title: Case T-327/10: Action brought on 10 August 2010 — Fraas v OHIM (Black, dark grey, light grey and dark red coloured checked pattern)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/44

      Action brought on 10 August 2010 — Fraas v OHIM (Black, dark grey, light grey and dark red coloured checked pattern)
      (Case T-327/10)
      ()
      (2010/C 288/84)
      Language in which the application was lodged: German

         Parties

         Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, lawyers)

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

         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 7 June 2010 in Case R 189/2010-4;

                  —

                  Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings.

         Pleas in law and main arguments

         Community trade mark concerned: Figurative mark representing a black, dark grey, light grey and dark red coloured checked pattern, for goods in Classes 18, 24 and 25.

         Decision of the Examiner: Registration was refused.

         Decision of the Board of Appeal: The appeal was dismissed.

         Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1) since the Community trade mark concerned does have distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 as the Board of Appeal did not address the applicant's extensive factual and legal submissions.

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


title: Action brought on 5 May 1997 by the Commission of the European Communities against the Kingdom of Belgium (Case C-176/97)

text:
No C 199/ 16         EN                  Official Journal of the European Communities                                 28 . 6 . 97
Action brought on 5 May 1997 by the Commission of the               agreement as envisaged by Article 5 of the regulation,
 European Communities against the Kingdom of Belgium                with which it is incompatible .
                       ( Case C-176/97)
                                                                    (') OJ No L 378 , 31 . 12 . 1986 , p . 1 .
                         ( 97/C 199/30 )
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities
on 5 May 1997 by the Commission of the European                     Action brought on 5 May 1997 by the Commission of
Communities, represented by Frank Benyon, acting as                 the European Communities against the Grand Duchy of
Agent, with an address for service in Luxembourg at the                                         Luxembourg
offices of Carlos Gomez de la Cruz, Wagner Centre,
Kirchberg.                                                                                ( Case C-l 77/97)
                                                                                ( 97/C 199/31 )
The applicant claims that the Court should:
                                                                    An action against the Grand Duchy of Luxembourg was
                                                                    brought before the Court of Justice of the European
                                                                    Communities on 5 May 1997 by the Commission of the
— declare that by introducing and maintaining in force
                                                                    European Communities, represented by Frank Benyon,
     cargo-sharing arrangements, in the Agreement between
                                                                    acting as Agent, with an address for service in
     the Belgo-Luxembourg Economic Union and Malaysia
                                                                    Luxembourg at the offices of Carlos Gomez de la Cruz,
     which was approved by Belgium and entered into
                                                                    Wagner Centre, Kirchberg.
     force after 1 January 1987, the Kingdom of Belgium
     has failed to fulfil its obligations under Article 5 of
     Council Regulation ( EEC ) No 4055/86 of 22 December           The applicant claims that the Court should:
     1986 applying the principle of freedom to provide
     services to maritime transport between Member States
     and between Member States and third countries ('),             — declare that by introducing and maintaining in force
                                                                         cargo-sharing arrangements, in the Agreement between
                                                                         the Belgo-Luxembourg Economic Union and Malaysia
— order the Kingdom of Belgium to pay the costs .                        which was approved by Belgium and entered into
                                                                         force after 1 January 1987, the Grand Duchy of
                                                                         Luxembourg has failed to fulfil its obligations under
                                                                         Article 5 of Council Regulation ( EEC ) No 4055/86 of
Pleas in law and main arguments adduced in support:                      22 December 1986 applying the principle of freedom
                                                                         to provide services to maritime transport between
                                                                         Member States and between Member States and third
Council Regulation ( EEC ) No 4055/86 of 22 December                     countries ('),
1986 applying the principle of freedom to provide services
to maritime transport between Member States and
between Member States and third countries entered into              — order the Grand Duchy of Luxembourg to pay the
                                                                         costs .
force on 1 January 1987, pursuant to Article 12 thereof.
                                                                     Pleas in law and main arguments adduced in support:
The regulation prohibits cargo-sharing arrangements in
agreements between Member States and third countries .
Article 5 provides that, in any future agreements, such              Council Regulation (EEC ) No 4055/86 of 22 December
arrangements are authorized only in exceptional                      1986 applying the principle of freedom to provide services
circumstances where Community liner shipping companies               to maritime transport between Member States and
                                                                     between Member States and third countries entered into
would not otherwise have an effective opportunity to ply
for trade to and from the third country concerned .                  force on 1 January 1987, pursuant to Article 12 thereof.
Article 3 provides that arrangements contained in existing
agreements were to be phased out or adjusted in                      The regulation prohibits cargo-sharing arrangements in
accordance with the provisions of Article 4 .                        agreements between Member States and third countries .
                                                                     Article 5 provides that, in any future agreements, such
                                                                     arrangements are authorized only in exceptional
 The maritime agreement between the Belgo-Luxembourg                 circumstances where Community liner shipping companies
 Economic Union and Malaysia , signed at Kuala Lumpur                would not otherwise have an effective opportunity to ply
 on 12 February 1985 , contains a cargo-sharing                      for trade to and from the third country concerned.
 arrangement. That agreement, which was approved by a                Article 3 provides that arrangements contained in existing
 law of 29 June 1987 (Moniteur Beige, 2 September 1987)              agreements were to be phased out or adjusted in
 and entered into force on 17 August 1987, is a future               accordance with the provisions of Article 4 .


title: Case T-22/07: Order of the Court of First Instance of 14 May 2009 — US Steel Košice v Commission (Action for annulment — State aid — Act of Accession — Condition imposed on the beneficiary to limit its sales of flat products in the enlarged EU — Commission letter interpreting the condition as applying to the Bulgarian and Romanian markets from the date of their accession — Act not amenable to review — Inadmissibility)

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/10

         Order of the Court of First Instance of 14 May 2009 — US Steel Košice v Commission
   (Case T-22/07) (1)

   (Action for annulment - State aid - Act of Accession - Condition imposed on the beneficiary to limit its sales of flat products in the ‘enlarged EU’ - Commission letter interpreting the condition as applying to the Bulgarian and Romanian markets from the date of their accession - Act not amenable to review - Inadmissibility)
   2009/C 167/21
   Language of the case: English

      Parties

      Applicant: US Steel Košice s.r.o. (Košice, Slovakia) (represented by: E. Vermulst and S. Van Cutsem, lawyers)

      Defendant: Commission of the European Communities (represented by: K. Gross and T. Scharf, acting as Agents)

      Intervener in support of the applicant: Slovak Republic (represented by: J. Čorba, Agent)

      Re:

   Action for annulment of the decision allegedly contained in the Commission’s letter of 22 November 2006, inasmuch as it interprets the condition imposed on the applicant to limit its sales of flat products in the ‘enlarged EU’ as applying also, from 1 January 2007, to the Bulgarian and Romanian markets.

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               US Steel Košice s.r.o. shall bear its own costs and pay those incurred by the Commission.

               3.

               The Slovak Republic shall bear its own costs.

      (1)  OJ C 56, 10.3.2007.


title: Case T-485/08 P: Judgment of the General Court of 2 July 2010 — Lafili v Commission (Appeal — Staff case — Officials — Admissibility — Concept of the party who was unsuccessful at first instance — Promotion — Classification in grade and step — Multiplication factor greater than one — Conversion to seniority in step — Article 7 of Annex XIII of the Staff Regulations)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/40

         Judgment of the General Court of 2 July 2010 — Lafili v Commission
   (Case T-485/08 P) (1)

   (Appeal - Staff case - Officials - Admissibility - Concept of the party who was unsuccessful at first instance - Promotion - Classification in grade and step - Multiplication factor greater than one - Conversion to seniority in step - Article 7 of Annex XIII of the Staff Regulations)
   2010/C 221/65
   Language of the case: French

      Parties

      Appellant: Paul Lafili (Genk, Belgium) (represented by: L. Levi, lawyer)

      Other party to the proceedings: European Commission (represented by: J. Currall, H. Krämer and K. Herrmann, agents)

      Re:

   Appeal against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 4 September 2008 in Case F-22/07 Lafili v Commission seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal.

