title: Case C-78/12: Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — ‘Evita-K’ EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Sofia pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Directive 2006/112/EC — Common system of value added tax — Supply of goods — Concept — Right to deduct — Refusal — Actual performance of a taxable transaction — Regulation (EC) No 1760/2000 — System for the identification and registration of bovine animals — Ear tags)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/11

         Judgment of the Court (Second Chamber) of 18 July 2013 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — ‘Evita-K’ EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Sofia pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-78/12) (1)

   (Directive 2006/112/EC - Common system of value added tax - Supply of goods - Concept - Right to deduct - Refusal - Actual performance of a taxable transaction - Regulation (EC) No 1760/2000 - System for the identification and registration of bovine animals - Ear tags)
   2013/C 260/19
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Sofia-grad

      Parties to the main proceedings

      Applicant:‘Evita-K’ EOOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Sofia pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Re:

   Request for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Articles 14(1), 178(a), 185(1), 226(6) and 242 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right to deduct input VAT on the purchase of animals — Proof of actual delivery of the goods — Whether or not there is an obligation to indicate in the invoices the ear tags of animals subject to identification under EU veterinary legislation — Whether or not there is an obligation to prove the supplier’s ownership

      Operative part of the judgment

               1.

               Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in the context of the exercise of the right to deduct value added tax, the concept of ‘supply of goods’ for the purposes of that directive and evidence that such a supply has in fact been carried out are not linked to the form of the acquisition of a right of ownership of the goods concerned. It is for the referring court to carry out, in accordance with the national rules relating to evidence, an overall assessment of all the facts and circumstances of the dispute before it in order to determine whether the supplies of goods at issue in the main proceedings were actually carried out and whether, as the case may be, a right to deduct may be exercised on the basis of those supplies.

               2.

               Article 242 of Directive 2006/112 must be interpreted as meaning that it does not require taxable persons who are not agricultural producers to show in their accounts the subject-matter of the supplies of goods which they make, when animals are concerned, and to prove that those animals were subject to control in accordance with International Accounting Standard 41 ‘Agriculture’.

               3.

               Article 226(6) of Directive 2006/112 must be interpreted as meaning that it does not require a taxable person who carries out supplies of goods concerning animals, which are subject to the identification and registration system established by Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, to mention the ear tags of those animals on the invoices relating to those supplies.

               4.

               Article 185(1) of Directive 2006/112 must be interpreted as allowing a deduction of value added tax to be adjusted only if the taxable person concerned previously benefitted from a right to deduct that tax under the conditions laid down in Article 168(a) of that directive.

      (1)  OJ C 133, 5.5.2012.


title: Case T-222/13: Judgment of the General Court of 26 September 2014 — B&S Europe v Commission (Public service contracts — Call for tenders — Short-term services in the exclusive interest of third countries benefiting from European Union external aid — Rejection of the application — Selection criteria — Contracts divided into tranches — Reference project — Duty to state reasons — Principle of sound administration — Legitimate expectations — Principle of impartiality — Audi alteram partem rule)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/43

      Judgment of the General Court of 26 September 2014 — B&S Europe v Commission
      (Case T-222/13) (1)

      ((Public service contracts - Call for tenders - Short-term services in the exclusive interest of third countries benefiting from European Union external aid - Rejection of the application - Selection criteria - Contracts divided into tranches - Reference project - Duty to state reasons - Principle of sound administration - Legitimate expectations - Principle of impartiality - Audi alteram partem rule))
      (2014/C 395/53)
      Language of the case: French

         Parties

         Applicant: Business and Strategies in Europe (B&S Europe) SA (Brussels, Belgium) (represented by: L. Bihain and S. Pâques, lawyers)

         Defendant: European Commission (represented initially by A. Bordes and R. Tricot, and subsequently by R. Tricot, acting as Agents, assisted by A.-M. Vandromme and J. Stuyck, lawyers)

         Re:

      Application for annulment of the Commission decision, set out in its letters of 15 February and 2 April 2013, informing the applicant that it had not been included on the list of candidates invited to participate in the restricted call for tenders concerning lot 7 of the multiple framework contract for the provision of short-term services in the exclusive interest of third countries benefiting from European Union external aid (OJ 2012/S 105-174077).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Business and Strategies in Europe (B&S Europe) SA to pay the costs.

