
1997, even though, by reason of its specific object, it is covered by
Annex I A to that directive to which Article 8 thereof refers.
                                                                                ORDER OF THE COURT
(1) OJ C 355 of 9.12.2000.
                                                                                of 17 May 2002
                                                                             in Case C-406/01: Federal Republic of Germany v Euro-
                                                                               pean Parliament and Council of the European Union (1)
                     ORDER OF THE COURT                                      (Action for annulment — Manifest inadmissibility — Delay)
                          of 26 April 2002                                                             (2002/C 191/23)
in Case C-454/00 (reference for a preliminary ruling from                                       (Language of the case: German)
the Corte d’Appello di Milano): VIS Farmaceutici Istituto
scientifico delle Venezie SpA v Duphar International
                                                                             (Provisional translation; the definitive translation will be published
                            Research BV (1)
                                                                                in the European Court Reports)
            (Preliminary ruling — Inadmissibility)
                           (2002/C 191/22)                                   In Case C-406/01: Federal Republic of Germany (Agents:
                                                                             W.-D. Plessing and M. Lumma, assisted by J. Sedemund) v
                                                                             European Parliament (Agents: C. Pennera and E. Waldherr) and
                     (Language of the case: Italian)                         Council of the European Union (Agents: E. Karlsson and
                                                                             J.-P. Hix) — application for annulment of Article 3(1) in
                                                                             conjunction with Article 3(2) of Directive 2001/37/EC of the
(Provisional translation; the definitive translation will be published       European Parliament and of the Council of 5 June 2001 on
                    in the European Court Reports)                           the approximation of the laws, regulations and administrative
                                                                             provisions of the Member States concerning the manufacture,
                                                                             presentation and sale of tobacco products (OJ 2001 L 194,
                                                                             p. 26), in so far as those provisions prohibit the manufacture
In Case C-454/00: reference to the Court under Article 234 EC                of cigarettes for export from the European Community to
from the Corte d’appello di Milano (Italy) for a preliminary                 non-Member States — the Court, composed of: G.C. Rodrı́guez
ruling in the proceedings pending before that court between                  Iglesias, President, P. Jann, F. Macken, N. Colneric and S. von
VIS Farmaceutici Istituto scientifico delle Venezie SpA and                  Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
Duphar International Research BV, intervener: Consorzio                      A. La Pergola (Rapporteur), J.-P. Puissochet, M. Wathelet,
Produttori Principi Attivi Generici (CPA) — on the interpret-                R. Schintgen, V. Skouris, J.N. Cunha Rodrigues, C.W.A. Tim-
ation of Article 4 of Council Regulation (EEC) No 1768/92 of                 mermans and A. Rosas, Judges; C. Stix-Hackl, Advocate
18 June 1992 concerning the creation of a supplementary                      General; R. Grass, Registrar, made an order on 17 May 2002,
protection certificate for medicinal products (OJ 1992 L 182,                the operative part of which is as follows:


title: Case F-2/07: Action brought on 12 January 2007 — Matos Martins v Commission

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/43

         Action brought on 12 January 2007 — Matos Martins v Commission
   (Case F-2/07)
   (2007/C 56/81)
   Language of the case: French
   Parties

      Applicant: José Carlos Matos Martins (Brussels, Belgium) (represented by: M.-A Lucas, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision of 27 February 2006 of the European Personnel Selection Office (EPSO) laying down the applicant's results in the pre-selection tests for contract agents EU 25;

               —

               annul the decision of EPSO and/or of the Selection Committee not to register the applicant in the data base of candidates who had passed the pre-selection tests;

               —

               annul the consequences of the selection procedure;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his action, the applicant raises two pleas.
   Under the first part of his first plea, the applicant asserts that the level of difficulty and the cut-off mark to be attained in the pre-selection tests, and in particular the level of difficulty of the numerical test for Function Group IV candidates was set on the basis of the number of candidates, so as to result in a predetermined number of successful candidates, whilst it is claimed that they should have been laid down solely in the light of the demands of the duties of the posts to be filled.
   Under the second part of that plea, the applicant asserts that the content of the pre-selection tests was laid down for each function group on the basis of a random choice from a set of questions of different levels whilst the content of the tests should have been the same for all the candidates of the same function group, or at the very least should have been laid down by a random choice from a set of questions of the same level.
   The second plea is based on breach of the duty of transparency, of the duty to provide reasons for decisions adversely affecting individuals, of the rule of public access to Commission documents and of the principle of the protection of legitimate expectations. The applicant asserts that he was not sent the questions which he had been asked and that the reasons put forward by EPSO to justify that denial of information were clearly factually inaccurate and legally inadmissible. In particular, it is claimed, first, that Annex III to the Staff Regulations providing that the work of the section board is secret is not applicable in the present case and, secondly, that the communication of the questions became essential in the light of the doubts and reservations that EPSO itself and the Joint Selection Committee expressed as to the validity of the tests.


title: Case C-414/07: Judgment of the Court (Fourth Chamber) of 22 December 2008 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Krakowie — Republic of Poland) — Magoora sp. zoo v Dyrektor Izby Skarbowej w Krakowie (Sixth VAT Directive — Article 17(2) and (6) — National legislation — Deduction of VAT on the purchase of fuel for certain vehicles irrespective of the purpose for which they are used — Effective restriction on deductions — Exclusions laid down by national law when the directive entered into force)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/17

         Judgment of the Court (Fourth Chamber) of 22 December 2008 (reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Krakowie — Republic of Poland) — Magoora sp. zoo v Dyrektor Izby Skarbowej w Krakowie
   (Case C-414/07) (1)

   (Sixth VAT Directive - Article 17(2) and (6) - National legislation - Deduction of VAT on the purchase of fuel for certain vehicles irrespective of the purpose for which they are used - Effective restriction on deductions - Exclusions laid down by national law when the directive entered into force)
   (2009/C 44/27)
   Language of the case: Polish
   Referring court
   Wojewódzki Sąd Administracyjny w Krakowie
   Parties to the main proceedings