               2.

               Orders Paul Lafili to bear his own costs as well as the costs incurred by the European Commission in the appeal proceedings.

      (1)  OJ C 19, 24.1.2009.


title: Case T-621/15: Judgment of the General Court of 5 April 2017 — Tractel Greifzug v EUIPO — Shenxi Machinery (Shape of a motor-driven rope winch) (EU trade mark — Invalidity proceedings — Three-dimensional EU trade mark — Shape of a motor-driven rope winch — Absolute ground for refusal — Sign consisting exclusively of the shape of goods which is necessary to obtain a technical result — Article 7(1)(e)(ii) of Regulation (EC) No 207/2009)

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/25

         Judgment of the General Court of 5 April 2017 — Tractel Greifzug v EUIPO — Shenxi Machinery (Shape of a motor-driven rope winch)
   (Case T-621/15) (1)

   ((EU trade mark - Invalidity proceedings - Three-dimensional EU trade mark - Shape of a motor-driven rope winch - Absolute ground for refusal - Sign consisting exclusively of the shape of goods which is necessary to obtain a technical result - Article 7(1)(e)(ii) of Regulation (EC) No 207/2009))
   (2017/C 161/34)
   Language of the case: German

      Parties

      Applicant: Tractel Greifzug GmbH (Bergisch Gladbach, Germany) (represented by: U. Lüken and C. Maierhöfer, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: D. Hanf, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Shenxi Machinery Co. Ltd (Wuxi, China) (represented by: C. Vossius, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 3 September 2015 (Case R 1658/2014-1), relating to invalidity proceedings between Shenxi Machinery and Tractel Greifzug.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Tractel Greifzug GmbH to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO);

               3.

               Orders Shenxi Machinery Co. Ltd to bear its own costs.

      (1)  OJ C 16, 18.1.2016.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber) of 5 March 1997 in Case T-96/95: Sébastien Rozand-Lambiotte v. Commission of the European Communities (Probationary officials - Not established at the end of the probationary period - Articles 26, 34 and 43 of the Staff Regulations - Right to a fair hearing - Inadequate statement of reasons - Duty to have regard for the interests of officials - Manifest error of assessment)

text:
26 . 4 . 97             EN                   Official Journal of the European Communities                                 No C 131 / 13
21 February 1995 , relating to a procedure implementing                    JUDGMENT OF THE COURT OF FIRST INSTANCE
Article 93 of the EC Treaty ( State aid NN 135/92 :                                               of 5 March 1997
competitive activities of the French Post Office ), published
in the Official Journal of the European Communities ( OJ                in Case T-105/95 : WWF UK (World Wide Fund for
No C 262, 7. 10 . 1995 , p. 11 ) — the Court of First                      Nature ) v. Commission of the European Communities H
Instance (Third Chamber, Extended Composition ),
composed of : B. Vesterdorf, President, C. P. Briët, P.                 (Transparency — Access to information — Commission
Lindh, A. Potocki and J. D. Cooke, Judges; J. Palacio                   Decision 94/90/ECSC, EC, Euratom on public access to
Gonzalez, Administrator, for the Registrar, has given a                 Commission documents — Decision refusing access to
judgment on 27 February 1997, in which it:                              documents on the grounds that they relate to the
                                                                        examination by the Commission of a possible
                                                                        infringement of Community law by a Member State —
1 . dismisses the application;                                          Exceptions relating to the public interest and to the
                                                                        institution 's interest in the confidentiality of its
2 . orders the applicants to pay the costs of the                           proceedings — Extent of the obligation to give reasons)
       proceedings, including the costs incurred by the
       intervener La Poste;                                                                         ( 97/C 131/33 )
3 . orders the French Republic to bear its own costs.
                                                                                (Language of the case: English)
(') OJ No C 159 , 24 . 6 . 1995 .
                                                                        In Case T-105/95 : WWF UK (World Wide Fund for
                                                                        Nature ), whose head office is at Godalming, Surrey
                                                                        (United Kingdom ), represented by Georg M. Berrisch,
                                                                        Rechtsanwalt in Hamburg and Brussels, with an address
                                                                        for service in Luxembourg at the Chambers of Turk and
   JUDGMENT OF THE COURT OF FIRST INSTANCE                              Prüm, 13B Avenue Guillaume, supported by the Kingdom
                         ( Fourth Chamber)                              of Sweden ( Agent: Erik Brattgård ), against Commission of
                                                                        the European Communities ( Agents : Carmel O'Reilly and
                          of 5 March 1997
                                                                        Ulrich Wölker ), supported by the French Republic
in      Case    T-96/95 :      Sébastien   Rozand-Lambiotte     v.       ( Agents: Catherine de Salins and Denys Wibaux) and the
          Commission of the European Communities ( 1 )                  United Kingdom of Great Britain and Northern Ireland
                                                                         ( Agents : John E. Collins, Stephen Richards and Jessica
 (Probationary officials — Not established at the end of the            Simor) — application for the annulment of the
probationary period — Articles 26, 34 and 43 of the Staff                Commission Decision of 2 February 1995 refusing the
Regulations — Right to a fair hearing — Inadequate                      applicant access to Commission documents relating to the
statement of reasons — Duty to have regard for the                      examination of a project to build an interpretative centre
      interests of officials — Manifest error of assessment)
                                                                         at Mullaghmore ( Ireland) and, in particular, to those
                            ( 971C 131 /32 )                             documents relating to the question as to whether
                                                                         structural funds could be used for that project — the
                  (Language of the case: French)                         Court of First Instance ( Fourth Chamber, Extended
                                                                         Composition ), composed of: K. Lenaerts, President, R.
In Case T-96/95 , Sébastien Rozand-Lambiotte, former                     García-Valdecasas, P. Lindh, J. Azizi and J. D. Cooke,
probationary official of the Commission of the European                 Judges; H. Jung, Registrar, has given a judgment on
 Communities, residing at La Javie ( France ), represented by            5 March 1997, in which it:
Jean-Noel Louis, Thierry Demaseure and Ariane Tornel, of
the Brussels Bar, with an address for service in
 Luxembourg at the office of Fiduciaire Myson Sari, 30 Rue                1 . annuls the decision of the Commission of 2 February
 de Cessange, v. Commission of the European Communities                        1995 refusing the applicant access to Commission
 ( Agents : Gianluigi Valsesia and Julian Currall ) —                          documents relating to the examination of a project to
 application for annulment of the Commission's decision of                     build an interpretative centre at Mullaghmore
                                                                               (Ireland);
 12 July 1994 to dismiss the applicant at the end of his
 probationary period — the Court of First Instance ( Fourth
 Chamber), composed of K. Lenaerts, President of the
                                                                         2 . orders the Commission to pay the costs of the
 Chamber, and P. Lindh and J. D. Cooke, Judges; M. A.
                                                                               applicant;
 Mair, Administrator, for the Registrar, has given a
 judgment on 5 March 1997, in which it:
                                                                          3 . orders the Kingdom of Sweden, the French Republic
  1 . dismisses the application;                                               and the United Kingdom of Great Britain and
                                                                               Northern Ireland to bear their own costs.
 2 . orders the parties to bear their own costs.
                                                                          (') OJ No C 174, 8 . 7 . 1995 .
 H OJ No C 137, 3 . 6 . 1995 .