         (1)  OJ C 164 of 8.6.2014.


title: Judgment of the Court (Sixth Chamber) of 20 November 2003 in Case C-296/01: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Failure to transpose Directive 90/220/EEC — Genetically modified organisms)

text:
10.1.2004               EN                           Official Journal of the European Union                                                  C 7/9
                 JUDGMENT OF THE COURT                                       milk, heat-treated milk and milk-based products, as amended by
                                                                             Council Directive 94/71/EC of 13 December 1994, and Articles 28
                                                                             EC And 30 EC preclude national legislation such as that at issue in
                                                                             the main proceedings, which requires a use-by date of four days after
                          (Fifth Chamber)                                    preparation for high-temperature pasteurised milk.
                      of 13 November 2003                                    (1) OJ C 275 of 29.9.2001.
in Case C-294/01 (Reference for a preliminary ruling from
the Tribunale civile di Bologna): Granarolo SpA v Comune
                            di Bologna (1)
(Agriculture — Health rules for the production and placing
on the market of heat-treated milk — Free movement of                                         JUDGMENT OF THE COURT
goods — National law imposing a use-by date for high-
                  temperature pasteurised milk)
                                                                                (Sixth Chamber)
                           (2004/C 7/13)                                                           of 20 November 2003
                    (Language of the case: Italian)                          in Case C-296/01: Commission of the European Communi-
                                                                                ties v French Republic (1)
(Provisional translation; the definitive translation will be published       (Failure of a Member State to fulfil obligations — Failure to
                   in the European Court Reports)                            transpose Directive 90/220/EEC — Genetically modified
                                                                                organisms)
                                                                                (2004/C 7/14)
In Case C-294/01: Reference to the Court under Article 234
EC by the Tribunale civile di Bologna (Italy) for a preliminary                                  (Language of the case: French)
ruling in the proceedings pending before that court between
Granarolo SpA and Comune di Bologna, on the interpretation
of Council Directive 92/46/EEC of 16 June 1992 laying down                   (Provisional translation; the definitive translation will be published
the health rules for the production and placing on the market                                   in the European Court Reports)
of raw milk, heat-treated milk and milk-based products (OJ
1992 L 268, p. 1), as amended by Council Directive 94/71/EC
of 13 December 1994 (OJ 1994 L 368, p. 33), of Council
Directive 79/112/EEC of 18 December 1978 on the approxi-
mation of the laws of the Member States relating to the                      In Case C-296/01, Commission of the European Communities
labelling, presentation and advertising of foodstuffs (OJ 1979               (Agent: G. zur Hausen, assisted by M. van der Woude and V.
L 33, p. 1), as amended by Directive 97/4/EC of the European                 Landes) v French Republic (Agents: G. de Bergues and R.
Parliament and of the Council of 27 January 1997 (OJ 1997                    Loosli-Surrans): Application for a declaration that, by failing
L 43, p. 21), and of Council Directive 89/396/EEC of 14 June                 to transpose correctly and fully Articles 5(1) to (4), 6(2) and
1989 on indications or marks identifying the lot to which a                  (5), 9(3), 11(1), (2), (3) and (6), 12(3) and (4) and 19(2), (3)
foodstuff belongs (OJ 1989 L 186, p. 21), the Court (Fifth                   and (4) of Council Directive 90/220/EEC of 23 April 1990 on
Chamber), composed of: C.W.A. Timmermans, President of                       the deliberate release into the environment of genetically
the Fourth Chamber, acting as President of the Fifth Chamber,                modified organisms (OJ 1990 L 117, p. 15), as amended by
P. Jann and S. von Bahr (Rapporteur), Judges; P. Léger,                      Commission Directive 97/35/EC of 18 June 1997 adapting to
Advocate General; M.-F. Contet, Principal Administrator, for                 technical progress for the second time Directive 90/220 (OJ
the Registrar, has given a judgment on 13 November 2003, in                  1997 L 169, p. 72), the French Republic has failed to fulfil its
which it has ruled:                                                          obligations under that directive and Article 249 EC, the Court
                                                                             (Sixth Chamber), composed of: J.-P. Puissochet, President of
                                                                             the Chamber, R. Schintgen, V. Skouris, N. Colneric (Rappor-
                                                                             teur) and J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate
Council Directive 92/46/EEC of 16 June 1992 laying down the                  General; R. Grass, Registrar, has given a judgment on 20 Nov-
health rules for the production and placing on the market of raw             ember 2003, in which it:
 ---pagebreak--- C 7/10                  EN                          Official Journal of the European Union                                             10.1.2004