      Applicant: Magoora sp. zoo

      Defendant: Dyrektor Izby Skarbowej w Krakowie
   Re:
   Reference for a preliminary ruling — Wojewódzki Sąd Administracyjny w Krakowie — Interpretation of Article 17(2) and (6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — National rules excluding the right to deduct tax on purchases of fuel for certain vehicles irrespective of the purpose (business or private) for which the vehicle concerned is used — Amendment of the criteria governing vehicles covered by the exclusion, resulting in a de facto restriction of the scope of the right to deduct in comparison with the period before Directive 77/388 entered into force in the Member State concerned
   Operative part of the judgment
   The second subparagraph of Article 17(6) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment precludes a Member State from repealing in their entirety, when that directive is transposed into national law, national provisions concerning restrictions on the right to deduct input tax on purchases of fuel for vehicles used for a taxable activity, by replacing, on the date on which that directive entered into force on its territory, those provisions by provisions laying down new criteria in that regard, if — which is for the national court to determine — the latter provisions have the effect of extending the scope of those restrictions. It precludes, in any event, a Member State from subsequently amending its legislation which entered into force on that date, so as to extend the scope of those restrictions as compared with the situation existing prior to that date.

      (1)  OJ C 269, 10.11.2007.


title: Case T-298/08: Order of the General Court of 2 March 2010 — Aldi v OHIM — Catalana de Telecomunicacions Societat Operadora de Xarxes (ALDI)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/78

         Order of the General Court of 2 March 2010 — Aldi v OHIM — Catalana de Telecomunicacions Societat Operadora de Xarxes (ALDI)
   (Case T-298/08) (1)

   2010/C 113/113

      Language of the case: German

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

      (1)  C 247, 27.9.2008.


title: Case C-84/09: Judgment of the Court (Second Chamber) of 18 November 2010 (reference for a preliminary ruling from the Regeringsrätten — Sweden) — X v Skatteverket (VAT — Directive 2006/112/EC — Article 2, first paragraph of Article 20 and Article 138(1) — Intra-Community acquisition of a new sailing boat — Immediate use of the goods purchased in the Member State of acquisition or in another Member State before transporting it to its final destination — Time-limit within which transport of goods to place of destination commences — Maximum duration of transport — Relevant point in time for determining whether a means of transport is new for the purposes of taxation thereof)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/5

         Judgment of the Court (Second Chamber) of 18 November 2010 (reference for a preliminary ruling from the Regeringsrätten — Sweden) — X v Skatteverket
   (Case C-84/09) (1)

   (VAT - Directive 2006/112/EC - Article 2, first paragraph of Article 20 and Article 138(1) - Intra-Community acquisition of a new sailing boat - Immediate use of the goods purchased in the Member State of acquisition or in another Member State before transporting it to its final destination - Time-limit within which transport of goods to place of destination commences - Maximum duration of transport - Relevant point in time for determining whether a means of transport is new for the purposes of taxation thereof)
   2011/C 13/08
   Language of the case: Swedish

      Referring court

   Regeringsrätten

      Parties to the main proceedings

      Applicant: X

      Defendant: Skatteverket

      Re:

   Reference for a preliminary ruling — Regeringsrätten — Interpretation of Articles 2, 20 and 138 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Purchase of a new sailing boat in Member State A by an individual who is resident in Member State B for the purpose of its immediate private use by the individual in Member State A or in other Member States for a certain period before the sailing boat is transported to its final destination in Member State B — Period within which the transport of the goods to the place of destination must begin — Maximum duration of that transport — Relevant time at which to decide on whether a means of transport is new for the purposes of taxation

      Operative part of the judgment

               1.

               The first paragraph of Article 20 and Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, are to be interpreted as meaning that the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on the observance of any time period during which the transport of the goods in question from the Member State of supply to the Member State of destination must be commenced or completed. In the specific case of the acquisition of a new means of transport within the meaning of Article 2(1)(b)(ii) of that directive, the determination of the intra-Community nature of the transaction must be made through an overall assessment of all the objective circumstances and the purchaser’s intentions, provided that it is supported by objective evidence which make it possible to identify the Member State in which final use of the goods concerned is envisaged.

               2.

               The assessment of whether a means of transport which is the subject-matter of an intra-Community acquisition is new within the meaning of Article 2(2)(b) of Directive 2006/112 must be made at the time of the supply of the goods in question by the vendor to the purchaser.

      (1)  OJ C 90, 18.04.2009.


title: Case T-280/03: Order of the Court of First Instance of  27 January 2006  — Van Mannekus v Council (Dumping — Imports of dead-burned (sintered) magnesia originating in China — Amendment of anti-dumping measures previously imposed — Action for annulment — Objection as to admissibility)

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/28

         Order of the Court of First Instance of 27 January 2006 — Van Mannekus v Council
   (Case T-280/03) (1)

   (Dumping - Imports of dead-burned (sintered) magnesia originating in China - Amendment of anti-dumping measures previously imposed - Action for annulment - Objection as to admissibility)
   (2006/C 86/56)
   Language of the case: German
   Parties

      Applicant: Van Mannekus & Co. BV (Schiedam, Netherlands) (represented by: H. Bleier, lawyer)

      Defendant: Council of the European Union (represented by: S. Marquardt, Agent, and by G. Berrisch, Agent)

      Intervener in support of the defendant: Commission of the European Communities (represented by: T. Scharf and K. Talaber Ricz, Agents)
   Application for
   annulment of Council Regulation (EC) No 986/2003 of 5 June 2003 amending the anti-dumping measures imposed by Regulation (EC) No 360/2000 on imports of dead-burned (sintered) magnesia originating in the People's Republic of China (OJ 2003 L 143, p. 5)
   Operative part of the order

               1.

               The action is dismissed.

               2.

               The applicant shall bear its own costs and pay those incurred by the Council.

               3.

               The Commission shall bear its own costs.

