title: Action brought on 13 June 1996 by Nicole Hankart against the Council of the European Union (Case T-91/96)

text:
No C 233/20           EN                   Official Journal of the European Communities                                      10 . 8 . 96
    — the contested Decision purports to regularize ex post           various letters dated 3 and 22 April 1996 the defendant
        facto aid which was granted without prior                      institution informed the applicant that it was disposed to
        notification or authorization , thus enabling the             communicate to the complainants the whole of the replies
        recipient of the aid to benefit from early payment in         given by it, save for two exceptions . The present action has
        contravention of the case-law of the Court of                 been brought against the decisions contained in those
        Justice ,                                                     letters .
— the Commission infringed              essential  procurement
    requirements . In particular:
    — the contested Decision is inadequately reasoned ,
    — the Commission failed to initiate the contentious
        procedure as required by Decision 3855/91 /ECSC,              Action brought on 13 June 1996 by Nicole Hankart against
                                                                                the Council of the European Union
    — the Commission failed to consult the Consultative                                         ( Case T-91 /96 )
        Committee as required by Articles 19 and 95 of the                                        ( 96/C 233 /35 )
        ECSC Treaty .
                                                                                (Language of tbe case: French)
                                                                      An action against the Council of the European Union was
                                                                      brought before the Court of First Instance of the European
                                                                      Communities on 13 June 1996 by Nicole Hankart, residing
                                                                      at Rhode-Saint-Genèse ( Belgium ), represented by Jean-Noël
Action brought on 13 June 1996 by Automobiles Peugeot
                                                                      Louis, Thierry Demaseure and Ariane Tornel , of the
SA against the Commission of the European
                           Communities
                                                                      Brussels Bar , with an address for service in Luxembourg at
                                                                      the offices of Fiduciaire Myson Sàrl , 1 Rue Glesener .
                        ( Case T-90/96 )
                          ( 96/C 233 /34 )
                                                                      The applicant claims that the Court should :
                (Language of tbe case: French)                        — annul the decision of the selection board in competition
                                                                           Conseil/C/360 of 3 October 1995 refusing to admit her
                                                                           to the second part of the written tests in the
An action against the Commission of the European                          competition ,
Communities was brought before the Court of First
Instance of the European Communities on 13 June 1996 by
Automobiles Peugeot SA, established in Paris ( France ),              — order the defendant to pay the costs .
represented by Xavier De Roux , of the Paris Bar , with an
address for service in Luxembourg at the Chambers of                  Pleas in law and main arguments adduced in support:
Jacques Loesch , 1 1 Rue Goethe .
                                                                      The applicant states that she was admitted to the written
The applicant claims that the Court should :                          tests in open competition Conseil/C/360 for the constitution
                                                                      of a reserve for future recruitment of French-language
                                                                      secretaries , and that she did in fact take part in the
— annul the four decisions of the Commission of the
                                                                      compulsory written tests held on 17 November 1995 . On
    European Communities of 3 and 22 April 1996 ,                      12 January 1996 she was informed of the decision of the
                                                                      selection board not to admit her to the second part of the
— order the Commission to pay all the costs .                         written tests , on the ground that she had not participated in
                                                                      all the compulsory written tests . In consequence of the
                                                                      complaint lodged by the applicant, the selection board
Pleas in law and main arguments adduced in support:                   replied that it appeared , following a detailed investigation,
                                                                      that one of the written tests had not been handed in to the
The applicant, a company marketing Peugeot vehicles in                organizers of the competition who were present and that she
Europe , is the object of four complaints by various                  could not therefore be admitted to the practical tests on a
distributors calling in question the compliance with                  PC . It is the latter decision which is contested in the present
                                                                      case .
Community law of the exclusive and selective standard form
contract for the distribution of Peugeot motor vehicles . In
consequence of those complaints , it provided all the                 The applicant observes that it is for the administration to lay
information requested by the Commission , pointing out                down and implement the detailed practical arrangements
that the information in question was covered in its entirety          for the organization of recruitment competitions . Those
by the obligation of professional secrecy . However, in               arrangements must be laid down in compliance with the
 ---pagebreak--- 10 . 8 . 96           EN                  Official Journal of the European Communities                                 No C 233/21
principles of equality of treatment between candidates and           The applicant argues, first, that in view of the special needs
of the duty to have regard for the welfare and interests of          of the service for which he was appointed, it was necessary
officials . The administration is bound, therefore, to ensure        to recruit a candidate with proven professional experience
that the tests are held in a regular manner and, in the event        enabling him to be immediately operational. The applicant
that an irregularity or incident is found to have occurred, to       maintains that those special needs justify the application of
draw up a report for the competition selection board .               Article 31 (2 ) of the Staff Regulations and, consequently, his
                                                                     own recruitment to grade C 4 .
The applicant maintains that, since in the present case the
administration has failed to establish that she did not hand         Secondly, the applicant argues that, in assessing the
in the form containing her answer to thé third written test in       professional experience of the candidates in application of
the competition, that form must be deemed to have been               paragraph IV 'conditions of employment' of the notice of
handed in . She considers that, having failed to produce any         competition, the appointing authority acted contrary to the
evidence to the contrary, the defendant cannot refuse to             principles of equal treatment and non-discrimination, and
admit her to the second part of the written tests on the             in breach of its duty to protect legitimate expectations, by
ground that she did not take part in all the tests in the first      using different criteria in the case of the first two persons
part .                                                               placed on the list of suitable candidates (who were recruited
                                                                     to grade C 4 ) from those applied in the applicant's case .
The applicant accordingly pleads that the contested decision
was adopted in breach of the duty to have regard for the             Lastly, the applicant asserts that the contested decision is
welfare and interests of officials and the right to a fair           vitiated by the failure to state relevant reasons or, at the very
hearing, and that it is vitiated by a manifest error.                least, failure to give sufficient reasons, in so far as the
                                                                     Parliament did not disclose the criteria used by the
                                                                     appointing authority to assess whether the applicant's
                                                                     qualifications warranted an appointment to the higher
                                                                     grade in his career bracket.
Action brought on 13 June 1996 by Roberto Monaco
               against the European Parliament
                        ( Case T-92/96 )
                          ( 96/C 233/36 )                            Action brought on 14 June 1996 by Catherine Presle against
                                                                     the European Centre for the Development of Vocational
                                                                                Training ( Cedefop )
                (Language of the case: French)
                                                                                ( Case T-93/96 )
                                                                                ( 96/C 233/37 )
An action against the European Parliament was brought
before the Court of First Instance of the European
Communities on 13 June 1996 by Roberto Monaco,                                       (Language of the case: German)
residing at Capellen ( Luxembourg ), represented by
Jean-Noël Louis, Thierry Demaseure and Ariane Tornel, of             An action against the European Centre for the Development
the Brussels Bar, with an address for service in Luxembourg          of Vocational Training ( Cedefop ) was brought before the
at the offices of Fiduciaire Myson Sari, 1 Rue Glesener.             Court of First Instance of the European Communities on
                                                                      14 June 1 996 by Catherine Presle, of Berlin, represented by
The applicant claims that the Court should :                         Frank Montag, Rechtsanwalt, of Deringer Tessin Herrmann
                                                                     &C Sedemund, 13 Place des Barricades, Brussels .
— annul the Parliament's decision of 22 August 1995 in so
     far as it appoints the applicant to grade C 5 ,                 The applicant claims that the Court should :
— order the Parliament to pay the costs .                            — annul the decision of the Director of the European
                                                                          Centre for the Development of Vocational Training
Pleas in law and main arguments adduced in support:                       ( Cedefop ) of 22 May 1996 ,
The applicant entered the service of the European                    — order the European Centre for the Development of
Parliament in 1980 as a skilled employee in grade D 3 and                 Vocational Training ( Cedefop ) to pay the costs .
was subsequently promoted to grade D 2 ( in 1982 ) and then
to grade D 1 ( in 1991 ). He took part in open competition           Pleas in law and main arguments adduced in support:
PE/115/C, organized for the purpose of constituting a
reserve for the recruitment of clerical assistants ( grades C 4      The applicant is an official of the European Centre for the
and C 5 ), and was placed third on the list of successful            Development of Vocational Training ( Cedefop ), the seat of
candidates . By decision of 25 August 1995 , he was                  which was moved on 1 September 1995 from Berlin to
appointed to grade C 5 in the clerical assistant career              Thessaloniki . In the course of the implementation of the
bracket. He contests that decision, maintaining that he               accompanying measures adopted for the organization of the
should have been appointed to grade C 4 .                             social aspects of the move , employees who were unable for


