title: Case C-310/17: Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 29 May 2017 — Levola Hengelo BV v Smilde Foods BV

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/8

         Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 29 May 2017 — Levola Hengelo BV v Smilde Foods BV
   (Case C-310/17)
   (2017/C 269/12)
   Language of the case: Dutch

      Referring court

   Gerechtshof Arnhem-Leeuwarden

      Parties to the main proceedings

      Applicant: Levola Hengelo BV

      Defendant: Smilde Foods BV

      Questions referred

               1.

                           (a)

                           Does Union law preclude the taste of a food product — as the own intellectual creation of the author — being granted copyright protection? In particular:

                           (b)

                           Is copyright protection precluded by the fact that the expression ‘literary and artistic works’ in Article 2(1) of the Berne Convention, which is binding on all the Member States of the European Union, includes ‘every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression’, but that the examples cited in that provision only relate to creations which can be perceived by sight and/or by hearing?

                           (c)

                           Does the (possible) instability of a food product and/or the subjective nature of the taste experience preclude the taste of a food product being eligible for copyright protection?

                           (d)

                           Does the system of exclusive rights and restrictions, as governed by Articles 2 to 5 of Directive 2001/29/EC, (1) preclude the copyright protection of the taste of a food product?

               2.

               If the answer to question 1(a) is in the negative:

                           (a)

                           What are the requirements for the copyright protection of the taste of a food product?

                           (b)

                           Is the copyright protection of a taste based solely on the taste as such or (also) on the recipe of the food product?

                           (c)

                           What evidence should a party who, in infringement proceedings, claims to have created a copyright-protected taste of a food product, put forward? Is it sufficient for that party to present the food product involved in the proceedings to the court so that the court, by tasting and smelling, can form its own opinion as to whether the taste of the food product meets the requirements for copyright protection? Or should the applicant (also) provide a description of the creative choices involved in the taste composition and/or the recipe on the basis of which the taste can be considered to be the author’s own intellectual creation?

                           (d)

                           How should the court in infringement proceedings determine whether the taste of the defendant’s food product corresponds to such an extent with the taste of the applicant’s food product that it constitutes an infringement of copyright? Is the decisive factor here that the overall impressions of the two tastes are the same?

      (1)  Directive 2001/29/EC 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 L 167, 22.6.2001, p. 10).


title: Case T-533/12: Judgment of the General Court of 7 November 2013 — IBSolution v OHIM — IBS (IBSolution) (Community trade mark — Opposition proceedings — Application for the Community word mark IBSolution — Earlier Community figurative mark IBS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               21.12.2013

               EN

               Official Journal of the European Union

               C 377/14

         Judgment of the General Court of 7 November 2013 — IBSolution v OHIM — IBS (IBSolution)
   (Case T-533/12) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark IBSolution - Earlier Community figurative mark IBS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 377/32
   Language of the case: English

      Parties

      Applicant: IBSolution GmbH (Neckarsulm, Germany) (represented by: F. Ekey, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: IBS AB (Solna, Sweden)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 21 September 2012 (Case R 771/2011-2) relating to opposition proceedings between IBS AB and IBSolution GmbH

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders IBSolution GmbH to pay the costs.

      (1)  OJ C 46, 16.2.2013.


title: Case C-361/08: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 August 2008 — Stichting Greenpeace Nederland v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, other party: Pioneer Hi-Bred Northern Europe Sales Division

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/21

         Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 August 2008 — Stichting Greenpeace Nederland v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, other party: Pioneer Hi-Bred Northern Europe Sales Division
   (Case C-361/08)
   (2008/C 285/34)
   Language of the case: Dutch
   Referring court
   Raad van State
   Parties to the main proceedings

      Applicant: Stichting Greenpeace Nederland

      Defendant: Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer

      Other party: Pioneer Hi-Bred Northern Europe Sales Division
   Questions referred

               1.

               Must the location of release of genetically modified organisms which cannot be regarded as confidential by virtue of Article 25(4) of Directive 2001/18/EC (1), in view inter alia of the objective and general scheme of that Directive, be interpreted as referring to the parcel of land in the land register, or is it sufficient for a larger geographical area to be indicated?

               2.

                           (a)

                           If the indication of a larger geographical area is sufficient, what circumstances may be included when it is decided how the area is to be indicated?

                           (b)

                           Is Directive 2003/4/EC (2) relevant in the determination of the size of the area to be indicated?

                           (c)

                           Does an area twenty times larger than the individual trial fields satisfy the principle of proportionality?

               3.

               Is the principle of proportionality satisfied if, pursuant to the policy revised on 17 July 2008, a general indication of areas one hundred times the individual trial fields is chosen?

               4.

               If only a reference to an entry in the land register is sufficient, can, despite the rule laid down in Article 25(4) of Directive 2001/18/EC, a justification for treating confidentially information on the precise location of release none the less lie in the circumstances defined in Article 4(2) of Directive 2003/4/EC?

               5.

                           (a)

                           Does Article 4(2) of Directive 2003/4/EC contain an exhaustive list of justifications?

                           (b)

                           If so, can the protection of firms, including the persons and products therein, and the prevention of sabotage for the sake of the biotechnological development climate in the Netherlands be subsumed under one of the justifications set out in Article 4(2) of Directive 2003/4/EC?

               6.

               If the answers to Questions 5(a) and (b) are in the affirmative, is the designation of an area twenty or one hundred times the size of the trial field, in the light of Article 4(2)(h) of Directive 2003/4/EC, proportionate having regard to the protection of private interests (protection of firms, including the persons and products therein), and of public interests (prevention of sabotage for the sake of the biotechnological development climate in the Netherlands)?

               7.

                           (a)

                           If the answer to Question 5(a) is in the negative, do the protection of firms, including the persons and products therein, and the prevention of sabotage for the sake of the biotechnological development climate in the Netherlands form a permissible justification?

                           (b)

                           If the answer to Question 7(a) is in the affirmative, is the designation of an area twenty or one hundred times the size of the trial field proportionate having regard to the protection of private interests (protection of firms, including the persons and products therein) and of public interests (prevention of sabotage for the sake of the biotechnological development climate in the Netherlands)?

      (1)  Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ L 106, p. 1).

      (2)  Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, p. 26).


title: Case T-409/05: Action brought on  8 November 2005  — A.S.TER v Commission

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/19

         Action brought on 8 November 2005 — A.S.TER v Commission
   (Case T-409/05)
   (2006/C 22/36)
   Language of the case: Italian
   Parties

      Applicant(s): Società A.S.TER S.p.A. (Genova, Italy) (represented by: Lorenzo Acquarone and Daniela Anselmi)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul the contested measures and, as a result, grant rights of access and therefore release a full copy of the complaint and the annexes thereto;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant in the present action, a limited liability company most of whose capital is held by the Municipality of Genoa, seeks annulment of the defendant's decision rejecting access, under Article 7(e) of Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, to the complaint (and annexes thereto) sent to the Commission on 21 February 2005, which gave rise to an investigation which may lead to initiation of formal infringement proceedings against the applicant.
   Access was withheld on the basis that disclosure might have had an adverse impact on the conduct of the investigation by the Commission.
   In support of its claims, the applicant alleges infringement of Article 4(2) of Regulation No 1049/2001, of the principle audi alteram partem and of the principles of transparency, cooperation and participation in proceedings, and also lack of an adequate statement of reasons.
   It submits in that regard that there is, despite the defendant's claim, no need to withhold distribution of documents relating to the infringement proceedings in order to avoid undermining the inquiries, but that, on the contrary, it is necessary for the purpose of such inquiries for the procedure to be conducted with the greatest transparency and cooperation, so that the Municipality of Genoa and the applicant can produce the documentation required for conduct of the investigations.
   Furthermore, since the applicant is a party to administrative proceedings before the defendant, the contested decision infringes the principle audi alteram partem.
   The applicant adds that objections to rights of access must be interpreted restrictively and in the light of the principle entitlement to information and the principle of proportionality.