      (1)  OJ C 251, 18.10.2003.


title: Case C-322/10: Judgment of the Court (Fourth Chamber) of 24 November 2011 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) — United Kingdom) — Medeva BV v Comptroller General of Patents, Designs and Trade Marks (Medicinal products for human use — Supplementary protection certificate — Regulation (EC) No 469/2009 — Article 3 — Conditions for obtaining a certificate — Concept of a ‘product protected by a basic patent in force’ — Criteria — Existence of further or different criteria for a medicinal product comprising more than one active ingredient or for a vaccine against multiple diseases ( ‘Multi-disease vaccine’ or ‘multivalent vaccine’ )

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/11

      Judgment of the Court (Fourth Chamber) of 24 November 2011 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) — United Kingdom) — Medeva BV v Comptroller General of Patents, Designs and Trade Marks
      (Case C-322/10) (1)

      (Medicinal products for human use - Supplementary protection certificate - Regulation (EC) No 469/2009 - Article 3 - Conditions for obtaining a certificate - Concept of a ‘product protected by a basic patent in force’ - Criteria - Existence of further or different criteria for a medicinal product comprising more than one active ingredient or for a vaccine against multiple diseases (‘Multi-disease vaccine’ or ‘multivalent vaccine’)
      (2012/C 25/17)
      Language of the case: English

         Referring court

      Court of Appeal (England and Wales) (Civil Division)

         Parties to the main proceedings

         Applicant: Medeva BV

         Defendant: Comptroller General of Patents, Designs and Trade Marks

         Re:

      Reference for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Article 3(a) and (b) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (OJ 2009 L 152, p. 1) — Conditions for obtaining a certificate — Concept of a ‘product protected by a basic patent in force’ — Criteria — Whether there exist further or different criteria for a medicinal product comprising more than one active ingredient or for a multi-disease vaccine

         Operative part of the judgment

                  1.

                  Article 3(a) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products must be interpreted as precluding the competent industrial property office of a Member State from granting a supplementary protection certificate relating to active ingredients which are not specified in the wording of the claims of the basic patent relied on in support of the application for such a certificate.

                  2.

                  Article 3(b) of Regulation No 469/2009 must be interpreted as meaning that, provided the other requirements laid down in Article 3 are also met, that provision does not preclude the competent industrial property office of a Member State from granting a supplementary protection certificate for a combination of two active ingredients, corresponding to that specified in the wording of the claims of the basic patent relied on, where the medicinal product for which the marketing authorisation is submitted in support of the application for a special protection certificate contains not only that combination of the two active ingredients but also other active ingredients.

         (1)  OJ C 246, 11.9.2010.


title: Jointed Cases T-303/06 and T-337/06: Judgment of the General Court of 27 April 2010 — UniCredito Italiano v OHIM — Union Investment Privatfonds (UNIWEB) (Community trade mark — Opposition proceedings — Applications for Community word marks UNIWEB and UniCredit Wealth Management — Earlier national word marks UNIFONDS and UNIRAK and earlier national figurative mark UNIZINS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/38

      Judgment of the General Court of 27 April 2010 — UniCredito Italiano v OHIM — Union Investment Privatfonds (UNIWEB)
      (Jointed Cases T-303/06 and T-337/06) (1)

      (Community trade mark - Opposition proceedings - Applications for Community word marks UNIWEB and UniCredit Wealth Management - Earlier national word marks UNIFONDS and UNIRAK and earlier national figurative mark UNIZINS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
      (2010/C 161/57)
      Language of the case: Italian

         Parties

         Applicant: UniCredito Italiano SpA (Genoa, Italy) (represented by: G. Floridia, R. Floridia and F. Polettini, lawyers)

         Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: P. Bullock, Agent)

         Other party to the proceedings before the Board of Appeal of OHIM: Union Investment Privatfonds GmbH (Frankfurt am Main, Germany) (represented by: J. Zindel, lawyer)

         Re:

      Action brought against two decisions of the Second Board of Appeal of OHIM of 5 September 2006 (Joined Cases R 196/2005-2 and R 211/2005-2) and of 25 September 2006 (Joined Cases R 456/2005-2 and R 502/2005-2), concerning opposition proceedings between Union Investment Privatfonds GmbH and UniCredito Italiano SpA.

         Operative part of the judgment

      The Court:

                  1.

                  Orders that Cases T-303/06 and T-337/06 shall be joined for the purposes of the judgment;

                  2.

                  Annuls the Decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 5 September 2006 (Joined Cases R 196/2005-2 and R 211/2005-2) in so far as it dismisses the appeal by UniCredito Italiano SpA in Case R 211/2005-2 by upholding the oppositions to the registration of the trade mark applied for, UNIWEB, with regard to ‘Banking business; financial affairs; monetary affairs; insurance; financial and insurance consultancy and information; credit/debit card services; banking and financial services via the Internet’ in Class 36;

                  3.

                  Annuls the Decision of the Second Board of Appeal of OHIM of 25 September 2006 (Joined Cases R 456/2005-2 and R 502/2005-2) in so far as it dismisses the appeal by UniCredito Italiano SpA in Case R 456/2005-2 by upholding the oppositions to the registration of the trade mark applied for, UniCredit Wealth Management, with regard to ‘Banking business; financial affairs; monetary affairs; assurance; financial information’ in Class 36;

                  4.

                  Dismisses the applications of Union Investment Privatfonds GmbH;

                  5.

                  Orders each party to bear its own costs.

         (1)  OJ C 326, 30.12.2006.


title: Case T-474/10: Action brought on 26 September 2010 — Evropaïki Dynamiki v Commission

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/48

         Action brought on 26 September 2010 — Evropaïki Dynamiki v Commission
   (Case T-474/10)
   ()
   2010/C 346/93
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul DIGIT’s decision to: (a) select the bid of the applicant, filed in response to the open call for tenders DIGIT/R2/PO/2009/45 “External service provision for development, studies and information systems” (OJ 2009/S 198-283663), for Lot 1A, as second contractor in the cascade mechanism, (b) select the bid of the applicant filed in response to the aforementioned open call for tenders Lot 1B, as third contractor in the cascade mechanism, (c) select the bid of the applicant filed in response to the aforementioned open call for tenders Lot 1C, as second contractor in the cascade mechanism, (d) select the bid of the applicant filed in response to the aforementioned call for tenders Lot 3 as third contractor in the cascade mechanism, instead of first contractor in all Lots, as communicated to the applicant by four separate letters (one for each Lot) dated 16 July 2010 and all the related decisions of DIGIT including those to award the respective contracts to the first and second cascade contractors;

               —

               order DIGIT to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 242 000 000 (EUR 122 000 000 for Lot 1A, EUR 40 000 000 for Lot 1B, EUR 30 000 000 for Lot 1C and EUR 50 000 000 for Lot 3) and the amount of EUR 24 200 000 for damages for loss of opportunity and damage to its reputation and credibility; and

               —

               order DIGIT to pay the applicant’s legal and other costs and expenses incurred in connection with this application even if the current application is rejected.