title: Case T-159/01: Action brought on 12 July 2001 by Christopher Wilkinson against Commission of the European Communities

text:
C 275/14               EN                      Official Journal of the European Communities                                       29.9.2001
The applicant goes on to argue that the Commission erred in                     —     to assign to the unit in Directorate A of DG INFSO
applying Regulation (EEC) No 1191/69 of the Council (1) to                            responsible for telecommunications the duties of
the situation in this case. It submits that Combus has neither                        organising and managing the internet infrastructures
a ‘tariff obligation’ nor an ‘obligation to operate’, and that the                    which the applicant carried out in his capacity as
company does not provide a public service. The regulation is                          advisor;
not applicable to Combus and the State aid granted to Combus
does not come with the scope of that regulation.                                —     to abolish his duties as advisor;
In the contested decision, the Commission proceeded on the                      —     to transfer him in due course to another Directorate
basis that the aid for Combus is restructuring aid. Against this,                     General by way of redeployment; and
the applicant argues that the aid granted is not restructuring
aid, but rather an operating subsidy, and that at no time was a                 —     to transfer him in the interim as advisor ad personam
restructuring plan submitted for any of the three subsidies                           at Directorate A of DG INFSO.
granted in total. Further, it is a condition of the framework
provisions that aid recipients must contribute significantly to           —     annul the implied decision rejecting a number of adminis-
the restructuring programme using their own means from                          trative complaints lodged by the applicant on 4 and
external financing, and it is, according to the applicant, obvious              19 December 2000, and on 19 January 2001, against the
that Combus did not itself make any contribution.                               decisions of 1 December.
                                                                          —     order the defendant to pay the costs.
So far as Article 73 EC is concerned, the applicant submits
inter alia that neither the Member States nor the Commission
can invoke Article 73 EC in order to legitimise aid for the
transport industry or transport objectives which cannot be                Pleas in law and main arguments
regarded as being compatible with Article 87 EC.
                                                                          —     the existence in the present case of a manifest error of
The applicant concludes by arguing that the Commission has                      assessment;
infringed the principles of equal treatment and proportionality,
has failed to meet its obligation to provide reasons, and has             —     manifestly inadequate reasons for the contested acts;
committed essential procedural errors, for instance through its
use of fundamentally flawed facts in support of the decision.             —     infringement of the decision of 26 July 2000
                                                                                implementing ‘peer review’, as set out in the memor-
                                                                                andum of 13 September 2000 from the Secretary General
(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on
                                                                                to the Directors General and Heads of Service;
    action by Member States concerning the obligations inherent in
    the concept of a public service in transport by rail, road and
    inland waterway (OJ, English Special Edition 1969(I), p. 276).        —     breach of the duty to have regard for the welfare of
                                                                                officials;
                                                                          —     infringement of Article 7(1) of the Staff Regulations.
Action brought on 12 July 2001 by Christopher Wilkin-
  son against Commission of the European Communities
                         (Case T-159/01)
                                                                          Action brought on 17 July 2001 by Juan Pedro Pérez
                                                                          Escanilla against the Commission of the European Com-
                         (2001/C 275/28)                                                               munities
                    (Language of the case: French)                                                  (Case T-163/01)
An action against the Commission of the European Communi-                                          (2001/C 275/29)
ties was brought before the Court of First Instance of the
European Communities on 12 July 2001 by Christopher
Wilkinson, residing in Brussels, represented by Marc-Albert                                   (Language of the case: French)
Lucas, lawyer.
                                                                          An action against the Commission of the European Communi-
The applicant claims that the Court should:                               ties was brought before the Court of First Instance of the
                                                                          European Communities on 17 July 2001 by Juan Pedro Pérez
—     annul the decisions of 1 December 2000 of the Director              Escanilla, residing in Brussels, represented by Jean-Noël Louis
      General of DG INFSO:                                                and Véronique Peere, lawyers.


title: Case F-135/06: Action brought on 27 November 2006 — Lafleur-Tighe v Commission

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/87

         Action brought on 27 November 2006 — Lafleur-Tighe v Commission
   (Case F-135/06)
   (2006/C 326/176)
   Language of the case: French
   Parties

      Applicant: Virgine Lafleur-Tighe (Makati, Philippines) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Defendant: Commission
   Form of order sought

               —

               annul the decision of the appointing authority placing the applicant in grade 13, step 1, on the date of her recruitment as a contractual agent, in so far as that decision is to be inferred from the contract of employment signed on 22 December 2005;

               —

               indicate to the appointing authority the effects entailed by annulment of the contested decision, in particular, the fact that the applicant's work experience since 1993, when she obtained her Bachelor's degree, must be taken into account and that she must be re-graded as grade 14 with retroactive effect from 22 December 2005;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant argues, first, that the appointing authority committed a manifest error of assessment in requiring her to produce a certificate attesting to the equivalence of her Bachelor's degree of comparable authority to the decision issued by the Government of the French Community in Belgium in respect of her Master's degree.
   Secondly, the applicant maintains that the appointing authority infringed the principle of equal treatment and non-discrimination in so far as it refused to take into account the certificate issued by the National Qualifications Authority of Ireland attesting to the equivalence of that qualification.


title: Case T-529/08: Action brought on 2 December 2008 — Diputación Foral de Álava v Commission

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/47

         Action brought on 2 December 2008 — Diputación Foral de Álava v Commission
   (Case T-529/08)
   (2009/C 32/90)
   Language of the case: Spanish
   Parties

      Applicant: Territorio Histórico de Álava — Diputación Foral de Álava (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2002/820/EC and 2002/892/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and

               —

               An order that the Commission should pay the costs.

         Pleas in law and main arguments
   The purpose of the present action is to challenge the decision in which the defendant takes the view that, in implementing the decisions of 11 July 2001, on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45 % of investments (Decision 2002/820/EC) and on the State aid scheme applied by Spain to certain newly established firms in Álava (Decision 2002/892/EC) (1), the rate of interest to be applied in the recovery is a compound rate of interest.
   In the applicant's view, that decision constitutes a clear de facto modification of the decisions of 11 July 2001, which, in turn, represents a manifest abuse of power and an infringement of the principle of sound administration. In that connection, it should be pointed out that the application of a compound rate of interest was introduced into Community law for the first time by Article 11(2) of Commission Regulation (EC) No 794/2004 of 21 April 2004, laying down detailed rules for the application of Council Regulation (EC) No 659/1999 of 22 March 1999, laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 140, p. 1). However, that provision is not applicable ratione temporis to the Decisions of 11 July 2001.
   Similarly, the change to the actual contents of those decisions made by the Commission, in terms of the rate of interest applicable, is an infringement of the principle of equal treatment, since both the authorities charged with implementing the Decisions of 17 July 2001 and the companies affected have been placed in a different position from that of the competent authorities in the Member States (and companies) affected by decisions for the recovery of aid contemporaneous with or prior to July 2001 which have not been required to pay compound interest in the aid recovery process.
   Finally, the applicant submits that, by requiring compound interest, the Commission is imposing a penalty not provided for in Community law.

