title: Case T-249/00: Action brought on 15 September 2000 by P. E. Hoyer against the Commission of the European Communities

text:
9.12.2000             EN                     Official Journal of the European Communities                                       C 355/27
Action brought on 15 September 2000 by P. E. Hoyer                      Ground of application for annulment of Decision R/78/2000:
  against the Commission of the European Communities
                                                                        In so far as the termination of employment was legally
                        (Case T-249/00)                                 valid, notice thereof was given for a legally incorrect date
                                                                        (23 November 1999 instead of 15 February 2000). The term
                                                                        of notice must be extended by a number of days of illness.
                        (2000/C 355/59)
                                                                        Ground of application for annulment of Decision R/26/2000:
                   (Language of the case: Dutch)
                                                                        In so far as the termination of employment was legally valid,
                                                                        the amount of leave outstanding as at the date of termination
An action against the Commission of the European Communi-               of employment was wrongly calculated (contrary to the ‘just
ties was brought before the Court of First Instance of the              solution’ as referred to in the 1994 judgment).
European Communities on 15 September 2000 by P. E. Hoyer,
residing at Hoeilaart, Belgium, represented by G. van der Wal,
of the Hague Bar, of the firm Barents & Krans, with an address
for service in Luxembourg at the Chambers of A. May, of the
Luxembourg Bar, 398 Route d’Esch, L-1471 Luxembourg.
The applicant claims that the Court of First Instance should:           Action brought on 16 September 2000 by Bauer SpA and
                                                                        Others against Commission of the European Communities
1.    declare the application admissible;
                                                                                (Case T-253/00, T-255/00 and T-256/00)
2.    annul the contested decisions            (R/26/2000     and
      R/78/2000) of 14 June 2000;
                                                                                (2000/C 355/60)
3.    order the defendant to pay the costs of these proceedings.
                                                                                (Language of the case: Italian)
Pleas in law and main arguments
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
In 1990 the applicant took part in an internal competition. By          European Communities on 16 September 2000 by Bauer SpA
judgment in Case T-43/91 [1994] ECR-SC II-297, the Court                and Others, represented by Andrea Bortoluzzi, of the Venice
of First Instance upheld the applicant’s application for annul-         Bar, and Gian Michele Roberti and Francesco Sciaudone, of the
ment of the decision of the selection board not to place him            Naples Bar.
on the list of successful candidates. By judgment of the same
date, his application for annulment of the termination of his           The applicant claims that the Court should:
contract of employment as a member of the temporary staff
was also upheld (Case T-51/91 [1994] ECR-SC II-341).                    —     annul Commission Decision 2000/394/EEC;
According to the applicant, in 1998 the Commission, contrary            —     in the alternative, annul Article 5 of the Decision;
to the agreements made between the parties, decided to re-
open the aforementioned internal competition. The applicant             —     order the Commission to pay the costs.
was again not placed on the list of successful candidates; he
lodged an application for annulment of that decision also
(Case T-119/99).                                                        Pleas in law and main arguments
Referring to the last-mentioned decision of the selection board,        The pleas in law and main arguments are those relied upon in
the Commission terminated his employment as a member of                 Cases T-234/00 Fondazione Opera S. Maria della Carità v
the temporary staff (contract for an indefinite period). The            Commission and T-235/00 Codess Sociale and Others (1).
applicant lodged an application for annulment of that decision
also (Case T-70/00).                                                    The applicants allege in particular that the decision to recover
                                                                        the aid in question infringes Article 87(1) and (3)(c) and (d) of
                                                                        the Treaty and breaches of the principles of proportionality
By decision of 14 June 2000 (R/78/2000), the defendant
                                                                        and equal treatment.
refused to reconsider its position regarding the date on which
the contract of employment ended. By decision of the same
date (R/26/2000), the defendant refused to declare that six             (1) Not yet published.
days’ leave had been wrongly deducted and that the applicant
was still entitled to 55 days’ leave. The present application
seeks the annulment of both decisions.


title: Case T-445/05: Action brought on  19 December 2005  — Associazione italiana del risparmio gestito and Fineco Asset Management v Commission of the European Communities

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/41

         Action brought on 19 December 2005 — Associazione italiana del risparmio gestito and Fineco Asset Management v Commission of the European Communities
   (Case T-445/05)
   (2006/C 48/78)
   Language of the case: Italian
   Parties

      Applicants: Associazione italiana del risparmio gestito and Fineco Asset Management SpA (Italy) (represented by: Gabriele Escalar and Giuseppe Maria Cipolla, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicants claim that the Court should:

               —

               annul Commission Decision No C(2005) 3302 of 6 September 2005 which brought proceedings C-19/2004 (ex NN 163/03) to a close;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   This action concerns the same decision as that challenged in Case T-424/05 Italian Republic v Commission. (1)

   In support of their pleas, the applicants allege:

               —

               inadequacy and inconsistency of the contested decision, in that it concerns, first, the existence of an economic advantage which is selective, as it is not clear from its wording what economic advantage is conferred by the tax measures at issue and what beneficiaries there are. Secondly, the statement of reasons for the decision is also to be regarded as inadequate as to the existence of a distortion of competition which may affect trade between the Member States;

               —

               infringement of Article 87(1) of the EC Treaty, since the reduction in the tax applicable to the income of undertakings for collective investment in transferable securities (UCITS) specialising in shares of small or medium-sized capitalisation companies (SMCC) does not give rise to State aid. In that regard it is claimed, in particular, that the tax reduction in question constitutes an economic advantage for all the relevant stakeholders, not a selective one for the managers of the undertakings. In fact, all Italian and Community independent asset management companies (società di gestione del risparmio; SGR) may manage UCITS and all Italian or Community open-ended investment companies (SICAV) may act as SICAV specialising in SMCC. Further, even if the measures at issue were to result in an economic advantage for UCITS, they would not, however, give rise to State aid, given that the investment funds consist of collections of assets that do not exist as independent entities, do not have their own management bodies and do not pursue economic objectives, and accordingly have no organs which can manifest intent. Finally, the tax measures at issue do not constitute economic advantages of a selective nature for the SMCC.

         In the alternative, the applicants claim that:

               —

               the tax measures in question must be regarded as compatible with the common market, pursuant to Article 87(2)(a) of the Treaty; and

               —

               the contested decision infringes Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 since recovery was ordered from the investment vehicles in the form of companies and from the undertakings managing the investment instruments that are established by contract.

      (1)  Not yet published in the OJ.


title: Case C-460/16 P: Appeal brought on 12 August 2016 by Trefilerías Quijano, SA against the judgment of the General Court (Sixth Chamber) delivered on 2 June 2016 in Joined Cases T-426/10 to T-429/16 and T-438/12 to T-441/12, Moreda-Riviere Trefilerías and Others v Commission

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/18

         Appeal brought on 12 August 2016 by Trefilerías Quijano, SA against the judgment of the General Court (Sixth Chamber) delivered on 2 June 2016 in Joined Cases T-426/10 to T-429/16 and T-438/12 to T-441/12, Moreda-Riviere Trefilerías and Others v Commission
   (Case C-460/16 P)
   (2016/C 392/22)
   Language of the case: Spanish

      Parties

      Appellant: Trefilerías Quijano, S.A. (represented by: F. González Díaz, A. Tresandi Blanco and V. Romero Algarra, lawyers)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 2 June 2016 in Cases T-426/10 to T-429/10 and, in particular, in Case T-427/10, Trefilerías Quijano v Commission;

               —

               order the Commission to pay the costs incurred in both the present proceedings and the proceedings before the General Court.

      Grounds of appeal and main arguments

               1.

               The General Court erred in law by distorting the facts and the evidence and by failing to state reasons in relation to the alleged existence of structural links between TQ and GSW prior to 1996, applied its powers of judicial review in an incorrect and/or ultra vires manner and, in any event, relied on manifestly irrelevant facts and/or incorrectly characterised those facts as indications of structural links and, in any event, used the concept of the person liable for the infringement incorrectly by referring to TQ’s forming part of Group Celsa.

               2.

               The General Court erred in law by applying an incorrect legal standard and erred in law in the assessment of the evidence, and in any event, breached its duties as regards judicial review by considering that the appellant had merely adduced ‘statements of its managing directors’ (actually sworn statements of TQ’s managing directors) with a view to demonstrating that the executive and control powers of GSW, as sole administrator, were delegated to the respective managing directors of TQ, and that TQ operated independently in the market. Moreover, the General Court failed to state reasons since it did not explain why the sworn statements of TQ’s managing directors relied on by that party were insufficient evidence.

               3.

               The General Court mischaracterised the facts, namely the impressions of competitors, in finding that those impressions constituted an additional indication, and were therefore legally relevant, in demonstrating the existence of an economic unit comprised of TQ, GSW and the other companies owned by the latter. In addition, the General Court erred in law by distorting the facts and the evidence in relation to the perception of competitors.

               4.