title: Case C-27/07: Judgment of the Court (Fourth Chamber) of 3 April 2008 (reference for a preliminary ruling from the Conseil d'État (France)) — Banque Fédérative du Crédit Mutuel v Ministre de l'Économie, des Finances et de l'Industrie (Corporation tax — Directive 90/435/EEC — Taxable income of a parent company — Non deductibility of costs and expenses relating to a holding in a subsidiary — Fixing of costs at a flat rate — Ceiling of 5 % of the profits distributed by the subsidiary — Inclusion of tax credits)

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/13

         Judgment of the Court (Fourth Chamber) of 3 April 2008 (reference for a preliminary ruling from the Conseil d'État (France)) — Banque Fédérative du Crédit Mutuel v Ministre de l'Économie, des Finances et de l'Industrie
   (Case C-27/07) (1)

   (Corporation tax - Directive 90/435/EEC - Taxable income of a parent company - Non deductibility of costs and expenses relating to a holding in a subsidiary - Fixing of costs at a flat rate - Ceiling of 5 % of the profits distributed by the subsidiary - Inclusion of tax credits)
   (2008/C 128/20)
   Language of the case: French
   Referring court
   Conseil d'État
   Parties to the main proceedings

      Applicant: Banque Fédérative du Crédit Mutuel

      Defendant: Ministre de l'Économie, des Finances et de l'Industrie
   Re:
   Reference for a preliminary ruling — Conseil d'État (France) — Interpretation of Articles 4, 5 and 7 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6) — Add-back to the taxable income of the parent company of a fixed proportion of the costs and expenses, equal to 5 % of the income from its holdings in a subsidiary, including tax credits — Compatibility of that add back with the limit provided for in Article 4 of the directive — Need for the tax credit to be entirely set off against the tax payable by the parent company.
   Operative part of the judgment
   The concept of ‘profits distributed by the subsidiary’, within the meaning of the last sentence of Article 4(2) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, is to be interpreted as not precluding legislation of a Member State which includes in those profits tax credits which have been granted in order to offset a withholding tax levied by the Member State of the subsidiary in the hands of the parent company.

      (1)  OJ C 82, 14.4.2007.


title: Case C-71/03: Action brought on 18 February 2003 by the Commission of the European Communities against the Kingdom of Belgium

text:
5.4.2003                 EN                        Official Journal of the European Union                                          C 83/15
Do Regulations (EEC) No 1079/77 (1) and No 1822/77 (2),                    Reference for a preliminary ruling by the Commissione
which establish a co-responsibility levy on cows’ milk, apply              Tributaria Provinciale — di Massa Carrara, Sezione 2, by
to all transfers of cows’ milk from the producer to third parties,         order of that Court of 11 December 2002 in the case of
regardless of the legal form which such transfers take, or                      Carbonati Apuani s.r.l. against Comune di Carrara
merely to transfers which result in the acquisition of title in
the product by the transferee?                                                                      (Case C-72/03)
                                                                                (2003/C 83/28)
( 1) OJ L 131 of 26.5.1977, p. 6.
( 2) OJ L 203 of 9.8.1977, p. 1.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Commissione Tributa-
                                                                           ria Provinciale — di Massa Carrara, Sezione 2 (Massa Carrara
                                                                           Provincial Tax Court, Second Chamber) of 11 December 2002,
                                                                           received at the Court Registry on 18 February 2003, for a
                                                                           preliminary ruling in the case of Carbonati Apuani s.r.l. against
                                                                           Comune di Carrara on the following question:
Action brought on 18 February 2003 by the Commission
of the European Communities against the Kingdom of
                                                                           whether the Italian rules in question, Laws No 749 of 15 July
                                Belgium
                                                                           1911 and No 449 of 23 December 1997 and Decree-Law
                                                                           No 8 of 26 January 1999 as converted, with amendments,
                            (Case C-71/03)                                 into Law No 75.99 — establishing a marble tax in the Comune
                                                                           di Carrara — are compatible with Articles 23, 81, 85 and 86
                                                                           of the EC Treaty as amended by the Treaty of Amsterdam,
                            (2003/C 83/27)                                 ratified in Italy by Law No 209.1998.
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
18 February 2003 by the Commission of the European                         Action brought on 20 February 2003 by the Commission
Communities, represented by Wouter Wils, acting as Agent,                  of the European Communities against the Republic of
with an address for service in Luxembourg.                                                             Austria
                                                                                (Case C-76/03)
The applicant claims that the Court should:
                                                                                (2003/C 83/29)
—     Declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Directive 98/71/EC ( 1) of the European Parliament and of
      the Council of 13 October 1998 on the legal protection               An action against the Republic of Austria was brought
      of designs and, in any event, by failing to communicate              before the Court of Justice of the European Communities on
      them to the Commission, the Kingdom of Belgium has                   20 February 2003 by the Commission of the European
      failed to fulfil its obligations under that directive;               Communities, represented by Claudia Schmidt, of the Euro-
                                                                           pean Commission’s Legal Service, acting as Agent, with an
                                                                           address for service in Luxembourg at the office of Luis Escobar
—     order the Kingdom of Belgium to pay the costs.                       Guerrero, also of the European Commission’s Legal Service,
                                                                           Wagner Centre C 254, Kirchberg.
                                                                           The applicant claims that the Court should:
Pleas in law and main arguments
                                                                           1.    Declare that, by failing to bring into force the laws,
                                                                                regulations and administrative provisions necessary to
The period prescribed for implementation of the directive                        comply with Directive 98/71/EC of the European Parlia-
expired on 28 October 2001.                                                      ment and of the Council of 13 October 1998 on the legal
                                                                                protection of designs ( 1) and/or by failing to forward
                                                                                those provisions to the Commission, the Republic of
( 1) OJ L 289 of 28.10.1998, p. 28.                                              Austria has failed to fulfil its obligations under that
                                                                                directive;
                                                                           2.    Order the Republic of Austria to pay the costs.


title: Case T-467/10: Action brought on 27 September 2010 — Murphy v Commission

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/48

         Action brought on 27 September 2010 — Murphy v Commission
   (Case T-467/10)
   ()
   2010/C 328/76
   Language of the case: English

      Parties

      Applicant: Larry Murphy (Castletownbere, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission Decision notified under document C(2010) 4753 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new pelagic trawler, to replace the MFV Menhaden, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision notified under document C(2010) 4753 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application for a proposed new pelagic trawler to replace the MFV Menhaden, and to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the Court of Justice delivered on 17 April 2008 in Joined Cases C-373/06 P, C-379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I-2649.
   In support of his application, the applicant submits the following pleas in law:

               Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructering the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

               Secondly, the applicant submits that the Commission breached an esential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursunat to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

               Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of ‘fishing effort’ provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001.

               In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Menhaden is manifestly flawded, as is its assumption that the proposed new vessel’s ‘fishing effort’ will be grater than that of the Menhaden.