      (1)  OJ L 145 of 31.5.2001, p. 43.


title: Case C-654/15: Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 7 December 2015 — Länsförsäkringar AB v A/S Matek

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/26

         Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 7 December 2015 — Länsförsäkringar AB v A/S Matek
   (Case C-654/15)
   (2016/C 048/31)
   Language of the case: Swedish

      Referring court

   Högsta domstolen

      Parties to the main proceedings

      Applicant: Länsförsäkringar AB

      Defendant: A/S Matek

      Questions referred

   The questions concern the interpretation and application of Article 9(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark where third parties use, without consent, in the course of trade, a sign similar to a Community trade mark (1).
   The questions are:

               1.

               Does it affect the proprietor’s exclusive right that, within a period of five years following registration, he has not made genuine use of the Community trade mark in the European Union for goods or services covered by the registration?

               2.

               If the answer to question 1 is in the affirmative, in what circumstances and in what way does that situation affect the exclusive right?

      (1)  OJ 2009 L 78, p. 1.


title: Case C-537/10 P: Order of the President of the Sixth Chamber of the Court of 12 July 2011 — Deltafina SpA v European Commission

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/18

         Order of the President of the Sixth Chamber of the Court of 12 July 2011 — Deltafina SpA v European Commission
   (Case C-537/10 P) (1)

   2011/C 298/32
   Language of the case: Italian
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 13, 15.1.2011.


title: Case C-323/08: Judgment of the Court (Fourth Chamber) of 10 December 2009 (Reference for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain)) — Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo, Bartolomé Valera Huete v Unclaimed estate of Rafael de las Heras Dávila and Sagrario de las Heras Dávila (Reference for a preliminary ruling — Protection of workers — Collective redundancies — Directive 98/59/EC — Termination of contracts of employment as a result of the death of the employer)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/10

         Judgment of the Court (Fourth Chamber) of 10 December 2009 (Reference for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain)) — Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo, Bartolomé Valera Huete v Unclaimed estate of Rafael de las Heras Dávila and Sagrario de las Heras Dávila
   (Case C-323/08) (1)

   (Reference for a preliminary ruling - Protection of workers - Collective redundancies - Directive 98/59/EC - Termination of contracts of employment as a result of the death of the employer)
   2010/C 24/15
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Madrid

      Parties to the main proceedings

      Applicants: Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete

      Defendants: Unclaimed estate of Rafael de las Heras Dávila and Sagrario de las Heras Dávila

      Re:

   Reference for a preliminary ruling — Tribunal Superior de Justicia de Madrid — Interpretation of Articles 1, 2, 3, 4 and 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16) — National legislation restricting the concept of redundancy solely to dismissals made on economic, technical, organisational or production grounds — Termination of contracts of employment by reason of the death, retirement or incapacity of the employer — Different compensation in the two cases — Whether compatible with the Charter of fundamental rights of the European Union and the Community Charter of the fundamental social rights of workers

      Operative part of the judgment

               1.

               Article 1(1) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as not precluding national legislation according to which the termination of contracts of employment of a number of workers, whose employer is a natural person, as a result of the death of that employer is not classified as collective redundancy;

               2.

               Directive 98/59 does not preclude national legislation which provides for different compensation depending on whether the workers lost their jobs as a result of the death of the employer or as a result of a collective redundancy.

      (1)  OJ C 236, 13.9.2008.


title: Case T-112/10: Action brought on 1 March 2010 — Prionics v Commission and EFSA

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/73

         Action brought on 1 March 2010 — Prionics v Commission and EFSA
   (Case T-112/10)
   2010/C 113/107
   Language of the case: German

      Parties

      Applicant: Prionics AG (represented by: H. Janssen and M. Franz, lawyers)

      Defendant: European Commission and European Food Safety Authority (EFSA)

      Form of order sought

               —

               annul the ‘Scientific Opinion on Analytical sensitivity of approved TSE rapid tests’ of EFSA and the Commission, in so far as that opinion does not currently recommend the use of two tests manufactured by the applicant, the Prionicsâ-Check LIA and the Prionicsâ-Check PrioSTRIP, for monitoring BSE;

               —

               order EFSA and the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicant is challenging EFSA’s Scientific Opinion of 10 December 2009 on Analytical sensitivity of approved TSE rapid tests (‘the EFSA Opinion’). That opinion recommends inter alia that the analytical sensitivity of two test systems manufactured by the applicant for BSE (Prionics®-Check LIA and Prionics®-Check PrioSTRIP) be re-assessed by appropriate experiments.
   The applicant puts forward four pleas in law in support of its action.
   In its first plea, the applicant alleges infringement of the principle of sound administration on the ground that the defendants base their recommendation in the EFSA Opinion on an incorrect assessment of the facts and on contradictory data.
   In its second plea, the applicant alleges an infringement of the principle that the right to be heard must be granted in procedures which may result in measures having an adverse effect on a party. In that connection, the applicant furthermore alleges an infringement of the general legal principles of equal treatment and protection of legitimate expectations on the ground that, contrary to its own published administrative provisions, EFSA did not grant the applicant the right to be heard prior to publication of the EFSA Opinion.
   In its third plea, the applicant alleges infringement of the general legal principles of equal treatment and protection of legitimate expectations on the ground that, contrary to its own published administrative provisions, EFSA provided no information in its opinion on the possibility of lodging an appeal against that opinion.
   In its final plea, the applicant alleges infringement of the fundamental right of freedom to pursue a professional activity and the fundamental right of freedom to conduct a business on the ground that the EFSA Opinion was published without any consideration of the harmful consequences for the applicant.


title: Case T-336/16: Action brought on 22 June 2016 — Versace 19.69 Abbigliamento Sportivo v EUIPO — Gianni Versace (VERSACE 19.69 ABBIGLIAMENTO SPORTIVO)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/35

         Action brought on 22 June 2016 — Versace 19.69 Abbigliamento Sportivo v EUIPO — Gianni Versace (VERSACE 19.69 ABBIGLIAMENTO SPORTIVO)
   (Case T-336/16)
   (2016/C 296/45)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Versace 19.69 Abbigliamento Sportivo Srl (Busto Arsizio, Italy) (represented by: F. Caricato, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Gianni Versace SpA (Milan, Italy)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: European Union figurative mark containing the word elements ‘VERSACE 19.69 ABBIGLIAMENTO SPORTIVO’ — Application for registration No 11 992 435

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of EUIPO of 6 April 2016 in Case R 1005/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               uphold the present action;

               —

               annul the contested decision and, consequently, register mark No 11 992 435 in respect of all the goods claimed, without prejudice to those already granted;

               —

               order the other party to pay the costs.

      Plea in law

               —

               The applicant maintains that the decision of 6 April 2016 is vitiated by the scant examination of the evidence demonstrating insufficient use of the marks activated by the other party, and by the failure to examine carefully the likelihood of confusion between the marks and the goods in question in the light of all the relevant factors.


title: Case T-455/07: Action brought on 14 December 2007 — Centre d'Etude et de Valorisation des Algues v Commission of the European Communities

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/46

         Action brought on 14 December 2007 — Centre d'Etude et de Valorisation des Algues v Commission of the European Communities
   (Case T-455/07)
   (2008/C 51/86)
   Language of the case: French
   Parties

      Applicant: Centre d'Etude et de Valorisation des Algues (CEVA) (Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Principally, declare that the procedure is irregular and that there has been an infringement of the right to be heard and, therefore, annul the Commission's debit note No 3240909271, dated 4 October 2007, and order the Commission to reimburse that note to CEVA;

               —

               In the alternative, declare that the errors noted in the RAIA audit report are not so serious that Article 3.5 of Annex II to the contract may be applied to them, annul the Commission's debit note No 3240909271, dated 4 October 2007, to the extent that it seeks full reimbursement of the amounts paid to CEVA under the BIOPAL contract and order the Commission to reimburse that note to CEVA;

               —

               In the very much further alternative, appoint an expert of the Court's choice whose mission will be: to take CEVA's method of calculation; apply that method to the BIOPAL contract and to the reality of the costs in the expenditure accounts; express as a percentage the difference between the amount of the errors in the recording of working time as submitted to the Commission and the amount of that working time as recorded under the method of calculation now applicable to CEVA; carry out an assessment of the direct working time necessary to carry out CEVA's missions in the framework of the BIOPAL contract; state whether that real working time, needed to carry out those missions, could be less than the 5 796,67 direct hours calculated by CEVA.

