title: Action brought on 26 January 1999 by the Commission of the European Communities against Aiolika Parka Sitias A.E. (Case C-18/99)

text:
C 86/8                EN                  Official Journal of the European Communities                                   27.3.1999
at the Court Registry on 20 January 1999, for a                      with an address for service in Luxembourg at the Office of
preliminary ruling in the case of Hans Sommer GmbH &                 Carlos Gómez de la Cruz, of its Legal Service, Wagner
Co v. Hauptzollamt Bremen on the following questions:                Centre, Kirchberg.
1. Are expenses' or handling costs' relating to honey
     imported from the USSR from 1989 to 1991 charged                The Commission claims that the Court sholud:
     by the German import company to the purchaser
     pursuant to separate contractual arrangements part of
     the transaction value under Article 3(1) of Council             Ð order the defendant to refund to the Commission all
     Regulation (EEC) No 1224/80 of 28 May 1988 on the                   the financing which it has received from the
     valuation of goods for customs purposes (OJ L 134,                  Community, namely to pay the entire amount of the
     31.8.1980, p. 1), as ameded by Regulation (EEC)                     debt of ECU (now EUR) 350 641,99 together with
     No 3193/80 (OJ L 333, 11.12.1980, p. 1), if after                   interest calculated in accordance with the provisions of
     importation the import company must take samples                    the agreement amounting, up until 31 December 1998,
     for establishing the quality of the honey in accordance             to ECU (now EUR) 49 129,18, that is to say a total
     with the German Honey Regulation and provide the                    amount of ECU (now EUR) 399 771,17, and
     results of the chemical analyses?                                   additionally interest at 2 % above the rate of the
                                                                         European Monetary Cooperation Fund in respect of
                                                                         the period from 1 January 1999 until the defendant
2. If question 1 is answered in the affirmative:                         has fully discharged its debt;
     Is Commission Decision K(95) 2325 of 28 September
     1995 null and void?                                             Ð order the defendant to pay the Commission's general
                                                                         legal costs including the fees of its authorised lawyers.
3. If question 2 is answered in the affirmative:
                                                                     Pleas in law and main arguments adduced in support:
     Must the authorities refrain from post-clearance
     recovery of duties pursuant to Article 5(2) of Council
     Regulation (EEC) No 1697/79 if, upon an external                The objects of the defendant company are the design,
     check concerning imports in an earlier period and               construction, installation, operation and supervision of
     following a check review, they raised no objection to           apparatus for the exploitation of wind energy in order to
     the fact that a global sum for expenses was not                 produce and sell electric current.
     included in the customs value in the case of similar
     purchase transactions and it is not clear that the trader
     could have been in doubt as to whether the result of            The action, which has been brought pursuant to an
     the check was right?                                            arbitration clause, seeks the refund of financial assistance
                                                                     granted by the Commission to the defendant for the
4. If question 3 is answered in the negative:                        realisation and demonstration of a pilot wind-energy
                                                                     programme under which a wind farm was to be installed
                                                                     on the south-east cost of Crete in the area of Sitia. The
     Do the circumstances set out in question 3 amount               Commission decided to terminate the contract entered into
     to special circumstances' within the meaning of                by the parties under English law, on the ground that the
     Article 13 of Council Regulation (EEC) No 1430/79               defendant had infringed its obligations.
     justifying the remission of import duties?
Action brought on 26 January 1999 by the Commission of               Reference for a preliminary ruling by the Supremo Tribu-
the European Communities against Aiolika Parka Sitias                nal Administrativo, Second Chamber, by judgment of that
                             A.E.                                    Court of 9 December 1998, in the case of Modelo Conti-
                        (Case C-18/99)                                          nente, SGPS, SA and Fazenda PuÂblica
                        (1999/C 86/15)                                                      (Case C-19/99)
                                                                                (1999/C 86/16)
An action against Aiolika Parka Sitias A.E. was brought
before the Court of Justice of the European Communities
on 26 January 1999 by the Commission of the European                 Reference has been made to the Court of Justice of the
Communities, represented by Richard Wainwright,                      European Communities by an judgment of the Second
Principal Legal Adviser, and Olivier Couvert-CasteÂra, a             Chamber of the Supremo Tribunal Administrativo
civil servant on secondment to its Legal Service under the           (Supreme Administrative Court) of 9 December 1998,
scheme for national experts, assisted by Maria Bra, of the           which was received at the Court Registry on 28 January
Brussels Bar, and Kiriaki Kapoutzidou, of the Athens Bar,            1999, for a preliminary ruling in the case of Modelo Con-


title: Case T-407/12: Action brought on 14 September 2012 — Ubee Interactive v OHIM — Augere Holdings (Netherlands) (Ubee Interactive)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/33

         Action brought on 14 September 2012 — Ubee Interactive v OHIM — Augere Holdings (Netherlands) (Ubee Interactive)
   (Case T-407/12)
   2012/C 355/69
   Language in which the application was lodged: English

      Parties

      Applicant: Ubee Interactive Corp. (Jhubei City, Taiwan) (represented by: M. Nentwig, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Augere Holdings (Netherlands) BV (Amsterdam, Netherlands)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 July 2012 in case R 1849/2011-2; and

               —

               Order the defendant to bear the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘Ubee Interactive’, for goods and services in classes 9 and 38 — Community trade mark application No 7397326

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Community trade mark registration No 7130248 of the word mark ‘QUBEE’, for goods and services in classes 9, 37, 38 and 42; Community trade mark No 7224603 of the figurative mark ‘QUBEE’, for goods and services in classes 9, 37, 38 and 42

      Decision of the Opposition Division: Upheld the opposition in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.


title: Judgment of the Court (Third Chamber) 30 May 2002 in Case C-323/01: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Directive 98/101/EC — Batteries and accumulators containing certain dangerous substances)