1.    Declares that, by failing to transpose Articles 5(1) to (4),          of the Fifth Chamber, D.A.O. Edward and A. La Pergola,
      11(1), (2) and (3) and 19(2) and (3) of Directive 90/220/             Judges; C. Stix-Hackl, Advocate General; L. Hewlett, Principal
      EEC of 23 April 1990 on the deliberate release into the               Administrator, for the Registrar, has given a judgment on
      environment of genetically modified organisms, as amended by          20 November 2003, in which it has ruled:
      Commission Directive 97/35/EC of 18 June 1997 adapting
      to technical progress for the second time Directive 90/220, the
      French Republic has failed to fulfil its obligations under that       1.   Article 13A(1)(c) of Sixth Council Directive 77/388/EEC of
      directive.                                                                 17 May 1977 on the harmonisation of the laws of the Member
                                                                                States relating to turnover taxes — Common system of value
2.    Dismisses the remainder of the application.                                added tax: uniform basis of assessment, is to be interpreted as
                                                                                meaning that the exemption from VAT under that provision
                                                                                applies to medical services consisting of:
3.    Orders the French Republic to pay the costs.
                                                                                —     conducting medical examinations of individuals for
                                                                                employers or insurance companies,
(1) OJ C 259 of 15.9.2001.
                                                                                —     the taking of blood or other bodily samples to test for the
                                                                                presence of viruses, infections or other diseases on behalf
                                                                                of employers or insurers, or
                                                                                —     certification of medical fitness, for example, as to fitness
                                                                                to travel,
                 JUDGMENT OF THE COURT                                           where those services are intended principally to protect the
                                                                                health of the person concerned.
                          (Fifth Chamber)                                   2.   The said exemption does not apply to the following services,
                                                                                performed in the exercise of the medical profession:
                      of 20 November 2003
                                                                                —     giving certificates as to a person’s medical condition for
                                                                                purposes such as entitlement to a war pension,
in Case C-307/01 (Reference for a preliminary ruling
from the Duties Tribunal, London): Peter d’Ambrumenil,
                                                                                —     medical examinations conducted with a view to the
Dispute Resolution Services Ltd v Commissioners of
                                                                                preparation of an expert medical report regarding issues of
                      Customs and Excise (1)
                                                                                liability and the quantification of damages for individuals
                                                                                contemplating personal injury litigation,
(Sixth VAT Directive — Exemption for medical care provided
 in the exercise of the medical and paramedical professions)                     —     the preparation of medical reports following examinations
                                                                                referred to in the previous indent and medical reports
                                                                                based on medical notes without conducting a medical
                            (2004/C 7/15)                                              examination,
                    (Language of the case: English)                              —     medical examinations conducted with a view to the
                                                                                preparation of expert medical reports regarding pro-
                                                                                fessional medical negligence for individuals contemplating
                                                                                litigation,
In Case C-307/01: Reference to the Court under Article 234                       —     the preparation of medical reports following examinations
EC by the VAT and Duties Tribunal, London (United Kingdom),                            referred to in the previous indent and medical reports
for a preliminary ruling in the proceedings pending before that                        based on medical notes without conducting a medical
tribunal between Peter d’Ambrumenil, Dispute Resolution                                examination.
Services Ltd and Commissioners of Customs and Excise, on
the interpretation of Article 13A(1)(c) of Sixth Council Direc-
tive 77/388/EEC of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes —                      (1) OJ C 317 of 10.11.2001.
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1), the Court (Fifth Chamber),
composed of: A. Rosas (Rapporteur), acting for the President