               Finally, the applicant alleges that the Commission breached the right to equal treatment. It is submitted that Commission’s rejection of the application because of the greater volume under the main deck of his proposed new vessel constitutes gross difference in treatment amounting to impermissible discrimination against him compared to the wholly different approach adopted regarding the treatment of some of the applications for additional safety tonnage accepted in Commission Decision No 2003/245, as well as regarding one of the applications initially rejected in that decision but then accepted in the Commission Decision notified under document C(2010) 4765 of 13 July 2010.


title: Case C-539/07: Judgment of the Court (Seventh Chamber) of 15 January 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Article 26(3) — Single European emergency call number — Caller location information — Availability to the authorities handling emergencies — Failure to transpose within the prescribed period)

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/4

         Judgment of the Court (Seventh Chamber) of 15 January 2009 — Commission of the European Communities v Italian Republic
   (Case C-539/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/22/EC - Article 26(3) - Single European emergency call number - Caller location information - Availability to the authorities handling emergencies - Failure to transpose within the prescribed period)
   (2009/C 55/06)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Montaguti and A. Nijenhuis, acting as Agents)

      Defendant: Italian Republic (represented by: I. M. Braguglia, Agent, and S. Fiorentino, avvocato dello Stato)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing, for all calls to the single European emergency call number ‘112’, to make caller location information available, to the extent technically feasible, to the authorities handling emergencies, the Italian Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive);

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 37 of 9.2.2008.


title: Judgment of the Court of First Instance of 5 April 2001 in Case T-16/98 Wirstschaftsvereinigung Stahl and Others v Commission of the European Communities (Competition — ECSC — Information exchange agreement — Notification — Commission decision departing from the content of the Agreement — Statement of reasons)

text:
C 212/22              EN                     Official Journal of the European Communities                                      28.7.2001
                                                       COURT OF FIRST INSTANCE
Extension of the composition of the Chambers for the                    the ECSC Treaty (Case IV/36.069 — Wirtschaftsvereinigung
                    judicial year 2000/2001                             Stahl) (OJ 1998 L 1, p. 10) — the Court of First Instance (Third
                                                                        Chamber), composed of J. Azizi, President, K. Lenaerts and
                                                                        M. Jaeger, Judges; G. Herzig, Administrator, for the Registrar,
                        (2001/C 212/39)
                                                                        has given a judgment on 5 April 2001, in which it:
At its Plenary Conference held on 3 July 2001 the Court of              1.     Annuls Commission Decision 98/4/ECSC of 26 November
First Instance took formal note of the fact that, owing to the                 1997 relating to a proceeding pursuant to Article 65 of the
judicial vacation, the oath-taking ceremony before the Court                   ECSC Treaty (Case IV/36.069 — Wirtschaftsvereinigung
of Justice for the new member of the Court of First Instance                   Stahl);
could not take place until after the judicial vacation and that
consequently, in accordance with the third paragraph of                 2.     Orders the Commission to pay both its own costs and those of
Article 5 of the EC Statute of the Court of Justice, the third                 the applicants.
paragraph of Article 5 of the EAEC Statute of the Court of
Justice and the third paragraph of Article 5 of the ECSC Statute
of the Court of Justice, the decision of 4 July 2000 (OJ C 259          (1) OJ C 94 of 28.3.98.
of 9 September 2000) on the designation of the Presidents of
Chambers, the composition of the Chambers and the assign-
ment of cases to them would continue to apply and that the
President of the Court, Mr Vesterdorf, would continue to
exercise the presidency of the Court of First Instance.
                                                                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 2 May 2001
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                        in Joined Cases T-167/99 and T-174/99: Carla Giulietti and
                                                                          Others v Commission of the European Communities (1)
                        of 5 April 2001
                                                                        (Officials — Competition — Action for annulment — Pre-
in Case T-16/98 Wirstschaftsvereinigung Stahl and Others                selection procedure — Conduct of the tests — Principle of
       v Commission of the European Communities (1)                     equal treatment — Obligation to provide reasons — Prin-
                                                                        ciple of the protection of legitimate expectations — Principle
(Competition — ECSC — Information exchange agreement                    of sound administration — Consequences for the subsequent
— Notification — Commission decision departing from the                                     conduct of the competition)
      content of the Agreement — Statement of reasons)
                                                                                (2001/C 212/41)
                        (2001/C 212/40)
                                                                                (Language of the case: French)
                  (Language of the case: German)
                                                                        In Joined Cases T-167/99 and T-174/99: Carla Giulietti, Ana
In Case T-16/98 Wirstschaftsvereinigung Stahl, established              Caprile, residing in Brussels, Fabrizio Dell’Olio, residing in
in Düsseldorf (Germany), AG der Dillinger Hüttenwerke,                  Bari, Italy, Konrad Fuhrmann, Olivier Radelet, residing in
established in Dillingen (Germany), EKO Stahl GmbH, estab-              Brussels, represented by G. Vandersanden and L. Levi, avocats,
lished in Eisenhüttenstadt (Germany), Krupp Thyssen Nirosta             with an address for service in Luxembourg, against Com-
GmbH, established in Bochum (Germany), Thyssen Krupp                    mission of the European Communities (Agents: G. Valsesia,
Stahl GmbH, established in Duisburg (Germany), Salzgitter               J. Currall and C. Berardis-Kayser) — application for annulment,
AG (formerly Preussag Stahl AG), established in Salzgitter              first, of the decision taken by the selection board in compe-
(Germany), Stahlwerke Bremen GmbH, established in Bremen                tition COM/A/10/98 excluding the applicants from the tests
(Germany), Thyssen Stahl AG, established in Duisburg, rep-              subsequent to the pre-selection tests and, second, of all of the
resented by J. Sedemund, lawyer, with an address for service in         steps taken and acts done subsequently in the procedure
Luxembourg, against Commission of the European Communi-                 relating that competition — the Court of First Instance (Second
ties (Agents: K. Wiedner, and H.-J. Freund) — application for           Chamber), composed of A.W.H. Meij, President, and A. Potocki
annulment of Commission Decision 98/4/ECSC of 26 Novem-                 and J. Pirrung, Judges; G. Herzig, Administrator, for the
ber 1997 relating to a proceeding pursuant to Article 65 of             Registrar, gave a judgment on 2 May 2001, in which it:


title: Case C-437/06: Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht, Germany) — Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG v Finanzamt Göttingen (Sixth VAT Directive — Taxable person simultaneously carrying out economic activities, taxable or exempt, and non-economic activities — Right to deduct input VAT — Expenditure connected with the issue of shares and atypical silent partnerships — Apportionment of input VAT according to the economic nature of the activity — Calculation of the deductible proportion)

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/7

         Judgment of the Court (Fourth Chamber) of 13 March 2008 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht, Germany) — Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG v Finanzamt Göttingen
   (Case C-437/06) (1)

   (Sixth VAT Directive - Taxable person simultaneously carrying out economic activities, taxable or exempt, and non-economic activities - Right to deduct input VAT - Expenditure connected with the issue of shares and atypical silent partnerships - Apportionment of input VAT according to the economic nature of the activity - Calculation of the deductible proportion)
   (2008/C 116/11)
   Language of the case: German
   Referring court
   Niedersächsisches Finanzgericht
   Parties to the main proceedings

      Applicant: Securenta Göttinger Immobilienanlagen und Vermögensmanagement AG

      Defendant: Finanzamt Göttingen
   Re:
   Reference for a preliminary ruling — Niedersächsisches Finanzgericht — Interpretation of Articles 2, point 1, and 17(5) of Directive 77/388/EEC: Sixth Council Directive 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) — Issue of silent partnerships by a limited company on an increase in its capital — Supply for consideration within the meaning of Article 2, point 1 — Deductibility of VAT conditional on a direct and immediate link with the taxable person's business activity — Whether deductible in part under Article 17(5) of the Directive
   Operative part of the judgment

               1.