text:
13.7.2002                EN                        Official Journal of the European Communities                                             C 169/11
Northern Ireland (Agent: R. Magrill, assisted by R. Anderson,                 di ordinamento della professione di guida alpina (Framework
barrister): Application for a declaration that, by failing to adopt           Law for the profession of ski monitor and supplementary
the laws, regulations and administrative provisions necessary                 provisions relating to the regulation of the profession of
to comply with Council Directive 96/48/EC of 23 July 1996                     mountain guide) of 8 March 1991 (GURI No 64 of 16 March
on the interoperability of the trans-European high-speed rail                 1991, p. 3), which makes recognition of a ski-monitor diploma
system (OJ 1996 L 235, p. 6), the United Kingdom of Great                     subject to a condition of reciprocity, the Italian Republic has
Britain and Northern Ireland has failed to fulfil its obligations             failed to fulfil its obligations under Council Directive 92/51/
under that directive, the Court (First Chamber), composed of:                 EEC of 18 June 1992 on a second general system for
P. Jann, President of the Chamber, M. Wathelet and A. Rosas                   the recognition of professional education and training to
(Rapporteur), Judges; L.A. Geelhoed, Advocate General;                        supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25), the
R. Grass, Registrar, has given a judgment on 30 May 2002, in                  Court (Fourth Chamber), composed of: S. von Bahr, President
which it:                                                                     of the Chamber, D.A.O. Edward (Rapporteur) and C.W.A. Tim-
                                                                              mermans, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
                                                                              R. Grass, Registrar, has given a judgment on 16 May 2002, in
1.    Declares that, by failing to adopt within the prescribed period
                                                                              which it:
      the laws, regulations and administrative provisions necessary to
      comply with Council Directive 96/48/EC of 23 July 1996 on
      the interoperability of the trans-European high-speed rail              1.    Declares that, by maintaining in force the first paragraph of
      system, the United Kingdom of Great Britain and Northern                      Article 12 of Law No 81, Legge-quadro per la professione di
      Ireland has failed to fulfil its obligations under that directive;            maestro di sci e ulteriori disposizioni in materia di ordinamento
                                                                                della professione di guida alpina (Framework Law for the
                                                                                profession of ski monitor and supplementary provisions relating
2.    Orders the United Kingdom of Great Britain and Northern
                                                                                to the regulation of the profession of mountain guide) of
      Ireland to pay the costs.
                                                                                8 March 1991, which makes recognition of a ski-monitor
                                                                                diploma subject to a condition of reciprocity, the Italian
(1) OJ C 28 of 27.1.2001.                                                           Republic has failed to fulfil its obligations under Council
                                                                                Directive 92/51/EEC of 18 June 1992 on a second general
                                                                                system for the recognition of professional education and training
                                                                                to supplement Directive 89/48/EEC;
                                                                              2.    Orders the Italian Republic to pay the costs.
                                                                              (1) OJ C 150 of 19.5.2001.
                  JUDGMENT OF THE COURT
                          (Fourth Chamber)
                             16 May 2002
                                                                                JUDGMENT OF THE COURT
in Case C-142/01: Commission of the European Communi-                                                   (Third Chamber)
                      ties v Italian Republic (1)
                                                                                30 May 2002
(Failure by a Member State to fulfil its obligations —
Directive 92/51/EEC — System for the recognition of                           in Case C-323/01: Commission of the European Communi-
     professional education and training — Ski monitor)                                             ties v Italian Republic (1)
                           (2002/C 169/18)                                    (Failure by a Member State to fulfil its obligations —
                                                                              Directive 98/101/EC — Batteries and accumulators contain-
                                                                                ing certain dangerous substances)
                     (Language of the case: Italian)
                                                                                (2002/C 169/19)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                 (Language of the case: Italian)
                                                                              (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-142/01, Commission of the European Communities
(Agents: M. Patakia and A. Aresu) v Italian Republic (Agent:
U. Leanza, assisted by G. Aiello, avvocato dello Stato): Appli-
cation for a declaration that, by maintaining in force the first              In Case C-323/01, Commission of the European Communities
paragraph of Article 12 of Law No 81, Legge-quadro per la                     (Agents: R. Wainwright and R. Amorosi) v Italian Republic
professione di maestro di sci e ulteriori disposizioni in materia             (Agent: U. Leanza, assisted by M. Fiorilli): Application for a
 ---pagebreak--- C 169/12                 EN                      Official Journal of the European Communities                                          13.7.2002
declaration that, by failing to adopt the laws, regulations and             Commission, the Grand Duchy of Luxembourg has failed to
adminstrative provisions necessary to comply with Com-                      fulfil its obligations under that directive, the Court (First
mission Directive 98/101/EC of 22 December 1998 adapting                    Chamber), composed of: P. Jann, President of the Chamber,
to technical progress Council Directive 91/157/EEC on batter-               M. Wathelet (Rapporteur), and A. Rosas, Judges; F.G. Jacobs,
ies and accumulators containing certain dangerous substances                Advocate General; R. Grass, Registrar, has given a judgment
(OJ 1999 L 1, p. 1) or, in any event, by failing to inform the              on 16 May 2002, in which it:
Commission thereof, Italy has failed to fulfil its obligations
under that directive, the Court (Third Chamber), composed of:
F. Macken, President of the Chamber, C. Gulmann (Rapporteur)                1.    Declares that, by failing to adopt, within the prescribed period,
and J.-P. Puissochet, Judges; D. Ruiz-Jarabo Colomer, Advocate                    the laws, regulations and administrative measures necessary in
General; R. Grass, Registrar, has given a judgment on 30 May                      order to comply with Directive 98/8/EC of the European
2002, in which it:                                                                Parliament and of the Council of 16 February 1998 concerning
                                                                                the placing of biocidal products on the market, the Grand
                                                                                Duchy of Luxembourg has failed to fulfil its obligations under
1.    Declares that, by failing to adopt the laws, regulations and
                                                                                that directive.
      administrative provisions necessary to comply with Commission
      Directive 98/101/EC of 22 December 1998 adapting to
      technical progress Council Directive 91/157/EEC on batteries          2.    Orders the Grand Duchy of Luxembourg to pay the costs.
      and accumulators containing certain dangerous substances, the
      Italian Republic has failed to fulfil its obligations under
      Directive 98/101;
                                                                            (1) OJ C 317 of 10.11.2001.
2.    Orders the Italian Republic to pay the costs.
(1) OJ C 317 of 10.11.2001.
                                                                                JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT                                                               (First Chamber)
                           (First Chamber)                                                              30 May 2002
                             16 May 2002                                    in Case C-376/01: Commission of the European Communi-
                                                                                ties v Ireland (1)
in Case C-372/01: Commission of the European Communi-
             ties v Grand Duchy of Luxembourg (1)                           (Failure by a Member State to fulfil its obligations — Failure
                                                                                to transpose Directive 98/8/EC)
(Failure by a Member State to fulfil its obligations — Failure
                 to transpose Directive 98/8/EC)
                                                                                (2002/C 169/21)
                           (2002/C 169/20)
                                                                                (Language of the case: English)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published      In Case C-376/01, Commission of the European Communities
                    in the European Court Reports)                          (Agent: R. Wainwright) v Ireland (Agent: D. J. O’Hagan):
                                                                            Application for a declaration that, by failing to adopt, by
                                                                            14 May 2000, the laws, regulations and administrative pro-
                                                                            visions necessary to comply with Directive 98/8/EC of the
In Case C-372/01, Commission of the European Communities                    European Parliament and of the Council of 16 February 1998
(Agent: M. Nolin) v Grand Duchy of Luxembourg (Agent:                       concerning the placing of biocidal products on the market
J. Faltz): Application for a declaration that, by failing to adopt          (OJ 1998 L 123, p. 1), or in any event by failing to inform the
the laws, regulations and administrative provisions necessary               Commission thereof, Ireland has failed to fulfil its obligations
to comply with Directive 98/8/EC of the European Parliament                 under that directive, the Court (First Chamber), composed of:
and of the Council of 16 February 1998 concerning the                       P. Jann, President of the Chamber, M. Wathelet (Rapporteur)
placing of biocidal products on the market (OJ 1998 L 123,                  and A. Rosas, Judges; J. Mischo, Advocate General; R. Grass,
p. 1) and, in any event, by failing to communicate them to the              Registrar, has given a judgment on 30 May 2002, in which it:


title: Case C-457/14: Order of the Court (Eighth Chamber Chamber) of 12 February 2015 — (request for a preliminary ruling from the Tribunale ordinario di Cagliari — Italy) — Criminal proceedings against Claudia Concu, Isabella Melis (Reference for a preliminary ruling — Article 99 of the Rules of Procedure — Identical questions referred — Articles 49 TFEU and 56 TFEU — Freedom of establishment — Freedom to provide services — Games of chance — National legislation — Reorganisation of the licencing system through an alignment of licence expiry dates — New call for tenders — Licences with a shorter period than that of licences awarded in the past — Restriction — Overriding reasons of general interest — Proportionality)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/4

         Order of the Court (Eighth Chamber Chamber) of 12 February 2015 — (request for a preliminary ruling from the Tribunale ordinario di Cagliari — Italy) — Criminal proceedings against Claudia Concu, Isabella Melis
   (Case C-457/14) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure - Identical questions referred - Articles 49 TFEU and 56 TFEU - Freedom of establishment - Freedom to provide services - Games of chance - National legislation - Reorganisation of the licencing system through an alignment of licence expiry dates - New call for tenders - Licences with a shorter period than that of licences awarded in the past - Restriction - Overriding reasons of general interest - Proportionality))
   (2015/C 127/05)
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Cagliari

      Criminal proceedings against

   Claudia Concu, Isabella Melis

      Operative part of the order

   Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation, such as that in issue in the main proceedings, which provides for the organisation of a new call for tenders relating to licences with a period of validity shorter than that of licences awarded in the past due to a reorganisation of the licencing system through an alignment of licence expiry dates.

      (1)  OJ C 439, 8.12.2014.


title: Case F-65/13: Order of the Civil Service Tribunal (Second Chamber) of 19 March 2015 — Marcuccio v Commission (Exclusion of the representative of a party from the proceedings — Failure to designate a new representative — Applicant no longer responding to communications from the Tribunal — No need to adjudicate)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/48

         Order of the Civil Service Tribunal (Second Chamber) of 19 March 2015 — Marcuccio v Commission
   (Case F-65/13) (1)

   ((Exclusion of the representative of a party from the proceedings - Failure to designate a new representative - Applicant no longer responding to communications from the Tribunal - No need to adjudicate))
   (2015/C 146/65)
   Language of the case: Italian

      Parties

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

      Defendant: European Commission (represented by: C. Berardis-Kayser and G. Gattinara, acting as Agents)

      Re:

   Application for annulment of the rejection of the applicant’s claim addressed to the Commission seeking payment by the Commission of the sum of EUR 10  000 on account of the harm purportedly suffered by the applicant as a result of a letter informing him, inter alia, that the Commission had set off his applications for costs, which the Commission had been ordered to pay, against sums owed by the applicant to the Commission.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action in Case F-65/13 Marcuccio v Commission.