               The General Court mischaracterised the facts, namely the overlaps of staff between TQ, GSW and the companies owned by the latter, by considering that those overlaps constituted an additional indication, and were therefore legally relevant, in demonstrating that those companies formed an economic unit, of which GSW was the parent company.

               5.

               The General Court erred in law in the characterisation of certain facts, namely the division of production and sales activities between the four companies, by regarding that division as an additional legally relevant indication in order to demonstrate that TQ formed part of an economic unit comprised of GSW and the other companies owned by the latter.

               6.

               The General Court erred in law by applying an incorrect legal standard when examining the alleged exercise of decisive influence, and in any event, failed to state reasons in relation to the alleged exercise of decisive influence by GSW over TQ.

               7.

               The General Court erred in law in the assessment of the evidence, and in any event, breached its duties as regards judicial review, by rejecting the appellant’s argument that GSW did not exercise decisive influence over TQ.

               8.

               The General Court committed an error of law consisting in the infringement of the rights of the defence by finding that, inasmuch as the Commission based its assessment of the appellant’s ability to pay on facts adduced and known by the latter, the Commission had respected the appellant’s right to be heard.

               9.

               The General Court erred in law in the assessment of the evidence and, in any event, failed to exercise its powers of judicial review in accordance with law. Moreover, the General Court erred in law by failing to fulfil its duty to state reasons. Lastly, and in any event, the General Court erred in law by distorting the facts and the evidence relating to the possibility of the appellant obtaining external financing.

               10.

               The General Court erred in law in assessing the evidence, and in any event, failed to fulfil its duty to exercise its powers of unlimited jurisdiction, by considering that the appellant had not provided the Commission with the information necessary to evaluate the assets of its shareholders. In addition, the General Court failed to state reasons since it did not explain why the Deloitte reports relied on by the appellant lacked evidential value.


title: Case C-87/06: Reference for a preliminary ruling from the Juzgado de lo Social No 3 lodged on  14 February 2006  — Vicente Pascual García v Confederación Hidrográfica del Duero

text:
               20.5.2006

               EN

               Official Journal of the European Union

               C 121/2

         Reference for a preliminary ruling from the Juzgado de lo Social No 3 lodged on 14 February 2006 — Vicente Pascual García v Confederación Hidrográfica del Duero
   (Case C-87/06)
   (2006/C 121/04)
   Language of the case: Spanish
   Referring court
   Juzgado de lo Social No 3
   Parties to the main proceedings

      Applicant: Vicente Pascual García

      Defendant: Confederación Hidrográfica del Duero
   Questions referred

               1.

               Does the principle of equal treatment, which prohibits any discrimination whatsoever on grounds of age, laid down in Article 13 of the Treaty and Article 2 (1) of Directive 2000/78 (1), preclude a national law (specifically the first paragraph of the Single Transitional Provision of Law 14/2005 on clauses in collective agreements concerning the attainment of normal retirement age), pursuant to which compulsory retirement clauses contained in collective agreements are lawful, where such clauses provide as sole requirements that workers should have reached normal retirement age and have satisfied the conditions set out in the social security legislation of the Spanish State for entitlement to draw a retirement pension under their contribution regime, whereas, for future agreements to be able to provide for termination of the contract on grounds of age, the undertaking must also link such termination to an employment policy?

               2.

               Does the principle of equal treatment, which prohibits any discrimination whatsoever on grounds of age, laid down in Article 13 of the Treaty and Article 2 (1) of Directive 2000/78, require this Court, as a national court, not to apply to this case the first paragraph of the Single Transitional Provision of Law 14/2005?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case C-268/05 P: Appeal brought on 27 June 2005 by Giorgio Lebedef against the judgment delivered on 12 April 2005 by the First Chamber of the Court of First Instance of the European Communities in Case T-191/02 between Giorgio Lebedef and the Commission of the European Communities

text:
               1.10.2005

               EN

               Official Journal of the European Union

               C 243/5

         Appeal brought on 27 June 2005 by Giorgio Lebedef against the judgment delivered on 12 April 2005 by the First Chamber of the Court of First Instance of the European Communities in Case T-191/02 between Giorgio Lebedef and the Commission of the European Communities
   (Case C-268/05 P)
   (2005/C 243/07)
   Language of the case: French
   An appeal against the judgment delivered on 12 April 2005 by the First Chamber of the Court of First Instance of the European Communities in Case T-191/02 between Giorgio Lebedef and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 June 2005 by Giorgio Lebedef, represented by G. Bouneou and F. Frabetti, lawyers.
   The appellant claims that the Court should:
   Set aside the judgment delivered on 12 April 2005 by the Court of First Instance of the European Communities in Case T-191/02 between Giorgio Lebedef, an official of the Commission of the European Communities, residing in Senningerberg (Luxembourg), represented by G. Bouneou and F. Frabetti, lawyers, with an address for service in Luxembourg, appellant, against Commission of the European Communities, represented by J. Currall, acting as Agent, with an address for service in Luxembourg, respondent — application for annulment of the Commission's decision of 5 December 2001, by which it repudiated the Framework Agreement of 20 September 1974, adopted again the operational rules concerning the levels, process and procedure of consultation agreed between the Commission and the majority of trade union and professional organisations on 19 January 2000, confirmed the Agreement of 4 April 2001 on the resources to be made available to the staff representatives, ratified the provisions on strikes laid down in Annex I to the Framework Agreement of 20 September 1974, requested the Vice-President of the Commission, Mr N. Kinnock, to negotiate with the trade union and professional organisations and to propose for adoption by the Commission, before the end of March 2002, a new Framework Agreement and to include in the series of amendments to the Staff Regulations, on which the trade union and staff organisations were to be consulted, an amendment providing for the opportunity to adopt electoral rules by way of a vote by the staff of the institution, and, if necessary, annulment of Mr Kinnock's letter of 22 November 2001 addressed to the President of each trade union to notify them of his decision to ask the Commission to repudiate, on 5 December 2001, the above-mentioned Framework Agreement of 20 September 1974, and to adopt several of the above-mentioned points, and annulment of Mr E. Halskov's decision of 6 December 2001 refusing to grant the applicant leave to attend, on a mission basis, the meeting of 7 December 2001 on the ‘comprehensive package of proposed amendments to the Staff Regulations’.
   Please in law and main arguments:
   In support of his action to have the judgment under appeal contested set aside, the appellant contests part 4, paragraphs 96 to 103, of the judgment. More specifically, the admissibility of ‘… the application for annulment of the decision of 5 December 2001 because it adopts operational rules and in so far as it denies rights guaranteed to the appellant under the Agreement of 4 April 2001’.
   The operational rules, in so far as they exclude from the process of consultation the union represented thererin by the appellant, affect his situation by denying him individual rights conferred on him by his status as union representative in that process (see, to that effect, Joined Cases 193/87 and 194/87 Maurissen and Union Syndicale v Court of Auditors [1989] ECR 1045, and Case T-42/97 Lebedef v Commission [1998] ECR SC I-A-371 et II-1071, paragraphs 18 to 21). Accordingly, the operational rules adversely affect him and give him standing to challenge them with a view to having them annulled.
   This finding is not affected by the case-law as established in Joined Cases T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [1994] ECRSC I-A-159 and II-511, paragraphs 82 and 86, and Joined Cases T-576/93 to T-582/93 Browet and Others v Commission [1994] ECR SC I-A-191 and II-619, paragraph 44. The situations in question in the cases giving rise to those judgments are distinguishable from the present case because, in this case, the appellant's rights derive directly from the rules on resources and, although conferred in order to facilitate the appellant's union's participation in the consultation, they fall within Staff Regulation proceedings because they affect directly his own legal situation.
   In the judgment under appeal, with regard to the admissibility considered, the Court of First Instance accepted de facto that A&D (the appellant's union) is not representative. The appellant contests that finding because the operational rules do not examine objectively whether the trade unions and professional organisations are representative and there is a manifest error in the comparative assessment of that issue. Moreover, the principles of equal treatment and non-discrimination, with respect to the rights of the defence, the obligation to state reasons, the prohibition of arbitrary procedure and Article 24a of the Staff Regulations were breached.


title: Joined Cases C-228/12 to C-232/12 and C-254/12 to C-258/12: Judgment of the Court (Eighth Chamber) of 18 July 2013 (requests for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio — Italy) — Vodafone Omnitel NV (C-228/12, C-231/12 and C-258/12), Fastweb SpA (C-229/12 and C-232/12), Wind Telecommunicazioni SpA (C-230/12 and C-254/12), Telecom Italia SpA (C-255/12 and C-256/12), Sky Italia srl (C-257/12) v Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri (C-228/12 to C-232/12, C-255/12 and C-256/12), Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali (C-229/12, C-232/12 and C-257/12), Ministero dell’Economia e delle Finanze (C-230/12) (Electronic communications networks and services — Directive 2002/20/EC — Article 12 — Administrative charges imposed on undertakings in the sector concerned — National legislation making operators of electronic communications subject to the payment of a charge intended to cover the operating costs of the national regulatory authorities)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/15