         Pleas in law and main arguments
   In the present action, the applicant is seeking the annulment of the debit note whereby the Commission demanded reimbursement of all the payments on account made to the applicant in the framework of BIOPAL contract No QLK5-CT-2002-02431, concerning the key action ‘Sustainable Agriculture, Fisheries and Forestry, and Integrated Development of Rural Areas including Mountain Areas’, which is part of the ‘Quality of Life and management of living resources’ (1)

   In support of its application, the applicant puts forward a plea in law alleging an infringement of the rights of the defence inasmuch as the Commission, contrary to the principle of the right to be heard, based the demand for reimbursement on time sheets and conclusions drawn by OLAF of which the applicant had no knowledge.
   In the alternative, the applicant contests the Commission's application of Article 26 of Annex II to the contract and its finding that the facts of the case were sufficiently serious to invoke the concept of serious financial irregularity justifying a full reimbursement of the payments on account.

      (1)  Fifth European Community Framework Programme covering Research, Technological Development and Demonstration activities 1998-2002.


title: Case C-139/04: Actionbrought on 15 March 2004 by the Commission ofthe European Communities against the Italian Republic

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/40

         Action brought on 15 March 2004 by the Commission of the European Communities against the Italian Republic
   (Case C-139/04)
   (2004/C 106/70)
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 15 March 2004 by the Commission of the European Communities, represented by Gregorio Valero Jordana and Roberto Amorosi, acting as Agents.
   The applicant claims that the Court should:

               —

               Declare that, by communicating to the Commission only in part the methods used for the preliminary assessment of air quality under Article 3 in respect of the substances covered by Directive 1999/30/EC (1) and by sending after 30 September 2002 the questionnaire adopted by Decision 2001/839/EC (2), providing only certain information in respect of 2001 on the substances covered by Directive 1999/30/EC, as laid down by Article 11(1)(a)(i) and (ii) and Article 11(1)(b) of Directive 1996/62/EC (3), the Italian Republic has failed to fulfil its obligations under Article 11 in conjunction with Article 4(1) of Directive 1996/62/EC and with Directive 1999/30/EC, and its obligations under Article 11 in conjunction with Article 4(1) of Directive 1996/62/EC, with Directive 1999/30/EC and with Article 1 of Decision 2001/839/EC;

               —

               Order the Italian Republic to pay the costs.

         Pleas in law and main arguments:
   The treatment of the information communicated by Italy with regard to the Regions and certain of them appears to infringe the obligations stated in the reasoned opinion. To date, however, the Commission has not received information on the methods used for the preliminary assessment of air quality under Article 5 of Directive 96/62/EC in respect of the substances covered by Directive 1999/30/EC from the following regions: Abruzzo, Basilicata, Calabria, Campania, Emilia Romagna, Friuli Venezia Giulia, Lazio, Molise, Puglia, Sardegna, Sicilia, Provincia Autonoma di Bolzano, Umbria and Veneto. Furthermore, the questionnaires in respect of 2001 on the substances covered by Directive 99/30/EC, as laid down by Article 11(1)(a)(i) and (ii) and Article 11(1)(b) of Directive 1996/62/EC appear to be missing in respect of the following Regions: Abruzzo, Basilicata, Calabria, Campania, Friuli Venezia Giulia, Molise, Puglia, Sardegna, Sicilia, Provincia Autonoma di Bolzano and Umbria.

      (1)  OJ L 163 of 29.06.1999, p. 41.

      (2)  OJ L 319 of 04.12.2001, p. 45.

      (3)  OJ L 296 of 21.11.1996, p. 55.


title: Case C-407/11 P: Appeal brought on 1 August 2011 by Government of Gibraltar against the order of the General Court (Seventh Chamber) delivered on 24 May 2011 in Case T-176/09: Government of Gibraltar v European Commission

text:
               1.10.2011

               EN

               Official Journal of the European Union

               C 290/6

         Appeal brought on 1 August 2011 by Government of Gibraltar against the order of the General Court (Seventh Chamber) delivered on 24 May 2011 in Case T-176/09: Government of Gibraltar v European Commission
   (Case C-407/11 P)
   2011/C 290/10
   Language of the case: English

      Parties

      Appellant: Government of Gibraltar (represented by: D. Vaughan QC, M. Llamas, Barrister)

      Other parties to the proceedings: European Commission, United Kingdom of Great Britain and Northern Ireland, Kingdom of Spain

      Form of order sought

   The applicant claims that the Court should:

               (a)

               set aside the Order of the General Court dated 24 May 2011 in Case T-176/09;

               (b)

               declare the Government's application in Case T-176/09 admissible;

               (c)

               refer the case back to the General Court for a decision on the Government's Application on the merits;

               (d)

               in the alternative to (b) and (c), refer the case back to the General Court with an order that the General Court now deals with any remaining issue of admissibility at the same time as its consideration of the merits of the case;

               (e)

               order the Commission and Spain to pay the Government's costs and expenses before the Court of Justice and in the proceedings before the General Court.

      Pleas in law and main arguments

   The appellant contests the judgment of the General Court on the following grounds:

               1.

               the General Court committed an infringement of European Union law by applying or misapplying the law on partial annulment and severance in the circumstances of this case in that this case is equivalent to rectification of a register of the extent of a property and not of true partial annulment or severance; parts of Site ES6120032 were clearly wrongly designated or clearly based on erroneous and misleading information given by Spain. The area covered by the Site should be rectified by appropriate and proportionate annulment;

               2.

               the General Court committed an infringement of European Union law by finding that the partial annulment of Decision 2009/95 (1) in the way sought by the Government (1) would involve the Court redefining the geographical limits of Site ES6120032 and altering Site ES6120032 entirely and (2) would, therefore, alter the substance of Decision 2009/95 and would manifestly not be severable from the remainder of Decision 2009/95;

               3.

               the General Court committed an infringement of European Union law by holding that there was no evidence that a new delimitation of Site ES6120032 in the way sought by the Government would satisfy the criteria laid down in Annex III to the Habitats Directive for classification as a Site of Community Importance when there was abundant evidence in fact and in law that it would so qualify and the contrary had never been suggested by any of the parties hereto, and in so finding the General Court distorted the evidence and/or made a wrong legal characterisation of the facts and drew the wrong legal conclusions from them and/or made a manifest error in its assessment of the facts and furthermore applied the wrong legal test and, in the circumstances, adopted inappropriate procedures;

               4.

               further or in the alternative to the above, the General Court committed a breach of procedure that adversely affected the interests of the Government by acting in breach of the rights of the defence in that it did not allow the Government an opportunity to comment on documents submitted by the other parties to the case and by not showing to the Government one document lodged by Spain that was important to the issue on which the Court would base its Order and by adopting, in the circumstances, inappropriate procedures;

               5.

               further or in the alternative to the above, the General Court committed a breach of procedure that adversely affected the interests of the Government by failing to provide any reasoning to support its finding that there was no evidence that a new delimitation of Site ES6120032 as contended by the Government would satisfy the criteria laid down in Annex HI to the Habitats Directive for classification as a site of Community importance and/or for disregarding or rejecting the substantive evidence to the contrary.