title: Case F-18/12: Action brought on 9 February 2012 — ZZ and ZZ v Commission

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/34

         Action brought on 9 February 2012 — ZZ and ZZ v Commission
   (Case F-18/12)
   2012/C 138/78
   Language of the case: French

      Parties

      Applicants: ZZ and ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, É. Marchal and S. Orlandi, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decisions transferring pension rights acquired before entry into Commission service on the basis of the re-calculated PMO proposal.

      Form of order sought

               —

               Annul the decisions annulling and replacing the proposals for transfer of the applicants’ pension rights pursuant to their application under Article 11(2) of Annex VIII to the Staff Regulations, which contain a new proposal calculated on the basis of the general implementing provisions adopted on 3 March 2011;

               —

               Order the Commission to pay the costs.


title: Case F-24/09: Order of the Civil Service Tribunal of 13 February 2012 — Wagner-Leclercq v Council

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/39

         Order of the Civil Service Tribunal of 13 February 2012 — Wagner-Leclercq v Council
   (Case F-24/09) (1)

   2012/C 138/93
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 113, 16.5.2009, p. 47.


title: Case T-386/10: Action brought on 8 September 2010 — Dornbracht v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/44

         Action brought on 8 September 2010 — Dornbracht v Commission
   (Case T-386/10)
   ()
   2010/C 301/71
   Language of the case: German

      Parties

      Applicant: Aloys F. Dornbracht GmbH & Co KG (Iserlohn, Germany) (represented by: H. Janssen, T. Kapp and M. Franz, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the contested decision, in so far as it concerns the applicant;

               —

               In the alternative, reduce the fine imposed on the applicant in the contested decision;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   The applicant contests Commission Decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom fittings and fixtures. The decision imposed fines on the applicant and other undertakings on account of the infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicant took part in a long-lasting agreement or concerted practices in the bathroom fittings and fixtures sector in Germany and Austria.
   In support of its claim, the applicant relies on eight pleas in law.
   First, the applicant claims that there has been an infringement of Article 23(2) of Regulation (EC) No 1/2003, (1) because the defendant did not take into account a number of mitigating circumstances in the applicant’s favour.
   Second, the applicant claims that there has been an infringement of Article 23(3) of Regulation No 1/2003, because the defendant, by interpreting the second sentence of Article 23(2) of that regulation as a cap, prevented itself from assessing the gravity of the infringement of which the applicant was accused.
   Third, the applicant claims that the principle of equal treatment has not been observed because the defendant, by fixing general amounts, failed to take into account the applicant’s individual contribution to the act.
   Fourth, the applicant claims that when setting the level of the fine, the defendant failed to assess the infringement in proportion to infringements in other cases decided by it, and therefore failed to observe the principle of equal treatment.
   Fifth, the applicant complains that the level of the fine is disproportionate because the defendant failed to take into account the applicant’s limited capacity to participate.
   Sixth, the applicant complains that, in so far as the defendant calculated the fines on the basis of its 2006 Guidelines on fines, (2) the contested decision failed to comply with the prohibition on retroactive effect.
   Seventh, the applicant claims that Article 23(3) of Regulation No 1/2003 infringes the principle of legal certainty.
   Finally, the applicant claims that the fixing of the fine was unlawful because the fine was calculated on the basis of guidelines on fines which give the defendant too much discretion.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

      (2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).


title: Judgment of the Court of First Instance of 21 April 2004 in Case T-127/02: Concept-Anlagen u. Geräte nach ‘GMP’ für Produktion u. Labor GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Figurative mark containing the word element ‘ECA’ — Absolute ground for refusal — Emblem of an international intergovernmental organisation — Article 7(1)(h) of Regulation (EC) No 40/94 — Article 6 ter of the Paris Convention)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/37

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 21 April 2004
   in Case T-127/02: Concept-Anlagen u. Geräte nach ‘GMP’ für Produktion u. Labor GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Figurative mark containing the word element ‘ECA’ - Absolute ground for refusal - Emblem of an international intergovernmental organisation - Article 7(1)(h) of Regulation (EC) No 40/94 - Article 6 ter of the Paris Convention)
   (2004/C 118/79)
   Language of the case: German
   In Case T-127/02: Concept-Anlagen u. Geräte nach ‘GMP’ für Produktion u. Labor GmbH, established in Heidelberg (Germany), represented by G. Hodapp, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider) – action brought against the decision of the Second Board of Appeal of OHIM of 18 February 2002 (Case R 466/2000-2) on the application for registration of a figurative mark containing the word element ‘ECA’ as a Community trade mark – the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; Registrar, J. Plingers (Administrator), gave a judgment on 21 April 2004, in which it:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 144 of 15.6.2002


title: Case C-134/14: Action brought on 21 March 2014 — European Commission v Council of the European Union

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/26

         Action brought on 21 March 2014 — European Commission v Council of the European Union
   (Case C-134/14)
   2014/C 175/32
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: R. Lyal, W. Mölls, and D. Martin, acting as Agents)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Directive 2013/62/EU of 17 December 2013 amending Directive 2010/18/EU implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC, following the amendment of the status of Mayotte with regard to the European Union (1);

               —

               Maintain the effects of Directive 2013/62/EU until such time as a new directive founded on an appropriate legal basis enters into effect;

               —

               Order the Council of the European Union to pay the costs.

      Pleas in law and main arguments

   The Commission seeks the annulment of Directive 2013/62/EU, which the Council adopted on the legal basis of Article 349 TFEU.
   The Commission alleges that the Council adopted that directive when it had proposed to base that act on a sectoral legal basis, namely Article 155(2) TFEU.
   It considers that, in accordance with the purpose and aim of the contested directive, Article 349 TFEU cannot validly be used as a legal basis. Article 349 TFEU only applies when derogating from the principle of the application of primary law to the outermost regions, as established in Article 355(1) TFEU. However, the directive in question, if it is not to derogate from the Treaties, only adapts the secondary law in order to respond to the situation created by the change in status of Mayotte. That interpretation is supported not only by the wording of Article 349 TFEU, but also by the system of legal bases of the Treaty and by the historical origins of that article.