         Judgment of the Court (Eighth Chamber) of 18 July 2013 (requests for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio — Italy) — Vodafone Omnitel NV (C-228/12, C-231/12 and C-258/12), Fastweb SpA (C-229/12 and C-232/12), Wind Telecommunicazioni SpA (C-230/12 and C-254/12), Telecom Italia SpA (C-255/12 and C-256/12), Sky Italia srl (C-257/12) v Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri (C-228/12 to C-232/12, C-255/12 and C-256/12), Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali (C-229/12, C-232/12 and C-257/12), Ministero dell’Economia e delle Finanze (C-230/12)
   (Joined Cases C-228/12 to C-232/12 and C-254/12 to C-258/12) (1)

   (Electronic communications networks and services - Directive 2002/20/EC - Article 12 - Administrative charges imposed on undertakings in the sector concerned - National legislation making operators of electronic communications subject to the payment of a charge intended to cover the operating costs of the national regulatory authorities)
   2013/C 260/25
   Language of the case: Italian

      Referring court

   Tribunale amministrativo regionale per il Lazio

      Parties to the main proceedings

      Applicants: Vodafone Omnitel NV (C-228/12, C-231/12 and C-258/12), Fastweb SpA (C-229/12 and C-232/12), Wind Telecommunicazioni SpA (C-230/12 and C-254/12), Telecom Italia SpA (C-255/12 and C-256/12), Sky Italia srl (C-257/12)

      Defendants: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri (C-228/12 to C-232/12, C-255/12 and C-256/12), Commissione di Garanzia dell’Attuazione della Legge sullo Sciopero nei Servizi Pubblici Essenziali (C-229/12, C-232/12 and C-257/12), Ministero dell’Economia e delle Finanze (C-230/12)

      In the presence of: Wind Telecomunicazioni SpA (C-228/12, C-229/12. C-232/12, C-255/12 to C-258/12), Telecom Italia SpA (C-228/12, C-230/12, C-232/2 and C-254/12), Vodafone Omnitel NV (C-230/12 and C-254/12), Fastweb SpA (C-230/12, C-254/12 and C-256/12), Television Broadcasting System SpA (C-257/12)

      Re:

   Request for a preliminary ruling — Tribunale amministrativo regionale per il Lazio — Interpretation of Article 12 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) (OJ 2002 L 108, p. 21) — Administrative charges imposed on undertakings in the sector concerned — Legislation providing that all costs for the national regulatory authorities, not financed by the State, are to be imposed upon individual undertakings in the sector concerned according to the income received for the relevant sales of goods and provision of services

      Operative part of the judgment

   Article 12 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) must be interpreted as meaning that it does not preclude legislation of a Member State, such as that at issue in the main proceedings, pursuant to which undertakings providing electronic communications services or networks are liable to pay a charge intended to cover all the costs incurred by the NRA which are not financed by the State, the amount of which being determined according to the income received by those undertakings, provided that that charge is exclusively intended to cover the costs relating to the activities mentioned in Article 12(1)(a), that the totality of the income obtained in respect of that charge does not exceed the total costs relating to those activities and that that charge is imposed upon individual undertakings in an objective, transparent and proportionate manner, which is for the national court to ascertain.

      (1)  OJ C 217, 21.7.2012.


title: Case T-39/04: Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (O orsay) (Community trade mark — Opposition procedure — Application for the word and figurative trade mark O orsay — Earlier national word and figurative trade mark D'ORSAY — Ground for refusal — Risk of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/25

         Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (O orsay)
   (Case T-39/04) (1)

   (Community trade mark - Opposition procedure - Application for the word and figurative trade mark O orsay - Earlier national word and figurative trade mark D'ORSAY - Ground for refusal - Risk of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2008/C 79/49)
   Language of the case: German
   Parties

      Applicant: Orsay GmbH (Willstät, Germany) (represented by: D. von Schultz and S. Elbe, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially, by: U. Pfeghar, later by: G. Schneider, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: José Jiménez Arellano S.A. (Madrid, Spain) (represented initially, by: J. Astiz Suárez, later by: S. Hernán-Carrillo Portolés and finally by: A. Tarí Lázaro, lawyers,
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 3 November 2003 (Case R 394/2002-4) concerning an opposition procedure between José Jiménez Arellano S.A. and Orsay GmbH.
   Operative part of the judgment

               1.

               The application is dismissed;

               2.

                  Orsay GmbH is ordered to pay the costs.

      (1)  OJ C 106 of 30.4.2004.


title: Case T-226/16: Action brought on 10 May 2016 — Ipuri v EUIPO — van Graaf (IPURI)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/35

         Action brought on 10 May 2016 — Ipuri v EUIPO — van Graaf (IPURI)
   (Case T-226/16)
   (2016/C 232/46)
   Language of the case: German

      Parties

      Applicant: Ipuri GmbH (Hamburg, Germany) (represented by: K. Sandberg, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: van Graaf GmbH & Co. KG (Vienna, Austria)

      Details of the proceedings before EUIPO

      Applicant: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: EU word mark ‘IPURI’ — Application for registration No 8 971 021

      Proceedings before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 10 March 2016 in Case R 886/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs, including the costs before the Board of Appeal.

      Pleas in law

               —

               Infringement of Article 15 in conjunction with Article 42(2) and (3) of Regulation No 207/2009, Rule 22(3) and (4) of Regulation No 2868/95 and Article 78(1)(f) of Regulation No 207/2009;

               —

               Infringement of Article 8(2)(a) when applying Article 42(3) of Regulation No 207/2009.


title: Case T-393/16: Action brought on 25 July 2016 — Omnicom International Holdings v EUIPO — eBay (dA/tA/bA/y)

text:
               3.10.2016

               EN

               Official Journal of the European Union

               C 364/16

      Action brought on 25 July 2016 — Omnicom International Holdings v EUIPO — eBay (dA/tA/bA/y)
      (Case T-393/16)
      (2016/C 364/12)
      Language in which the application was lodged: English

         Parties

         Applicant: Omnicom International Holdings, Inc. (New York, New York, United States) (represented by: D. Farnsworth, Solicitor)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: eBay, Inc. (San Jose, California, United states)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant

         Trade mark at issue: Figurative mark containing the word elements ‘(dA/tA/bA/y)’ — EU trade mark application No 12 354 015

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the First Board of Appeal of EUIPO of 17 May 2016 in Case R 872/2015-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to bear its own costs and pay the applicant’s costs.

         Plea in law

                  —

                  Infringement of Article 8(5) of Regulation No 207/2009.


title: Case C-104/13: Judgment of the Court (Fifth Chamber) of 23 October 2014 (request for a preliminary ruling from the Augstākās Tiesas Senāts — Latvia) — Olainfarm AS v Latvijas Republikas Veselības ministrija, Zāļu valsts aģentūra (Reference for a preliminary ruling — Approximation of laws — Industrial policy — Directive 2001/83/EC — Medicinal products for human use — Article 6 — Marketing authorisation — Article 8(3)(i) — Requirement to attach to the application for authorisation the results of pharmaceutical pre-clinical tests and clinical trials — Derogations relating to pre-clinical tests and clinical trials — Article 10 — Generic medicinal products — Concept of ‘reference medicinal product’  — Whether the holder of a marketing authorisation for a reference medicinal product has an individual right to oppose the marketing authorisation of a generic of the reference product — Article 10(a) — Medicinal products of which the active substances have been in well-established medicinal use within the European Union for at least 10 years — Whether it is possible to use a medicinal product for which authorisation has been granted on the basis of the derogation provided for in Article 10(a) as a reference medicinal product for the purpose of obtaining a marketing authorisation for a generic product)

text:
               8.12.2014

               EN

               Official Journal of the European Union

               C 439/3

         Judgment of the Court (Fifth Chamber) of 23 October 2014 (request for a preliminary ruling from the Augstākās Tiesas Senāts — Latvia) — Olainfarm AS v Latvijas Republikas Veselības ministrija, Zāļu valsts aģentūra
   (Case C-104/13) (1)

   ((Reference for a preliminary ruling - Approximation of laws - Industrial policy - Directive 2001/83/EC - Medicinal products for human use - Article 6 - Marketing authorisation - Article 8(3)(i) - Requirement to attach to the application for authorisation the results of pharmaceutical pre-clinical tests and clinical trials - Derogations relating to pre-clinical tests and clinical trials - Article 10 - Generic medicinal products - Concept of ‘reference medicinal product’ - Whether the holder of a marketing authorisation for a reference medicinal product has an individual right to oppose the marketing authorisation of a generic of the reference product - Article 10(a) - Medicinal products of which the active substances have been in well-established medicinal use within the European Union for at least 10 years - Whether it is possible to use a medicinal product for which authorisation has been granted on the basis of the derogation provided for in Article 10(a) as a reference medicinal product for the purpose of obtaining a marketing authorisation for a generic product))
   (2014/C 439/04)
   Language of the case: Latvian

      Referring court

   Augstākās Tiesas Senāts

      Parties to the main proceedings

      Applicant: Olainfarm AS

      Defendants: Latvijas Republikas Veselības ministrija, Zāļu valsts aģentūra

      Intervening party: Grindeks AS

      Operative part of the judgment

               1)

               The concept of ‘reference medicinal product’ within the meaning of Article 10(2)(a) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007, must be interpreted as encompassing a medicinal product for which the marketing authorisation was granted on the basis of Article 10(a) of the directive.