      Pleas in law and main arguments

   In the present case the applicant seeks the annulment of the defendant’s decision of 16 July 2010 to select its bid in the context of the call for tenders DIGIT/R2/PO/2009/45 “External service provision for development, studies and information systems” (1), for Lots 1A, 1B, 1C and 3, as second or third contractor in the cascade mechanism instead of first contractor and all the related decisions of DIGIT, including those to award the respective contracts to the first and second cascade contractors. The applicant further requests compensation for the alleged damages on account of the tender procedure.
   In support of its claims the applicant puts forward the following grounds.
   Firstly, the applicant argues that the Commission has infringed Articles 93 and 94 of the financial regulation (2) and the principles of good administration and transparency as well as Articles 106 and 107 of the financial regulation because several members of the winning consortium did not comply with the exclusion criteria since they should have been found to be in serious breach of previous contracts, and one member of the winning consortium was involved in fraud, corruption and briberies, while several members of the winning consortia use non WTO/GPA based subcontractors.
   Furthermore, the applicant argues that the principle of good administration and the principle of equal treatment as well as Articles 89 and 98 of the financial regulation and Article 145 of its implementing rules were infringed since a conflict of interest existed in the person of several evaluators.
   The applicant further contends that vague and irregular award criteria were used during the evaluation thus infringing Article 97 of the financial regulation and Article 138 of the implementing rules.
   Finally, the applicant claims that the contracting authority has failed to disclose the relative merits of the successful tenderer and has committed several manifest errors of assessment while evaluating its tender as well as the one of the winning consortia. In the applicant’s opinion, the contracting authority has also used vague and unsubstantiated comments in its evaluation report.

      (1)  OJ 2009/S 198-283663

      (2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)


title: Case T-31/00: Action brought on 16 February 2000 by BSB Fleischimport against the Commission of the European Communities

text:
C 122/38               EN                    Official Journal of the European Communities                                    29.4.2000
The applicant claims that the Court should:                             European Communities on 16 February 2000 by BSB Fleisch-
                                                                        import, whose registered office is in Berlin, represented by
— annul the Selection Board’s decision not to admit the                 Dietrich Ehle and Dirk Ehle, Rechtsanwälte, Cologne, with an
    applicant to the oral tests in internal competition CdR             address for service in Luxembourg at the Chambers of Marc
    B/01/98;                                                            Lucius, Rechtsanwalt, 6 Rue Michel Welter.
— order the defendant to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         — annul the Commission’s decision (REM 2/99) of 8 Nov-
                                                                            ember 1999;
The applicant, who is an official in Grade C with the Economic
and Social Committee, argues that the Selection Board did not
admit him to the tests on the basis of an unlawful notice of            — order the Commission to pay the costs.
competition. Both in endorsing that notice and in adopting
the contested decision, the appointing authority acted contrary
to the principle of sound administration and infringed Article
27 of the Staff Regulations.
                                                                        Pleas in law and main arguments
In support of his claims, the applicant submits:
                                                                        The contested decision refuses an application by the Federal
— the contested decision unlawfully excludes the applicant
                                                                        Republic of Germany for authorisation to waive duties of DEM
    on the ground that he does not possess a certificate of
                                                                        187 011,60 on the applicant’s importation of beef from
    secondary education, even though he has a university
                                                                        Argentina. The Hauptzollamt Essen demanded post-clearance
    qualification at least equivalent thereto;
                                                                        recovery of that amount on the ground that certificates of
                                                                        genuineness presented in the course of the clearance procedure
— in requiring Grade B status as a condition for admission,             were forgeries.
    the notice of competition wrongly excluded candidates
    possessing equivalent, or even higher, qualifications;
                                                                        The applicant maintains that there has been an infringement
— the contested decision excludes the applicant on the                  of essential procedural rights, in that it has unlawfully been
    ground that he does not possess the requisite professional
                                                                        refused access to the administrative files of the Commission. It
    experience specified by the notice of competition, notwith-
                                                                        also maintains that the decision reveals a significant defect in
    standing the fact that, within the Economic and Social              reasoning, as it entirely fails to reflect the judgment of the
    Committee, he has handled tasks entailing responsibility
                                                                        Court of First Instance in Case T-42/96 Eyckeler & Malt v
    and independent organisation.
                                                                        Commission [1998] ECR II-401, even though that judgment
                                                                        concerned a legal and factual situation that was virtually
                                                                        identical and the applicant had pointed that out.
                                                                        The applicant further accuses the Commission of a manifest
                                                                        error of assessment in applying Article 13 of Regulation (EEC)
                                                                        No 1430/79. Post-clearance recovery from the applicant
Action brought on 16 February 2000 by BSB Fleischim-                    resulted from obvious omissions of the Commission in
port against the Commission of the European Communi-                    inspecting the quotas of ‘Hilton beef’. Had the Commission
                               ties                                     conducted itself properly, post-clearance recovery would have
                                                                        been avoided. Post-clearance recovery was, moreover, inequi-
                                                                        table, as the applicant had dealt in good faith. In the light of
                         (Case T-31/00)                                 these circumstances, the applicant’s normal business risk was
                                                                        exceeded. The Commission was therefore wrong to proceed
                                                                        on the basis that there were no special circumstances within
                        (2000/C 122/58)                                 the meaning of Article 13 of that regulation, and its decision
                                                                        should be annulled.
                  (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the


title: Case C-480/11 P: Appeal brought on 21 September 2011 by Akissi Daniėle Boni-Claverie against the order of the General Court (Fifth Chamber) delivered on 13 July 2011 in Case T-350/11 Boni-Claverie v Council

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/4

         Appeal brought on 21 September 2011 by Akissi Daniėle Boni-Claverie against the order of the General Court (Fifth Chamber) delivered on 13 July 2011 in Case T-350/11 Boni-Claverie v Council

   (Case C-480/11 P)
   2012/C 6/05
   Language of the case: French

      Parties

      Appellant: Akissi Daniėle Boni-Claverie (represented by: L. Bourthoumieux, J. Vergès, R. Dumas and M. Ceccaldi, avocats)

      Other party to the proceedings: Council of the European Union

      Form of order sought

               —

               Declare the action brought by Mr Daniėle Boni-Claverie admissible;

               —

               Annul the order in Case T-350/11 of 13 July 2011, after holding it to be time-barred;

               —

               Refer the action back to the General Court in order that the appellant may claim his rights;

               —

               Order the Council of the European Union to pay the costs under Articles 69 and 73 of the Rules of Procedure of the Court.