               2.

               Mr Marcuccio shall bear his own costs and pay the costs incurred by the European Commission.

      (1)  OJ C 377, 21.12.2013, p. 24.


title: Case T-834/14: Action brought on 23 December 2014 — Forbruger-Kontakt v Commission

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/52

         Action brought on 23 December 2014 — Forbruger-Kontakt v Commission
   (Case T-834/14)
   (2015/C 138/69)
   Language of the case: Danish

      Parties

      Applicant: Forbruger-Kontakt A/S (Taastrup, Denmark) (represented by: M. Honoré, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annulment of the Commission’s decision of 9 July 2014 not to raise objections to tax exemptions for certain advertising materials (SA.35683);

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The pleas in law put forward by the applicant are, in essence, identical or similar to those put forward in case T-833/14 Søndagsavisen v Commission.


title: Case T-97/07: Action brought on 26 March 2007 — Imelios v Commission

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/16

         Action brought on 26 March 2007 — Imelios v Commission
   (Case T-97/07)
   (2007/C 129/28)
   Language of the case: French
   Parties

      Applicant: Imelios SA (Vélizi Villacoublay, France) (represented by C. Curtil, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               In terms of procedure, to declare that the procedure followed by OLAF and the Commission was not adversarial in nature; that OLAF made use of anonymous sources, as OLAF itself has accepted; that OLAF and the Commission refused to communicate the enquiry report to the applicant; that the Commission's decision failed to state adequate reasons, and accordingly, to annul the debit note.

               —

               In the alternative, to declare that the documentary evidence produced by the applicant was not taken into consideration; that no examination was made into the liability of the … group, and accordingly to annul the debit note as to its substance.

               —

               In any event, to declare that the final instalment of the grant was not paid to the applicant, whereas the latter did not waive its right to its payment in any way; accordingly, to order the Commission to pay to the applicant the sum of EUR 34 368, together with interest from the date the action was raised; to order the Commission to pay to the applicant the sum of EUR 50 000 by way of damages; to order the Commission to pay to the applicant the sum of EUR 50 000 in respect of the costs of the procedure; to order the Commission to pay the costs.

         Pleas in law and main arguments
   On 21 December 1999, the applicant signed, together with the European Community, represented by the European Commission, a contract IST-1999-10934 — ASSIST relating to the ‘Knowledge Management for Help Desk Operators ’project, which was entered into under the fifth framework programme of the Community for research, technological development and demonstration activities (1998-2002), in the field of user-friendly information.
   Following the enquiry carried out by OLAF and its audit report, the Commission sent the debit note to the applicant, requiring the repayment of the amount already paid by way of Community grant, pursuant to the relevant provision of the contract allowing the Commission to require such a repayment in the event of a finding of fraud or serious financial irregularities in the implementation of the project. That decision represents the contested decision in the present action. In addition, the applicant requests the Court of First Instance to order the Commission to pay the final instalment of the grant and to order the Commission to compensate it for the loss and damage it has suffered by reason, first, of the non-payment of the final instalment of the grant and, secondly, by reason of the procedures initiated, initially by OLAF, and subsequently by the Commission.
   In support of its application for annulment, the applicant alleges an infringement of fundamental rights, in particular the right to a fair hearing, in the audit enquiry relating to the ASSIST project carried out by OLAF. It claims that it was not in a position to make relevant observations during the inquiry stage and that OLAF's final report, on which the Commission's decision was based, was not sent to it, thereby preventing it from replying to the accusations made against it.
   In addition, the applicant claims that the decision failed to state adequate reasons and that the objections were notified to it out of time.
   In the alternative, the applicant puts forward a number of pleas in law relating to the substance of the contested decision, and claims in particular that the Commission did not take into account the documentary evidence put forward by the applicant concerning expenditure incurred. In addition, it claims that it is the LA POSTE group, which was the real beneficiary of the grant, and not itself, which should be held liable for any irregularities that may have occurred.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 8 July 1998 in Case T-130/96, Gaetano Aquilino v. Council of the European Union (Officials - Sick leave - Article 59 of the Staff Regulations - Medical certificates - Not accepted - Medical checks organised by the institution - Article 60 of the Staff Regulations - Unauthorised absences - Recovered from the official's salary)