               2)

               On a proper construction of Article 10 of Directive 2001/83, as amended by Regulation No 1394/2007, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, the holder of a marketing authorisation for a medicinal product used as a reference product in an application for a marketing authorisation under Article 10 of the directive for a generic product of another manufacturer has the right to a judicial remedy enabling him to challenge the decision of the competent authority which granted the marketing authorisation for the generic product, provided that that holder is seeking judicial protection of a right conferred on him by Article 10. Such a judicial remedy exists, inter alia, where the holder demands that his medicinal product is not to be used for the purpose of obtaining, under Article 10, a marketing authorisation for another medicinal product in relation to which his own product cannot be regarded as a reference product within the meaning of Article 10(2)(a) of the directive.

      (1)  OJ C 123, 27.4.2013.


title: Appeal brought on 28 February 1995 by Unifruit Hellas EPE against the judgment delivered on 15 December 1994 by the Third Chamber of the Court of First Instance of the European Communities in Case T-489/93 between Unifruit Hellas EPE and the Commission of the European Communities (Case C-51/95 P)

text:
13 . 5 . 95             EN                Official Journal of the European Communities                                   No C 119/5
     exempt transfers of goods used wholly for an activity                 products listed in the Annex to Regulation (EEC)
     which is exempted, or goods which are in any event                    No 3835/90 (2)' also apply to imports from Spain of
     not deductible, the Italian Republic has failed to fulfil             tuna in olive oil ?
     its obligations under Article 13B (c ) of Council
     Directive 77/388/EEC ( J ) of 17 May 1977 ( Sixth VAT           ( b ) May the competent customs authorities, pursuant to
     Directive).                                                           Article 5(1 ) and (2 ) of Regulation (EEC) No 1697/79
                                                                           of 24 July 1979, as supplemented by Regulation (EEC)
Pleas in law and main arguments adduced in support:                        No 1715/90 ( 3 ) of 20 June 1990, and Article 2 of
                                                                           implementing Regulation ( EEC ) No 2164/91 (4 ) of
As regards 'supplies of goods used wholly for an activity                  23 July 1991 , initiate action for the recovery of customs
exempted under this Article . . . when these goods have not                duties which were not collected at the time of
given rise to the right to deduction', Article 10 of                       importation because they were regarded as having been
Presidential Decree No 633 omits to list among                             totally suspended as a result of an erroneous
approximately 30 examples which it gives of 'transactions                  interpretation of the Cpmmunity legislation in force,
exempt from duty' the situation envisaged at the beginning                 but which subsequently proved to be due on the basis of
of Article 13B (c) of the Directive .                                      a different interpretation of the same Community
                                                                           legislation provided by the Commission of the EEC
Âs regards 'supplies . . . of goods on the acquisition or                  after consulting its Legal Service, where the person
production of which, by virtue of Article 17(6 ), value added              liable observed all the provisions laid down by the rules
                                                                           in force as far as his customs declaration was concerned
tax did not become deductible', the corresponding provision
of Presidential Decree No 633/72 (third paragraph of                       and it does not appear that that person was aware that
Article 2 ) provides that transactions involving the goods                 the interpretation initially given to the Community
referred to in Article 19 of that Decree, such as motor                    legislation by the Italian authorities was erroneous ?
vehicles and pleasure craft, 'are not considered to be
transfers of goods'. That specification precludes the                (!)  OJ  No L  324,  26 . 11 . 1991 , p. 11 .
application of VAT to transactions of that kind, and thus            (2 ) OJ  No L  370,  31 . 12. 1990, p. 126 .
likewise fails to implement Article 13B (cj of the Sixth VAT         (3 ) OJ  No L  160 , 26 . 6 . 1990, p . 1 .
Directive correctly.                                                 (4 ) OJ  No L  201 , 24 . 7. 1991 , p . 16 .
(!) OJ No L 145, 13 . 6 . 1977, p. 1 .
                                                                     Appeal brought on 28 February 1995 by Unifruit Hellas
                                                                     EPE against the judgment delivered on 15 December 1994
References for preliminary rulings from the Tribunale di             by the Third Chamber of the Court of First Instance of the
Genova, Sezione Prima Civile, by orders of that court of             European Communities in Case T-489/93 between Unifruit
26 January 1995 and 16 February 1995 in the cases of                 Hellas EPE and the Commission of the European
                                                                                Communities
1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.                                           ( Case C-51/95 P
          Amministrazione delle Finanze dello Stato                                                ( 95/C 119/11 )
      (Cases C-47/95 , C-48/95 , C-49/95 , C-50/95 and
                             C-60/95 )                               An appeal against the judgment delivered on 15 December
                           (95/C 119/10 )                             1 994 by the Third Chamber of the Court of First Instance of
                                                                     the European Communities in Case T-489/93 between
Reference has been made to the Court of Justice of the               Unifruit Hellas EPE and the Commission of the European
European Communities by orders of the Tribunale di                   Communities was brought before the Court of Justice of the
Genova, Sezione Prima Civile (District Court, Genoa, First           European Communities on 28 February 1995 by Unifruit
Civil Section) of 26 January 1995 and 16 February 1995 ,             Hellas EPE, established in Athens, represented by Elias
which were received at the Court Registry on 23 February             Souflero, of the Athens Bar, with an address for service in
1995 and 8 March 1 995, for preliminary rulings in the cases         Luxembourg at the Chambers of Aloyse May, 31 Grand
                                                                     Rue .
of 1 . Olasagasti & Co. Sri, 2. Comarcon SNC, 3 . Ghezzi
Alimentari Sri, 4. Fredo Sri, and 5 . Cateringros v.
Amministrazione delle Finanze dello Stato on the following           The appellant claims that the Court should:
questions:
                                                                      1 . déclaré the appeal admissible;
(a ) Does the suspension of the residual customs duties
       applicable to imports from Spain into the Community
       of Ten in accordance with Article 75 ( 1 ) of the Act of      2, set aside the judgment appealed against to the extent to
       Accession of that country which was provided for by                 which it rejected the claim for damages;
       Article 1 ( 1 ) of Regulation (EEC ) No 3416/91 O of
       25 November 1991 as regards 'the agricultural                  3 , award costs to the appellant.
 ---pagebreak--- No C 119/6               EN                Official Journal of the European Communities                                       13 . 5 . 95
Pleas in law and main arguments adduced in support:                   — on the one hand, only profits made at the balance sheet
                                                                            date are to be included, and
1 . The Court of First Instance misinterpreted the
      expression 'exceptional circumstances' in Article 25 ( 1 )      — on the other hand, account must be taken of income for
      of Regulation (EEC) No 1035/72. It was held                           the financial year to which the annual accounts relate,
      (paragraph 54 ) that that expression applies to                       irrespective of the date of receipt of such income,
      circumstances in which the Commission has discretion
      not to impose a countervailing charge, even though all
      the preconditions for the imposition thereof are met.           where a claim to a distribution on the basis of participating
      The appellant maintains that those are circumstances in         certificates ( GenuEscheine) conditional on sufficient
      which the Commission is obliged not to impose a                 distributable profit is capitalized in phase with the inclusion
      countervailing charge .                                         of profits by the distributing undertaking, even where the
                                                                      distribution does not become due until one bank working
                                                                      day following the general meeting of the distributing
2. The judgment appealed against was wrong to hold                    undertaking at which a resolution is passed appropriating
      (paragraph 62 ) that Article 3 ( 3 ) of Regulation ( EEC )      the profits for the preceding financial year ?
      No 2707/72 cannot be applied by analogy to a measure
      imposing a countervailing charge . According to the
      appellant, the effect sought to be achieved by a                (!) OJ No L 222, 14 . 8 . 1978 , p . 11 .
      protective measure adopted under Regulation ( EEC )
      No 2707/72 is absolutely equivalent to the effect sought
      by the countervailing charge .
3 . Manifestly erroneous and lacking in justification is the
      assessment by the Court of First Instance (paragraph 63 )
      that it is permissible concurrently to require the
      imposition of surveillance measures ( in the form for           References for a preliminary ruling by the Pretura
      example of an import certificate and security) and a            Circondariale di Roma — Sezione distaccata di Tivoli — by
      countervailing charge.                                          orders of that court of 15 and 22 February 1995 in criminal
                                                                      proceedings pending before it against Sandro Gallotti and
                                                                                Roberto Censi
4. Contrary to the holding in the judgment appealed
                                                                                ( Cases C-58/95 and C - 75/95 )
      against (paragraph 66 ), the 1990 framework agreement
      between the Community and Chile precludes the                                              (95/C 119/13 ).
      adoption of any unilateral measure including the
      imposition of a countervailing charge.
                                                                      References have been made to the Court of Justice of
                                                                      the European Communities by orders of the Pretura
5 . The appellant maintains that the Court of First Instance          Circondariale di Roma — Sezione Distaccata di Tivoli
      ignored its entirely particular situation which is              (Rome District Magistrates' Court — Tivoli Division ) of 15
      attributable to the fact that at the material time certain
                                                                      and 22 February 1995 , which were received at the Court
      restrictions still applied to the movement of capital in        Registry on 6 and 14 March 1995 respectively, for a
      Greece under Directive 88/361/EEC of 24 June 1988 .             preliminary ruling in criminal proceedings against Sandro
                                                                      Gallotti and Roberto Censi on the following questions:
                                                                      1 . What is the legal effect of the Italian Republic's failure to
                                                                             bring into force the necessary measures to implement
Reference for a preliminary ruling from the Finanzgericht                    Council Directive 91/156/EEC ( ] ) within the prescribed
KoIn by order of that court of 8 February 1995 in the case of               time limit ?
          Bruhler Kreditbank eG v. Finanzamt Briihl
                          (Case C-56/95 )                             2. In particular, may the existence of criminal penalties,
                           ( 95/C 119/12 )                                  and in particular those provided for in Articles 10 and
                                                                             25 ( Case C-75/95 ) and Article 25 etseq. ( Case C-58/95 )
                                                                             of Presidential Decree No 915/82 for failure to observe
Reference has been made to the Court of Justice of the
European Communities by an order of the Finanzgericht                       the Italian rules, be considered to conflict with
Kôln ( Finance Court, Cologne ) of 8 February 1995, which                    Community legislation where it seeks to ensure uniform
was received at the Court Registry on 3 March 1995 , for a                  treatment, from the point of view of penalties as well, for
preliminary ruling in the case of Bruhler Kreditbank eG v.                   operators in the Single Market.
Finanzamt (Tax Office) Briihl on the following question:
                                                                      i 1 ) Council    Directive   91/156/EEC       amending   Directive
Is it in accordance with the provisions of Article 31 ( 1 ) (c), in         75/442/EEC, OJ No L 78 , 26 . 3 . 1991 , p. 32 .
particular indent ( aa ), and Article 31 ( 1 ) (d ) of the Fourth
Directive ( 78/660/EEC ) of 25 July 1978 ( 1 ), according to
which:


title: Case T-450/04 RENV: Order of the General Court of 27 June 2014  — Bouygues and Bouygues Télécom v Commission

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/58

         Order of the General Court of 27 June 2014 — Bouygues and Bouygues Télécom v Commission
   (Case T-450/04 RENV) (1)

   2014/C 292/71
   Language of the case: French
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 31, 5.2.2005.


C 48/22               EN               Official Journal of the European Communities                                20.2.1999
Removal from the register of Joined Cases C-388/97 and                  Removal from the register of Case C-409/97 (1)
                          C-389/97 (1)                                                    (1999/C 48/44)
                        (1999/C 48/40)
                                                                  By order of 19 November 1998 the Court of Justice of the
By order of 11 November 1998, the President of the                European Communities (First Chamber) has ordered the
Court of Justice of the European Communities ordered the          removal from the register of Case C-409/97: Commission
removal from the register of Joined Cases C-388/97 and            of the European Communities v. Grand Duchy of
C-389/97 (Reference for a preliminary ruling from the             Luxembourg.
Conseil d'EÂtat): Fromagerie Philipona SA and Others v.
French Republic.
                                                                  (1) OJ C 41, 7.2.1998.
(1) OJ C 7, 10.1.1998.
                                                                        Removal from the register of Case C-415/97 (1)
      Removal from the register of Case C-253/98 (1)                                      (1999/C 48/45)
                        (1999/C 48/41)
                                                                  By order of 24 November 1998, the President of the
                                                                  Court of Justice of the European Communities ordered the
By order of 11 November 1998 the Court of Justice of the          removal from the register of Case C-415/97: Commission
European Communities has ordered the removal from the             of the European Communities v. Italian Republic.
register of Case C-253/98: Commission of the European
Communities v. Kingdom of Belgium.
                                                                  (1) OJ C 41, 7.2.1998.
(1) OJ C 278, 5.9.1998.
                                                                        Removal from the register of Case C-167/98 (1)
      Removal from the register of Case C-397/97 (1)                                      (1999/C 48/46)
                        (1999/C 48/42)
                                                                  By order of 2 December 1998 the Court of Justice of the
By order of 13 November 1998 the Court of Justice of the          European Communities has ordered the removal from the
European Communities has ordered the removal from the             register of Case C-167/98 (request for a preliminary ruling
register of Case C-397/97: Commission of the European             from the Oberster Gerichtshof): Westdeutsche Landesbank
Communities v. Italian Republic.                                  Girozentrale v. Johannes Leon.
(1) OJ C 26, 24.1.1998.                                           (1) OJ C 209, 4.7.1998.
      Removal from the register of Case C-274/94 (1)                   Removal from the register of Case C-305/98 P (1)
                        (1999/C 48/43)                                                    (1999/C 48/47)
By order of 17 November 1998 the Court of Justice of the          By order of 7 December 1998 the Court of Justice of the
European Communities has ordered the removal from the             European Communities has ordered the removal from the
register of Case C-274/94: United Kingdom of Great                register of Case 305/98 P: David T. Keeling v. Office for
Britain and Northern Ireland v. Commission of the                 Harmonisation in the Internal Market (Trade Marks and
European Communities.                                             Designs).
(1) OJ C 351, 10.12.1994.                                         (1) OJ C 312, 10.10.1998.


title: Case T-196/07: Action brought on 5 June 2007 — Dyckerhoff Polska v Commission

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/38

         Action brought on 5 June 2007 — Dyckerhoff Polska v Commission
   (Case T-196/07)
   (2007/C 170/72)
   Language of the case: Polish
   Parties

      Applicant: Dyckerhoff Polska sp. z o. o. (represented by: P.K. Rosiak, legal adviser, and F. Puel, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the Commission's decision of 26 March 2007 concerning the national allocation plan for greenhouse gas emission allowances notified by Poland in accordance with Directive 2003/87/EC of the European Parliament and of the Council;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for greenhouse gas emission allowances notified by Poland in accordance with Directive 2003/87/EC of the European Parliament and of the Council (1), in which the Commission decided that certain aspects of the Polish National Allocation Plan for CO2 Emission Allowances for 2008-2012, notified to the Commission on 30 June 2006, were not compatible with Articles 9(1) and (3), 10 and 13(2) of and the criteria set out in Annex III to Directive 2003/87/EC. The decision in question reduces the carbon dioxide emission limit in 2008-2012 by 26.7 % compared to the limit proposed by Poland in the national allocation plan for emission allowances notified to the Commission.
   The pleas in law and main arguments put forward by the applicant are the same as those of the applicant in Case T-195/07.

      (1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).


title: Case T-470/09: Judgment of the General Court of 12 July 2012 — medi v OHIM (medi) (Community trade mark — Application for the Community word mark medi — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) and (2) of Regulation No 207/2009)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/17

         Judgment of the General Court of 12 July 2012 — medi v OHIM (medi)
   (Case T-470/09) (1)

   (Community trade mark - Application for the Community word mark medi - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) and (2) of Regulation No 207/2009)
   2012/C 258/28
   Language of the case: German

      Parties

      Applicant: medi GmbH & Co. KG (Bayreuth, Germany) (represented by: H. Lindner, D. Terheggen and T. Kiphuth, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially S. Schäffner and subsequently G. Schneider, Agents)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 1 October 2009 (Case R 692/2008-4), concerning an application for registration of the word sign medi as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Medi GmbH & Co. KG to pay the costs.

      (1)  OJ C 24, 30.1.2010.