      Pleas in law and main arguments

   In support of his appeal, the appellant raises the following pleas in law:

               —

                  Force majeure, the fact of the war interrupting the limitation period. The events with which the appellant had been confronted since November 2010 in Côte d’Ivoire constitute a case of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union, having regard to the state of war which interrupted the limitation period for acts adopted against him by the Council.

               —

               The present case of force majeure because of the war constitutes an obstacle to the appellant’s freely exercising his right of action against actions which manifestly infringe fundamental rights.

               —

               The fundamental rights and freedoms take priority over the principle of legal certainty. By applying the principle of legal certainty in order to declare the appellant’s application inadmissible, the General Court infringes the fundamental right of access to courts and tribunals and of the rights of the defence. Thus, the appellant has been deprived of his right to be heard by a court having jurisdiction.

               —

               The unenforceability of the time-limit on account of distance and of the time-limit for lodging an appeal in the event of war. The time-limit on account of distance and the time-limit for lodging an appeal cannot be enforced against a person residing in a State at open war. Such time-limits apply only in peacetime and on the continent of Europe. The appellant is located on another continent and, therefore, the strict application of Article 102 of the Rules of Procedure of the General Court to the present case is indisputably in breach of Article 6(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 263 of the Treaty on the Functioning of the European Union.

               —

               The primacy of Article 263 of the Treaty on the Functioning of the European Union. Article 102 of the Rules of Procedure of the General Court would render inoperable any obligation of notification as provided for in the Treaty on the Functioning of the European Union which provides that the period for lodging an appeal starts to run with effect from the publication or notification to the plaintiff of the measure or the day on which it came to his knowledge. Article 102 of the Rules of Procedure avoids the obligation of notification and does not take into account the day on which the application effectively became aware of the measure, thus restricting the letter and the spirit of Article 263 TFEU. Accordingly, Article 102 calls into question the rights laid down and protected by the Treaty, which is of higher legal standing and which is mandatory for the institutions comprising the European Union. Consequently, since the contested measures were not notified to the appellant, in breach of Article 263(5) of the Treaty on the Functioning of the European Union, the period for lodging an appeal can start only from when he became aware of the measures adopted against him.

               —

               A serious infringement of fundamental rights and freedoms. The principle of legal certainty as stated by the General Court seriously calls into question legal certainty as a whole since citizens seeking justice who reside outside the European Union and who reside in a country at war have sanctions issued against them against which they cannot effectively exercise their rights since they do not know of the sanction.

               —

               In the alternative, the appellant seeks the annulment of the measures adopted against him by the Council on the ground of the seriousness of the breach of fundamental rights and freedoms. Since the contested measures infringe fundamental freedoms protected by different international treaties, it is for the Court of Justice to annul those measures in so far as their unlawfulness contravenes the established European legal order and on the ground that no time-limit for lodging an appeal can be enforced because of the seriousness of the breach of the protected fundamental rights and freedoms.


title: Case T-191/10: Order of the General Court of 16 July 2015 — Greenwood Houseware (Zhuhai) and Others v Council

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/65

         Order of the General Court of 16 July 2015 — Greenwood Houseware (Zhuhai) and Others v Council
   (Case T-191/10) (1)

   (2015/C 389/73)
   Language of the case: English
   The President of the Fourth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 179, 3.7.2010.


title: Reference for a preliminary ruling by the Verwaltungsgerichtshof (Vienna) by order of that court of 12 August 1997 in the case of Erna Pelzl, Johannes Kovac, Harald Hohenberg, Kovac Schrott GmbH NFG KG, Wiener Städtische Allgemeine Versicherungs AG, Ulf Zmölnig, Kovac Management GmbH P. Kovac & Co. GmbH and Kovac Eisen Maschinen Metalle GmbH NFG KG against the Steiermärkische Landesregierung (Case C-338/97)