      (1)  Both decisions were challenged before the Court of First Instance (Cases T-227/01 Diputación Foral de Álava and Gobierno Vasco v Commission, and T-230/01 Diputación Foral de Álava and Gobierno Vasco v Commission, still sub judice).


title: Case T-40/11: Action brought on 24 January 2011 — Lan Airlines and Lan Cargo v Commission

text:
               12.3.2011

               EN

               Official Journal of the European Union

               C 80/27

         Action brought on 24 January 2011 — Lan Airlines and Lan Cargo v Commission
   (Case T-40/11)
   2011/C 80/52
   Language of the case: English

      Parties

      Applicants: Lan Airlines SA and Lan Cargo SA (Santiago, Chile) (represented by: B. Hartnett, Barrister, and O. Geiss, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the contested decision insofar as it relates to the applicants;

               —

               In the alternative, reduce the fine imposed on the applicants; and

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   By means of their application, the applicants seek, pursuant to Article 263 TFEU, the annulment of the Commission Decision of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’), Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight), insofar as it relates to the applicants.
   In support of the action, the applicants rely on six pleas in law.

               1.

               First plea in law, alleging that the Commission failed to establish, to the requisite legal standards, that the applicants participated in a single and continuous infringement and, as a result, committed an error in law and in fact when applying Article 101 TFEU, as:

                           —

                           The Commission did not establish that Lan Cargo was aware or ought to have been aware of the existence of a common anti-competitive plan;

                           —

                           The Commission did not establish that Lan Cargo intended by its own conduct to contribute to such common anti-competitive plan; and

                           —

                           The Commission did not establish that Lan Cargo was aware of an infringement in relation to the security surcharge or commissioning on surcharges.

               2.

               Second plea in law, alleging that the Commission breached the applicants’ rights of defence, as:

                           —

                           The Commission breached the applicants’ rights of defence by relying on evidence that was not referred to in the Statement of Objections;

                           —

                           The Commission breached the applicants’ rights of defence by relying on an interpretation of evidence that was not clearly set out in the Statement of Objections;

                           —

                           The Commission breached the applicants’ rights of defence by raising objections in the contested decision on which the applicants had not had an opportunity to comment.

               3.

               Third plea in law, alleging that the Commission breached the principles of equal treatment, individual liability and proportionality when determining the basic amount of the fine imposed on the applicants, as:

                           —

                           The Commission’s determination of the duration of the infringement did not correspond to the finding of both knowledge of and intent to participate in the alleged common anti-competitive plan;

                           —

                           The Commission erred when calculating the basic amount;

                           —

                           The Commission’s calculation of the basic element of the fine failed to reflect the Applicants’ limited participation in the alleged infringement; and

                           —

                           The Commission’s calculation of the basic element of the fine failed to reflect that the alleged infringement did not cover the entire price of the relevant services.

               4.

               Fourth plea in law, alleging that the Commission breached the principle of equal treatment and failed to state reasons when adjusting the basic fine amount for mitigating circumstances, as:

                           —

                           The Commission failed to account for the very significant differences between the applicants’ level of participation and the much greater participation of other airlines; and

                           —

                           The Commission failed to objectively justify its identical treatment of different airlines despite their significantly different situations.

               5.

               Fifth plea in law, alleging that the Commission failed to state the reasons for its exclusion of eleven addressees of the Statement of Objections in the contested decision, for its finding that the applicants engaged in a single and continuous infringement, and for its calculation of the fine imposed as:

                           —

                           The Commission failed to state its reasons for omitting from the contested decision eleven carriers that were addressed by its Statement of Objections;

                           —

                           The Commission failed to state its reasoning in relation to the constituent elements required by the Court to find that the applicant engaged in a single and continuous infringement; and

                           —

                           The Commission failed to state the reasoning that underlies its calculation of the fine imposed on the applicants under Article 5 of the contested decision.

               6.

               Sixth plea in law, alleging that the Commission breached the applicants’ right to a fair trial and, as a result, breached Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the European Convention on Human Rights, as:

                           —

                           The applicants were denied the opportunity to examine or cross-examine witnesses;

                           —

                           The applicants were denied the opportunity to comment on the calculation of the fine imposed on them;

                           —

                           The fine was imposed following an oral hearing that was not public and which the decision-maker did not attend; and

                           —

                           The contested decision was adopted by an administrative body, and no judicial body has full jurisdiction to review all aspects of it.


title: Case C-20/01: Action brought on 16 January 2001 by the Commission of the European Communities against the Federal Republic of Germany

text:
24.2.2001              EN                   Official Journal of the European Communities                                         C 61/11
Action brought on 16 January 2001 by the Commission                    Action brought on 23 January 2001 by the Commission
of the European Communities against the Federal Repub-                 of the European Communities against the French Republic
                         lic of Germany
                                                                                (Case C-26/01)
                          (Case C-20/01)
                                                                                (2001/C 61/19)
                         (2001/C 61/18)
                                                                       An action against the French Republic was brought before the
An action against the Federal Republic of Germany was                  Court of Justice on 23 January 2001 by the Commission of
brought before the Court of Justice on 16 January 2001 by the          the European Communities, represented by G. Berscheid,
Commission of the European Communities, represented by                 acting as Agent, with an address for service in Luxembourg.
Josef Christian Schieferer, of the Legal Service of the Com-
mission of the European Communities, with an address for
service in Luxembourg at the office of Carlos Gómez de la             The Commission of the European Communities claims that
Cruz, of the Legal Service of the Commission of the European           the Court should:
Communities, Wagner Centre C 254, Kirchberg.
                                                                       —     declare that, by failing to bring into force within the
The applicant claims that the Court should:                                  prescribed time-limit the laws, regulations and adminis-
                                                                             trative measures necessary in order to comply with
                                                                             Council Directive 98/56/EC of 20 July 1998 on the
(1) declare that, by failing to invite tenders for the award of              marketing of propagating material of ornamental
      the contract for the treatment of waste water in the                   plants (1), the French Republic has failed to comply with
      Municipality of Bockhorn and to arrange for notice of                  its obligations under Article 19 of that directive;
      the results of the procedure for the award of the contract
      to be published in the S Series of the Official Journal of
      the European Communities, the Federal Republic of                —     order the French Republic to pay the costs.
      Germany has failed to comply with its obligations under
      Article 8 in conjunction with Article 15(2) and Article
      16(1) of Council Directive 92/50/EEC (1) of 18 June 1992         Pleas in law and main arguments
      relating to the coordination of procedures for the award
      of public service contracts;
                                                                       The mandatory nature of the provisions of Articles 10 and
(2) order the defendant to pay the costs.                              249 EC is such as to oblige Member States to adopt the
                                                                       measures necessary in order to transpose directives which are
                                                                       addressed to them into their national legal order prior to the
                                                                       expiry of the time-limit prescribed for so doing. The time-limit
Pleas in law and main arguments                                        fixed in Article 19 of the directive expired on 1 July 1999.
The German Government concedes that a Community-wide
invitation to tender for the award of the contract for the             (1) OJ L 226 of 13.8.1998, p. 16.
treatment of waste water in the Municipality of Bockhorn
should have been issued in accordance with the provisions
of Directive 92/50/EEC; notwithstanding that concession,
however, and despite the fact that an instruction was issued by
the Government of the Land requiring subordinate authorities
to ensure in a suitable manner that the contracting authorities
within that Land complied to the letter with the rules prescribed
by Community law for the award of contracts, the fact remains
that a definite infringement of the Treaty has been committed.         Action brought on 23 January 2001 by the Commission
Moreover, the Municipality of Bockhorn has committed a                 of the European Communities against the Grand Duchy
further infringement of EC law by maintaining the waste-water                                    of Luxembourg
contract and continuing to apply that contract in the same
way as before. Since the conduct contrary to the directive is
thus subsisting, it is undeniable that the defendant has failed                                  (Case C-27/01)
to take, within the time-limit laid down in the reasoned
opinion, all the national measures required in order to comply
                                                                                (2001/C 61/20)
with the directive.
                                                                       An action against the Grand Duchy of Luxembourg was
(1) OJ 1992 L 209, p. 1.                                               brought before the Court of Justice on 23 January 2001 by the
                                                                       Commission of the European Communities, represented by
                                                                       G. Berscheid, acting as Agent, with an address for service in
                                                                       Luxembourg.