text:
5.9.98                EN                  Official Journal of the European Communities                                 C 278/35
                                                    COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            service in Luxembourg at the Chambers of Ernest Arendt,
                        of 8 July 1998                               8Ð10 rue Mathias Hardt, supported by FeÂdeÂration
                                                                     EuropeÂenne de la SanteÂ Animale (Fedesa), represented by
in Case T-232/95, Committee of European Copier                       Alexandre Vandencasteele, of the Brussels Bar, with an
Manufacturers (Cecom) v. Council of the European                     address for service in Luxembourg at the Chambers of
                           Union (1)                                 Ernest Arendt, 8Ð10 rue Mathias Hardt against
(Anti-dumping duties on plain paper photocopiers Ð                   Commission of the European Communities (Agents:
Review Ð Period of application of the anti-dumping duty              Richard Wainwright and Fernando Castillo de la Torre) Ð
               Ð Manifest error of assessment)                       application for the annulment of the Commission decision
                                                                     of 22 May 1996 rejecting the applicant's request for the
                        (98/C 278/77)                                inclusion of somidobove, a recombinant bovine
                                                                     somatotrophin (BST), in Annex II to Council Regulation
               (Language of the case: German)
                                                                     (EEC) No 2377/90 of 26 June 1990 laying down a
                                                                     Community procedure for the establishment of maximum
  (Provisional translation; the definitive translation will be       residue limits of veterinary medicinal products in
         published in the European Court Reports)                    foodstuffs of animal origin (OJ L 224, 18.8.1990, p. 1) Ð
                                                                     the Court (Third Chamber), composed of: V. Tiili,
In Case T-232/95, Committee of European Copier                       President, C. P. BrieÈt and A. Potocki, Judges; A. Mair,
Manufacturers       (Cecom)      established     in   Cologne        Administrator, for the Registrar, has given a judgment on
(Germany), represented by Dietrich Ehle and Volker                   25 June 1998, in which it:
Schiller, Rechtsanwälte, Cologne, with an address for
service in Luxembourg at the Chambers of Marc Lucius, 6
rue Michel Welter against Council of the European Union,             1. annuls the Commission decision of 22 May 1996
(Agents: Antonio Tanca, Hans-Jürgen Rabe and Georg M.                    rejecting the request for the inclusion of somidobove,
Berrisch) Ð application for annulment of the second                      a recombinant bovine somatotrophin (BST), in
paragraph of Article 3 of Council Regulation (EC)                        Annex II to Council Regulation (EEC) No 2377/90 of
No 2380/95 of 2 October 1995 imposing a definitive anti-                 26 June 1990 laying down a Community procedure
dumping duty on imports of plain paper photocopiers                      for the establishment of maximum residue limits of
originating in Japan (OJ L 244, 12.10.1995, p. 1) Ð the                  veterinary medicinal products in foodstuffs of animal
Court (First Chamber, Extended Composition), composed                    origin;
of: B. Vesterdorf, President, and C. W. Bellamy and R. M.
Moura Ramos, Judges; H. Jung, for the Registrar, has
                                                                     2. orders the Commission to pay the costs, including
given a judgment on 8 July 1998, in which it:
                                                                         those of the intervener.
1. dismisses the action;
                                                                     (1) OJ C 318, 26.10.1996.
2. orders the applicant to pay the costs.
(1) OJ C 64, 2.3.1996.
                                                                       JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 8 July 1998
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            in Case T-130/96, Gaetano Aquilino v. Council of the
                       of 25 June 1998                                                    European Union (1)
in Case T-120/96, Lilly Industries Ltd v. Commission of              (Officials Ð Sick leave Ð Article 59 of the Staff
                the European Communities (1)                         Regulations Ð Medical certificates Ð Not accepted Ð
(Regulation (EEC) No 2377/90 Ð Request for inclusion                 Medical checks organised by the institution Ð Article 60
of a recombinant bovine somatotrophin (BST) in the list              of the Staff Regulations Ð Unauthorised absences Ð
of substances not subject to maximum residue limits Ð                            Recovered from the official's salary)
Rejection by the Commission Ð Application for                                                (98/C 278/79)
                          annulment)
                        (98/C 278/78)                                               (Language of the case: French)
               (Language of the case: English)
                                                                     In Case T-130/96: Gaetano Aquilino, an official of the
In Case T-120/96, Lilly Industries Ltd, established in               Council of the European Union, residing at Mons
Basingstoke (United Kingdom) represented by Mr Denis                 (Belgium), represented by Nicholas LhoeÈst, of the Brussels
Waelbroeck, of the Brussels Bar, with an address for                 Bar, with an address for service in Luxembourg at the
 ---pagebreak--- C 278/36             EN                   Official Journal of the European Communities                                   5.9.98
offices of Fiduciaire Myson SARL, rue de Cessange v.                 Currall) Ð application for taxation of costs following
Council of the European Union (Agents: Diego Canga                   the judgments of the Court of First Instance in Joined
Fano and Marie-Jeanne Vernier) Ð application for                     Cases T-177/94 and T-377/94 Altmann and Others v.
annulment of the Council's decision, notified to the                 Commission [1996] ECR II-2041 and in Case T-99/95
applicant by note of 25 October 1995, to recover the                 Stott v. Commission [1996] ECR II-2227 Ð the Court of
equivalent of 91 working days from his salary for                    First Instance (Second Chamber), composed of: A.
unjustified absences between 9 March 1994 and                        Kalogeropoulos, President, C. W. Bellamy and J. Pirrung,
15 February 1995 Ð the Court of First Instance (First                Judges; H. Jung, Registrar, made an order on 25 June
Chamber), composed of B. Vesterdorf, President, A.                   1998, the operative part of which is as follows:
Kalogeropoulos and R. M. Moura Ramos, Judges; B.
Pastor, Principal Administrator, for the Registrar, gave a           The total amount of the costs to be reimbursed by the
judgment on 8 July 1998, the operative part of which is as           Commission to the applicants is fixed in the sum of GBP
follows:                                                             15 000, together with any VAT payable thereon.
1. The Council's decision of 25 October 1995 to recover              (1) OJ C 188, 9.7.1994, OJ C 392, 31.12.1994 and OJ C 286,
    the equivalent of 91 working days from the applicant's               28.10.1995.
    salary for unjustified absences between 9 March 1994
    and 15 February 1995 is partially annulled in so far as
    it concerns 58 days of allegedly unauthorised absence
    recorded during the period between 9 March 1994 and
    20 September 1994.
                                                                          ORDER OF THE COURT OF FIRST INSTANCE
2. The Council is ordered to repay to the applicant the                                     of 25 June 1998
    amounts unduly deducted from his salary Ð
    equivalent to 58 working days together with default              in Joined Cases T-14/97 and T-15/97, Sofivo SAS and
    interest at the rate of 5 % per annum as from the date                   Others v. Council of the European Union (1)
    when those amounts were first deducted.                          (Agriculture Ð Common organisation of the markets Ð
                                                                     Beef and veal Ð Intervention mechanisms Ð Premium for
3. The remainder of the application is dismissed.                    the early marketing of veal calves Ð Average carcase
                                                                     weight Ð Criteria for fixing the same Ð Action for
4. The Council is to bear its own costs and two-thirds of                             annulment Ð Inadmissibility)
    the costs incurred by the applicant.                                                     (98/C 278/81)
5. The applicant is to bear one-third of his own costs.                              (Language of the case: French)
(1) OJ C 318, 26.10.1996.                                            In Joined Cases T-14/97 and T-15/97: Sofivo SAS,
                                                                     established at CondeÂ-sur-Vire (France), Sofivo Production
                                                                     SAS, established at BreÂceÂ (France), Sovinor SAS,
                                                                     established at CondeÂ-sur-Vire, Denkavit France sarl,
                                                                     established at Montreuil-Bellay (France), Sobeval Viande
                                                                     SA, established at PeÂrigueux (France), Serval SA,
     ORDER OF THE COURT OF FIRST INSTANCE                            established at Sainte-Eanne (France), Besnier Industrie
                       of 25 June 1998                               SNC, established at Bourgbarre (France), Sovida SA,
                                                                     established at ChaÃteaubriand (France), Ouest EÂlevage
in Joined Cases T-177/94 (92) and T-377/94 (92) and                  SICA, established at Ploudaniel (France), Guinde SA,
in Case T-99/95 (92), Henk Altmann and Others and                    established at Montauban (France), Tarbouriech SA,
Peter Edmond Stott v. Commission of the European                     established at Villeneuve-sur-Lot (France), Mamellor sarl,
                       Communities (1)                               established at Charnay-leÁs-MaÃcon (France), Coopagri
                      (Taxation of costs)                            Bretagne, established at Landerneau (France), Collet et
                                                                     Compagnie SA, established at ChaÃteaubourg (France),
                        (98/C 278/80)                                KermeneÂ SA, established at Saint-Jacut-du-MeneÂ (France),
                                                                     and Vals SA, established at Champagne (France),
               (Language of the case: English)                       represented initially by Deborah Kryvian and subsequently
                                                                     by Philippe Denesle, of the Rouen Bar, with an address for
In Joined Cases T-177/94 (92) and T-377/94 (92): Henk                service in Luxembourg at the Chambers of Marc Loesch,
Altmann and Others and Margaret Casson and Others,                   11 rue Goethe, v. Council of the European Union (Agents:
represented by Rhodri Thompson, Barrister, of the Bar                John Carbery and Moyra Sims-Robertson), supported by
of England and Wales, 4 Raymond Buildings, Gray's                    Commission of the European Communities (Agent: GeÂrard
Inn, London, against Commission of the European                      Berscheid) Ð application for annulment of Article 1(4) of
Communities (Agent: Julian Currall) and in Case T-99/95              Council Regulation (EC) No 2222/96 of 18 November
(92): Peter Edmond Stott, represented by Rhodri                      1996 amending Regulation (EEC) No 805/68 on the
Thompson, Barrister, of the Bar of England and Wales,                common organisation of the market in beef and veal (OJ
4 Raymond Buildings, Gray's Inn, London, against                     L 296, 21.11.1996, p. 50) Ð the Court of First Instance
Commission of the European Communities (Agent: Julian                (Fifth Chamber), composed of: J. Azizi, President, and R.


title: Case C-11/09: Action brought on 9 January 2009 — Commission of the European Communities v Portuguese Republic

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/20

         Action brought on 9 January 2009 — Commission of the European Communities v Portuguese Republic
   (Case C-11/09)
   (2009/C 55/34)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by C. Cattabriga and M. Teles Romão, Agents)

      Defendant: Portuguese Republic
   Form of order sought

               —

               a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC (1) of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells or, at any event, by failing to communicate those measures to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive

               —

               an order that the Portuguese Republic should pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposing the directive expired on 1 November 2006.

      (1)  OJ 2006 L 38, p. 40.


title: Judgment of the Court (Second Chamber) of 14 February 2001 in Case C-219/99: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Failure not contested — Directive 95/16/EC)