      (1)  2009/95/EC: Commission Decision of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document number C(2008) 8049)
   OJ L 43, p. 393


title: Case T-402/17: Action brought on 27 June 2017 — Vienna International Hotelmanagement v EUIPO (Vienna House)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/50

         Action brought on 27 June 2017 — Vienna International Hotelmanagement v EUIPO (Vienna House)
   (Case T-402/17)
   (2017/C 277/72)
   Language of the case: German

      Parties

      Applicant: Vienna International Hotelmanagement AG (Vienna, Austria) (represented by: M. Zrzavy, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘Vienna House’ — Application No 14 501 357

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 25 April 2017 in Case R 333/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.


title: Case C-99/01: Reference for a preliminary ruling by the Verwaltungsgerichtshof, Vienna, by order of that court of 29 January 2001 in appeal proceedings brought by (1) Gottfried Linhart and (2) Dr Hans Biffl

text:
C 118/18                EN                        Official Journal of the European Communities                                     21.4.2001
Reference for a preliminary ruling by the Tribunale di                       The applicant claims that the Court should:
Brescia, by orders of that court of 20 January 2001, in
the cases of (1) Agricola Torriani Sas; (2) Finanziaria
                                                                             —     annul Commission decision C(2000) 3565 final of
Immobiliare Perugino SpA and (3) San Marco SpA v
                                                                                15 November 2000 relating to State aid which Italy
                     Ministero delle Finanze
                                                                                intends to grant to Solar Tech Srl, insofar as it has failed
                                                                                to apply 15 % GSE (1), provided for small and medium-
             (Cases C-88/01, C-89/01 and C-90/01)                                  sized enterprises (SMEs), to the aid granted, and order the
                                                                                Commission to pay the costs.
                          (2001/C 118/28)
References have been made to the Court of Justice of the                     Pleas in law and main arguments
European Communities by orders of 20 anuary 2001, received
at the Court Registry on 21 February 2001, for a preliminary
ruling in the cases of (1) Agricola Torriani Sas; (2) Finanziaria            The Italian Government submits that, by basing the decision
Immobiliare Perugino SpA and (3) San Marco SpA v Ministero                   not to recognise the increment provided for on a definition of
delle Finanze on the following questions:                                    SMEs which fails to take account exclusively of the require-
                                                                             ments mentioned in the rules for aid to SMEs, the Commission
1.    Is Article 11(1) of Italian Law No 448 of 23 December                  infringed those rules, which the Court has held to be binding.
      1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
      supplement) compatible with Community law, in particu-
                                                                             The Italian Government further submits that the contested
      lar with Articles 10 and 12 of Council Directive
                                                                             application of the rules contained in the decision at issue is
      69/335/EEC (1), inasmuch as it provides that the adminis-
      trative charge is payable at a flat annual rate for regis-             also contrary to the principles of legitimate expectations and
                                                                             legal certainty.
      tration of ‘other company documents’ for each of the
      years from 1985 to 1992, equal to the sum of the
      sum of ITL 750 000 for public limited companies and
      partnerships limited by shares and ITL 400 000 for                     (1) GSE = maximum concession in gross subsidy equivalent granted
      private limited companies?                                                 according to the size of the undertaking and location of the
                                                                                production unit.
2.    Is Article 11(3) of Law No 448/98 compatible with
      Community law, inasmuch as it provides that interest on
      the sums to be reimbursed in so far as they exceed the
      sum provided for by Article 11(1) should be calculated
      according to the legal rate in force at the date on which
      that Law entered into force (2.5% per annum) and not
      according to the rate provided for by Article 5 with
      respect to Article 1 of Law No 29 of 26 January 1961, as
      subsequently amended?
                                                                             Reference for a preliminary ruling by the Verwaltungsge-
                                                                             richtshof, Vienna, by order of that court of 29 January
(1) Council Directive 69/335/EEC of 17 July 1969 concerning                  2001 in appeal proceedings brought by (1) Gottfried
    indirect taxes on the raising of capital (OJ, English Special Edition                     Linhart and (2) Dr Hans Biffl
    1969 (11), p. 412).
                                                                                (Case C-99/01)
                                                                                (2001/C 118/30)
                                                                             Reference has been made to the Court of Justice of the
Action brought on 21 February 2001 by the Italian                            European Communities by order of the Verwaltungsgerichts-
Republic against the Commission of the European Com-                         hof (Supreme Administrative Court), received at the Court
                               munities                                      Registry on 28 February 2001, for a preliminary ruling in the
                                                                             appeal proceedings brought by (1) Gottfried Linhart and (2)
                                                                             Dr Hans Biffl, on the following questions:
                           (Case C-91/01)
                                                                             (1) Do Articles 28 and 30 EC, Council Directive 76/768/EEC
                          (2001/C 118/29)                                          of 27 July 1976 (1) on the approximation of the laws of
                                                                                the Member States relating to cosmetic products, as
An action against the Commission of the European Communi-                          amended by Council Directives 88/667/EEC of
ties was brought before the Court of Justice of the European                       21 December 1988 (2) (OJ 1988 L 382, p. 46) and
Communities on 21 February 2001 by the Italian Republic,                           Council Directive 93/35/EEC of 14 June 1993 (3) (OJ
represented by Danilo Del Gaizo, Avvocato dello Stato.                             1993 L 151, p. 32) (hereinafter ‘Directive 76/768’), in
 ---pagebreak--- 21.4.2001              EN                     Official Journal of the European Communities                                         C 118/19
      particular Article 6(3) thereof, together with Council                   about fifteen people with links between the pages which
      Directive 84/450/EEC of 10 September 1984 (4) on the                     make it possible to search by first name be considered to
      approximation of the laws, regulations and administrative                constitute ‘the processing otherwise than by automatic
      provisions of the Member States concerning misleading                    means of personal data which form part of a filing system
      advertising (OJ 1984 L 250, p. 17) (hereinafter ‘Directive               or are intended to form part of a filing system’ within the
      84/450’), in particular Articles 4 and 7 thereof, preclude               meaning of Article 3(1)?
      national legislation which, in connection with the market-
      ing of cosmetic products, makes it an offence to refer to
      medical opinions, by the use, in particular, of the                If the answer to either of those questions is yes, the Hovrätten
      description ‘clinically tested’ or ‘dermatologically tested’ ,     also asks the following questions:
      if erroneous ideas as to the characteristics and functioning
      of the cosmetic product could be engendered in the mind
                                                                         (3) Can the act of loading information of the type described
      of the consumer, as a result of a lack of information as to
                                                                               about work colleagues onto a private home page which
      the content and outcome of the opinion in question?
                                                                               is none the less accessible to anyone who knows its
                                                                               address be regarded as outside the scope of the directive
(2) Do Articles 28 and 30 EC, Directive 76/768, in particular                  on the ground that it is covered by one of the exceptions
      Article 6(3) thereof, and Directive 84/450, in particular                in Article 3(2)?
      Articles 4 and 7 thereof, preclude national legislation
      which permits information coming within the terms of
      Question 1 to be used only after prior authorisation by            (4) Is information on a home page stating that a named
      the competent Federal Minister?                                          colleague has injured her foot and is on half-time on
                                                                               medical grounds personal data concerning health which,
                                                                               according to Article 8(1), may not be processed?
( 1) OJ 1976 L 262, p. 169.
( 2) OJ 1988 L 382, p. 46.                                               (5) The directive prohibits the transfer of personal data to
( 3) OJ 1993 L 151, p. 32.                                                     third countries in certain cases. If a person in Sweden
( 4) OJ 1984 L 250 p. 17.                                                      uses a computer to load personal data onto a home page
                                                                               stored on a server in Sweden — with the result that
                                                                               personal data becomes accessible to people in third
                                                                               countries — does that constitute a transfer of data to a
                                                                               third country within the meaning of the directive? Would
                                                                               the answer be the same even if, as far as known, no one
                                                                               from the third country had in fact accessed the data or if
                                                                               the server in question is actually physically in a third
                                                                               country?
Reference for a preliminary ruling from the Göta Hovrätt-
en by decision of that court of 23 February 2001 in                      (6) Can the provisions of the directive, in a case such as the
the case of Bodil Lindqvist v Kammaråklagaren (Public                          above, be regarded as bringing about a restriction which
                    Prosecutor), Jönköpning                                    conflicts with the general principles of freedom of
                                                                               expression or other freedoms and rights, which are
                         (Case C-101/01)                                       applicable within the EU and are enshrined in inter alia
                                                                               Article 10 of the European Convention on the Protection
                                                                               of Human Rights and Fundamental Freedoms?
                         (2001/C 118/31)
                                                                         Finally, the Hovrätten asks the following question:
Reference has been made to the Court of Justice of the
European Communities by a decision of the Göta Hovrätten
of 23 February 2001, which was received at the Court Registry            (7) Can a Member State, as regards the issues raised in the
on 1 March 2001, for a preliminary ruling in the case of Bodil                 above questions, provide more extensive protection for
Lindqvist v Kammaråklagaren, Jönköpning, on the following                      personal data or give it a wider scope than the directive,
questions:                                                                     even if none of the circumstances described in Article 13
                                                                               exists?
(1) Is the mention of a person — by name or with name and
      telephone number — on an Internet home page an action
      which falls within the scope of the directive? (1) Does it
                                                                         (1) Directive 95/46/EC of the European Parliament and of the Council
      constitute ‘the processing of personal data wholly or
                                                                             on the protection of individuals with regard to the processing of
      partly by automatic means’ to list on a self-made Internet             personal data and on the free movement of such data (OJ 1995
      home page a number of persons with comments and                        L 281, p. 31).
      statements about their jobs and hobbies etc?
(2) If the answer to the first question is no, can the act of
      setting up on an Internet home page separate pages for