title: Case T-404/13: Judgment of the General Court of 14 July 2014  — NIIT Insurance Technologies v OHIM (SUBSCRIBE) (Community trade mark — Application for Community word mark SUBSCRIBE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Equal treatment — Article 56 TFEU)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/44

         Judgment of the General Court of 14 July 2014 — NIIT Insurance Technologies v OHIM (SUBSCRIBE)
   (Case T-404/13) (1)

   ((Community trade mark - Application for Community word mark SUBSCRIBE - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Equal treatment - Article 56 TFEU))
   2014/C 292/54
   Language of the case: German

      Parties

      Applicant: NIIT Insurance Technologies Ltd (London, United Kingdom) (represented by: M. Wirtz, lawyer)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 4 June 2013 (Case R 1308/2012-5) concerning an application for registration of the word sign SUBSCRIBE as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders NIIT Insurance Technologies Ltd to pay the costs.

      (1)  OJ C 274, 21.9.2013.


title: Case C-70/10: Judgment of the Court (Third Chamber) of 24 November 2011 (reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium)) — Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) (Information society — Copyright — Internet — ‘Peer-to-peer’ software — Internet service providers — Installation of a system for filtering electronic communications in order to prevent file sharing which infringes copyright — No general obligation to monitor information transmitted)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/6

      Judgment of the Court (Third Chamber) of 24 November 2011 (reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium)) — Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM)
      (Case C-70/10) (1)

      (Information society - Copyright - Internet - ‘Peer-to-peer’ software - Internet service providers - Installation of a system for filtering electronic communications in order to prevent file sharing which infringes copyright - No general obligation to monitor information transmitted)
      (2012/C 25/10)
      Language of the case: French

         Referring court

      Cour d’appel de Bruxelles

         Parties to the main proceedings

         Appellant: Scarlet Extended SA

         Respondent: Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM)

         Intervening parties: Belgian Entertainment Association Video ASBL (BEA Video), Belgian Entertainment Association Music ASBL (BEA Music), Internet Service Provider Association ASBL (ISPA)

         Re:

      Reference for a preliminary ruling — Cour d’appel de Bruxelles — Interpretation of Directives 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45), 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1), 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on privacy and electronic communications’) (OJ 2002 L 201, p. 37) — Processing of data passing through the internet — Installation by operators of a system for filtering electronic communications, in abstracto and as a preventive measure in order to identify users allegedly using files infringing copyright or related rights — Application, of its own motion, by the national court of the principle of proportionality — European Convention for the Protection of Human Rights and Fundamental Freedoms — Right to respect for privacy — Right to freedom of expression

         Operative part of the judgment

      Directives:

                  —

                  2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’);

                  —

                  2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;

                  —

                  2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights;

                  —

                  95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and

                  —

                  2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications),
                  read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering

                  —

                  all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

                  —

                  which applies indiscriminately to all its customers;

                  —

                  as a preventive measure;

                  —

                  exclusively at its expense; and

                  —

                  for an unlimited period,
                  which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright.

         (1)  OJ C 113, 1.5.2010.


title: Case T-118/10: Judgment of the General Court of 7 February 2013 — Acron v Council (Dumping — Imports of solutions of urea and ammonium nitrate originating in Russia — Request for a new exporter review — Normal value — Export price — Articles 1, 2 and 11(4) and (9) of Regulation (EC) No 384/96 (now Articles 1, 2 and 11(4) and (9) of Regulation (EC) No 1225/2009))

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/16

         Judgment of the General Court of 7 February 2013 — Acron v Council
   (Case T-118/10) (1)

   (Dumping - Imports of solutions of urea and ammonium nitrate originating in Russia - Request for a new exporter review - Normal value - Export price - Articles 1, 2 and 11(4) and (9) of Regulation (EC) No 384/96 (now Articles 1, 2 and 11(4) and (9) of Regulation (EC) No 1225/2009))
   2013/C 101/35
   Language of the case: English

      Parties

      Applicant: Acron OAO (Veliky Novgorod, Russia) (represented by: B. Evtimov, lawyer, and D. O’Keeffe, Solicitor)

      Defendant: Council of the European Union (represented by: J.-P. Hix and B. Driessen, Agents, and by G. Berrisch, lawyer, and N. Chesaites, Barrister)

      Interveners in support of the defendant: European Commission (represented by: H. van Vliet and C. Clyne, Agents); and Fertilizers Europe (Brussels, Belgium) (represented by: B. O’Connor, Solicitor)

      Re:

   Action for annulment of Council Implementing Regulation (EU) No 1251/2009 of 18 December 2009 amending Regulation (EC) No 1911/2006 imposing a definitive anti-dumping duty on imports of solutions of urea and ammonium nitrate originating, inter alia, in Russia (OJ 2009 L 338, p. 5).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Acron OAO to bear its own costs and to pay those incurred by the Council of the European Union and by Fertilizers Europe;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 113, 1.5.2010.


title: Order of the Court of First Instance of 29 April 1999 in Case T-78/98: Unione Provinciale degli Agricoltori di Firenze and Others v Commission of the European Communities (Action for annulment - Regulation (EC) No 644/98 - Registration of a geographical indication - 'Tuscan' olive oil - Interest in bringing proceedings - Inadmissible)

text:
C 246/30                EN                       Official Journal of the European Communities                                     28.8.1999
        — according to the fall or rise of the guaranteed price                    ORDER OF THE COURT OF FIRST INSTANCE
             referred to in Article 5(4) of Protocol No 8 to the Fourth
             ACP-EC Convention signed in Lomé on 15 December
             1989.
                                                                                of 29 April 1999
        The point of reference for the reduction of or increase in the
        amount of the security shall be the intervention price or the       in Case T-78/98: Unione Provinciale degli Agricoltori di
        guaranteed price on the date of signature of the present order;     Firenze and Others v Commission of the European
                                                                                Communities (1)
   — The total amount of the security provided shall be released,
        upon order of the judge hearing applications for interim
        measures, for the benefit of the Community if the Court of          (Action for annulment — Regulation (EC) No 644/98 —
        Justice within six months from the date of signature of the         Registration of a geographical indication — ‘Tuscan’ olive
        present order declares in its judgment in Case C-17/98 that            oil — Interest in bringing proceedings — Inadmissible)
        Article 1C8b is not invalid;
   — For the duration of the interim measure ordered, Emesa                                         (1999/C 246/61)
        Sugar (Free Zone) NV shall not be able to make any
        application for an import licence under Commission Regu-
        lation (EC) No 2553/97 of 17 December 1997 on rules
        for issuing import licences for certain products covered by CN
        codes 1701, 1702, 1703 and 1704 and qualifying as                                     (Language of the case: Italian)
        ACP/OCT originating products.
3. If within six months following the date of signature of the present      In Case T-78/98: Unione Provinciale degli Agricoltori di
   order the Court of Justice gives judgment in Case C-17/98:               Firenze, established in Florence, Italy, Unione Pratese degli
                                                                            Agricoltori, established at Prato, Italy, Consorzio Produttori
   — The present proceedings for interim measures (registered as            dell’Olio Tipico di Oliva della Provincia di Firenze, established
        Case T-44/98 R II) shall be resumed if the Court of Justice         in Florence, Francesco Miari Fulcis, residing at Fiesole, Italy,
        does not declare Article 108b of the OCT decision invalid,          Bonaccorso Gondi, residing at Pontassieve, Italy, Simone
        and the parties shall be invited to submit observations on the      Giannozzi, residing at Barberino Val d’Elsa, Italy, and Antonio
        Court ’s judgment. The steps which the judge hearing the            Morino, residing at Bagno a Ripoli, Italy, represented by
        application for interim measures intends to take in the             Vittorio Chierroni, of the Florence Bar, with an address for
        present proceedings shall be set out in a further order, it         service in Luxembourg at the Chambers of Franco Colussi,
        being understood that Emesa Sugar (Free Zone) NV will be            36 Rue de Wiltz, against Commission of the European
        able to continue to import into the Community the sugar             Communities (Agents: José Luis Iglesias and Eugenio De March)
        delivered to it free on board before the date of the judgment       — application for annulment of Commission Regulation (EC)
        of the Court of Justice (i) up to a limit of 7 500 tonnes, (ii)     No 644/98 of 20 March 1998 supplementing the Annex to
        during a period of six months from the date of signature of         Regulation (EC) No 1107/96 on the registration of geographi-
        the present order and (iii) in accordance with the conditions       cal indications and designations of origin under the procedure
        set out in point 2 of the operative part;                           laid down in Article 17 of Council Regulation (EEC) No
                                                                            2081/92 (OJ 1998 L 87, p. 8), in so far as it provides for
                                                                            registration of the name ‘Tuscan’ as a Protected Geographical
   — The present order shall have effect until the end of the               Indication on the basis of a list of conditions which refers to
        six-month period if the Court of Justice declares Article 108b      additional geographical designations — the Court of First
        of the OCT decision invalid and the Court of First Instance         Instance (First Chamber), composed of B. Vesterdorf, President,
        has not given a decision in the main proceedings (registered        J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar, made an
        as Case T-44/98).                                                   order on 29 April 1999, the operative part of which is as
                                                                            follows:
4. Subject to delivery of the judgment of the Court of Justice in Case
   C-17/98 before the end of the first period of six months referred        1. The action is dismissed as inadmissible.
   to by the present order, import into the Community of a quantity
   to be determined of sugar of OCT origin shall be authorised for
   a further period by means of an order which Emesa Sugar (Free            2. The applicants shall pay the costs.
   Zone) NV, acting in good time, will request the judge hearing
   the application for interim measures to adopt two months before
   the expiry of the first period of six months.
                                                                            (1) OJ C 234 of 25.7.1998.
5. Costs are reserved.