text:
C 173/6                  EN                      Official Journal of the European Communities                                             16.6.2001
Bremen for a preliminary ruling in the proceedings pending                                     JUDGMENT OF THE COURT
before that court between Wolfgang Lange and Georg Schüne-
mann GmbH — on the interpretation of Council Directive
91/533/EEC of 14 October 1991 on an employer’s obligation                                               (Second Chamber)
to inform employees of the conditions applicable to the
contract or employment relationship (OJ 1991 L 288 p. 32)
— the Court (Fifth Chamber), composed of: A. La Pergola                                                of 14 February 2001
(Rapporteur), President of the Chamber, M. Wathelet,
D.A.O. Edward, P. Jann and L. Sevón, Judges; D. Ruiz-Jarabo
Colomer, Advocate General; L. Hewlett, Administrator, for the
Registrar, has given a judgment on 8 February 2001, in which                in Case C-219/99: Commission of the European Communi-
                                                                                ties v French Republic (1)
it has ruled:
                                                                            (Failure of a Member State to fulfil its obligations — Failure
                                                                                not contested — Directive 95/16/EC)
1.    Article 2(2)(i) of Council Directive 91/533/EEC of 14 October
      1991 on an employer’s obligation to inform employees of the
      conditions applicable to the contract or employment relationship
      must be interpreted as not relating to the working of overtime.                                     (2001/C 173/09)
      However, it is clear from Article 2(1) of that Directive that the
      employer is obliged to notify the employee of any term having
      the nature of an essential element of the contract or employment
      relationship and requiring the employee to work overtime                                     (Language of the case: French)
      whenever requested to do so by his employer. That information
      must be notified under the same conditions as those laid down
      by the Directive for the elements expressly mentioned in
      Article 2(2) thereof. It may, where appropriate, by analogy           (Provisional translation; the definitive translation will be published
      with the rule which applies, in particular, to normal working                               in the European Court Reports)
      hours by virtue of Article 2(3) of the Directive, take the form of
      a reference to the relevant laws, regulations and administrative
      or statutory provisions or collective agreements.                     In Case C-219/99: Commission of the European Communities
                                                                            (Agent: H. van Lier) v French Republic (Agents: K. Rispal-
                                                                            Bellanger and D. Colas) — application for a declaration that,
                                                                            by failing to adopt the laws, regulations and administrative
2.    No provision of Directive 91/533 requires an essential element        provisions necessary to comply with European Parliament
      of the contract or employment relationship that has not been          and Council Directive 95/16/EC of 29 June 1995 on the
      mentioned in a written document delivered to the employee or          approximation of the laws of the Member States relating to
      has not been mentioned therein with sufficient precision to be        lifts (OJ 1995 L 213, p. 1), the French Republic has failed to
      regarded as inapplicable.                                             fulfil its obligations under that directive — the Court (Second
                                                                            Chamber), composed of: V. Skouris, President of the Chamber,
                                                                            R. Schintgen and N. Colneric (Rapporteur), Judges; F.G. Jacobs,
                                                                            Advocate General; R. Grass, Registrar, has given a judgment
3.    Where an employer fails to comply with his obligation under           on 14 February 2001, in which it:
      Directive 91/533 to provide information, that directive does
      not require the national court to apply, or refrain from applying,
      principles of national law under which the proper taking of           1.     Declares that, by failing to adopt, within the prescribed period,
      evidence is deemed to have been obstructed where a party to the              the laws, regulations and administrative provisions necessary to
      proceedings has not complied with his legal obligations to                   comply with European Parliament and Council Directive
      provide information.                                                         95/16/EC of 29 June 1995 on the approximation of the laws
                                                                                of the Member States relating to lifts, the French Republic has
                                                                                failed to fulfil its obligations under that directive;
                                                                            2.     Orders the French Republic to pay the costs.
(1) OJ C 333 of 20.11.1999.
                                                                            (1) OJ C 226 of 7.8.1999.


title: Case C-397/05: Reference for a preliminary ruling from the Tribunale di Palermo by order of that court of  19 October 2005  in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/14

         Reference for a preliminary ruling from the Tribunale di Palermo by order of that court of 19 October 2005 in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola
   (Case C-397/05)
   (2006/C 10/28)
   Language of the case: Italian
   Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Palermo (Palermo District Court) of 19 October 2005, received at the Court Registry on 14 November 2005, for a preliminary ruling in the criminal proceedings against Maria Grazia Di Maggio and Salvatore Buccola on the following questions:

               (1)

               Does a national provision containing a prohibition on carrying on the activity of taking bets without a police authorisation, which is punishable as a criminal offence, constitute a restriction of the freedom of establishment laid down in Article 43 of the EC Treaty and of the freedom to provide services laid down in Article 49 of the EC Treaty?

               (2)

               Does the police authorisation referred to in Article 88 of the Italian Consolidated Law on Public Security (TULPS) satisfy all the conditions of the Court of Justice for justifying a restriction of the right of establishment?

               (3)

               Is the criminal sanction laid down in Article 4(4 bis) of Law No 401/89 appropriate, proportionate and, above all, non-discriminatory as regards the proprietors of the Centri di Trasmissione Dati operating in Italy and associated with the bookmaker Stanley Ltd, established in Liverpool, despite the fact that the controls to which the latter are subject appear to be materially identical to those for Italian concessionaires, subject as they are to the requirement that they obtain the police licence, which, according to the Corte di Cassazione, is directed at preventing criminal infiltration of the sector of the supply and demand of gambling?


title: Case T-446/04: Action brought on 9 November 2004 by the CO-FRUTTA Soc. coop. a r.l. against the Commission of the European Communities

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/32

         Action brought on 9 November 2004 by the CO-FRUTTA Soc. coop. a r.l. against the Commission of the European Communities
   (Case T-446/04)
   (2005/C 19/67)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 November 2004 by CO-FRUTTA Soc. coop. a r.l., represented by Wilma Viscardini and Gabriele Donà.
   The applicant claims that the Court should:

               —

               annul, pursuant to Article 230 EC, the decision contained in the letter of the Secretary General of the European Commission dated 10 August 2004 (SG/B/2/MM/tf D (2004) 7079), substantially rejecting the confirmatory application – submitted by Co-Frutta by letter of 3 May 2004 – for access to the documents containing data for 1998, 1999 and 2000 relating to operators registered in the Community to import bananas (WTO – bananas);

               —

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

         Pleas in law and main arguments:
   In support of its complaints, the applicant submits that the Commission could no longer adopt the contested decision given that an (implied) decision rejecting the confirmatory application had already been taken by reason of the absence of a reply.
   Furthermore, the applicant puts forwards other arguments largely the same as those in the action brought in Case T-355/04 (OJ C 262 of 23 October 2004).


title: Case T-175/15: Action brought on 10 April 2015 — Mabrouk/Council

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/42

         Action brought on 10 April 2015 — Mabrouk/Council
   (Case T-175/15)
   (2015/C 236/57)
   Language of the case: English

      Parties

      Applicant: Mohamed Marouen Ben Ali Bel Ben Mohamed Mabrouk (Tunis, Tunisia) (represented by: J.-R. Farthouat, J.-P. Mignard and N. Boulay, lawyers, S. Crosby, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Decision (CFSP) 2015/157 (OJ 2015 L 26/29) amending Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28/62) insofar as they apply to the applicant, these restrictive measures being the freezing of assets in the EU; and

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that by their nature, substance and duration, the proceedings against the applicant do not provide the Council with a sufficient basis for the contested act.

               2.

               Second plea in law, alleging that the contested act is incompatible with article 47 of the EU Charter of Fundamental Right because it was adopted in breach of the principle of reasonable time within the meaning of said article 47.

               3.

               Third plea in law, alleging that Tunisia has successfully completed the transition to democracy, as acknowledged by inter alia the Council itself, so that the contested act is devoid of purpose and hence illegal.

               4.

               Fourth plea in law, alleging infringement of the presumption of innocence and an ongoing infringement of the principle of good administration in which context the contested act infringes this principle and is illegal.

               5.

               Fifth plea in law, alleging a manifest error of assessment in that the contested act was adopted by reference only to the Council’s foreign policy and security policy objectives to the exclusion of the criminal aspects of the matter and in particular to the facts of the case.

               6.

               Sixth plea in law, alleging infringement of the applicant’s right to property.


title: Case T-236/06: Action brought on 1 September 2006 — Landtag Schleswig-Holstein v Commission

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/24

         Action brought on 1 September 2006 — Landtag Schleswig-Holstein v Commission
   (Case T-236/06)
   (2006/C 261/46)
   Language of the case: German
   Parties

      Applicant: Landtag Schleswig-Holstein (Kiel, Germany) (represented by: S.R. Laskowski and J. Caspar)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               suspend the proceedings, in so far as the European Court of Justice has not yet ruled on the dispute pending before it in the same case.
               In so far as the European Court of Justice declares that it has no jurisdiction and refers the case back to the Court of First Instance pursuant to Article 54 of the Statute of the Court of Justice;

               —

               annul the Commission decisions of 10 March 2006 and 23 June 2006; and

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   In the contested decision, the Commission refused the applicant's request for access to document SEK (2005) 420 on the basis of the second indent of Article 4(2) of the transparency regulation (1). This document contains a legal analysis of the Community's competence in the field of the retention of personal data by operators of electronic communications networks.
   The applicant alleges, first, breach of Article 10 EC in conjunction with the second paragraph of Article 1 EU. The applicant takes the view that the Commission is under an obligation to grant it access to the document which it has applied for in the framework of the reciprocal duties of genuine cooperation in accordance with the principle of transparency, on the ground that there is a strong public and parliamentary interest in full disclosure of this document.
   The applicant further alleges breach of Article 255 EC and Article 2(1) of the transparency regulation. It submits in this regard that the Commission was wrong to base its refusal to grant access to the document applied for on the second indent of Article 4(2) of the transparency regulation, since disclosure of the document would not have prejudiced the Commission's legal advice. The defendant therefore incorrectly exercised its discretion.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


               16.4.2005

               EN

               Official Journal of the European Union

               C 93/23

         Removal from the register of Case C-165/02 (1)

   (2005/C 93/43)

      (Language of the case: Spanish)

   By order of 7 December 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-165/02: Kingdom of Spain v Commission of the European Communities.