title: Reference for a preliminary ruling by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen by order of that court of 28 July 1997 in the case of Ulrich Gloger against Bergamt Kamen, joined party: Vertreter des öffentlichen Interesses beim Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Case C-296/97)

text:
C 318/6                     EN                   Official Journal of the European Communities                                        18 . 10 . 97
Action brought on 1 August 1997 by the Commission of                        In the third indent of Article 3 (2 ) of the Council Directive
   the European Communities against the French Republic                     on freedom of access to information on the environment,
                             ( Case C-284/97 )                              does the ground of exclusion for matters which are
                                                                            'the subject of preliminary investigation proceedings'
                                ( 97/C 318/08 )                             encompass proceedings of an administrative authority that
                                                                            end with the issue of an administrative act which, if an
An action against the French Republic was brought before                    action is brought, can become the subject of judicial
the Court of Justice on 1 August 1997 by the Commission                     proceedings ? (')
of the European Communities, represented by Fernando
Castillo de la Torre, of its Legal Service, and O. Couvert-                 (') Council Directive 90/313/EEC ( OJ L 158 , 23 . 6 . 1990 , p . 56 ).
Castera, a national civil servant on secondment to that
service, acting as Agents, with an address for service in
Luxembourg at the office of Carlos Gomez de la Cruz,
Wagner Centre, Kirchberg.
The Commission of the European Communities claims
that the Court should :
                                                                            Action brought on 13 August 1997 by the Commission of
                                                                                the European Communities against the Italian Republic
— declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply                                                Case C-297/97 )
      with Council Directive 93/40/EEC (') of 14 June 1993                                             ( 97/C 318/ 10 )
      amending Directives 81 /851 /EEC ( 2 ) and 81 /852/
      EEC (') on the approximation of the laws of the
      Member States relating to veterinary medicinal
                                                                            An action against the Italian Republic was brought before
      products, the French Republic has failed to fulfil its
                                                                            the Court of Justice of the European Communities on
      obligations under the EC Treaty and that Directive
                                                                            13 August 1997 by the Commission of the European
      ( except as regards Article 1 ( 7)),
                                                                            Communities, represented by Laura Pignataro, of its Legal
— oder the French Republic to pay the costs .                               Service, acting as Agent, with an address for service in
                                                                            Luxembourg at the office of Carlos Gomez de la Cruz,
Pleas in law and main arguments adduced in support:                         Wagner Centre, Rue Alcide de Gasperi .
Identical to those submitted in Case C-282/97 ( 4 ); the
period prescribed in Article 3 of Directive 93/40/EEC                       The applicant claims that the Court should:
expired on 31 December 1994 .
                                                                             1 . declare that, by failing to adopt and/or, in any event,
(')  OJ  L 214, 24 . 8 .   1993 , p . 31 .                                        notify the laws, regulations and administrative
(z ) OJ  L 317, 6 . 11 .   1981 , p . 1 .                                         provisions necessary to comply with Council Directive
(■') OJ  L 317, 6 . 11 .   1981 , p . 16 .
(4 ) OJ   C 295 , 27 . 9 . 1997, p . 20 .
                                                                                93/65/EEC of 19 July 1993 on the definition and
                                                                                use of compatible technical specifications for the
                                                                                procurement of air-traffic-management equipment and
                                                                                systems ('), the Italian Republic has failed to fulfil its
                                                                                obligations pursuant to that Directive and the EC
                                                                                Treaty;
Reference for a preliminary ruling by the Oberverwal
tungsgericht für das Land Nordrhein-Westfalen by order
                                                                            2 . order the Italian Republic to pay the costs of the
 of that court of 28 July 1997 in the case of Ulrich Gloger
                                                                                proceedings.
 against Bergamt Kamen, joined party: Vertreter des öffent
 lichen Interesses beim Oberverwaltungsgericht für das
                       Land Nordrhein-Westfalen                              Pleas in law and main arguments adduced in support:
                              ( Case C-296/97 )
                                 ( 97/C 318/09 )                             Article 189 of the EC Treaty, which provides that a
                                                                             Directive is binding, as to the result to be achieved, upon
 Reference has been made to the Court of Justice of the                      each Member State to which it is addressed, involves an
 European Communities by order of the Twenty-first                           obligation on Member States to comply with the
 Chamber of the Oberverwaltungsgericht für das Land                          transposition periods which Directives lay down . That
 Nordrhein-Westfalen ( Higher Administrative Court for the                   period expired on 20 July 1994 without the Italian
 Land North Rhine-Westphalia ) of 28 July 1997, received                     Republic having adopted the provisions necessary to
 at the Court Registry on 12 August 1997, for a peliminary                   comply with the Directive referred to in the form of order
 ruling in the case of Ulrich Gloger against Bergamt                         sought by the Commission.
 (Mining Office ) Kamen, joined party: Vertreter des öffent
 lichen Interesses beim Oberverwaltungsgericht für das                       (') OJ L 187, 29 . 7 . 1993 , p . 52 .
 Land Nordrhein-Westfalen ( Representative of the Public
 Interest before the Higher Administrative Court for the
 Land North Rhine-Westphalia ) on the following question :


title: Case C-136/04: Reference for a preliminary ruling by the Bundesfinanzhof, by order of that court of 3 February 2004 in the case of Deutsches Milch-Kontor GmbH against Hauptzollamt Hamburg-Jonas

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/32

         Reference for a preliminary ruling by the Bundesfinanzhof, by order of that court of 3 February 2004 in the case of Deutsches Milch-Kontor GmbH against Hauptzollamt Hamburg-Jonas
   (Case C-136/04)
   (2004/C 118/59)
   Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof of 3 February 2004, received at the Court Registry on 15 March 2004, for a preliminary ruling in the case of Deutsches Milch-Kontor GmbH against Hauptzollamt Hamburg-Jonas on the following question:
   Must Regulation (EEC) No 3445/89 (1) and Regulation (EEC) No 1706/89 (2) be interpreted as meaning that cheese under subheading 0406 90 of the Combined Nomenclature, intended for processing in a third country and therefore to be classified for customs tariff purposes under subheading 0406 90 11 of the Combined Nomenclature in the version in Regulation (EEC) No. 2886/89 (3), is excluded from the grant of an export refund?

      (1)  OJ L 336, p. 1.

      (2)  OJ L 166, p. 36.