title: Case C-405/00: Reference for a preliminary ruling by the Fourth Chamber of the Consiglio di Stato, sitting in its judicial capacity, by order of that court of 14 July 2000 in the case of Coopsette Scrl, on the one hand, and ANAS and Impresa Mambrini Costruzioni srl, on the other

text:
23.12.2000            EN                     Official Journal of the European Communities                                          C 372/7
3.   In the event that Question 1 is answered in the negative,          2.     May the expression ‘pre-arranged’ which appears in the
     is Article 20(3) of Directive 92/12/EEC to be interpreted,                directive be interpreted as referring to the moment when
     in the same circumstances, as meaning that a party that                   the contract is entered into between the agency and the
     has guaranteed payment of excise duty and has not been                    customer?
     promptly put in a position to ascertain that there has
     been no discharge from the suspension arrangement is
     entitled to furnish evidence of the correctness of the             (1) Council Directive 90/314/EEC of 13 June 1990 on package travel,
     operation or of the place where the irregularity in fact                package holidays and package tours (OJ 1990 L 158, p. 59).
     occurred or where the offence was in fact committed
     even after the expiry of the four-month period following
     the date of dispatch of the products?
(1) OJ L 76, 23.3.1992, p. 1.                                           Reference for a preliminary ruling by the Employment
                                                                        Tribunal, Stratford (United Kingdom), by order of that
                                                                        court of 10 October 2000, in the case of Mrs F. Harding
                                                                                against Skandia Asset Management Ltd
                                                                                (Case C-402/00)
                                                                                (2000/C 372/14)
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Employment
                                                                        Tribunal, Stratford (United Kingdom) of 10 October 2000,
                                                                        which was received at the Court Registry on 31 October 2000,
                                                                        for a preliminary ruling in the case of Mrs F. Harding against
                                                                        Skandia Asset Management Ltd, on the following question:
Reference for a preliminary ruling by the 8a Vara Cı́vel
da Comarca do Porto, 3a Secção, by order of that court of
31 October 2000 in the case of Club-Tour, Viagens e                     Is Article 141 of the EC Treaty directly applicable so that it
Turismo, SA, against Alberto Carlos Lobo Gonçalves                      can be relied upon by an applicant in national proceedings to
         Garrido; intervener: Club Med Viagens Lda                      disapply such territorial limitation as is contained in sec-
                                                                        tion 1(6) of the Equal Pay Act 1970 to enable her to compare
                                                                        her pay with that of men employed by an employer associated
                                                                        with her employer at an establishment in another member
                        (Case C-400/00)                                 State who are performing equal work or work of equal value?
                        (2000/C 372/13)
Reference has been made to the Court of Justice of the                  Reference for a preliminary ruling by the Fourth Chamber
European Communities by order of the 8a Vara Cı́vel da                  of the Consiglio di Stato, sitting in its judicial capacity, by
Comarca do Porto, 3a Secção (8th Civil District of the Oporto          order of that court of 14 July 2000 in the case of
Local Court, Third Chamber), of 31 October 2000, which was              Coopsette Scrl, on the one hand, and ANAS and Impresa
received at the Court Registry on 3 November 2000, for a                            Mambrini Costruzioni srl, on the other
preliminary ruling in the case of Club-Tour, Viagens e Turismo,
SA, against Alberto Carlos Lobo Gonçalves Garrido; intervener:                                    (Case C-405/00)
Club Med Viagens Lda on the following questions:
                                                                                (2000/C 372/15)
1.   Does a package organised by the agency, at the request
     and on the initiative of the consumer or a strictly defined        Reference has been made to the Court of Justice of the
     group of consumers in accordance with their wishes,                European Communities by order of 14 July 2000 of the Fourth
     including transport and accommodation through a tour-              Chamber of the Consiglio di Stato (Council of State), sitting in
     ism undertaking, at an inclusive price, for a period of            its judicial capacity, received at the Court Registry on 6 Novem-
     more than twenty-four hours or including overnight                 ber 2000, for a preliminary ruling in the case of Coopsette
     accommodation, fall within the scope of the concept of             Scrl, on the one hand, and ANAS and Impresa Mambrini
     ‘package travel’ as defined in Article 2(1) (1)?                   Costruzioni srl, on the other, on the following questions:
 ---pagebreak--- C 372/8                EN                    Official Journal of the European Communities                                   23.12.2000
1.    In calls for tenders for public works contracts, do clauses       The Commission claims that the Court should:
      excluding undertakings which have not submitted with
      their tenders explanations concerning components of the           —     declare that, by failing to adopt the laws, regulations
      price indicated, amounting to at least 75 % of the figure               and administrative provisions necessary to comply with
      specified in the tender conditions, represent an obstacle               Commission Directive 98/100/EC (1) of 21 December
      to the application of Article 30(4) of Directive 93/37 (1)?             1998 amending Directive 92/76/EEC (2) recognising pro-
                                                                              tected zones exposed to particular plant health risks in
2.    Does the establishment of a mechanism for determining                   the Community, the Hellenic Republic has failed to fulfil
      automatically the threshold indicative of irregularity,                 its obligations under the Treaty and that directive;
      below which the validity of tenders falls to be verified, on
      the basis of an ad hoc criterion and an arithmetical mean,        —     order the Hellenic Republic to pay the costs.
      so that undertakings are unable to ascertain the threshold
      in advance, represent an obstacle to the application of
      Article 30(4) of Directive 93/37?
                                                                        Pleas in law and main arguments
3.    Does the fact that the exchange of views is to take place
      at an earlier stage, without the undertaking which has            In accordance with the third paragraph of Article 249 of the
      allegedly submitted an irregular tender being assured of          Treaty establishing the European Community, directives are
      an opportunity to state its reasons, after the opening of         binding, as to the result to be achieved, upon each Member
      the envelopes and before the adoption of the measure              State to which they are addressed.
      excluding it, represent an obstacle to the application of
      Article 30(4) of Directive 93/37?
                                                                        Under the first paragraph of Article 10 of the Treaty, Member
                                                                        States are to take all appropriate measures, whether general or
4.    Does a provision under which the contracting authority            particular, to ensure fulfilment of the obligations arising out
      may take account of explanations relating solely to the           of the Treaty or resulting from action taken by the institutions
      economy of the construction method or the technical               of the Community.
      solutions adopted or the exceptionally favourable con-
      ditions available to the tenderer represent an obstacle to
      the application of Article 30(4) of Directive 93/37?              It is not disputed by the Hellenic Republic that it must adopt
                                                                        measures to comply with the abovementioned directive.
5.    Does the exclusion of explanations relating to items for
      which minimum values can be inferred from official lists          The Commission records that until now the Hellenic Republic
      represent an obstacle to the application of Article 30(4)         has not adopted the appropriate measures to incorporate that
      of Directive 93/37?                                               directive fully into Greek law.
(1) Council Directive 93/37/EEC of 14 June 1993 concerning the          (1) OJ L 351, 29.12.1998, p. 35.
    coordination of procedures for the award of public works            (2) OJ L 305, 21.10.1992, p. 12.
    contracts (OJ L 199, 9.8.1993, p. 54).
                                                                               Removal from the register of Case C-272/98 (1)
Action brought on 8 November 2000 by the Commission
of the European Communities against the Hellenic
                              Republic                                                           (2000/C 372/17)
                         (Case C-406/00)                                By order of 12 July 2000 the President of the Court of Justice
                                                                        of the European Communities has ordered the removal from
                                                                        the register of Case C-272/98: (reference for a preliminary
                         (2000/C 372/16)                                ruling from Juzgado de Primera Instancia (Court of First
                                                                        Instance) No 35 Barcelona): Artel SA v Francisca Arencom
An action against the Hellenic Republic was brought before the          Salazar.
Court of Justice of the European Communities on 8 November
2000 by the Commission of the European Communities,
represented by Maria Kondou-Durande, of its Legal Service,              (1) OJ C 278 of 5.9.1998.
with an address for service in Luxembourg at the office of
Carlos Gómez de ]a Cruz, of its Legal Service, Wagner Centre,
Kirchberg.