               Where a taxpayer simultaneously carries out economic activities, taxed or exempt, and non-economic activities outside the scope of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, deduction of the VAT relating to expenditure connected with the issue of shares and atypical silent partnerships is allowed only to the extent that that expenditure is attributable to the taxpayer's economic activity within the meaning of Article 2(1) of that directive.

               2.

               The determination of the methods and criteria for apportioning input VAT between economic and non-economic activities within the meaning of the Sixth Directive is in the discretion of the Member States who, when exercising that discretion, must have regard to the aims and broad logic of that directive and, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity.

      (1)  OJ C 326, 30.12.2006.


title: Case C-417/99: Action brought on 29 October 1999 by the Commission of the European Communities against the Kingdom of Spain

text:
22.1.2000               EN                        Official Journal of the European Communities                                           C 20/11
Reference for a preliminary ruling by the Kantongerecht                      Pleas in law and main arguments
te Groningen by decision of 19 October 1999 in the case
of Kamer van Koophandel en Fabrieken voor Groningen
and Challenger Trading Company Ltd, a company incor-
                   porated under foreign law                                 The Commission considers that the Kingdom of Spain should,
                                                                             in accordance with Article 13 of the directive, have complied
                          (Case C-410/99)                                    with the designation obligation by no later than 21 May 1998,
                                                                             and states that, despite the adoption of Council Directive
                           (2000/C 20/21)                                    1999/30/EC (2), the first of the directives implementing Direc-
                                                                             tive 96/62/EC, the Kingdom of Spain has not yet notified it of
Reference has been made to the Court of Justice of the                       the authorities and bodies responsible for implementing that
European Communities by decision of 19 October 1999 of                       directive.
the Kantongerecht te Groningen (Cantonal Court, Groningen),
which was received at the Court Registry on 27 October 1999,
for a preliminary ruling in the case of Kamer van Koophandel                 (1) OJ L 296 of 21.11.1996, p. 55.
en Fabrieken voor Groningen (Chamber of Commerce and                         (2) OJ L 163 of 29.6.1999, p. 41.
Industry for Groningen) and Challenger Trading Company Ltd,
a company incorporated under foreign law, on the following
question:
Do the (new) Articles 43 and 48 of the Treaty establishing the
European Community preclude formally foreign companies,
within the meaning of Article 1 of the Wet op de formeel
buitenlandse vennootschappen (Netherlands Law on formally
foreign companies), from being subject in the Netherlands to
the provisions of Article 2 et seq of that Law? (1)
                                                                             Action brought on 29 October 1999 by the Commission
(1) Article 2 et seq of this Law make formally foreign companies
                                                                             of the European Communities against the Italian Republic
    subject to a number of provisions of Netherlands company law
    designed to protect the interests of third parties, such as provisions
    concerning registration in the Commercial Register, minimum
    capital, duty to maintain accounts, as well as the preparation,                                     (Case C-418/99)
    arrangement and publication of annual accounts.
                                                                                (2000/C 20/23)
Action brought on 29 October 1999 by the Commission                          An action against the Italian Republic was brought before the
                                                                             Court of Justice of the European Communities on 29 October
of the European Communities against the Kingdom of
                                 Spain                                       1999 by the Commission of the European Communities,
                                                                             represented by Gregorio Valero Jordana, of its Legal Service,
                                                                             and Giacinto Bisogni, an appeal court judge on secondment to
                          (Case C-417/99)
                                                                             its Legal Service, acting as Agents, with an address for service
                                                                             in Luxembourg at the office of Carlos Gómez de la Cruz,
                           (2000/C 20/22)                                    Wagner Centre, Kirchberg.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on
29 October 1999 by the Commission of the European Com-                       The applicant claims that the Court should:
munities, represented by Gregorio Valero Jordana, acting as
Agent, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of its Legal Service, Wagner                    — declare that, by failing to adopt, or at any rate to
Centre, Kirchberg.                                                                communicate to the Commission, the laws, regulations
                                                                                and administrative measures necessary in order to comply
The applicant claims that the Court should:                                       with Directive 97/68/EC of the European Parliament
                                                                                and of the Council of 16 December 1997(1) on the
— declare that, by failing to designate the competent auth-                       approximation of the laws of the Member States relating
     orities and bodies referred to in the first paragraph of                     to measures against the emission of gaseous and particulate
     Article 3 of Council Directive 96/62/EC (1) of 27 Septem-                    pollutants from internal combustion engines to be installed
     ber 1996 on ambient air quality assessment and manage-                       in non-road mobile machinery, the Italian Republic has
     ment, the Kingdom of Spain has failed to fulfil its                          failed to fulfil its obligations under that directive;
     obligations under that directive;
— order the Kingdom of Spain to pay the costs.                               — order the Italian Republic to pay the costs.


title: Case T-498/07 P: Judgment of the Court of First Instance of 8 June 2009 — Krcova v Court of Justice (Appeal — Staff case — Officials — Recruitment — Probationary period — Extension of the probationary period — End of probation report — Dismissal at the end of the probationary period — Article 34 of the Staff Regulations — Obligation on the Civil Service Tribunal to state reasons)

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/14

         Judgment of the Court of First Instance of 8 June 2009 — Krcova v Court of Justice
   (Case T-498/07 P) (1)

   (Appeal - Staff case - Officials - Recruitment - Probationary period - Extension of the probationary period - End of probation report - Dismissal at the end of the probationary period - Article 34 of the Staff Regulations - Obligation on the Civil Service Tribunal to state reasons)
   2009/C 233/23
   Language of the case: French

      Parties

      Appellant: Erika Krcova (Trnava, Slovakia) (represented by: J. Rooy, lawyer)

      Other party to the proceedings: Court of Justice of the European Communities (represented by: M. Schauss initially, then A.V. Placco, Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 18 October 2007 in Case F-112/06 Krcova v Court of Justice ECR-SC I-A-0000, for that judgment to be set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Erika Krcova to bear her own costs and to pay those incurred by the Court of Justice of the European Communities before the Court of First Instance.

      (1)  OJ C 209, 15.8.2008.


title: Case C-57/10: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 28 January 2010 — Vlaamse Dierenartsenvereniging VZW v Belgische Staat

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/25

         Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 28 January 2010 — Vlaamse Dierenartsenvereniging VZW v Belgische Staat
   (Case C-57/10)
   2010/C 100/38
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: Vlaamse Dierenartsenvereniging VZW

      Defendant: Belgische Staat

      Questions referred

               1.

               Do Articles 3(b), 4(2), 5 and the second subparagraph of Article 17 of Regulation 998/2003/EC (1) of the European Parliament and the Council of 26 May 2003 on the animal health requirements applicable to the non commercial movement of pet animals and amending Council Directive 92/65/EEC and the articles and annexes of Commission Decision 2003/803/EC (2) of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets preclude national legislation in regard to the passport for cats and ferrets which refers to the model and the additional requirements laid down in the aforementioned Commission Decision of 26 November 2003, yet in addition prescribes that every passport must bear a unique number consisting of thirteen characters, namely, ‘BE’, the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits, and a serial number consisting of nine digits?

               2.

               Is national legislation which in regard to the passport for cats and ferrets refers to the model and the additional requirements laid down in the aforementioned Commission Decision of 26 November 2003, yet in addition prescribes that every passport must bear a unique number consisting of thirteen characters, namely, ‘BE’, the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits, and a serial number consisting of nine digits, a technical regulation within the meaning of Article 1 of Directive 98/34/EC (3) of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations which, under Article 8 of that Directive, must be communicated to the European Commission before its enactment?’

      (1)  OJ 2003 L 146, P. 1.

      (2)  OJ 2003 L 312, p. 1.