C 55/20                EN                       Official Journal of the European Union                                          8.3.2003
        Removal from the register of Case C-89/01 (1)                           Removal from the register of Case C-260/01 ( 1)
                         (2003/C 55/46)                                                          (2003/C 55/49)
By order of 15 November 2002 the President of the Court of              By order of 11 December 2002 the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Case C-89/01 (Reference for a preliminary          from the register of Case C-260/01: European Parliament v
ruling by the Tribunale di Brescia): Finanziaria Immobiliare            Council of the European Union.
Perugino SpA v Ministero delle Finanze.
                                                                        (1 ) OJ C 245 of 1.9.2001.
( 1) OJ C 118 of 21.4.2001.
                                                                                Removal from the register of Case C-310/01 ( 1)
        Removal from the register of Case C-90/01 (1)
                                                                                (2003/C 55/50)
                         (2003/C 55/47)
                                                                        By order of 14 November 2002 the President of the Court of
By order of 15 November 2002 the President of the Court of
                                                                        Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal
                                                                        from the register of Case C-310/01 (Reference for a preliminary
from the register of Case C-90/01 (Reference for a preliminary
                                                                        ruling by the Consiglio di Stato): Comune di Udine, AMGA —
ruling by the Tribunale di Brescia): San Marco SpA and Others
                                                                        Azienda Multiservizi s.p.a. v Diddi Dino Figli s.r.l, A.G.E.S.I. —
v Ministero delle Finanze.
                                                                        Associazione Nazionale Imprese Gestione.
( 1) OJ C 118 of 21.4.2001.
                                                                        (1 ) OJ C 289 of 13.10.2001.
        Removal from the register of Case C-231/01 ( 1)
                                                                                Removal from the register of Case C-346/01 ( 1)
                         (2003/C 55/48)
                                                                                (2003/C 55/51)
By order of 15 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                 By order of 20 November 2002 the President of the Court of
from the register of Case C-231/01 (Reference for a preliminary         Justice of the European Communities ordered the removal
ruling by the Tribunale di Brescia): El. Da Srl v Ministero delle       from the register of Case C-346/01: Commission of the
Finanze.                                                                European Communities v Federal Republic of Germany.
( 1) OJ C 227 of 11.8.2001.                                             (1 ) OJ C 331 of 24.11.2001.


title: Judgment of the Court of First Instance of 13 July 2000 in Case T-157/99: Helga Griesel v Council of the European Union (Officials — Refusal of promotion — Statement of reasons — Examination of the comparative merits of the candidates)

text:
C 259/20                 EN                      Official Journal of the European Communities                                     9.9.2000
pension for her infant daughter — the Court of First Instance               applicant, 10 Am Gronn, Sandweiler, v Court of Justice of
(First Chamber), composed of: B. Vesterdorf, President, and                 the European Communities (Agents: N. Lierow and C. Pinto
M. Vilaras and N. Forwood, Judges; B. Pastor, Principal Admin-              Correia) — application for annulment, first, of the decision of
istrator, for the Registrar, has given a judgment on 11 July                the selection board in competition No CJ 41/98 of 15 March
2000, in which it:                                                          1999 not to include the applicant’s name in the list of suitable
                                                                            candidates and, second, of all subsequent measures adopted in
1.    Declares that there is no need to rule on the applicant’s claim       the context of that competition, and also of the appointment
      for recognition of her entitlement to receive family allowances       of the successful candidate to the post of legal adviser on
      from July 1998 onwards;                                               administrative matters — the Court of First Instance (Fourth
                                                                            Chamber), composed of V. Tiili, President, and J.D. Cooke
2.    Dismisses as inadmissible the claims for recognition of the           and P. Mengozzi, Judges; G. Herzig, Administrator, for the
      entitlement of the applicant and of her child Mira Posnantek to       Registrar, has given a judgment on 14 July 2000, in which it:
      receive the family allowances which should have been paid to
      Roger Posnantek, together with default interest, pursuant to
                                                                            1.    Dismisses the action;
      Article 67 of the Staff Regulations;
3.    Annuls the Commission’s decision of 9 March 1999 inasmuch             2.    Orders the parties to bear their own costs.
      as it refuses to recognise, first, the applicant’s entitlement to
      receive the household allowance and the dependent child
                                                                            (1) OJ C 226 of 7.8.1999.
      allowance for the period running from the death of Roger
      Posnantek until the end of the third month following the month
      in which that death occurred and, second, the entitlement of the
      child Mira Posnantek to an orphan’s pension from July 1998
      onwards;
4.    Orders the Commission to pay to the applicant the amount of
      the allowances and pension referred to in point 3 of the
      operative part of this judgment, together with default interest at        JUDGMENT OF THE COURT OF FIRST INSTANCE
      the annual rate of 6,25 %, subject to the deduction therefrom
      of any benefits of the same kind which may have been received
                                                                                of 13 July 2000
      by the applicant from other sources;
5.    Dismisses the remainder of the action;                                in Case T-157/99: Helga Griesel v Council of the European
                                                                                Union (1)
6.    Orders the Commission to bear its own costs and to pay two
      thirds of the applicant’s costs. The applicant is ordered to bear
      one third of her own costs.                                           (Officials — Refusal of promotion — Statement of reasons
                                                                            — Examination of the comparative merits of the candidates)
(1) OJ C 246 of 28.8.1999.
                                                                                (2000/C 259/35)
                                                                                (Language of the case: French)
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                 In Case T-157/99: Helga Griesel, an official of the Council of
                                                                            the European Union, residing in Brussels, represented by
                           of 14 July 2000                                  J. Sambon and P.-P. Van Gehuchten, of the Brussels Bar, with
                                                                            an address for service in Luxembourg at the Chambers of
in Case T-146/99: Rui Teixeira Neves v Court of Justice of                  L. Schiltz, 2 Rue du Fort Rheinsheim, v Council of the
                  the European Communities (1)                              European Union (Agents: F. Anton and C. Robertson) — appli-
                                                                            cation for annulment of the Council’s decision not to promote
(Officials — Internal competition — Competition notice —                    the applicant from grade C 5 to grade C 4 in the course of the
Appointment to the post of legal adviser — Mandatory                        1998 promotions procedure — the Court of First Instance
requirement — Preferential criterion — Statement of reasons                 (Single Judge: A. Potocki); G. Herzig, Administrator, for the
                       — Misuse of powers)                                  Registrar, has given a judgment on 13 July 2000, in which it:
                          (2000/C 259/34)                                   1.    Dismisses the action;
                                                                            2.    Orders the parties to bear their own costs.
                   (Language of the case: Portuguese)
In Case T-146/99: Rui Teixeira Neves, an official of the Court              (1) OJ C 281 of 2.10.1999.
of Justice of the European Communities, residing at Sandweiler
(Luxembourg), represented by A. Encarnação, of the Oporto
Bar, with an address for service in Luxembourg care of the


title: Case T-700/16: Action brought on 30 September 2016 — Laboratorios Ern v EUIPO — Ascendo Medienagentur (SLIMDYNAMICS)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/26

         Action brought on 30 September 2016 — Laboratorios Ern v EUIPO — Ascendo Medienagentur (SLIMDYNAMICS)
   (Case T-700/16)
   (2016/C 462/33)
   Language in which the application was lodged: English

      Parties

      Applicant: Laboratorios Ern, SA (Barcelona, Spain) (represented by: S. Correa Rodríguez, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Ascendo Medienagentur AG (Gamprin-Bendern, Liechtenstein)

      Details of the proceedings before EUIPO

      Applicant: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: EU figurative mark containing the word element ‘SLIMDYNAMICS’ — Application for registration No 12 882 304

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 22 July 2016 in Joined Cases R 1814/2015-4 and R 1780/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               revoke the contested decision regarding the granting of goods in class 5 and reject EUTM No. 012882304 SLIM DYNAMICS & design in class 5; and

               —

               order EUIPO and, in case it decides to intervene in the present proceedings, ASCENDO MEDIENAGENTUR AG, to pay the costs.

      Plea in law

               —

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


title: Case T-125/07: Action brought on 16 May 2007 — Scientific and Technological Committee and Others v Potocnik and Others, Members of the Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/33

         Action brought on 16 May 2007 — Scientific and Technological Committee and Others v Potocnik and Others, Members of the Commission
   (Case T-125/07)
   (2007/C 140/55)
   Language of the case: Polish
   Parties

      Applicants: Scientific and Technological Committee of AGH University of Science and Technology and Others (Cracow, Poland) (represented by A. Żuraniewski, lawyer)

      Defendants: J. Potocnik, S. Dimas and A. Piebalgs, Members of the Commission of the European Communities
   Form of order sought

               —

               declare that J. Potocnik, S. Dimas and A. Piebalgs, Members of the Commission of the European Communities, by not taking immediate action in defence of the life of the population of the EU from the time of receipt of the three documents reporting the risks connected with the technique of storing CO2 in geological strata, committed the offence of failure to act, by which they caused an existing and continuing state of danger to the life of the population of the EU and danger of an ecological catastrophe;

               —

               indicate the need for carrying out the proposed studies;

               —

               indicate the need for financing in full the studies which are not of a commercial nature but protect the safety of the life of the population of the EU;

               —

               indicate the need for suspension in the EU of further procedures for injecting CO2 into geological strata until the completion of the proposed studies.