title: Case T-648/13: Action brought on 3 December 2013 — IOIP Holdings v OHIM (GLISTEN)

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/10

         Action brought on 3 December 2013 — IOIP Holdings v OHIM (GLISTEN)
   (Case T-648/13)
   2014/C 61/16
   Language of the case: English

      Parties

      Applicant: IOIP Holdings LLC (Fort Wayne, United States of America) (represented by: H. Dhondt and S. Kinart, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 11 September 2013 given in Case R 1028/2013-2;

               —

               Order the Office to register the Community trade mark applied for;

               —

               Order the defendant to bear the costs of proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘GLISTEN’ for goods in Class 3 — Community trade mark application No 11 305 273

      Decision of the Examiner: Rejected the application

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) CTMR


title: Case T-246/02: Action brought on 13 August 2002 by Albano Ferrer de Moncada against Commission of the European Communities

text:
C 247/24              EN                      Official Journal of the European Communities                                   12.10.2002
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul the decision of the Third Board of Appeal of                 —     annul the implied rejection by the appointing authority
      the Office for Harmonisation in the Internal Market                      of the request of 28 August 2001 for damages on account
      (Trademarks and Designs) of 19 June 2002;                                of the undue delay by the defendant in drawing up the
                                                                               applicant’s staff reports for the reference periods 1995-
—     order the Defendant to remit the application to its                      1997 and 1997-1999 and, in so far as necessary, annul
      Examination Division for re-examination of Community                     the implied rejection of the complaint of 14 January
      Trademark number 1299809.                                                2002;
                                                                         —     award EUR 25 000 in damages by of compensation for
                                                                               non-material damage, that amount being fixed ex aequo et
                                                                               bono;
Pleas in law and main arguments
                                                                         —     order the defendant to pay the costs.
The trade mark con-          The figurative mark, presented as
cerned:                      design of capsule with yellow
                             bands          —           application
                             No 1299809
                                                                         Pleas in law and main arguments
Goods or service con-        Goods in Class 5 (pharmaceuticals
cerned:                      in the nature of anti-inflammatory          By his application, the applicant, an official of the Office de
                             analgesics)
                                                                         Contrôle de la Sécurité at Euratom, seeks an award of damages
                                                                         for the alleged delay in drawing up his staff report relating to
Decision        contested    Refusal of registration by the              the reference periods 1995-1997 and 1997-1999.
before the Board of          examiner
Appeal:
                                                                         The applicant claims that, by refusing to finalise those reports
Decision of the Board of     Dismissal of the appeal                     which are an essential assessment where the applicant’s career
Appeal:                                                                  is at stake, the defendant infringed Article 43 of the Staff
                                                                         Regulations, the provisions of the Guide de Notation and the
Grounds of claim:            Misapplication of Article 7(1)(b)           principle of equal treatment. Furthermore, the defendant is in
                             of Regulation (EC) No 40/94 (1)             breach of its duty to have regard to the welfare of its officials
                                                                         and infringed the principle of sound administration.
( 1) Council Regulation (EC) No 40/94 of 20.12.1993 on the
     Community trade mark (OJ L 11, p. 1).
                                                                         Action brought on 9 August 2002 by The Christian
                                                                         Science Board of Directors of The First Church of Christ,
                                                                         Scientist against the Office for Harmonisation in the
                                                                                Internal Market (Trade Marks and Designs)
Action brought on 13 August 2002 by Albano Ferrer de
Moncada against Commission of the European Communi-
                              ties                                                                (Case T-247/02)
                        (Case T-246/02)                                                           (2002/C 247/40)
                        (2002/C 247/39)                                                    (Language of the case: English)
                  (Language of the case: French)
                                                                         An action against the Office for Harmonisation in the Internal
                                                                         Market (Trade Marks and Designs) was brought before the
                                                                         Court of First Instance of the European Communities on
An action against the Commission of the European Communi-                9 August 2002 by The Christian Science Board of Directors of
ties was brought before the Court of First Instance of the               The First Church of Christ, Scientist, represented by Nicholas
European Communities on 13 August 2002 by Albano Ferrer                  Green QC, Mark Engelman, barristers and by Geoffrey Smith
de Moncada, residing in Luxembourg, represented by Georges               and James Mitchiner, solicitors, Field Fisher Waterhouse,
Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.               London (UK).


title: Case T-65/09 P: Appeal brought on 14 February 2009 by Enzo Reali against the Judgment of the European Union Civil Service Tribunal made on 11 December 2008 in case F-136/06, Reali/Commission

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/23

         Appeal brought on 14 February 2009 by Enzo Reali against the Judgment of the European Union Civil Service Tribunal made on 11 December 2008 in case F-136/06, Reali/Commission
   (Case T-65/09 P)
   2009/C 102/37
   Language of the case: English

      Parties

      Appellant: Enzo Reali (Florence, Italy) (represented by: S. Pappas, lawyer)