      (3)  OJ L 282, p. 1.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 5 October 1995 in Case C-440/93 (reference for a preliminary ruling from the High Court of Justice, Queen's Bench Division, Divisional Court): The Queen v. Licensing Authority of the Department of Health, Norgine Limited, ex-parte: Scotia Pharmaceuticals Ltd (Medicinal products - Placing on the market - Summary of the proceedings)

text:
 No C 299/6           EN                 Official Journal of the European Communities                                      11 . 11 . 95
              JUDGMENT OF THE COURT                                 or administrative action relating to proprietary medicinal
                       ( Sixth Chamber )                            products.
                      of 5 October 1995
                                                                    (') OJ No C 1 , 4 . 1 . 1994 .
in Case C-440/93 ( reference for a preliminary ruling from
the High Court of Justice, Queen 's Bench Division,
Divisional Court ): The Queen v. Licensing Authority of the
Department of Health, Norgine Limited, ex-parte: Scotia
                   Pharmaceuticals Ltd (')
 (Medicinal products — Placing on the market — Summary
                      of the proceedings)                                          JUDGMENT OF THE COURT
                         ( 95/C 299/08 )                                                     ( Sixth Chamber )
                                                                                of 5 October 1995
                                                                    in Case C-96/94 ( reference for a preliminary ruling from the
               (Language of the case: English)                     Tribunale di Genova ): Centro Servizi Spediporto Srl gegen
                                                                                Spedizioni Marittima del Golfo Srl (')
                                                                    (Road transport — Tariffs — State legislation —
In Case C-440/93 : reference to the Court under Article 177                                     Competition)
of the EC Treaty from the High Court of Justice, Queen 's                                      ( 95/C 299/09 )
Bench Division, Divisional Court ( United Kingdom ) for a
preliminary ruling in the proceedings pending before that
court between The Queen and ( 1 ) Licensing Authority of the                        (Language of the case: Italian)
Department of Health, ( 2 ) Norgine Limited, ex-parte : Scotia
Pharmaceuticals Ltd — on the interpretation of point ( 8 ) ( a )
                                                                    (Provisional translation: the definitive translation will he
( ii ) of the second paragraph of Article 4 of Council
Directive 65/65/EEC of 26 January 1965 on the
                                                                             published in the European Court Reports)
approximation of provisions laid down by law, regulation
or administrative action relating to proprietary medicinal         In Case C-96/94 : reference to the Court under Article 1 77 of
products ( OJ , English Special Edition 1965— 1966 , p. 20 ),      the EEC Treaty by the Tribunale di Genova ( District Court,
as amended by Council Directive 87/21 /EEC of                      Genoa ) ( Italy ) for a preliminary ruling in the proceedings
22 December 1986 ( OJ 1987L 15 , p. 36 ) — the Court ( Sixth       pending before that court between Centro Servizi
Chamber ), composed of: F. A. Schockweiler, President of           Spediporto Sri and Spedizioni Marittima del Golfo Sri on the
the Chamber, G. F. Mancini, C. N. Kakouris, J. L. Murray           interpretation of Articles 3 ( g ), 5 , 30 , 85 , 86 and 90 of the
( Rapporteur ) and G. Hirsch , Judges; P. Leger,                   EC Treaty, of Council Regulation ( EEC ) No 4055/86 of
Advocate-General ; L. Hewlett, Administrator, for the              22 December 1986 applying the principle of freedom to
Registrar, has given a judgment on 5 October 1995 , in             provide services to maritime transport between Member
which it rules :                                                   States and between Member States and third countries ( OJ
                                                                    1986 L 378 , p. 1 ), and of Council Directive 92/ 106/EEC of
                                                                   7 December 1992 on the establishment of common rules for
                                                                   certain types of combined transport of goods between
on a proper construction, point (8) (a) (ii) of the second         Member States ( OJ 1992 L 368 , p. 38 ) — the Court ( Sixth
paragraph of Article 4 of Council Directive 65/65/EEC of           Chamber ), composed of F. A. Schockweiler ( Rapporteur ),
26 January 1965 on the approximation of provisions laid            President of Chamber , G. F. Mancini , J. L. Murray,
down by law, regulation or administrative action relating to       G. Hirsch and H. Ragnemalm , Judges; P. Leger;
proprietary medicinal products, as amended by Council              Advocate-General ; L. Hewlett, Administrator, for the
Directive 87/21 /EEC of 22 December 1986 , means that              Registrar, has given a judgment on 5 October 1995 , in
a national authority with competence to issue an                   which it rules :
authorization to place a medicinal product on the domestic
market may not issue such authorization where the
particulars and documents submitted in support of the               1 . neither Articles 3 (g), 5, 85 , 86 or 90 of the EC Treaty,
application for an authorization do not contain detailed                nor Article 30 of that Treaty, preclude the legislation of
references to published scientific literature presented in              a Member State from providing for roadhaulage tariffs
accordance with each of the requirements laid down                      to be approved and brought into force by the State on
in Parts 2 and 3 of the Annex to Council                                the basis of proposals submitted by a committee, where
Directive 75/31 8/EEC of 20 May 1975 on the                             that committee is composed of a majority of
approximation of the laws of Member States relating to                  representatives of the public authorities and a minority
analytical, pharmaco-toxicological and clinical standards               of representatives of the economic agents concerned and
and protocols in respect of the testing of proprietary                  in its proposals must observe certain public interest
medicinal products, and where those documents do not                    criteria, and ivhere, moreover, the public authorities do
comprise experts ' reports complying with each of the                   not relinquish their rights and powers by taking into
requirements laid down in Articles 1 and 2 of Council                   consideration, before the proposals are approved, the
Directive 75/319/EEC of 20 May 1975 on the                              observation of other public and private bodies , or even
approximation of provisions laid down by law, regulation                by fixing tariffs ex officio;


title: Case T-609/13: Judgment of the General Court of 29 January 2015  — Blackrock v OHIM (SO WHAT DO I DO WITH MY MONEY) (Community trade mark — Application for the Community word mark SO WHAT DO I DO WITH MY MONEY — Mark consisting of an advertising slogan — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/21

         Judgment of the General Court of 29 January 2015 — Blackrock v OHIM (SO WHAT DO I DO WITH MY MONEY)
   (Case T-609/13) (1)

   ((Community trade mark - Application for the Community word mark SO WHAT DO I DO WITH MY MONEY - Mark consisting of an advertising slogan - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 089/23)
   Language of the case: English

      Parties

      Applicant: Blackrock, Inc. (Wilmington, Delaware, United States) (represented by: S. Malynicz, Barrister, and K. Gilbert and M. Blair, Solicitors)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially I. Harrington, and subsequently J. Crespo Carrillo, acting as Agents)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 September 2013 (Case R 572/2013-4), concerning an application for registration of the word sign SO WHAT DO I DO WITH MY MONEY as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Blackrock, Inc. to pay the costs.

      (1)  OJ C 24, 25.1.2014.


title: Case F-124/15: Order of the Civil Service Tribunal (1st Chamber) of 13 July 2016 — Siragusa v Council (Civil service — Officials — Leaving the service — Official’s application to be granted retirement — Amendment of the provisions of the Staff Regulations after the application — Alleged withdrawal of an earlier decision)

text:
               5.9.2016

               EN

               Official Journal of the European Union

               C 326/35

         Order of the Civil Service Tribunal (1st Chamber) of 13 July 2016 — Siragusa v Council
   (Case F-124/15) (1)

   ((Civil service - Officials - Leaving the service - Official’s application to be granted retirement - Amendment of the provisions of the Staff Regulations after the application - Alleged withdrawal of an earlier decision))
   (2016/C 326/59)
   Language of the case: French

      Parties

      Applicant Sergio Siragusa (Brussels, Belgium) (represented by: T. Bontinck and A. Guillerme, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer and M. Veiga, Agents)

      Intervener in support of the defendants: European Parliament (represented by: M. Dean and D. Nessaf, Agents)

      Re:

   Application for annulment of the decision not to grant the applicant’s application for early retirement, in so far as it was adopted after the entry into force of the new Staff Regulations, thereby withdrawing the earlier favourable decision, and an application for damages in respect of the material and non-material harm allegedly suffered.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Sergio Siragusa shall bear his own costs and is ordered to pay the costs incurred by the Council of the European Union.

               3.

               The European Parliament shall bear its own costs.