      (1)  OJ C 144 of 15.06.2002.


title: Case C-689/13: Judgment of the Court (Grand Chamber) of 5 April 2016 (request for a preliminary ruling from the Consiglio di giustizia amministrativa per la Regione siciliana — Italy) — Puligienica Facility Esco SpA (PFE) v Airgest SpA (Reference for a preliminary ruling — Public service contracts — Directive 89/665/EEC — Article 1(1) and (3) — Review procedures — Application for annulment of the decision awarding a public contract by a tenderer whose bid was not successful — Counterclaim brought by the successful tenderer — Rule derived from national case-law under which the counterclaim must be examined first and, if the counterclaim is well founded, the main action must be dismissed as inadmissible without any examination of the merits — Whether compatible with EU law — Article 267 TFEU — Principle of the primacy of EU law — Principle of law stated by decision of the plenary session of the supreme administrative court of a Member State — National legislation which provides that that decision is binding on the chambers of that court — Obligation on the part of the chamber required to adjudicate on a question of EU law to refer that question to the plenary session if it disagrees with the decision of the plenary session — Whether the chamber has a discretion or is under an obligation to request a preliminary ruling from the Court of Justice)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/4

      Judgment of the Court (Grand Chamber) of 5 April 2016 (request for a preliminary ruling from the Consiglio di giustizia amministrativa per la Regione siciliana — Italy) — Puligienica Facility Esco SpA (PFE) v Airgest SpA
      (Case C-689/13) (1)

      ((Reference for a preliminary ruling - Public service contracts - Directive 89/665/EEC - Article 1(1) and (3) - Review procedures - Application for annulment of the decision awarding a public contract by a tenderer whose bid was not successful - Counterclaim brought by the successful tenderer - Rule derived from national case-law under which the counterclaim must be examined first and, if the counterclaim is well founded, the main action must be dismissed as inadmissible without any examination of the merits - Whether compatible with EU law - Article 267 TFEU - Principle of the primacy of EU law - Principle of law stated by decision of the plenary session of the supreme administrative court of a Member State - National legislation which provides that that decision is binding on the chambers of that court - Obligation on the part of the chamber required to adjudicate on a question of EU law to refer that question to the plenary session if it disagrees with the decision of the plenary session - Whether the chamber has a discretion or is under an obligation to request a preliminary ruling from the Court of Justice))
      (2016/C 211/04)
      Language of the case: Italian

         Referring court

      Consiglio di giustizia amministrativa per la Regione siciliana

         Parties to the main proceedings

         Applicant: Puligienica Facility Esco SpA (PFE)

         Defendant: Airgest SpA

         Intervening parties: Gestione Servizi Ambientali Srl (GSA), Zenith Services Group Srl (ZS)

         Operative part of the judgment

                  1.

                  The third subparagraph of Article 1(1) and Article 1(3) of Council Directive 89/665/EEC 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, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, are to be interpreted as meaning that a main action for review brought by a tenderer with an interest in obtaining a particular contract who has been or may be adversely affected by an alleged breach of EU public procurement law or rules transposing that law, with a view to excluding another tenderer, cannot be dismissed as inadmissible under national procedural rules which provide that the counterclaim lodged by the other tenderer must be examined first.

                  2.

                  Article 267 TFEU must be interpreted as precluding a provision of national law, in so far as that provision is interpreted to the effect that, where a question concerning the interpretation or validity of EU law arises, a chamber of a court of final instance must, if it does not concur with the position adopted by decision of that court sitting in plenary session, refer the question to the plenary session and is thus precluded from itself making a request to the Court of Justice for a preliminary ruling.

                  3.

                  Article 267 TFEU is to be interpreted as meaning that, after receiving the answer of the Court of Justice of the European Union to a question concerning the interpretation of EU law which it has submitted to the Court, or where the case-law of the Court of Justice of the European Union already provides a clear answer to that question, a chamber of a court of final instance is itself required to do everything necessary to ensure that that interpretation of EU law is applied.

         (1)  OJ C 112, 14.4.2014.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 2 October 1997 in Case C-100/95 (reference for a preliminary ruling from the Finanzgericht Bremen): Brigitte Kording v. Senator für Finanzen (Equal treatment for men and women - Public servant - Part-time employment - Right of exemption from a qualifiying examination for entry to a profession - Indirect discrimination)

text:
C 357/4                Hen-!                   Official Journal of the European Communities                                      22 . 11 . 97
     the hours worked are between one half and two thirds                 the President of the Sixth Chamber, P. J. G. Kapteyn and
     of normal working hours are counted only as two                      G. Hirsch, Judges; A. La Pergola, Advocate-General; H. A.
     thirds of normal working hours does not fall with the                Riihl, Principal Administrator, for the Registrar, has given
     scope of Article 119 of the Treaty or of Council                     a judgment on 2 October 1997, in which it has ruled:
     Directive 75/117/EEC of 10 February 1975 on the
     approximation of the laws of the Member States
     relating to the application of the principle of equal pay            Article 3 (1 ) of Council Directive 76/207/EEC of
     for men and women.                                                   9 February 1976 on the implementation of the principle of
                                                                          equal treatment for men and women as regards access to
                                                                          employment, vocational training and promotion, and
3 . Council Directive 76/207/EEC of 9 February 1976 on                    working conditions precludes, in cases where far more
     the implementation of the principle of equal treatment               women will be affected than men, national legislation
     for men and women as, regards access to employment,                  which provides that, in the case of part-time employment
     vocational training and promotion, and working                       involving working hours of no less than one half of
     conditions precludes national legislation which                      normal working hours, the total length of professional
     requires that, for the purposes of calculating the length            experience required for exemption from the qualifying
     of service of public servants, periods of employment                 examination for tax advisers is to be extended on a pro
     during which the hours worked are between one half                   rata basis, save where such legislation is justified by
     and two thirds of normal working hours are counted                   objective factors unrelated to any discrimination on
     only as two thirds of normal working hours, save                     grounds of sex.
     where such legislation is justified by objective criteria
     unrelated to any discrimination on grounds of sex.                   (') OJ C 137, 3 . 6 . 1995 .
(') OJ C 54 , 4 . 3 . 1995 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Sixth Chamber)
                 JUDGMENT OF THE COURT
                                                                                of 2 October 1997
                             ( Sixth Chamber)
                          of 2 October 1997                               in Case C-259/95 : European Parliament v. Council of the
                                                                          European Union, supported by Kingdom of Sweden and
in Case C-100/95 (reference for a preliminary ruling from                         Commission of the European Communities (')
the Finanzgericht Bremen ): Brigitte Kording v. Senator fiir
                                 Finanzen (')                              (Annulment of Council Decision No 95/184/EC —
                                                                                Prerogatives of the Parliament)
(Equal treatment for men and women — Public servant —
Part-time employment — Right of exemption from a                                                       ( 97/C 357/07 )
qualifiying examination for entry to a profession —
                       Indirect discrimination)
                                                                                (Language of the case: French)
                               ( 97/C 357/06 )
                                                                             (Provisional translation; the definitive translation will be
                  (Language of the case: German)                                    published in the European Court Reports)
   (Provisional translation; the definitive translation will be            In Case C-259/95 : European Parliament ( Agents: Christian
           published in the European Court Reports)                        Pennera and Auke Baas ) v. Council of the European Union
                                                                           ( Agent: Guus Houttuin ), supported by Kingdom of
                                                                           Sweden ( Agent: Lotty Nordling) and Commission of the
In Case C-100/95 : reference to the Court under Article 177                European Communities ( Agents: John Forman and
of the EC Treaty from the Finanzgericht ( Finance Court),                  Dominique Maidani ) — application for the annulment of
Bremen ( Germany ), for a preliminary ruling in the                        Council Decision No 95/ 184/EC of 22 May 1995
proceedings pending before that court between Brigitte                     amending Decision No 3092/94/EC introducing a
Kording and Senator fiir Finanzen — on the interpretation                  Community system of information on home and leisure
of Article 3 ( 1 ) of Council Directive 76/207/EEC of                      accidents ( OJ L 120, 31 . 5 . 1995 , p. 36 ) — the Court
9 February 1976 on the implementation of the principle of                  ( Sixth Chamber), composed of: G. F. Mancini, President
equal treatment for men and women as regards access to                     of the Chamber, J. L. Murray, G. Hirsch ( Rapporteur), H.
employment, vocational training and promotion, and                         Ragnemalm and R. Schintgen, Judges; A. La Pergola,
working conditions ( OJ L 39, 14 . 2 . 1976, p. 40 ) — the                 Advocate-General;            H.    von      Holstein,   Assistant
Court ( Sixth Chamber ), composed of: J. L. Murray                         Administrator, for the Registrar, has given a judgment on
 ( Rapporteur ), President of the Fourth Chamber, acting for               2 October 1997, in which it:


title: Case T-539/15: Action brought on 17 September 2015 — LLR-G5 v OHIM — Glycan Finance (SILICIUM ORGANIQUE G5 LLR-G5)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/50