      (3)  OJ 1998 L 204, p. 37.


title: Case F-66/06: Action brought on  16 June 2006  — Kyriazi v Commission

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/43

         Action brought on 16 June 2006 — Kyriazi v Commission
   (Case F-66/06)
   (2006/C 178/80)
   Language of the case: French
   Parties

      Applicant: Kalliopi Kyriazi (Clabecq, Belgium) (represented by: E. Boigelot, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the decision of 12 September 2005 to appoint the applicant as a probationary official with classification in Grade C*1, step 2, and all consecutive and/or related measures such as the decision to cancel her secretarial allowance and not to restore it following her appointment as an established official;

               —

               Annul the Appointing Authority's decision of 6 March 2006 rejecting the applicant's complaint seeking annulment of the above decision;

               —

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

         Pleas in law and main arguments
   The applicant, a successful candidate in the internal competition for change of category COM/PC/04, was a member of the Commission's temporary staff in Grade C*2 (former grade C5) at the time of her inclusion on the list of suitable candidates of that competition and until 31 July 2004. Subsequently, she worked as a temporary employee at the same institution until 1 November 2004, the date on which she was again recruited as a member of the temporary staff and classified in Grade C*1, without the benefit of the secretarial allowance which she had received under the previous contract. On 16 April 2005, she was appointed as a probationary official, with that same classification.
   In support of her action, the applicant claims that the administration has infringed Article 31(1) and the second paragraph of Article 25 of the Staff Regulations and Articles 5 and 18 of Annex XIII thereto. She also alleges infringement of essential procedural requirements and the provisions of the competition notice and disregard of a number of general principles of law, in particular the principle of the protection of legitimate expectations, the principle of legal certainty, the principle of sound administration and the principle of equal treatment.
   The applicant considers further that Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (1) is unlawful as to the part which inserts Article 5(4) of Annex XIII to the Staff Regulations, in so far as the Appointing Authority construes that provision as allowing it to classify the applicant in Grade C*1, step 2, in breach of the requirements laid down by Article 31 of the Staff Regulations and a number of principles of law.

      (1)  OJ L 124, 27.4.2004, p. 1.


title: Case T-488/07: Action brought on 20 December 2007 — Cabel Hall Citrus v OHIM — Casur (EGLÉFRUIT)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/44

         Action brought on 20 December 2007 — Cabel Hall Citrus v OHIM — Casur (EGLÉFRUIT)
   (Case T-488/07)
   (2008/C 64/73)
   Language in which the application was lodged: English
   Parties

      Applicant: Cabel Hall Citrus Ltd (Grand Cayman, Cayman Islands) (represented by: C. Rogers, Barrister)

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

      Other party to the proceedings before the Board of Appeal: Casur S. Coop. Andaluza (Viator, Spain)
   Form of order sought

               —

               Annul the decision of 19 September 2007 of the First Board of Appeal of OHIM in Case R 293/2007-1;

               —

               direct the relevant Cancellation Division of OHIM to declare invalid Community trade mark registration No 3 517 431 EGLÉFRUIT;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘EGLÉFRUIT’ for goods and services in classes 29, 30 and 31 — Community trade mark No 3 517 431

      Proprietor of the Community trade mark: Casur S. Coop. Andaluza

      Party requesting the declaration of invalidity of the Community trade mark: The applicant

      Trade mark right of the party requesting the declaration of invalidity: The Community and national word and figurative marks ‘UGLI’ for goods in classes 29, 31 and 32

      Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 52(1)(a) of Council Regulation No 40/94 because the Board of Appeal misapplied the test of likelihood of confusion between the conflicting trade marks.


title: Case T-828/14: Action brought on 29 December 2014  — Antrax It v OHIM — Vasco Group (Radiators for heating)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/47

         Action brought on 29 December 2014 — Antrax It v OHIM — Vasco Group (Radiators for heating)
   (Case T-828/14)
   (2015/C 065/64)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Antrax It Srl (Resana, Italy) (represented by: L. Gazzola, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Vasco Group BVBA (Dilsen, Belgium)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: The applicant

      Design at issue: Community design for ‘Radiators for heating’ products — Community design No 593959-0001

      Contested decision: Decision of the Third Board of Appeal of OHIM of 10 October 2014 in Case R 1272/2013-3

      Forms of order sought

   The applicant claims that the Court should:

               —

               Join the present case to the action brought by the applicant against the decision in Case R 1273/2013-3 of OHIM, since that decision is identical to that contested in the present action;

               —

               Annul the contested decision in so far as Community design No 593959-0001 was declared invalid because it lacked individual character and, consequently, declare valid that design without remitting the matter to OHIM for the third time;

               —

               Annul the contested decision of OHIM in so far as it ordered Antrax It Srl to pay the costs;

               —

               Order OHIM and Vasco Group BVBA, jointly and severally, to pay Antrax It Srl, costs, compensation and legal fees, together with any additional sums required by law;

               —

               Order Vasco Group BVBA to pay Antrax It Srl the costs, compensation including technical compensation and legal fees incurred by the latter in the proceedings before OHIM together with any additional sums required by law;

               —

               Declare Article 1(d) of Regulation No 216/96 to be incompatible with Article 41 of the Charter of Fundamental Rights of the European Union.

      Pleas in law and main arguments

               —

               Breach of Article 41(1) of the Charter of Fundamental Rights of the European Union;

               —

               Breach of Articles 6, 61, 62 and 63 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.


title: Case T-702/14: Action brought on 21 September 2014 — Hamas v Council

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/61

      Action brought on 21 September 2014 — Hamas v Council
      (Case T-702/14)
      (2014/C 395/74)
      Language of the case: French

         Parties

         Applicant: Hamas (Damascus, Syria) (represented by: L. Glock, lawyer)

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision 2014/483/CFSP of 22 July 2014 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2014/72/CFSP, in so far as it concerns Hamas (including Hamas-Izz-al-Din-al-Quassem);

                  —

                  annul Council Implementing Regulation (EU) No 790/2014 of 22 July 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combatting terrorism, and repealing Implementing Regulation (EU) No 125/2014, in so far as it concerns Hamas (including Hamas-Izz-al-Din-al-Quassem);

                  —

                  order the Council to pay all the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on eight pleas in law which are essentially identical or similar to those relied on in Case T-531/11, Hamas v Council. (1)

         (1)  OJ 2012, C 126, p. 18.


title: Case C-391/13 P: Appeal brought on 8 July 2013 by the Hellenic Republic against the judgment of the General Court delivered on 17 May 2013 in Case T-294/11 Greece v Commission

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/35

         Appeal brought on 8 July 2013 by the Hellenic Republic against the judgment of the General Court delivered on 17 May 2013 in Case T-294/11 Greece v Commission
   (Case C-391/13 P)
   2013/C 260/64
   Language of the case: Greek

      Parties

      Appellant: The Hellenic Republic (represented by: I. Khalkias, Agent)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               uphold the appeal;

               —

               set aside the judgment under appeal of the General Court of the European Union as more specifically requested;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   By the first ground of appeal, in the sector of olive oil production, the Hellenic Republic submits that the judgment under appeal manifestly erred in law by reason of the misinterpretation and misapplication of the guidelines contained in the documents AGRI/VI/5330/1997, AGRI/17933/2000 and AGRI/61495/2002, then in force, since it regarded the manifest improvement of the control system in the sector of olive oil production in the 2004-2005 period, as compared with the 2003-2004 period, as repeat offending, continuing weaknesses and marked deterioration justifying an increased correction for the 2004/2005 period, although it was clearly inappropriate to increase the correction from the 10 % which was imposed for the 2003/2004 period to 15 % for the 2004/2005 period on the ground of repeat offending, given that there were numerous improvements (further updating of the Olive cultivation-GIS, improved on-the-spot checks and cross-checks which detect irregularities and impose penalties) which reinforced their control system.
   By the second ground of appeal, in the sector of arable crops, it is claimed that:

               1.

               there is an infringement of European Union law and a breach of the principle of proportionality by reason of the misinterpretation and misapplication of the non-updated guidelines in respect of flat-rate corrections of the old CAP to the new CAP since the amounts of the flat-rate corrections related to different control rules and

               2.

               the statement of reasons in the judgment of the General Court is insufficient in so far as a comparison of the LPIS-GIS information which was taken into account for the 2007 reporting year with the information from the new and updated 2009 LPIS-GIS made it clear that the differences and deficiencies are minimal and did not exceed 2.4 % and consequently no reasons are stated to justify the 5 % correction, and further the material arguments of the Hellenic Republic on the quality of the administrative cross-checks were ignored.


title: Order of the President of the Court of First Instance of 2 July 2004 in Case T-422/03 R II, Enviro Tech Europe Ltd and Enviro Tech International Inc. v Commission of the European Communities (Interim Measures — Directives 67/548/EEC and 2004/73/EC — Conditions of admissibility)

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/17

      ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

   of 2 July 2004
   in Case T-422/03 R II, Enviro Tech Europe Ltd and Enviro Tech International Inc. v Commission of the European Communities
   (Interim Measures - Directives 67/548/EEC and 2004/73/EC - Conditions of admissibility)
   (2004/C 251/31)
   Language of the case: English
   In Case T-422/03 R II, Enviro Tech Europe Ltd, established in Surrey (United Kingdom), Enviro Tech International Inc., established in Chicago (United States), represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application seeking, first, ‘suspension of the inclusion of nPB’ in the 29th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234); secondly, suspension of implementation of the inclusion of nPB in Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Directive 67/548 (OJ 2004 L 252, p. 1); and, thirdly, that other interim measures be ordered — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case T-363/12: Judgment of the General Court of 13 May 2015 — Harper Hygienics v OHIM — Clinique Laboratories (CLEANIC natural beauty) (Community trade mark — Opposition proceedings — Application for the Community figurative mark CLEANIC natural beauty — Earlier Community word marks CLINIQUE — Relative grounds for refusal — Likelihood of confusion — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 207/2009 — Unfair advantage taken of the distinctive character or the repute of the earlier marks — Article 8(5) of Regulation No 207/2009)

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/27

         Judgment of the General Court of 13 May 2015 — Harper Hygienics v OHIM — Clinique Laboratories (CLEANIC natural beauty)
   (Case T-363/12) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark CLEANIC natural beauty - Earlier Community word marks CLINIQUE - Relative grounds for refusal - Likelihood of confusion - Similarity of the goods and services - Article 8(1)(b) of Regulation (EC) No 207/2009 - Unfair advantage taken of the distinctive character or the repute of the earlier marks - Article 8(5) of Regulation No 207/2009))
   (2015/C 213/47)
   Language of the case: Polish

      Parties

      Applicant: Harper Hygienics S.A. (Warsaw, Poland) (represented by: initially R. Rumpel, and subsequently D. Rzążewska and G. Pietras, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Clinique Laboratories, LLC (Wilmington, Delaware, United States) (represented by: initially V. von Bomhard and A. Renck, lawyers, and K. Hughes, Solicitor, and subsequently K. Hughes)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 25 May 2012 (Case R 1134/2011-2), relating to opposition proceedings between Clinique Laboratories, LLC and Harper Hygienics S.A.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Harper Hygienics S.A. to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Clinique Laboratories, LLC.

      (1)  OJ C 355, 17.11.2012.


20.3.2004             EN                          Official Journal of the European Union                                          C 71/43
Pleas in law:                 Infringement of articles 43 and             2001 (1). According to the applicant article 4 paragraph 2 of
                              15 of Regulation 40/94 (1).                 Regulation 1049/2001 does not justify a blanket exclusion of
                                                                          the Commission’s pleadings from the principle of open access
                                                                          to Community documents, nor does it give the Commission
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the           the right to refuse access to its pleadings merely because the
    Community trade mark (OJ 11, p. 1).                                   matter itself or related proceedings are still pending.
                                                                          (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,
                                                                              Official Journal L 145, 31/05/2001 P. 43-48.
Action brought on 2 February 2004 by Association de la
Presse Internationale a.s.b.l. (‘API’) against the Com-
            mission of the European Communities
                                                                                Removal from the register of Case T-89/02 (1)
                         (Case T-36/04)
                                                                                (2004/C 71/75)
                         (2004/C 71/74)
                                                                                (Language of the Case: English)
                  (Language of the case: English)
                                                                          By order of 25 November 2003 the President of the Fourth
                                                                          Chamber of the Court of First Instance of the European
An action against the Commission of the European Communi-                 Communities ordered the removal from the register of Case
ties was brought before the Court of First Instance of the                T-89/02: Check Point Softward Limited v Office for the
European Communities on 2 February 2004 by Association                    Harmonisation of the Internal Market (Trade Marks and
de la Presse Internationale a.s.b.l. (‘API’), Brussels, Belguim,          Design) (OHIM).
represented by Mr S. Völcker, Mr F. Louis and Mr J. Heithecker,
lawyers.
                                                                          (1) OJ C 156 of 29.6.2002.
The applicant claims that the Court should:
—     Annul Commission Decision D(2003) 30621 of 20 Nov-
      ember 2003 in its entirety and;
—     Order the Commission to bear the costs.
                                                                                Removal from the register of Case T-307/02 (1)
                                                                                (2004/C 71/76)
Pleas in law and main arguments
                                                                                (Language of the Case: German)
The applicant is a non-profit organisation of foreign journalists
based in Belgium, aiming to assist its members in reporting
back to their home countries about the European Union. It                 By order of 19 November 2003 the President of the Second
applied to the Commission for access to all the submissions               Chamber of the Court of First Instance of the European
made by the Commission in the course of certain proceedings               Communities ordered the removal from the register of Case
before the European Court of Justice and the European Court               T-307/02: Altana Pharma AG v Office for the Harmonisation
of First Instance. Such access was denied by the contested                of the Internal Market (Trade Marks and Design) (OHIM).
decision.
                                                                          (1) OJ C 305 of 7.12.2002.
In support of its application the applicant invokes an infringe-
ment of Articles 2 and 4, paragraph 2, of Regulation 1049/


title: Case T-360/16: Action brought on 27 June 2016 — Dimos Athinaion v Commission

text:
               10.10.2016

               EN

               Official Journal of the European Union

               C 371/9

         Action brought on 27 June 2016 — Dimos Athinaion v Commission
   (Case T-360/16)
   (2016/C 371/10)
   Language of the case: Greek

      Parties

      Applicant: Dimos Athinaion (Athens, Greece) (represented by: G. Georgakarakos, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Commission Regulation (ΕU) 2016/646 of 20 April 2016, amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6), (1) and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               The first plea in law claims an infringement of Article 191 TFEU, which sets out the objectives of the European Union policy on the environment.

               2.

               The second plea in law claims an infringement of Article 37 of the Charter of Fundamental Rights of the European Union which affirms the right to a high level of environmental protection.

               3.

               The third plea in law claims an infringement of Article 15 of Regulation (ΕC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information. (2)

      (1)  OJ L 109, 2016, p. 1.