      (1)  OJ C 414, 14/12/2015, p. 42.


title: Case C-70/06: Action brought on  7 February 2006  — Commission of the European Communities v Portuguese Republic

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/15

         Action brought on 7 February 2006 — Commission of the European Communities v Portuguese Republic
   (Case C-70/06)
   (2006/C 86/28)
   Language of the case: Portuguese
   Parties

      Applicant(s): Commission of the European Communities (represented by: Xavier Lewis and António Caeiros)

      Defendant(s): Portuguese Republic
   The applicant claims that the Court should:

               —

               declare that, by having failed to take the measures necessary to comply with the judgment of the Court of Justice of the European Communities of 14 October 2004 in Case C-275/03 Commission v Portuguese Republic [2004] ECR I-0000, concerning the transposition into domestic law of Council Directive 89/665/EEC (1) of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, the Portuguese Republic has failed to fulfil its obligations under Article 228(1) of the EC Treaty;

               —

               order the Portuguese Republic to pay to the Commission, into the account ‘European Community own resources’, mentioned in Article 9 of Council Regulation (EC, Euratom) No 1150/2000, (2) a penalty payment of EUR 21 450 for every day of delay in complying with the judgment in Case C-275/03 from the day on which the Court of Justice delivers judgment in the present case until the day on which the judgment in Case C-275/03 is complied with;

               —

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   According to the Commission, the draft law on the non-contractual civil liability of the State and other public bodies put before the Assembly of the Republic by the Portuguese Government does not provide the measures necessary to comply with the judgment of the Court of Justice of the European Communities of 14 October 2004 in Case C-275/03 Commission v Portuguese Republic; no other measures whatsoever to comply with that judgment having been communicated to it, the Commission takes the view that the Portuguese Republic has failed to fulfil its obligations under Article 228(1) EC.

      (1)  OJ L 395, p. 33.

      (2)  Of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (OJ L 130, p. 1).


title: Case T-401/08 R: Order of the President of the Court of First Instance of 14 November 2008 — Säveltäjäin Tekijänoikeustoimisto Teosto v Commission (Interim measures — Commission decision ordering the termination of a concerted practice concerning the collective protection of authors' rights — Application for suspension of a measure — Lack of urgency)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/38

         Order of the President of the Court of First Instance of 14 November 2008 — Säveltäjäin Tekijänoikeustoimisto Teosto v Commission
   (Case T-401/08 R)
   (Interim measures - Commission decision ordering the termination of a concerted practice concerning the collective protection of authors' rights - Application for suspension of a measure - Lack of urgency)
   (2009/C 69/89)
   Language of the case: Finnish
   Parties

      Applicant: Säveltäjäin Tekijänoikeustoimisto Teosto ry (Helsinki, Finland) (represented by: H. Pokela, lawyer)

      Defendant: Commission of the European Communities (represented by: E. Paasivirta, F. Castillo de la Torre and P. Aalto, Agents)
   Re:
   Application for suspension of the operation of Article 3 in conjunction with Article 4(2) and (3) of Decision C(2008) 3435 final of the Commission of 16 July 2008 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/C2/38.698-CISAC), to the extent that the applicant is affected.
   Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case T-119/14: Action brought on 18 February 2014 — Carbio v Council

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/24

         Action brought on 18 February 2014 — Carbio v Council
   (Case T-119/14)
   2014/C 151/32
   Language of the case: English

      Parties

      Applicant: Cámara Argentina de Biocombustibles (Carbio) (Buenos Aires, Argentina) (represented by: J. Bellis and R. Luff, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013, imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), insofar as it concerns the applicant; and

               —

               Order the defendant to bear the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Institutions have committed a manifest error in the appreciation of the facts by concluding that there was a distortion of the prices of soya beans and soybean oil justifying the application of the second paragraph of Article 2(5) of the Basic Anti-dumping Regulation (1).

               2.

               Second plea in law, alleging that the second paragraph of Article 2(5) of the Basic Antidumping Regulation, as construed by the Institutions in the present case, may not be applied to imports from a WTO member as it is inconsistent with the WTO Anti-dumping Agreement.

               3.

               Third plea in law, alleging that the injury assessment fails to take into consideration factors that break the causal link between the alleged injury and the allegedly dumped imports in violation of Article 3(7) of the Basic-Anti-dumping Regulation.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51)


title: Case C-233/15: Request for a preliminary ruling from the Administratīvā apgabaltiesa (Latvia) lodged on 21 May 2015 — SIA ‘Oniors Bio’ v Valsts ieņēmumu dienests

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/11

         Request for a preliminary ruling from the Administratīvā apgabaltiesa (Latvia) lodged on 21 May 2015 — SIA ‘Oniors Bio’ v Valsts ieņēmumu dienests
   (Case C-233/15)
   (2015/C 245/14)
   Language of the case: Latvian

      Referring court

   Administratīvā apgabaltiesa

      Parties to the main proceedings

      Applicant: SIA ‘Oniors Bio’

      Defendant: Valsts ieņēmumu dienests

      Questions referred

               1)

               Is it the case that certain products in relation to which the results of an examination of samples taken from various batches of goods do not disclose the presence of denaturing agents or of other noxious substances rendering them unfit for human consumption but which, according to the information supplied by the producer, cannot be used for food (food production and food chain) since, owing to the characteristics of the production process, the presence of noxious substances in the product cannot be ruled out, must be generally classified under one of the CN headings of Annex I to Council Regulation (EEC) No 2658/87 (1) on the tariff and statistical nomenclature and on the Common Customs Tariff, which are intended to cover non-food products or, on the contrary, must such products be generally classified under one of the CN headings intended to cover food products?

               2)

               To what criteria must greater importance be attributed in interpreting the terms ‘food product’ and ‘non-food product’ for the purposes of applying the CN headings in Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and for the purposes of classifying the goods?

               3)

               May the intended use of the product constitute an objective criterion for classification for the purposes of applying the CN headings in Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and for the purposes of classifying the goods?

               4)

               May the opinion of the competent authority of a Member State of the European Union, according to which, under the provisions of EU law and the law of the Member States regarding food, the goods imported by the appellant cannot be used in the food chain, since they are unfit for human consumption, be relied on as a criterion for classification of the goods, in interpreting the term ‘non-food product’ for the purposes of applying the CN headings in Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and for the purposes of classifying the goods?

               5)

               May the information provided by the producer on the technical process for production of the goods, according to which the presence of noxious substances in the product cannot be ruled out, be used as a criterion for classification of the goods, in interpreting the term ‘non-food product’ for the purposes of applying the CN headings in Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and for the purposes of classifying the goods?

               6)

               What physical and chemical properties of the goods to be classified are most important for the purposes of the correct interpretation and application of headings CN 1518 00 31 and CN 1517 90 91 of Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff?

               7)

               Must heading CN 1518 00 31 of Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff be generally applied to goods having physical and chemical properties like those being considered in the present case?

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


title: Case T-170/12: Judgment of the General Court of 30 April 2014  — Beyond Retro v OHIM — S&K Garments (BEYOND VINTAGE) (Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark BEYOND VINTAGE — Earlier Community word mark BEYOND RETRO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

text:
               24.6.2014

               EN

               Official Journal of the European Union

               C 194/21

         Judgment of the General Court of 30 April 2014 — Beyond Retro v OHIM — S&K Garments (BEYOND VINTAGE)
   (Case T-170/12) (1)

   ((Community trade mark - Opposition proceedings - International registration designating the European Community - Word mark BEYOND VINTAGE - Earlier Community word mark BEYOND RETRO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009))
   2014/C 194/27
   Language of the case: English

      Parties

      Applicant: Beyond Retro Ltd (London, United Kingdom) (represented by: S. Malynicz, Barrister)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. Harrington, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: S&K Garments, Inc. (New York, New York, United States)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 30 January 2012 (Joined Cases R 493/2011-4 and R 548/2011-4), relating to opposition proceedings between Beyond Retro Ltd and S&K Garments, Inc.

      Operative part of the judgment

   The Court:

               1)

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 January 2012 (Joined Cases R 493/2011-4 and R 548/2011-4) in so far as it concerns the goods covered by the word mark BEYOND VINTAGE in Classes 18 and 25 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

               2)

               Dismisses the action as to the remainder;

               3)

               Orders Beyond Retro Ltd to pay one third of the costs incurred by the parties before the Court and orders OHIM to pay two thirds of those costs.