         Action brought on 17 September 2015 — LLR-G5 v OHIM — Glycan Finance (SILICIUM ORGANIQUE G5 LLR-G5)
   (Case T-539/15)
   (2015/C 381/61)
   Language in which the application was lodged: English

      Parties

      Applicant: LLR-G5 Ltd (Castlebar, Ireland) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Glycan Finance Corp. Ltd (Sheffield, United Kingdom)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark in colour containing the word elements ‘SILICIUM ORGANIQUE G5 LLR-G5’ — Community trade mark application No 10 424 703

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 11 June 2015 in Case R 291/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision to the extent that it dismissed the applicant’s appeal against the decision of the Opposition Division of 27 November 2013 in case B 2 027 053, and to the extent that it granted the other party’s appeal against the same decision of the Opposition Division;

               —

               the opposition of the other party to the registration of the applicant’s community trade mark application No. 1 042 4703 is dismissed;

               —

               order OHIM and the other party, if it should intervene in these proceedings, to pay the costs.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-247/06: Action brought on 2 June 2006 — Commission of the European Communities v Federal Republic of Germany

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/11

         Action brought on 2 June 2006 — Commission of the European Communities v Federal Republic of Germany
   (Case C-247/06)
   (2006/C 190/19)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: U. Wölker and F. Simonetti, acting as Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               Declaration that the Federal Republic of Germany has infringed Article 4(1) in conjunction with Annex I, point 9, of Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment by authorising the construction and operation of a wood gas firing plant on the premises of Nivelsteiner Sandwerke und Sandsteinbrüche GmbH in Herzogenrath without first carrying out an assessment of the effects on the environment;

               —

               Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments
   The subject-matter of the application is an authorisation given for a wood gas firing plant for obtaining process heat and electrical current for sand mining and sand reclamation. According to the application for authorisation, only such wood chips were to be used as did not constitute dangerous waste. However, after the report on environmental effects was drawn up in accordance with Directive 92/43/EEC, the application for authorisation was amended so as to include the use of wood chips that were classifiable as dangerous waste. The authorisation for the construction and operation of the plant was issued on 7 November 2002 without any new assessment of the environmental effects on the basis of the amended application. In this case, therefore, the possible environmental impact has not been sufficiently investigated, and the Commission has no information that the effects of burning dangerous waste have been investigated. The defendant should have carried out renewed full public participation after the change in the application for authorisation, but failed to do so.
   The Commission takes the view that the Federal Republic of Germany has thereby infringed Article 4(1) in conjunction with Annex I, point 9, of Directive 85/37/EEC.
   The Commission does not accept the defendant's argument that, under the current version of the directive, an environmental assessment is not compulsory even where dangerous waste is burned, on the ground that, in this case, the main purpose of the plant's operation is not waste disposal but the utilisation of waste. Even if Annex I of the current version does refer only to ‘disposal’, it would be irreconcilable with the essential purpose to exclude projects with obvious environmental effect from systematic examination. Waste utilisation procedures are not necessarily less environmentally threatening than disposal procedures; as is apparent in this case, it depends on the particular type of treatment. The Commission takes the view that the term 'waste-disposal' in point 9 of Annex I to the regulation covers both the utilisation and disposal of waste. The contrary legal interpretation of the defendant would lead to a decisive step backwards in relation to the present legal situation, as installations for the utilisation of waste fall entirely outside the scope of the directive.

      (1)  OJ 1985 L 175, p. 40.


title: Case C-401/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of  11 November 2005  in VDP Dental Laboratory N.V. v Staatssecretaris van Financiën

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/19

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 11 November 2005 in VDP Dental Laboratory N.V. v Staatssecretaris van Financiën
   (Case C-401/05)
   (2006/C 36/38)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by judgment of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) of 11 November 2005, received at the Court Registry on 16 November 2005, for a preliminary ruling in the proceedings between VDP Dental Laboratory N.V. and Staatssecretaris van Financiën on the following questions:

               1.

               Is Article 13.A[(1)](e) of the Sixth Directive (1) to be interpreted as meaning that dental prostheses supplied by a taxable person who contracts out the manufacture thereof to a dental technician are covered by the notion of dental prostheses supplied by dental technicians?

               2.

               If the answer to that question is in the affirmative:
               Is Article 17(3)(a) of the Sixth Directive to be interpreted as meaning that a Member State which has exempted the abovementioned supplies from VAT must attach the right to deduct to those supplies in so far as (in particular under the first indent of Article 28b.B(1) of the Sixth Directive) they take place in another Member State which has excluded them from exemption pursuant to Article 28(3)(a) of the Sixth Directive, in conjunction with Item 2 of Annex E thereto?

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


title: Case T-112/10: Order of the General Court of 5 July 2010 — Prionics v Commission and EFSA

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/54

         Order of the General Court of 5 July 2010 — Prionics v Commission and EFSA
   (Case T-112/10) (1)

   ()
   2010/C 234/98
   Language of the case: German
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 113, 1.5.2010.


title: Case C-106/07: Action brought on 22 February 2007 — Commission of the European Communities v French Republic

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/26

         Action brought on 22 February 2007 — Commission of the European Communities v French Republic
   (Case C-106/07)
   (2007/C 95/48)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: A. Bordes and K. Simonsson, Agents)

      Defendant: French Republic
   Form of order sought

               —

               declare that, by still not having drawn up, for many French ports, the waste reception and handling plans provided for in Article 5 of Directive 2000/59/EC (1), or in any event by failing to inform the Commission of their existence and their implementation, the French Republic has failed to fulfil its obligations under Articles 5(1) and 16(1) of that directive;

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2000/59/EC expired on 27 December 2002.

      (1)  Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (OJ 2000 L 332, p. 81).


title: Case C-441/04: Reference for a preliminary ruling by the Landesgericht Klagenfurt by decision of that court of 13 August 2004 in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/5

         Reference for a preliminary ruling by the Landesgericht Klagenfurt by decision of that court of 13 August 2004 in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt
   (Case C-441/04)
   (2004/C 314/08)
   Reference has been made to the Court of Justice of the European Communities by decision of the Landesgericht Klagenfurt (Klagenfurt Regional Court) (Austria) of 13 August 2004, received at the Court Registry on 21 October 2004, for a preliminary ruling in the case of A-Punkt Schmuckhandels GesmbH against Claudia Schmidt on the following questions:

               1.

               Are Articles 28/30 EC to be interpreted as guaranteeing the freedom of the defendant, in the course of her trade, to sell silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery?

               2.

               If so, does a rule of a Member State which prohibits the sale of silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery constitute a restriction on the free movement of goods within the meaning of Articles 28/30 EC?

               3.