text:
22 . 11 . 97          EN                 Official Journal of the European Communities                                      C 357/ 19
Reference for a preliminary ruling by the Verwaltungsge            Reference for a preliminary ruling from the Bayerische
richtshof (Vienna) by order of that court of 12 August              Verwaltungsgericht Ansbach by order of that court of
1997 in the case of Erna Pelzl, Johannes Kovac, Harald              7 July 1997 in the case of 1 . Omer Nazli, 2. Caglar Nazli
Hohenberg, Kovac Schrott GmbH NFG KG, Wiener Stad                               and 3 . Melike Nazli v. Stadt Nürnberg
tische Allgemeine Versicherungs AG, Ulf Zmölnig, Kovac                                       ( Case C-340/97)
Management GmbH P. Kovac & Co. GmbH and Kovac
Eisen Maschinen Metalle GmbH NFG KG against the                                                ( 97/C 357/33 )
               Steiermärkische Landesregierung
                       ( Case C-338/97 )                            Reference has been made to the Court of Justice of the
                                                                    European Communities by an order of the Bayerische Ver
                         ( 97/C 357/32 )
                                                                    waltungsgericht ( Bavarian Administrative Court ) Ansbach
                                                                    ( Fifth Chamber) of 7 July 1997, which was received at the
                                                                    Court Registry on 1 October 1997, for a preliminary
                                                                    ruling in the case of 1 . Omer Nazli, 2 . Caglar Nazli and
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsge
                                                                    3 . Melike Nazli against Stadt Nürnberg on the following
                                                                    questions:
richtshof ( Administrative Court), Vienna, of 12 August
1997, received at the Court Registry on 29 September
1997, for a preliminary ruling in the case of Erna Pelzl,           1 . Does a Turkish worker who has achieved the legal
Johannes Kovac, Harald Hohenberg, Kovac Schrott                           status conferred by the third indent of Article 6 ( 1 ) of
GmbH NFG KG, Wiener Stadtische Allgemeine Versiche                       Decision No 1 /80 of 19 September 1980 of the
rungs AG, Ulf Zmölnig, Kovac Management GmbH, P.                         Association Council ( set up by the Association
Kovac & Co . GmbH and Kovac Eisen Maschinen Metalle                      Agreement between the European Economic
GmbH NFG KG v. Steiermärkische Landesregierung                            Community and Turkey ) on the development of the
( Government of Steiermark) on the following questions:                  Association forfeit that status subsequently if he is
                                                                          taken into custody on strong suspicion of having
                                                                         committed a crime for which he is ultimately
                                                                         convicted and given a suspended prison sentence ?
Does Article 33 ( 1 ) of the sixth Council Directive 77/388/
EEC of 17 May 1977 on the harmonization of the laws of
the Member States relating to turnover taxes — Common               2.   If not:
system of value added tax: uniform basis of assessment (')
preclude, on the ground that it is in the nature of a                     Is the expulsion of a Turkish worker in such
turnover tax, the maintenance in force of a tax which is
                                                                         circumstances solely on general preventive grounds,
payable in a Bundesland ( Regional State ) of a Member                   that is to say, as a deterrent to other aliens, compatible
State of the European Communities:                                       with Article 14 ( 1 ) of Decision No 1 /80 ?
— in respect of each calender year by all undertakings
     directly or indirectly involved in tourism which have
     their registered office or a place of business within
     certain closely defined areas, where the sum of those
     areas comprises almost the whole area of the                   Action brought on 30 September 1997 by the Commission
     Bundesland, and
                                                                    of the European Communities against the Kingdom of the
                                                                                Netherlands
                                                                                ( Case C-341/97)
— the amount of which is essentially proportional to the                                       ( 97/C 357/34 )
     turnover achieved by the undertaking primarily in that
     Regional State within a calendar year, but where the
     rate of contribution varies according to the intensity of      An action against the Kingdom of the Netherlands was
     tourism in that area and according to the degree of            brought before the Court of Justice of the European
     benefit which the legislature deems the commercial             Communities on 30 September 1997 by the Commission
     sector in question ( occupational group ) to derive from       of the European Communities, represented by H. van
     tourism, and                                                   Vliet, acting as Agent, with an address for service in
                                                                    Luxembourg at the office of C. Gomez de la Cruz,
                                                                    Wagner Centre, Kirchberg.
— where no provision is made for the deduction of input
     tax ?                                                          The applicant claims that the Court should :
                                                                    — declare that, by adopting on 16 December 1992 the
C ) OJ L 145 , p. 1 .
                                                                          Regulation for the prevention of the introduction of
                                                                          foreign toxic dinoflagellata, the Kingdom of the
                                                                          Netherlands has failed to fulfil its obligations pursuant
                                                                          to Articles 30 and 36 of the EC Treaty,


title: Action brought on 18 June 1996 by the Commission of the European Communities against the Grand Duchy of Luxembourg (Case C-206/96)

text:
No C 269/2            EN                    Official Journal of the European Communities                                     14 . 9 . 96
Application made on 15 July 1996 by SA Must Interim for                — Misuse of powers ( see Case C-123/96 )( ).
authorization to serve a garnishee order on the
                             Commission
                                                                       (')  OJ No   L 74 , 22 . 3 . 1996 , p . 13 .
                      ( Case C-l /96 SA )                              (2 ) OJ No   L 192 , 24 . 7 . 1990, p . 10 .
                                                                       (■') OJ No   C 95 , 30 . 3 . 1996 , p . 5 .
                           ( 96/C 269/03 )                             (4 ) OJ No   C 180 , 22 . 6 . 1996 , p . 19 .
An application for authorization to serve a garnishee order
on the Commission of the European Communities was
made to the Court of Justice of the European Communities
on 15 July 1996 by SA Must Interim , represented by James
Junker, whose chambers are at 12 rue Sainte Zithe,                     Action brought on 18 June 1996 by the Commission of the
Luxembourg.                                                            European Communities against the Grand Duchy of
                                                                                Luxembourg
The applicant claims that the Court should authorize it to                                         ( Case C-206/96 )
serve a garnishee order on the Commission of the European                                            ( 96/C 269/05 )
Communities relating to sums owed by the latter to
Transport Service International SARL, pursuant to an order
enforceable forthwith and prior to registration given on               An action against the Grand Duchy of Luxembourg was
31 May 1996 by the President of the Tribunal                           brought before the Court of Justice of the European
d'Arrondissement          ( District    Court ),    Luxembourg,        Communities on 18 June 1996 by the Commission of the
authorizing it, pursuant to Article 558 of the Code de                 European Communities, represented by R. Wainwright and
Procedure Civile ( Code of Civil Procedure ), to serve a               J.-F . Pasquier, acting as Agents, with an address for service
garnishee order on the 'the European Commission , a body               in Luxembourg at the office of Carlos Gomez de la Cruz, of
under European law, whose representation in Luxemborug                 the Commission 's Legal Service, Wagner Centre,
is at the Jean Monnet Building, L-2920 Luxembourg' in                  Kirchberg.
relation to all sums, funds or assets that it owes or may
owe to Transport Service International SARL, which is                  The applicant claims that the Court should :
established and has its registered office at L-8055
Bertrange .                                                            — declare that, by not adopting programmes for the
                                                                            reduction of pollution which include quality objectives
                                                                            for water or by not communicating those programmes to
                                                                            the Commission in the form of summaries , together with
                                                                            the results of their implementation , contrary to Article 7
                                                                            of Council Directive 76/464/EEC ('), the Grand Duchy
                                                                            of Luxembourg has failed to fulfil its obligations under
Action brought on 13 June 1996 by the Kingdom of Spain                      the Treaty,
  against the Commission of the European Communities
                                                                       — order the Grand Duchy of Luxembourg to pay the
                        ( Case C-199/96 )                                   costs .
                            ( 96/C 269/04 )
                                                                        Pleas in law and main arguments adduced in support:
 An action against the Commission of the European
 Communities was brought before the Court of Justice of the             Under the third paragraph of Article 189 , a directive is
 European Communities on 13 June 1996 by the Kingdom of                 binding, as to the result to be achieved, upon each Member
 Spain, represented by Gloria Calvo Diaz , Abogado del                  State to which it is addressed . In respect of the substances
 Estado, with an address for service in Luxembourg at the               referred to in List II , the results to be achieved are the
 Spanish Embassy, 4 and 6 boulevard E. Servais .                        planning and implementation of programmes for the
                                                                        reduction of pollution , and the analysis and notification to
                                                                        the Commission of the actual results ( Article 7(1 ) and ( 6 ) of
 The applicant claims that the Court should :                           Directive 76/464/EEC ). According to the Commission , the
                                                                        Grand Duchy of Luxembourg has not as yet — that is , 14
 — annul Commission Directive 96/ 1 9/EC ( 1 ) of 13 March              years after the expiry of the period prescribed for the
     1996 amending Directive 90/388/EEC ( 2 ) with regard               establishment of the programmes, 10 years after the first
    to the implementation of full competition in                        letter on the subject was addressed to the Luxembourg
    telecommunications markets,                                         Government, and subsequent meetings with its
                                                                        representatives, and five years after the last list of priority
 — order the Commission to pay the costs .                              List II substances was drawn up — complied with its
                                                                        obligations under Article 7 of the Directive .
 Pleas in law and main arguments adduced in support:
                                                                        (') OJ No I. 129 , 18 . 5 . 1976 , p . 23 .
 — Lack of competence of the Commission ( see Case
     C-ll /96 ) ( ').