      (1)  OJ C 194, 30. 6. 2012.


title: Case F-88/13: Action brought on 17 September 2013 — ZZ v REA

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/39

         Action brought on 17 September 2013 — ZZ v REA
   (Case F-88/13)
   2014/C 24/72
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: F. Frabetti, lawyer)

      Defendant: Research Executive Agency (REA)

      Subject-matter and description of the proceedings

   Annulment of the decision rejecting the applicant’s request to treat his mother as a dependent child pursuant to Article 2(4) of Annex VII to the Staff Regulations.

      Form of order sought

               —

               Annul the decision of the Office for Administration and Payment of Individual Entitlements (PMO.1), notified on 28 November 2012, rejecting the applicant’s request of 20 July 2012 to treat his mother as a dependent child pursuant to Article 2(4) of Annex VII to the Staff Regulations, for the period from 1 November 2012 to 31 October 2013;

               —

               award the applicant compensation, subject to any amendment and/or increase, in the amount of EUR 1 000 to make good the non-material damage caused by the vexatious and hurtful nature of the decisions rejecting the request and the complaint prior to action;

               —

               order the REA to pay the costs.


title: Case C-379/15: Judgment of the Court (First Chamber) of 28 July 2016 (request for a preliminary ruling from the Conseil d’État — France) — Association France Nature Environnement v Premier ministre, Ministère de l’Écologie, du Développement durable et de l'Énergie (Reference for a preliminary ruling — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — National measure incompatible with EU law — Legal consequences — Power of the national court to maintain certain effects of that measure provisionally — Third paragraph of Article 267 TFEU — Obligation to make a reference to the Court for a preliminary ruling)

text:
               26.9.2016

               EN

               Official Journal of the European Union

               C 350/11

         Judgment of the Court (First Chamber) of 28 July 2016 (request for a preliminary ruling from the Conseil d’État — France) — Association France Nature Environnement v Premier ministre, Ministère de l’Écologie, du Développement durable et de l'Énergie
   (Case C-379/15) (1)

   ((Reference for a preliminary ruling - Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - National measure incompatible with EU law - Legal consequences - Power of the national court to maintain certain effects of that measure provisionally - Third paragraph of Article 267 TFEU - Obligation to make a reference to the Court for a preliminary ruling))
   (2016/C 350/14)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Association France Nature Environnement

      Defendants: Premier ministre, Ministère de l’Écologie, du Développement durable et de l'Énergie

      Operative part of the judgment

               1.

               A national court may, when this is allowed by domestic law, exceptionally and case by case, limit in time certain effects of a declaration of the illegality of a provision of national law adopted in disregard of the obligations provided for by Directive 2001/42/EC of the Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, in particular the obligations arising from Article 6(3) of the directive, provided that such a limitation is dictated by an overriding consideration linked to environmental protection and having regard to the specific circumstances of the case pending before it. That exceptional power may, however, be exercised only if all the conditions flowing from the judgment of 28 February 2012 in Inter-Environnement Wallonie and Terre wallonne (C-41/11, EU:C:2012:103) are satisfied, namely;

                           —

                           the contested provision of national law constitutes a measure correctly transposing EU law on environmental protection;

                           —

                           that the adoption and coming into force of a new provision of national law do not make it possible to avoid the damaging effects on the environment arising from annulment of the contested provision of national law;

                           —

                           that annulment of the contested provision of national law would have the effect of creating a legal vacuum concerning the transposition of EU law on environmental protection which would be more damaging to the environment, in the sense that that annulment would result in lesser protection and would thus run counter to the essential objective of EU law; and

                           —

                           that any exceptional maintaining of the effects of the contested provision of national law lasts only for the period strictly necessary for the adoption of the measures making it possible to remedy the irregularity found.

               2.

               As EU law now stands, a national court against whose decisions there is no longer any judicial remedy under law is in principle required to make a reference to the Court for a preliminary ruling, so that the Court may assess whether, exceptionally, provisions of national law held to be contrary to EU law may be provisionally maintained in the light of an overriding consideration linked to environmental protection and in view of the specific circumstances of the case pending before that national court. That national court is relieved of that obligation only when it is convinced, which it must establish in detail, that no reasonable doubt exists as to the interpretation and application of the conditions set out in the judgment of 28 February 2012 in Inter-Environnement Wallonie and Terre wallonne (C-41/11, EU:C:2012:103).

      (1)  OJ C 337, 12.10.2015.


title: Case T-450/08: Judgment of the General Court of 9 March 2012 — Coverpla v OHIM — Heinz-Glas (Phial) (Community design — Invalidity proceedings — Registered Community design representing a bottle — Prior design — Ground for invalidity — Disclosure of prior design — Absence of novelty — Articles 5 and 25(1)(b) of Regulation (EC) No 6/2002)

text:
               28.4.2012

               EN

               Official Journal of the European Union

               C 126/13

         Judgment of the General Court of 9 March 2012 — Coverpla v OHIM — Heinz-Glas (Phial)
   (Case T-450/08) (1)

   (Community design - Invalidity proceedings - Registered Community design representing a bottle - Prior design - Ground for invalidity - Disclosure of prior design - Absence of novelty - Articles 5 and 25(1)(b) of Regulation (EC) No 6/2002)
   2012/C 126/25
   Language of the case: French

      Parties

      Applicant: Coverpla (Nice, France) (represented by: P. Greffe and M. Chaminade, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Heinz-Glas GmbH (Piesau, Germany) (represented by: M. Pütz-Poulalion, lawyer)

      Re:

   Action brought against the decision of the Third Board of Appeal of OHIM of 7 July 2008 (Case R 1411/2007-3), relating to invalidity proceedings between Heinz-Glas GmbH and Coverpla in respect of a Community design

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Coverpla to pay the costs.

      (1)  OJ C 6, 10.1.2009.


title: Case C-138/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Republic of Hungary)) — Hochtief AG, Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság (Procedures for the award of public works contracts — Procedures initiated after the entry into force of Directive 2004/18/EC and before the expiry of the period for transposition of that directive — Negotiated procedures with publication of a contract notice — Obligation to admit a minimum number of suitable candidates — Obligation to ensure genuine competition)

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/9

         Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Republic of Hungary)) — Hochtief AG, Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság
   (Case C-138/08) (1)

   (Procedures for the award of public works contracts - Procedures initiated after the entry into force of Directive 2004/18/EC and before the expiry of the period for transposition of that directive - Negotiated procedures with publication of a contract notice - Obligation to admit a minimum number of suitable candidates - Obligation to ensure genuine competition)
   2009/C 297/06
   Language of the case: Hungarian

      Referring court

   Fővárosi Ítélőtábla

      Parties to the main proceedings

      Applicant: Hochtief AG, Linde-Kca-Dresden GmbH

      Defendant: Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság
   Intervening party: Budapest Főváros Önkormányzata

      Re:

   Reference for a preliminary ruling — Fővárosi Ítélőtábla — Interpretation of Article 22(2) and (3) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), and of Article 44(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Whether it is possible to continue a negotiated procedure with publication of a contract notice where the number of suitable candidates is less than the minimum number of the range prescribed in the contract notice, and less than the minimum number prescribed for that purpose in the abovementioned directives

      Operative part of the judgment

               1.

               Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts is not applicable to a decision taken by a contracting authority when awarding a public works contract before the period for transposition of that directive has expired;

               2.

               Article 22(3) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997, must be interpreted as meaning that where a contract is awarded by a negotiated procedure and the number of suitable candidates is below the lower limit prescribed for the procedure in question, the contracting authority may, nevertheless, continue with the procedure by inviting the suitable candidate or candidates to negotiate the terms of that contract;

               3.

               Council Directive 93/37, as amended by Directive 97/52, must be interpreted as meaning that the obligation to ensure that there is genuine competition is satisfied where the contracting authority has recourse to the negotiated procedure under the conditions referred to in Article 7(2) of that directive.

      (1)  OJ C 183, 19.07.2008.