      Other party to the appeal proceedings: Commission of the European Communities

      Form of order sought by the appellant

               —

               set aside the appealed decision and, subsequently, cancel the contested decision of the appointing authority;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   By means of the present appeal, the appellant seeks to set aside the Civil Service Tribunal’s judgment in Case F-136/06 (1) rejecting the appellant’s action seeking the annulment of the decision of the authority empowered to conclude contracts classifying him at a grade and step at the moment of entering the service at the Commission as contractual agent.
   In support of his appeal, the appellant puts forward four pleas in law.
   First, he contends that the Civil Service Tribunal erred in law by deciding that the plea of illegality raised in the application at first instance against certain of the General Implementing Provisions (“the GIP”) was inadmissible in the absence of the raising of the same plea in the complaint of the pre-litigation procedure. The appellant submits that the issue of lack of Commission competence to which referred his pleas of illegality should be raised by the Tribunal ex officio. In a subsidiary manner, the appellant claims that, even if the Tribunal was not obliged to raise this issue ex officio, the said plea should have been considered admissible in so far as the legality of the specific criterion for his classification was questioned already in the original complaint.
   Second, the appellant submits that the Civil Service Tribunal erred in law in its assessment of the appellant’s diplomas. He contends that determination of the value of a degree must be effected in regards of the national legislation where this degree was obtained since this determination is an exclusive competence of Member States and that the Tribunal reduced arbitrarily the scope of and distorted relevant Italian legislation.
   Third, the appellant claims that the Civil Service Tribunal infringed the principle of non-discrimination when assessing the value of the appellant’s diplomas and comparing them to the ones of a person who has completed an undergraduate degree.
   Fourth, the appellant states that the appealed judgment contains the contradictory argument as, in his opinion, the Civil Service Tribunal seems both, to take into consideration the Italian legislation and to not apply it for the solution of the case.

      (1)  Not yet reported in ERC


title: Case T-769/15: Judgment of the General Court of 24 November 2016 — SeNaPro v EUIPO — Paltentaler Splitt & Marmorwerke (Dolokorn) (EU trade mark — Opposition proceedings — Application for EU word mark Dolokorn — Earlier EU word mark DOLOPUR — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/32

         Judgment of the General Court of 24 November 2016 — SeNaPro v EUIPO — Paltentaler Splitt & Marmorwerke (Dolokorn)
   (Case T-769/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark Dolokorn - Earlier EU word mark DOLOPUR - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 014/38)
   Language of the case: German

      Parties

      Applicant: SeNaPro GmbH (Pommelsbrunn, Germany) (represented by: A. Schröder, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: E. Strittmatter and A. Folliard–Monguiral, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Paltentaler Splitt & Marmorwerke GmbH (Rottenmann, Austria) (represented by: C. Ofner, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 23 October 2015 (Case R 2643/2014-1), relating to opposition proceedings between Paltentaler Splitt & Marmorwerke and SeNaPro.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders SeNaPro GmbH to pay the costs.

      (1)  OJ C 78, 29.2.2016.


title: Judgment of the Court (Sixth Chamber) of 21 October 2004 in Case C-477/03: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directives 2001/12/EC, 2001/13/EC and 2001/14/EC — Community railways — Development — Licensing of railway undertakings — Allocation of capacity, infrastructure charges and safety certification — Failure to transpose within the prescribed period)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/23

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 21 October 2004
   in Case C-477/03: Commission of the European Communities v Federal Republic of Germany (1)

   (Failure of a Member State to fulfil obligations - Directives 2001/12/EC, 2001/13/EC and 2001/14/EC - Community railways - Development - Licensing of railway undertakings - Allocation of capacity, infrastructure charges and safety certification - Failure to transpose within the prescribed period)
   (2004/C 300/47)
   Language of the case: German
   In Case C-477/03: action under Article 226 EC for failure to fulfil obligations brought on 17 November 2003 by Commission of the European Communities (Agents: C. Schmidt and W. Wils) against Federal Republic of Germany (Agents: W.-D. Plessing and M. Lumma) — the Court (Sixth Chamber), composed of: A. Borg Barthet, President of the Chamber, J.-P. Puissochet and U. Lõhmus (Rapporteur), Judges; Advocate General: P. Léger; Registrar: R. Grass, has given a judgment on 21 October 2004, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways, Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings, and Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, the Federal Republic of Germany has failed to fulfil its obligations under those Directives;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 21 of 24.1.2004.


title: Case F-106/06: Action brought on 1st September 2006 — Erbežnik v European Parliament

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/46

         Action brought on 1st September 2006 — Erbežnik v European Parliament
   (Case F-106/06)
   (2006/C 281/83)
   Language of the case: Slovenian
   Parties

      Applicant: Anže Erbežnik (Luxembourg, Luxembourg) (represented by: P. Peče, Lawyer)

      Defendant: European Parliament
   Form of order sought

               —

               annul the decision of the Secretary General of the European Parliament No 110029 of 1st June 2006;

               —

               deliver a ruling in which the applicant is identified as a person who had a lawful non-marital relationship recognised by the primary and secondary rules of EU legislation with Miss H. (now Mrs Erbežnik) from the start of his work as a Lawyer Linguist for the European Parliament and therefore has right to a full payment by the European Parliament of his installation allowance as it is provided for married officials and is being calculated on the basis of the household allowance;

               —

               alternatively, deliver a decision whereby the European Parliament is obliged to take into account the change in the family status of the applicant (his marriage) in accordance with the principle of proportionality and provide him the full amount on installation allowance (for married officials) for the parts of the installation allowance paid after his marriage in August 2005;

               —

               order the defendant to pay default interest;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   From the time of his recruitment in Slovenia by the European Parliament in September 2003, and prior, the applicant had a stable non-marital relationship with his girl-friend, who became his wife in August 2005. The applicant alleges that this relationship would be legally recognised by Slovenian law.
   At the beginning of his employment at the European Parliament, the applicant asked for a household allowance, which was refused on the ground that such an allowance was reserved for married couples and same-sex non-marital relationships in accordance with Article 1 of Annex VII of the Staff Regulations. In May 2005 he applied for an installation allowance, which is equal to two months' basic salary in the case of an official who is entitled to the household allowance, and equal to one month's basic salary in other cases. He was granted the first part of the installation allowance (which is paid in three parts, one part per year) provided for singles. After his marriage, he applied for the part of the installation allowance that is granted to married staff but he was denied on the grounds the change in his family status war posterior to the end of his probationary period.
   In support of his action, the applicant relies mainly on the following pleas in law:

               —

               first, invalidity of Article 1 (2) (c) and 1 (2) (d) of Annex VII of the Staff Regulations and alternatively wrong interpretation of those articles by the defendant's administration due to infringements of basic Community concepts such as free movements of workers, citizenship of the European Union and free movement of persons, prohibition of discrimination and unequal treatment, and non-respect of basic human rights and of principle of proportionality;

               —

               Secondly, wrong interpretation of the date of the end of the probationary period as an absolute definitive date for the installation allowance although the payments themselves are being carried out in a three years period.


title: Case F-7/10: Action brought on 19 January 2010 — Garcia Lledo and Others v OHIM

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/69

         Action brought on 19 January 2010 — Garcia Lledo and Others v OHIM
   (Case F-7/10)
   2010/C 100/101
   Language of the case: French

      Parties

      Applicants: Inès Garcia Lledo (Alicante, Spain) and Others (represented by: S. Orlandi, A. Coolen, H.-N. Louis and E. Marchal, lawyers)

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

      Subject-matter and description of the proceedings

   The annulment of the decisions of the President of OHIM to terminate the applicants’ employment as members of the temporary staff because they are not successful candidates in an open competition.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the decisions of the President of OHIM of 12 March 2009 to terminate applicants’ employment as members of the temporary staff;

               —

               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.