               If so, is a national rule which, contrary to Articles 28/30 EC, prohibits the sale of silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery not contrary to the right of an individual to sell silver jewellery by way of calling on private individuals for the purposes of selling, and collecting orders for, silver jewellery?


title: Judgment of the Court of First Instance of 5 November 2003 in Case T-240/01: Jean-Louis Cougnon v Court of Justice of the European Communities (Officials — Appointments procedure — Grade A 2 post — Candidature rejected)

text:
24.1.2004               EN                          Official Journal of the European Union                                        C 21/31
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 5 November 2003
                      of 27 November 2003
                                                                            in Case T-240/01: Jean-Louis Cougnon v Court of Justice
                                                                                of the European Communities (1)
in Case T-190/00: Regione Siciliana v Commission of the
                   European Communities (1)                                 (Officials — Appointments procedure — Grade A 2 post —
                                                                                Candidature rejected)
                                                                                (2004/C 21/65)
(State aid — Operating loans — Admissibility — Time-
limit — Confirmatory act — Action for annulment —                                              (Language of the case: French)
Existing aid or new aid — Principle of tempus regit actum
  — Export aid — Operating aid — Reasonable time-limit)
                                                                            In Case T-240/01: Jean-Louis Cougnon, an official of the
                                                                            European Parliament, residing in Capellen (Luxembourg),
                          (2004/C 21/64)                                    represented by J. Choucroun, lawyer, with an address for
                                                                            service in Luxembourg, against the Court of Justice of the
                                                                            European Communities (Agent: M. Schauss) — application
                    (Language of the case: Italian)                         for the annulment of a decision rejecting the applicant’s
                                                                            candidature for the post of Director of Personnel and Finances
                                                                            at the Court of Justice and appointing another candidate —
                                                                            the Court of First Instance (Fourth Chamber), composed
                                                                            of V. Tiili, President, P. Mengozzi and M. Vilaras, Judges;
                                                                            D. Christensen, Administrator, for the Registrar, gave a judg-
In Case T-190/00: Regione Siciliana, represented by F. Quadri,              ment on 5 November 2003, in which it:
avvocato dello Stato, with an address for service in Luxem-
bourg, against Commission of the European Communities                       1.    Dismisses the application.
(Agents: V. Di Bucci and D. Triantafyllou) application for
annulment of Commission Decision 2000/319/EC of                             2.    Orders the parties to bear their own costs.
22 December 1999 on the State aid scheme implemented by
Italy for the production, processing and marketing of the
                                                                            (1) OJ C 331 of 24.11.2001
products listed in Annex I to the EC Treaty (Sicilian Regional
Law No 68, of 27 September 1995) (OJ 2000 L 110, p. 17),
in so far as it states that the State aid granted under Article 6
of Sicilian Regional Law No 68 of 27 September 1995 to
agriculture and fisheries enterprises is incompatible with the
common market and requires Italy to withdraw that aid — the
Court of First Instance (Fifth Chamber, Extended Composition),                  JUDGMENT OF THE COURT OF FIRST INSTANCE
composed of R. García-Valdecasas, President, P. Lindh,
J. D. Cooke, A. W. H. Meij and H. Legal, Judges; J. Palacio                                      of 20 November 2003
González, Principal Administrator, for the Registrar, gave the
following judgment on 27 November 2003:                                     in Case T-63/02: Maria Concetta Cerafogli and Paolo
                                                                                Poloni v European Central Bank (1)
1.    The application is dismissed;                                         (Officials — European Central Bank staff — Pay — Method
                                                                            of calculating the annual pay adjustment — Consultation of
                                                                            staff committee — Articles 13, 45 and 46 of the Conditions
2.    The applicant is ordered to pay its own costs and those incurred                                of Employment)
      by the Commission.
                                                                                (2004/C 21/66)
                                                                                (Language of the case: German)
(1) OJ C 285 of 7.10.2000.
                                                                            In Case T-63/02: Maria Concetta Cerafogli and Paolo Poloni,
                                                                            officials of the European Central Bank, residing in Frankfurt-


title: Case T-41/12: Action brought on 27 January 2012 — LS Fashion v OHIM — Sucesores de Miguel Herreros (L'Wren Scott)

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/18

         Action brought on 27 January 2012 — LS Fashion v OHIM — Sucesores de Miguel Herreros (L'Wren Scott)
   (Case T-41/12)
   2012/C 109/41
   Language in which the application was lodged: English

      Parties

      Applicant: LS Fashion, LLC (Wilmington, United States) (represented by: R. Black and S. Davies, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: Sucesores de Miguel Herreros, SA (La Orotava, Spain)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 November 2011 in case R 1584/2009-4;

               —

               Annul the decision of the Opposition Division in so far as it upheld the opposition;

               —

               Allow CTM application No 5190368 to proceed for registration in its full extent; and

               —

               Order the Office and the other party to the proceedings to bear their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘L’Wren Scott’, for goods in classes 3, 9, 14 and 25 — Community trade mark application No 5190368

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Spanish trade mark application No 1164120 of the word mark ‘LOREN SCOTT’, for goods in class 25

      Decision of the Opposition Division: Upheld the opposition for all the contested goods and allowed the CTM application to proceed for the remaining non-contested goods of the application

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 42(2) and (3) of Council Regulation No 207/2009, and Rules 22(2) and (3) of Commission Regulation No 2868/95, as the Board of Appeal failed to properly assess the evidence submitted by the opponent as to its genuine use of the earlier mark in light of the requirements imposed by the relevant provisions and by case-law, including the requirements to consider the place, time, extent and nature of use of a mark. Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed: (i) to properly assess the visual, aural and conceptual similarity of the respective marks; and (ii) to properly take into account the appropriate degree of similarity of the respective marks, and properly assess the degree of distinctiveness of the marks, including the likelihood of confusion.


title: Case C-242/06: Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — Minister voor Vreemdelingenzaken en Integratie v T. Sahin (EEC-Turkey Association Agreement — Freedom of movement for workers — Introduction of administrative charges for obtaining a residence permit in the host Member State — Infringement of the standstill clause in Article 13 of Decision No 1/80 of the Association Council)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/8

         Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — Minister voor Vreemdelingenzaken en Integratie v T. Sahin
   (Case C-242/06) (1)

   (EEC-Turkey Association Agreement - Freedom of movement for workers - Introduction of administrative charges for obtaining a residence permit in the host Member State - Infringement of the standstill clause in Article 13 of Decision No 1/80 of the Association Council)
   2009/C 267/13
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: Minister voor Vreemdelingenzaken en Integratie

      Defendant: T. Sahin

      Re:

   Reference for a preliminary ruling — Raad van State (Netherlands) — Interpretation of Article 13 of Decision No 1/80 of 19 September 1980 concerning the development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey, read in conjunction with Article 59 of the Additional Protocol, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1972 L 293, p. 1) — Obligation to pay administrative charges for the processing of the application for extension of a residence permit — Application not lodged in good time

      Operative part of the judgment

   Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, must be interpreted as precluding the introduction, from the entry into force of that decision in the Member State concerned, of national legislation, such as that at issue in the main proceedings, which makes the granting of a residence permit or an extension of the period of validity thereof conditional on payment of administrative charges, where the amount of those charges payable by Turkish nationals is disproportionate as compared with the amount required from Community nationals.

      (1)  OJ C 212, 2.9.2006.


title: Case C-46/10: Judgment of the Court (First Chamber) of 14 July 2011 (reference for a preliminary ruling from the Højesteret — Denmark) — Viking Gas A/S v Kosan Gas A/S, formerly BP Gas A/S (Trade marks — Directive 89/104/EEC — Articles 5 and 7 — Gas bottles protected as a three-dimensional mark — Placing on the market by an exclusive licensee — Business activity of a competitor of the licensee consisting in the refilling of those bottles)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/11

         Judgment of the Court (First Chamber) of 14 July 2011 (reference for a preliminary ruling from the Højesteret — Denmark) — Viking Gas A/S v Kosan Gas A/S, formerly BP Gas A/S
   (Case C-46/10) (1)

   (Trade marks - Directive 89/104/EEC - Articles 5 and 7 - Gas bottles protected as a three-dimensional mark - Placing on the market by an exclusive licensee - Business activity of a competitor of the licensee consisting in the refilling of those bottles)
   2011/C 269/17
   Language of the case: Danish

      Referring court

   Højesteret

      Parties to the main proceedings

      Applicant: Viking Gas A/S

      Defendant: Kosan Gas A/S, formerly BP Gas A/S

      Re:

   Reference for a preliminary ruling — Højesteret — Interpretation of Articles 5 and 7 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Placing on the market, by an exclusive licensee, of a composite gas bottle the shape of which is registered as a three-dimensional national and Community trade mark constituted by its packaging — Business activity of a competitor of the licensee consisting in the refilling of the licensee’s composite gas bottles and the sale of gas in those bottles after affixing to them an adhesive label indicating that the bottles have been filled by the competitor but without having removed the figurative and word marks of the exclusive licensee

      Operative part of the judgment

   Articles 5 and 7 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the holder of an exclusive licence for the use of composite gas bottles intended for re-use, the shape of which is protected as a three-dimensional mark and to which the holder has affixed its own name and logo that are registered as word and figurative marks, may not prevent those bottles, after consumers have purchased them and consumed the gas initially contained in them, from being exchanged by a third party, on payment, for composite bottles filled with gas which does not come from the holder of that licence, unless that holder is able to rely on a proper reason for the purposes of Article 7(2) of Directive 89/104.

      (1)  OJ C 80, 27.3.2010.