         Pleas in law and main arguments
   The applicants seek a declaration of failure to act by members of the European Commission who were informed by the applicants of the dangers to human health and the natural environment deriving from the containerless depositing of carbon dioxide in geological strata but did not take the appropriate measures with the aim of preventing the negative effects of the application of such techniques. The applicants claim that after being called on to take action and to carry out the studies proposed by the applicants on the effects of the storage of carbon dioxide in surface layers of land the defendant members of the Commission did not take any position on the issue of the problems raised in the complaints addressed to them. The applicants submit that such inactivity infringes the legal order of the European Union and conflicts with the obligations of a member of the Commission.


title: Case C-237/14 P: Appeal brought on 13 May 2014 by Lidl Stiftung & Co. KG against the judgment of the General Court (Ninth Chamber) delivered on 27 February 2014 in Case T-225/12: Lidl Stiftung & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/18

         Appeal brought on 13 May 2014 by Lidl Stiftung & Co. KG against the judgment of the General Court (Ninth Chamber) delivered on 27 February 2014 in Case T-225/12: Lidl Stiftung & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-237/14 P)
   2014/C 282/24
   Language of the case: English

      Parties

      Appellant: Lidl Stiftung & Co. KG (represented by: M. Wolter, M. Kefferpütz, A. K. Marx, Rechtsanwälte)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the Judgement of the General Court of 27 February 2014 (Case T-225/12);

               —

               in the event that the appeal is declared well founded, annul the decision of the First Board of Appeal of 21 March 2012 (R 2379/2010-1) as sought in the proceedings before the General Court;

               —

               order the OHIM as defendant in the proceedings before the General Court to pay the costs of the proceedings before the General Court and of the appeal proceedings.

      Pleas in law and main arguments

   With the Application for Appeal, Lidl Stiftung & Co. KG raises three pleas in law against the contested judgement:

               1)

               infringement of Art. 42 (2) and (3) CTMR (1) and Rule 22 (3) and (4) of CTMIR (2) in conjunction with Art. 15 (1) CTMR as the General Court misinterpreted the requirements for proof of genuine use of the opposition mark within the meaning of these provisions;

               2)

               infringement of Art. 15 (1) (a) CTMR in conjunction with Art. 42 (2) and (3) CTMR as the General Court misinterpreted the requirements for considering the use of the opposition mark in a different form than the registered to constitute genuine use within the meaning of Art. 15 (1) CTMR;

               3)

               infringement of Art. 8 (1) (b) CTMR as the General Court misinterpreted the requirements on the assessment of the likelihood of confusion.

         The main arguments can be summarized as follows:
   Regarding plea (1), the General Court erred in law in finding that the Board of Appeal correctly considered three undated photographs together with some invoices as solid and objective evidence, sufficient for proving genuine use of the opposition mark, particularly with regard to the nature of use.
   Regarding plea (2), the General Court disregarded the exceptional character of Art. 15 (1) (a) CTMR that requires, for reasons of legal certainty and predictability, strict and narrow interpretation, an assessment of all elements of the mark in its registered form. The General Court thus erred in law when confirming the Board of Appeal’s finding that the used form of the mark had constituted genuine use as it did not alter the distinctive character of the opposition mark in its registered form as the Board of Appeal did not take into consideration all elements of the opposition mark.
   Regarding plea (3), the General Court misinterpreted Art. 8 (1) (b) CTMR as, in its assessment of the Board of Appeal’s findings on the similarity of the signs and the likelihood of confusion, it did not take adequately into consideration that, firstly, in the case at hand the degree of attention of the relevant public is quite high, secondly, the average consumer normally perceives a mark as a whole and does not tend to analyse its various details and, thirdly, it is only if all other components of the mark are negligible that the assessment of the similarity of signs can be carried out solely on the basis of the dominant element. If these aspects had been taken into consideration correctly, a likelihood of confusion could not have been found.
   As the contested judgement is, thus, not in accordance with the provisions of the CTMR, Lidl Stiftung & Co. KG requests its annulment.

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

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark
   OJ L 303, p. 1


title: Case C-89/13: Order of the Court of 30 April 2014 (request for a preliminary ruling from the Tribunale di Napoli (Italy)) — Luigi D'Aniello and Others v Poste Italiane SpA (Article 99 of the Rules of Procedure of the Court — Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Principle of non-discrimination — National legislation providing for a compensation scheme in cases of the unlawful setting of an expiry date for an employment contract different from that in cases where an employment contract of unlimited duration is unlawfully terminated — Economic consequences — Comparability of the claims)

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/4

         Order of the Court of 30 April 2014 (request for a preliminary ruling from the Tribunale di Napoli (Italy)) — Luigi D'Aniello and Others v Poste Italiane SpA
   (Case C-89/13) (1)

   ((Article 99 of the Rules of Procedure of the Court - Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Principle of non-discrimination - National legislation providing for a compensation scheme in cases of the unlawful setting of an expiry date for an employment contract different from that in cases where an employment contract of unlimited duration is unlawfully terminated - Economic consequences - Comparability of the claims))
   2014/C 261/05
   Language of the case: Italian

      Referring court

   Tribunale di Napoli

      Parties to the main proceedings

      Applicants: Luigi D'Aniello, Ester Di Vaio, Anna Di Benedetto, Antonella Camelio, Angela Leva, Alessia Romano, Emilia Aloia, Cira Oligo, Ottavio Russo, Guiseppe D’Ambra, Stefano Caputo, Ilaria Pappagallo, Maurizio De Rosa, Gianluca Liguori, Dario Puzone, Vincenzo De Luca, Guido Gorbari, Raffaella D’Ambrosio

      Defendant: Poste Italiane SpA

      Operative part of the order

   Subject to the possibility available to the Member States by virtue of clause 8 of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, clause 4(1) of that framework agreement must be interpreted as meaning that it does not require identical treatment of the economic consequences granted in cases of the unlawful setting of an expiry date for an employment contract and those paid in cases of the unlawful termination of an employment contract of unlimited duration.

      (1)  OJ C 156, 1.6.2013.


title: Case T-326/07: Judgment of the Court of First Instance of 3 September 2009 — Cheminova and Others v Commission (Plant-protection products — Active substance malathion — Non-inclusion in Annex I to Directive 91/414/EEC — Action for annulment — Locus standi — Admissibility — Evaluation procedure — Assessment by EFSA — Plea of illegality — Article 20 of Regulation (EC) No 1490/2002 — Submission of new studies — Article 8(2) and (5) of Regulation (EC) No 451/2000 — Legitimate expectation — Proportionality — Equal treatment — Principle of sound administration — Rights of the defence — Principle of subsidiarity — Article 95(3) EC, Articles 4(1) and 5(1) of Directive 91/414)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/24

         Judgment of the Court of First Instance of 3 September 2009 — Cheminova and Others v Commission
   (Case T-326/07) (1)

   (Plant-protection products - Active substance ‘malathion’ - Non-inclusion in Annex I to Directive 91/414/EEC - Action for annulment - Locus standi - Admissibility - Evaluation procedure - Assessment by EFSA - Plea of illegality - Article 20 of Regulation (EC) No 1490/2002 - Submission of new studies - Article 8(2) and (5) of Regulation (EC) No 451/2000 - Legitimate expectation - Proportionality - Equal treatment - Principle of sound administration - Rights of the defence - Principle of subsidiarity - Article 95(3) EC, Articles 4(1) and 5(1) of Directive 91/414)
   2009/C 256/44
   Language of the case: English

      Parties

      Applicants: Cheminova A/S (Harboøre, Denmark); Cheminova Agro Italia Srl (Rome, Italy); Cheminova Bulgaria EOOD (Sofia, Bulgaria); Agrodan, SA, (Madrid Spain); and Lodi SAS (Grand-Fougeray, France) (represented by: C. Mereu and K. Van Maldegem, lawyers, and P. Sellar, Solicitor)

      Defendant: Commission of the European Communities (represented by: B. Doherty and L. Parpala, acting as Agents)

      Re:

   Annulment of Commission Decision 2007/389/EC of 6 June 2007 concerning the non-inclusion of malathion in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 146, p. 19)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Cheminova A/S, Cheminova Agro Italia Srl, Cheminova Bulgaria EOOD, Agrodan, SA and Lodi SAS to bear their own costs and to pay those incurred by the Commission, including those relating to the application for interim measures.

      (1)  OJ C 247, 20.10.2007.


title: Case C-416/17: Action brought on 10 July 2017 — European Commission v French Republic

text:
               4.9.2017

               EN

               Official Journal of the European Union

               C 293/22

         Action brought on 10 July 2017 — European Commission v French Republic
   (Case C-416/17)
   (2017/C 293/27)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: J.-F. Brakeland and W. Roels, acting as Agents)

      Defendant: French Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, in maintaining the effects of the provisions aimed at eliminating double economic taxation of the dividends that allow a parent company to set off against the advance payment, for which it is liable when it redistributes to its shareholders dividends paid by its subsidiaries, the tax credit applied to the distribution of those dividends if they come from a subsidiary established in France, but not to offer that option if those dividends originate from a subsidiary established in another Member State, since, in that case, that legislation does not give entitlement to a tax credit applied to the distribution of those dividends by that subsidiary in so far as, according to the case-law of the Conseil d’État, applications are granted for reimbursement of advance payments made in breach of EU law within the meaning of the judgment of the Court in Case C-310/09 Accor
                   (1), subject to the following three restrictions:

                           —

                           the right to reimbursement of the advance payment illegally made is restricted by the refusal to take into account taxation suffered by sub-subsidiaries established outside France;

                           —

                           the right to reimbursement of the advance payment illegally made is restricted by disproportionate evidentiary requirements;

                           —

                           the right to reimbursement of the advance payment illegally made is restricted by limiting the tax credit to the amount of the dividend redistributed in France which comes from a subsidiary established outside France, and whereas the Conseil d’État, administrative court adjudicating at last instance, established those restrictions without asking the Court of Justice for the purposes of determining the compatibility of those restrictions with EU law,

                     the French Republic has failed to fulfil its obligations under the principles of equivalence and effectiveness and in accordance with Articles 49, 63 and the third paragraph of Article 267 of the Treaty on the Functioning of the European Union

               —

               order the French Republic to pay the costs.