title: Action brought on 30 September 1998 by Graça Oliveira against the European Parliament (Case T-157/98)

text:
C 378/20             EN                  Official Journal of the European Communities                                  5.12.98
The applicant claims that the Court should:                         in particular the definition of the market, the
                                                                    proportionality of the aid and the state of competition in
                                                                    the sector.
Ð annul the last sentence of Article 1 of the Commission
     decision of 10 June 1998 on State aid for CoopeÂrative
     d'exportation du livre francËais (CELF)';                      In addition, it alleges breach of the prohibition of
                                                                    discrimination in that the Commission authorised aid
                                                                    granted to one undertaking only and there was no
Ð order the Commission to pay the costs.                            objective justification for the different treatment thus
                                                                    afforded the other undertakings on the market.
Pleas in law and main arguments adduced in support:
                                                                    Finally, the applicant alleges breach of the fourth
The applicant, the same as in Case T-49/93 SIDE v.                  subparagraph of Article 93(2) of the Treaty.
Commission (1), challenges the decision whereby the
Commission declared that State aid granted to                       (1) Judgment of 18 September 1995 in Case T-49/93 SIDE v.
CoopeÂrative d'exportation du livre francËais (CELF) was                Commission [1995] ECR II-2501.
compatible with the common market in accordance with
Article 92(3)(d) of the Treaty. In support of that assertion,
the Commission states in the decision that the aid in
question has a cultural purpose and does not affect
trading conditions to an extent contrary to the common
interest.                                                           Action brought on 30 September 1998 by GracËa Oliveira
                                                                                against the European Parliament
The applicant points out in this connection that, by                                      (Case T-157/98)
judgment of 18 September 1995, cited above, the Court of
First Instance of the European Communities had annulled                                     (98/C 378/37)
a Commission decision concerning aid granted exclusively
to CELF for handling small orders, on the ground that the                          (Language of the case: French)
Commission had failed to comply with its obligation to
initiate the inter partes procedure provided for by
Article 93(2) of the Treaty.                                        An action against the European Parliament was brought
                                                                    before the Court of First Instance of the European
                                                                    Communities on 30 September 1998 by GracËa Oliveira,
In support of its claims, the applicant first of all alleges a      residing in Luxembourg, represented by Jean-NoeÈl Louis
procedural defect, in that the Commission failed to                 and FrancËoise Parmentier, of the Brussels Bar, with an
undertake a thorough and impartial investigation of the             address for service in Luxembourg at the Offices of
complaint and the observations of all the persons                   Fiduciaire Myson SARL, 30 Rue de Cessange.
concerned. On that point, it claims that there was unequal
treatment in the conduct of the proceedings, inasmuch as
CELF was closely involved in that procedure and was thus            The applicant claims that the Court should:
able to put forward its point of view as to the
proportionality of the aid it received. Furthermore, in the         Ð annul the Parliament's decision not to promote the
light of the fact that one of the most important facts                   applicant to grade B 4 in the 1997 promotions
adduced by the applicant in its observations was precisely               procedure;
the rebuttal of the actual definition of a small order, it
seems contrary to the principle of impartiality that it was
in the end CELF alone that the Commission invited to                Ð order the defendant to pay the costs.
supply it with information on this crucial point.
                                                                    Pleas in law and main arguments adduced in support:
Moreover, the applicant considers it remarkable to find,
on reading the contested decision, that the Commission              According to the applicant, the contested decision was
has not expressed any view on the fundamental issues in             adopted in breach of Article 45 of the Staff Regulations.
the matter, namely: the true nature of the recipient of the         The appointing authority failed to undertake a proper
aid, the analysis of the market, the definition of a small          assessment of the merits of the officials eligible for
order and the proportionality of the aid. From that point           promotion, inasmuch as it did not take into account
of view, it also alleges failure to provide reasons, all the        criteria such as the priority recommendation made by her
more serious in the circumstances as the aid in question is         Director-General and the level of responsibility which she
one that, a priori, cannot be given the benefit of any              actually assumed.
derogation, since it is operating aid for exports granted to
a single undertaking and is not intended to disappear or
lessen with time.                                                   By omitting to provide the applicant with a precise and
                                                                    pertinent statement of the reasons for its decision not to
                                                                    follow the recommendation of the Joint Promotion
The applicant also claims that the contested decision               Committee, the appointing authority infringed Article 25
contains several manifest errors of assessment, as regards          of the Staff Regulations.
 ---pagebreak--- 5.12.98               EN                 Official Journal of the European Communities                                     C 378/21
Lastly, the appointing authority committed a manifest               before the end of the test, the invigilators distributed
error of assessment by failing to recognise the                     among the candidates concerned a photocopy of the page
appropriateness, having regard to the delicate nature of            missing from the questionnaire and informed them that
the applicant's situation, of promoting her at the earliest         they would be given additional time to answer. That
possible juncture in the interests of the service.                  information, however, was contradicted because, at the
                                                                    end of the test, as the instructions to candidates provided,
                                                                    the person responsible for conducting the test requested
                                                                    the candidates concerned to stop writing, and their scripts
                                                                    were collected.
Action brought on 2 October 1998 by Yvan Torre                      According to the applicants, these irregularities in the
and Others against the Commission of the European                   manner in which test (a) was conducted distort the results
                           Communities                              of the test and render the selection board's decision
                        (Case T-159/98)                             invalid. They further claim that there was a breach of the
                                                                    instructions to candidates, as well as infringement of the
                          (98/C 378/38)                             principles of equal treatment and sound administration.
                (Language of the case: French)
                                                                    Finally, the applicants submit that, contrary to the
                                                                    obligation to state reasons, the contested decisions do not
An action against the Commission of the European                    contain any reasoning other than the marks obtained by
Communities was brought before the Court of First                   the applicants in tests (a) to (d), along with a reference to
Instance of the European Communities on 2 October 1998              Point VII.A.1 of the notice of competition, which specified
by Yvan Torre, Donatella Ineichen and Alessandro                    that candidates had to obtain the minimum mark required
Cavallaro, residing in Brussels, represented by Marc-               for test (a) in order for tests (e) and (f) to be corrected.
Albert Lucas, of the LieÁge Bar, with an address for service
in Luxembourg at the Offices of Fiduciaire Myson SARL,
30 Rue de Cessange.
The applicant claims that the Court should:
                                                                    Action brought on 2 October 1998 by NV Firma LeÂon
Ð annul the decisions of the selection board for                    Van Parys and NV Pacific Fruit Company against the
    Competition       EUR/A/123      awarding      them    an                Commission of the European Communities
    insufficient mark for test (a) of the competition in                                   (Case T-160/98)
    question and, consequently, refusing to admit them to
    tests (e) and (f), decisions which were notified to them                                 (98/C 378/39)
    by letters of 2 July 1998 from Mrs Anne D'Haen-
    Bertier, on behalf of the chairman of the selection                             (Language of the case: Dutch)
    board;
                                                                    An action against the Commission of the European
Ð annul the decisions of the selection board for
                                                                    Communities was brought before the Court of First
    Competition EUR/A/123 affected by the illegality of
                                                                    Instance of the European Communities on 2 October 1998
    the decisions challenged;
                                                                    by NV Firma LeÂon Van Parys and NV Pacific Fruit
                                                                    Company, both established in Antwerp (Belgium),
Ð in the alternative to the latter point, suspend the               represented by P. Vlaemminck, L. Van Den Hende and J.
    procedure for filling the posts concerned by                    Holmens, of the Ghent Bar, with an address for service in
    Competition EUR/A/123 until such time as it has been            Luxembourg at the Chambers of Loesch and Wolter, 11
    possible to re-organise test (a) and for it to be held          Rue Goethe.
    under proper conditions for all Italian-language
    candidates admitted to the competition, and for the
    Commission to draw all proper consequences from the             The applicant claims that the Court should:
    results of that test.
                                                                    Ð annul the decision taken by the Commission between
Pleas in law and main arguments adduced in support:                     12 March and 5 August 1998, by which it decided to
                                                                        reduce the quantities of imported bananas declared by
                                                                        the applicant for the 1996 reference year for the
The applicants, whose native language is Italian, applied               purposes of determining the quantity of bananas
to sit Competition EUR/A/123 and chose the area of                      which the applicants are authorised to import from
financial management. During the test, one of the                       third countries under the tariff quota set by the EC for
candidates, who was sitting it in Italian, indicated to the             1998;
invigilation staff of the Recruitment' unit that a page was
missing from the questionnaire for test (a), namely that
relating to questions 24 to 28 inclusive. Two minutes               Ð order the defendant to pay the costs.