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 19 February 1998 in Case T-142/96: Anne-Marie Toller v. Commission of the European Communities (Officials - Opinion of the Invalidity Committee - Incompetence - Decision ordering removal from post - Application for re-examination - Material new factor - Time-bar - Admissibility)

text:
11.4.98               EN                 Official Journal of the European Communities                                 C 113/13
3. orders the applicants to bear all the costs.                       JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 19 February 1998
(1) OJ C 386, 31.12.1994 and OJ C 137, 3.6.1995.                    in Case T-142/96: Anne-Marie Toller v. Commission of
                                                                                the European Communities (1)
                                                                    (Officials Ð Opinion of the Invalidity Committee Ð
                                                                    Incompetence Ð Decision ordering removal from post Ð
                                                                    Application for re-examination Ð Material new factor Ð
                                                                                Time-bar Ð Admissibility)
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                                   (98/C 113/32)
                     of 19 February 1998
                                                                                (Language of the case: French)
in Case T-42/96: Eyckeler & Malt AG v. Commission of
                the European Communities (1)
                                                                    In Case T-142/96: Anne-Marie Toller, a former official of
(Action for annulment Ð Importation of high-quality beef            the Commission of the European Communities, residing in
(Hilton beef') Ð Regulation (EEC) No 1430/79 Ð                     Brussels, represented by Benoît Lombart, Eric Boigelot and
Article 13 Ð Commission decision refusing remission of              Daniel Crucq, of the Brussels Bar, with an address for
import duties Ð Rights of the defence Ð Manifest error              service in Luxembourg at the Chambers of Louis Schiltz, 2
                        of assessment)                              rue du Fort Rheinsheim, v. Commission of the European
                                                                    Communities (Agents: Julian Currall and Christine
                         (98/C 113/31)                              Berardis-Kayser) Ð application for annulment of the
                                                                    Commission's decision refusing to re-examine the decision
                                                                    of 1 July 1993 removing the applicant from her post for
               (Language of the case: German)                       incompetence Ð the Court of First Instance (Fourth
                                                                    Chamber), composed of: P. Lindh, President, and K.
                                                                    Lenaerts and J. D. Cooke, Judges; A. Mair, Administrator,
In Case T-42/96: Eyckeler & Malt AG, established in                 for the Registrar, has given a judgment on 19 February
                                                                    1998, in which it:
Hilden (Germany), represented by Dietrich Ehle and
Volker Schiller, Rechtsanwälte, Cologne, with an address
for service in Luxembourg at the Chambers of Marc                   1. dismisses the application as inadmissible,
Lucius, 6 rue Michel Welter, supported by United
Kingdom of Great Britain and Northern Ireland (Agents:
initially Stephanie Ridley, subsequently John Collins and           2. orders the parties to bear their own costs.
David Anderson) against Commission of the European
Communities (Agent: Götz zur Hausen) Ð application for              (1) OJ C 318, 26.10.1996.
annulment of the Commission Decision of 20 December
1995 (K(95) 3391 final) addressed to the Federal Republic
of Germany and concerning an application for remission
of import duties Ð the Court of First Instance (First
Chamber), composed of: A. Saggio, President, B.
Vesterdorf and R. M. Moura Ramos, Judges; J. Palacio
GonzaÂlez, Administrator, for the Registrar, has given a              JUDGMENT OF THE COURT OF FIRST INSTANCE
judgment on 19 February 1998, in which it:                                               of 19 February 1998
                                                                    in Case T-169/96: Jean-Pierre Pierard v. Commission of
                                                                                the European Communities (1)
1. annuls the Commission's Decision of 20 December
     1995 addressed to the Federal Republic of Germany              (Representation of officials and servants of the
     and concerning an application for remission of import          Commission on administrative bodies and on organs set
     duties,                                                        up under the Staff Regulations Ð Staff assigned to posts
                                                                       outside the European Union Ð No need to adjudicate)
                                                                                (98/C 113/33)
2. orders the Commission to pay the costs,
                                                                                (Language of the case: French)
3. orders the United Kingdom of Great Britain and
     Northern Ireland to bear its own costs.                        In Case T-169/96: Jean-Pierre Pierard, an official of the
                                                                    Commission of the European Communities, represented
                                                                    by Nicolas LhoeÈst, of the Brussels Bar, with an address for
(1) OJ C 180, 22.6.1996.                                            service in Luxembourg at the office of Fiduciaire Myson
                                                                    SARL, 30 rue de Cessange, v. Commission of the
                                                                    European Communities (Agents: Gianluigi Valsesia and
                                                                    Christine Berardis-Kayser) Ð application for annulment of


title: Case C-306/05: Judgment of the Court (Third Chamber) of 7 December 2006 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA (Copyright and related rights in the information society — Directive 2001/29/EC — Article 3 — Concept of communication to the public — Works communicated by means of television sets installed in hotel rooms)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/3