      Pleas in law and main arguments

   The European Commission complains that France, through the settled case-law of the Conseil d’État, its highest administrative court, refused to give full effect to the judgment of the Court of Justice in Case C-310/09, Ministre du Budget, des Comptes publics et de la Fonction publique v Accor SA, in particular in imposing restrictions contrary to EU law for the reimbursement of a tax unduly levied, namely withholding tax.
   In its judgment in Accor, handed down following a preliminary question, the Court of Justice found that the French tax rules seeking to eliminate economic double taxation of dividends maintained discrimination in respect of taxation of dividends which have their source in other EU Member States. The taxes which the Court has found to be contrary to EU law must thus be reimbursed.
   The Commission considers that France is not complying with the judgment of the Court of Justice on three specific points:

               —

               it does not take into account taxes already paid by non-French sub-subsidiaries;

               —

               it maintains, in order to limit the right to reimbursement of the companies concerned, requirements regarding the evidence to be provided, not observing the criteria laid down by the Court of Justice;

               —

               it limits in an absolute manner the tax credit system to a third of the dividend redistributed by a non-French subsidiary.

         These violations are moreover due to the fact that the Conseil d’État failed to comply with its obligation to refer a question to the Court of Justice pursuant to Article 267 TFEU.

      (1)  Judgment of the Court (First Chamber) of 15 September 2011 in Case C-310/09, Ministre du Budget, des Comptes publics et de la Fonction publique v Accor SA, EU:C:2011:581.


title: Case F-22/07: Action brought on 16 March 2007 — Lafili v Commission

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/59

         Action brought on 16 March 2007 — Lafili v Commission
   (Case F-22/07)
   (2007/C 95/118)
   Language of the case: French
   Parties

      Applicant: Paul Lafili (Genk, Belgium) (represented by: G. Vandersanden and L. Levi, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annulment of the decision to classify the applicant in Grade AD 13, step 5, contained in a memorandum from DG ADMIN of 11 May 2006 and in the pay slip of June 2006 and in subsequent pay slips;

               —

               restoration of the applicant to Grade AD 13, step 2 with effect from 1 May 2006, retaining a multiplication factor of 1.1172071;

               —

               complete reinstatement of the applicant's career with retrospective effect from 1 May 2006 to the date of his classification in the grade and step thus corrected (including the evaluation of his experience in the classification thus corrected, his entitlement to promotion and his pension rights), including interest for late payment based on the rate set by the European Central Bank for main refinancing operations during the period in question, plus two percentage points, on the whole of the amount corresponding to the difference between the salary for the classification in the classification decision and the classification to which he should have been entitled until the date of the decision as to his proper classification;

               —

               an order that the defendant should pay the costs.

         Pleas in law and main arguments
   The applicant, a Commission official, was classified in Grade A4, step 7, until the day before the entry into force of the new Staff Regulations. On 1 May 2004, that classification was converted to Grade A*12, step 7, with a multiplication factor of 0.9442490 (in accordance with Article 2(2) of Annex XIII to the Staff Regulations). On 1 July 2004, the applicant moved to Grade A*12, step 8, with the same multiplication factor. On 22 July 2005, the applicant was promoted, with retrospective effect from 1 May 2004, to Grade A*13, step 1, with a multiplication factor of 1.1172071 (in accordance with Article 7(6) of Annex XIII to the Staff Regulations). With effect from 1 May 2006, he was classified in Grade AD 13, step 5, with a multiplication factor of 1, pursuant to a decision of DG ADMIN of 11 May 2006.
   In his action, the applicant claims that such a classification (i) breaches, inter alia, Articles 44 and 46 of the Staff Regulations and Article 7 of Annex XIII to the Staff Regulations; (ii) is vitiated by a lack of competence; (iii) breaches the principle of protection of legitimate expectations. In particular, according to the applicant, the Commission's interpretation of Article 7(7) of Annex XIII to the Staff Regulations is incorrect in that it takes the view that, where a multiplication factor is higher than 1, the excess should be converted to seniority in step.


title: Case T-219/10: Action brought on 14 May 2010 — Autogrill España v Commission

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/54

         Action brought on 14 May 2010 — Autogrill España v Commission
   (Case T-219/10)
   2010/C 179/93
   Language of the case: Spanish

      Parties

      Applicant: Autogrill España, SA (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               that the pleas for annulment contained in the application be admitted and upheld;

               —

               that Article 1(1) be annulled in so far as it states that Article 12(5) of the Amended Law on Corporation Tax (TRLIS) contains elements of State aid;

               —

               in the alternative, that Article 4 be annulled in so far as it makes the recovery order applicable to transactions which were completed prior to the publication, in the Official Journal of the European Union, of the final decision which is the subject-matter of this action; and

               —

               that the Commission be ordered to pay the costs.

      Pleas in law and main arguments

   The contested decision in the present case finds the aid scheme introduced by Spain, in accordance with Article 12(5) TRLIS, incompatible with the common market, as regards aid granted to beneficiaries to make intra-Community acquisitions. In that regard, it states that the aforementioned provision allows for the deduction for tax purposes of amortization of the financial goodwill resulting from a foreign shareholding acquisition of greater than 5 %.
   In support of its claims, the applicant submits the followings pleas:

               1.

               The contested decision infringes Article 107(1) TFEU in that it finds that the measure at issue constitutes State aid. The applicant contends, in that regard, that the Commission has not proved that the tax measure examined favours ‘specific undertakings or the production of specific goods’, as required under Article 107(1) TFEU. The Commission merely assumes that the measure is selective on the basis of the fact that it applies only to the acquisition of shareholdings in foreign companies and not in domestic companies. The applicant considers that reasoning to be erroneous and circular: the fact that application of the measure examined — as for any other tax rule — depends on the fulfilment of certain objective requirements does not render it, in law or fact, a selective measure. In fact, the mechanical nature of the Commission’s reasoning would result in every tax measure being considered to be prima facie selective.
               For the sake of completeness, both a legal analysis of the measure, and the statistics produced by the Kingdom of Spain, show that Article 12(5) TRLIS is a general measure open, in law and fact, to all undertakings which are subject to Spanish corporation tax irrespective of their size, nature, sector or origin.
               Second, the prima facie different treatment under Article 12(5) TRLIS, far from constituting a selective advantage serves to place all transactions for the acquisition of shares on an equal tax footing, be those shares national or foreign; as, if, owing to the impossibility to complete cross-border mergers, the amortization of financial goodwill can only be carried out at a national level to the extent that there are rules in the tax system which allow it, Article 12(5) TRLIS does no more than extend that possibility to the purchase of shares in foreign companies.
               In the alternative, the Commission’s decision is disproportionate, since, its application in cases where control is taken of foreign undertakings should be, at least, equivalent to cases of national mergers and therefore justified by the nature and broad logic of the Spanish system.

               2.

               Infringement of Article 107(1) TFEU resulting from an error of law in identifying the beneficiaries of the measure.
               In the alternative, although it considers that Article 12(5) TRLIS contains elements of State aid, the Commission ought to have carried out an exhaustive economic analysis to ascertain who the beneficiaries of the aid scheme were. The applicant claims, in any event, that the beneficiaries of the aid (in the form of an inflated purchase price for the shares) were those selling the shares and not, as the Commission alleges, the Spanish firms who applied that measure.

               3.

               Lastly, the applicant claims breach of the principle of protection of legitimate expectations with respect to the breadth of the temporal scope of the recovery order.


title: Case T-404/04: Action brought on 1 October 2004 by Troy Chemical Company BV against the Commission of the European Communities

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/29

         Action brought on 1 October 2004 by Troy Chemical Company BV against the Commission of the European Communities
   (Case T-404/04)
   (2005/C 19/62)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 October 2004 by Troy Chemical Company BV, Maassluis, the Netherlands, represented by K. Van Maldegem and C. Mereu, lawyers.
   The applicant claims that the Court should:

               —

               Order the defendant to respond to the applicant's request;

               —

               Or, in the alternative, order the annulment of the European Commission's act D 341571(04);

               —

               Order the defendant to compensate the applicant in the provisional amount of 1 euro for damages suffered as a result of the defendant's failure to comply with its obligations under Community law by failing to respond to the applicant, or, in the alternative, as a result of the European Commission's act D 341571(04), as well as any applicable interests, pending the exact calculation and determination of the exact amount;

               —

               Order the defendant to pay all costs and expenses in these proceedings.

         Pleas in law and main arguments
   The pleas in law invoked are similar to those invoked in Case T-400/04, Arch Chemicals and Arch Timber Protection/Commission.