      (2)  OJ L 171, 2007, p. 1.


title: Case C-105/04 P: Appealbrought on 1 March 2004 by Nederlandse FederatieveVereniging voor de Groothandel op Elektrotechnisch Gebied (FEG) against thejudgment of 16 December 2003 by the Court of FirstInstance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse FederatieveVereniging voor de Groothandel op Elektrotechnisch Gebied and Technische UnieBV v Commission of the European Communities, supported by CEF City ElectricalFactors BV and CEF Holdings Ltd.

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/25

         Appeal brought on 1 March 2004 by Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (FEG) against the judgment of 16 December 2003 by the Court of First Instance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.
   (Case C-105/04 P)
   (2004/C 106/44)
   An appeal was brought before the Court of Justice of the European Communities on 1 March 2004 by Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (FEG), represented by E.H Pijnacker Hordijk and D.J.M. de Grave, advocaten, against the judgment of 16 December 2003 by the Court of First Instance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.
   The appellant claims that the Court should:

               (a)

               set aside the judgment delivered by the Court of First Instance of the European Communities (First Chamber) on 16 December 2003 in Joined Cases T–5/00 and T-6/00, at least in so far as it relates to Case T-5/00, and, ruling anew, annul in its entirety or at least in part the decision of the Commission of the European Communities of 26 October 1999 addressed to the appellant, or at least decide to reduce substantially the fine imposed on FEG;

               (b)

               in the alternative: set aside the judgment of 16 December 2003 by the Court of First Instance of the European Communities in Joined Cases T–5/00 and T-6/00, at least in so far as it relates to Case T-5/00, and refer the matter back to the Court of First Instance;

               (c)

               order the European Commission to pay the costs of the proceedings at first instance and on the appeal.

         Pleas in law and main arguments:
   In the first place, the Court of First Instance infringed general principles of Community law, in particular the principle that proceedings must be concluded within a reasonable period, in finding that the excessively long duration of the administrative procedure did not constitute a ground for annulling the contested decision. The view taken by the Court of First Instance with regard to what constitutes a reasonable period within which to conclude proceedings is at variance with the case-law of the EC Court of Justice and of the Court of First Instance itself.
   In this regard the Court of First Instance misconstrued the case-law of the European Court of Human Rights which it had cited in support of its view.
   Second, the Court of First Instance infringed the general principles of Community law, in particular the principle of the presumption of innocence and the principle that reasons must be given, by stating in its judgment (i) that the period prior to notification of the statement of objections – and thus also the period between dispatch of the warning letter of 16 September 1991 and the statement of objections – had to be left out of consideration in the assessment of the reasonableness of the period, and (ii) that no significance was to be attached to exculpatory evidence dating from the period after the warning letter. These positions taken by the Court of First Instance are internally contradictory and that Court failed to provide any valid grounds to justify such contradiction. In addition, the failure to take account of the abovementioned exculpatory evidence without further explanation constitutes a serious deficiency of reasoning on the part of the Court of First Instance and undermines the principle of the presumption of innocence.
   Third, the Court of First Instance infringed Article 81(1) EC and the principle that reasons must be given by treating as admissible the evidence submitted by the Commission concerning the duration of the alleged collective exclusive dealing agreements. Of significance in this regard are (i) the fact that no substantive grounds are given; (ii) the fact that, precisely in view of the lack of any evidence of a breach over the periods from 12 March 1986 to 28 February 1989 and from 18 November 1991 to 25 February 1994, any judicial finding that a breach occurred over those periods ought to have been made subject to more stringent requirements as to justificatory reasoning; and (iii) the fact that, in its examination of the evidence submitted by the Commission, the Court of First Instance took no account whatever of the aspect of duration.
   Fourth, the Court of First Instance infringed the principle that reasons must be given, in particular by failing to address, or by inaccurately reproducing, arguments set out by FEG. The reasoning of the judgment of the Court of First Instance with regard to the alleged infringements by FEG in the area of pricing points to such serious shortcomings that section II.D of the judgment cannot stand. Furthermore, in a number of sections the Court of First Instance breached Article 81(1) EC by defining an agreement as being mutually agreed actual conduct without also establishing that the agreement had been translated into de facto conduct.
   Fifth, the Court of First Instance infringed Community law, or at least misapplied established Community case-law, by attributing to FEG the alleged extensions of the collective exclusive dealing arrangements to suppliers outside the Netherlands Association of Exclusive Representatives in the Electrotechnical Sector (NAVEG). The Court of First Instance thereby disregarded the fact that FEG did not play any separate determinant role in bringing about the conduct alleged. The Court's reasoning is also incomprehensible in view of the fact that it assumes FEG's direct involvement on the basis of divergent joint action by separate groups of members, notwithstanding the facts (i) that FEG was not involved in giving rise to or implementing the action; (ii) that the Court did not examine further whether any potential agreement on the part of FEG with the joint action was expressed through its conduct; and (iii) that the Commission's file contained explicit evidence to the contrary which demonstrated that FEG had not been involved in any conscious and deliberate conduct.
   Sixth, the Court of First Instance infringed and/or misapplied Community law, in particular Article 15(2) of Regulation No 17/62, and in any event infringed and/or misapplied generally applicable principles of Community law in regard to stating reasons for (judicial) decisions and in regard to proportionality, in its determination of the fine by concluding that the arguments adduced by FEG and TU against the Commission's determination of the duration of the infringements in the decision had to be rejected.
   Seventh, the Court of First Instance infringed and/or misapplied Community law, in particular Article 15(2) of Regulation No 17/62, and in any event infringed and/or misapplied generally applicable principles of Community law in regard to stating reasons for (judicial) decisions and in regard to proportionality, in its determination of the fine by concluding that the applicants had not adduced a single element that would justify the Court of First Instance, in the exercise of its unlimited jurisdiction, in considering granting a further reduction in the fine imposed on FEG. The Court of First Instance, however, does not discuss the fact that it, unlike the Commission in the decision, makes the Commission entirely responsible for the exceptionally long duration of the procedure. Furthermore, the extremely small reduction in the fine which the Commission itself imposed does not allay the harm suffered by FEG as a result of that exceptionally long duration.


title: Case T-641/15: Action brought on 13 November 2015 — Malle v Parliament

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/55

         Action brought on 13 November 2015 — Malle v Parliament
   (Case T-641/15)
   (2016/C 048/63)
   Language of the case: English

      Parties

      Applicant: Tanja Malle (Vienna, Austria) (represented by: N. Pirc Musar, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul decision A(2015)8324 C of the European Parliament of 14 September 2015 rejecting the applicant’s confirmatory application for access to certain documents relating to information on Members’ of the European Parliament travel expenses, subsistence allowances, general expenditure allowances and staffing arrangements expenses;

               —

               order the Parliament to pay the applicant’s costs pursuant to Articles 134 and 140 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

               1.

               First plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 (1) in conjunction with Article 8(b) of Regulation 45/2001 (2), since the personal data requested are not protected under Community legislation

               2.

               Second plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 in conjunction with Article 8(b) of Regulation 45/2001, as the access to the requested information was refused, although the conditions for disclosure were met

               3.

               Third plea in law, alleging a violation of the general obligation, under Articles 2 and 4 of Regulation 1049/2001 in conjunction with Article 6(3) of Regulation 1049/2001, to conduct an examination of each individual document

               4.

               Fourth plea in law, alleging a violation of Article 4(6) of Regulation 1049/2001, as the refusal to grant partial access to the requested documents was not justified

               5.

               Fifth plea in law, alleging a violation of the duty to state reasons as required by Articles 7(1) and 8(1) of Regulation 1049/2001, as the Parliament failed to address all the applicant’s arguments

      (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).

      (2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).