         Judgment of the Court (Third Chamber) of 7 December 2006 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA
   (Case C-306/05) (1)

   (Copyright and related rights in the information society - Directive 2001/29/EC - Article 3 - Concept of communication to the public - Works communicated by means of television sets installed in hotel rooms)
   (2006/C 331/04)
   Language of the case: Spanish
   Referring court
   Audiencia Provincial de Barcelona
   Parties to the main proceedings

      Applicant: Sociedad General de Autores y Editores de España (SGAE)

      Defendant: Rafael Hoteles SA
   Re:
   Reference for a preliminary ruling — Audiencia Provincial de Barcelona — Interpretation of Directive 2001/29/EEC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, page 10) — Meaning of ‘act of communication to the public’ (Article 3 of the directive) — Meaning of ‘strictly domestic location’ — Works made available on television sets installed in hotel rooms
   Operative part of the judgment

               1.

               While the mere provision of physical facilities does not as such amount to communication within the meaning of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of copyright and related rights in the information society, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of that directive.

               2.

               The private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29.

      (1)  OJ C 257, 15.10.2005.


title: Case C-651/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 19 December 2011 — Staatssecretaris van Financiën, other party: X BV

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/17

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 19 December 2011 — Staatssecretaris van Financiën, other party: X BV
   (Case C-651/11)
   2012/C 73/30
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Staatssecretaris van Financiën

      Other Party: X BV

      Questions referred

               1.

               Is the disposal of 30 % of the shares in a company — to which the transferor of those shares supplies services that are subject to value added tax (VAT) — equivalent to the transfer of (part of) a totality of assets within the meaning of Article 5(8) and/or of services within the meaning of Article 6(5) of the Sixth Directive? (1)

               2.

               If the answer to Question 1 is in the negative, is the disposal referred to in that question equivalent to the transfer of (part of) a totality of assets within the meaning of Article 5(8) and/or of services within the meaning of Article 6(5) of the Sixth Directive, where the other shareholders, who also supply services that are subject to VAT to the company whose shares have been disposed of, transfer all the other shares in that company to the same person (almost) at the same time?

               3.

               If the answer to the second question is also in the negative, can the disposal referred to in Question 1 be regarded as the transfer of (part of) the undertaking for the purposes of Article 5(8) and/or Article 6(5) of the Sixth Directive, taking into account the fact that that disposal is closely linked to management activities carried out for that participation?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case T-298/02: Action brought on 1 October 2002 by Anna Romero Romeu against the Commission of the European Communities

text:
C 289/38               EN                      Official Journal of the European Communities                                     23.11.2002
In addition, the contested act infringes the principles of the            —     infringement of the principle of non-discrimination,
protection of legitimate expectations and of proportionality,                   inasmuch as the case involves a difference in treatment
in so far as the Italian State has been ordered by the defendant                between personal situations which are substantially the
to recover the alleged aid.                                                     same, since no account has been taken, for the purposes
                                                                                of calculating the reference period, of the periods of work
                                                                                completed, prior to their engagement, by certain officials
                                                                                employed in Brussels in offices of German Länder or of
                                                                                United Kingdom federations.
Action brought on 1 October 2002 by Anna Romero                           The applicant also pleads failure to comply with the obligation
Romeu against the Commission of the European Com-                         to provide a statement of reasons.
                             munities
                         (Case T-298/02)
                         (2002/C 289/68)
                   (Language of the case: Spanish)                        Action brought on 30 September 2002 by Carles Dedeu i
                                                                          Fontcuberta against the Commission of the European
                                                                                Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                         (Case T-299/02)
European Communities on 1 October 2002 by Anna Romero
Romeu, residing in Brussels, represented by Ramón García-
Gallardo Gil-Fournier and Javier Guillem-Carrau, lawyers.                                          (2002/C 289/69)
The applicant claims that the Court should:                                                  (Language of the case: Spanish)
—     annul the decision of the appointing authority of 10 June
      2002 in so far as it does not recognise the applicant’s
      entitlement to the expatriate allowance and, consequently,          An action against the Commission of the European Communi-
      her entitlement to the other associated allowances in               ties was brought before the Court of First Instance of the
      accordance with the decision in Lozano;                             European Communities on 30 September 2002 by Carles
                                                                          Dedeu i Fontcuberta, residing in Brussels (Belgium), represent-
—     order the defendant to pay all the costs.                           ed by R. García-Gallardo Gil-Fournier and J. Guillem-Carrau,
                                                                          lawyers.
Pleas in law and main arguments
                                                                          The applicant claims that the Court should:
By the present action, the applicant, an official of the defendant        —     annul the decision of 23 September 2002, implicit in the
institution, is contesting the appointing authority’s decision                  Commission’s silence, rejecting complaint 275/02, and
refusing to recognise her entitlement to the expatriation                       refusing to acknowledge his right to the expatriation
allowance (Article 4 of Annex VII to the Staff Regulations); in                 allowance and, therefore, other associated benefits, in
the applicant’s view, that allowance is due to her inasmuch as                  accordance with the judgment in Lozano;
her habitual residence and centre of interests during the
relevant period under the Staff Regulations was Barcelona and             —     order the Commission to pay the full costs.
not Brussels.
In support of her claims, the applicant pleads:
                                                                          Pleas in law and main arguments
—     commission of a manifest error of assessment of the facts,
      inasmuch as, first, the contested decision did not treat the
      work done for the representative office of a Spanish                The pleas in law and main arguments have already been put
      Autonomous Community in Brussels as ‘work done for                  forward in Case T-298/02 Ana Herrero Romeu v Commission.
      another State’ and, second, it failed to take account of the
      applicant’s personal situation as regards lasting links with
      the country of employment;