      (1)  OJ 2013 L 353, p. 7.


title: Case C-168/15: Request for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 14 April 2015 — Milena Tomášová v Slovenská republika — Ministerstvo spravodlivosti SR, Pohotovosť, s.r.o.

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/3

         Request for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 14 April 2015 — Milena Tomášová v Slovenská republika — Ministerstvo spravodlivosti SR, Pohotovosť, s.r.o.
   (Case C-168/15)
   (2015/C 245/04)
   Language of the case: Slovak

      Referring court

   Okresný súd Prešov

      Parties to the main proceedings

      Applicant: Milena Tomášová

      Defendants: Slovenská republika — Ministerstvo spravodlivosti SR,
   Pohotovosť, s.r.o.

      Intervener in support of the applicant: Združenie na ochranu spotrebiteľa HOOS

      Questions referred

               1.

               Is there a serious breach of EU law if, in an enforcement procedure carried out on the basis of an arbitration award, performance of an unfair term is enforced, contrary to the case-law of the Court of Justice of the European Union?

               2.

               May liability of a Member State for a breach of Community law arise before a party to proceedings has used all legal remedies available in the legal order of the Member State in proceedings for enforcement of an award? In the light of the facts of the case, may that liability of a Member State arise in the present case before the actual conclusion of the proceedings for enforcement of the award and before exhaustion of the applicant’s possibility of requiring an account for unjust enrichment?

               3.

               If so, is the conduct of an authority as described by the applicant, in the light of the particular facts and in particular of the absolute inactivity of the applicant and the non-exhaustion of all legal remedies made available by the law of the Member State, a sufficiently clear and serious breach of Community law?

               4.

               If there is a sufficiently serious breach of Community law in the present case, does the sum claimed by the applicant represent damage for which the Member State is liable? Is it possible for the damage as so understood to be equated with the debt collected which constitutes unjust enrichment?

               5.

               Does accounting for unjust enrichment, as a legal remedy, have priority over compensation for damage?


title: Case C-532/11: Reference for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 19 October 2011 — Susanne Leichenich v Ansbert Peffekoven, Ingo Horeis

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/28

      Reference for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 19 October 2011 — Susanne Leichenich v Ansbert Peffekoven, Ingo Horeis
      (Case C-532/11)
      (2012/C 25/50)
      Language of the case: German

         Referring court

      Oberlandesgericht Köln

         Parties to the main proceedings

         Applicant: Susanne Leichenich

         Defendant: Ansbert Peffekoven, Ingo Horeis

         Questions referred

                  1.

                  Is Article 13(B)(b) of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes, to be interpreted as meaning that the concept of the leasing or letting of immovable property covers the letting of a houseboat, including the mooring place and landing stage belonging to it, which is designed exclusively for stationary long-term use as a discotheque/restaurant establishment at a demarcated and identifiable mooring place on the water? Does the reply depend on the means whereby the houseboat is attached to the land or on the cost of removing the fastenings of the boat?

                  2.

                  If the answer to the first question in question 1 above is in the affirmative: Is Article 13(B)(b) of the Sixth Council Directive 77/388/EEC of 17 May 1977 to be interpreted as meaning that the term ‘vehicles’ which, according to the judgment in Case C-428/02 Fonden Marselisborg Lystbådehavn, includes boats, is not applicable to a leased houseboat which has no means of self-propulsion (engine) and which has been let for exclusive long-term use at the locality in question and not for the purpose of locomotion? Does the letting of the houseboat and the landing stage, including the areas of land and water on which they are situated, constitute a single tax-free service or is it necessary to differentiate for VAT purposes between the letting of the houseboat and that of the landing stage?

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


title: Case T-352/06: Action brought on 5 December 2006 — Dura Vermeer Infra v Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/21

         Action brought on 5 December 2006 — Dura Vermeer Infra v Commission
   (Case T-352/06)
   (2007/C 20/31)
   Language of the case: Dutch
   Parties

      Claimant: Dura Vermeer Infra BV (represented by: M.M. Slotboom, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Articles 1(d) and 2(d) of the decision in so far as the liability of Dura Vermeer Infra is concerned; and

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The claimant is challenging the Commission's decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), by which a fine was imposed on the claimant for breach of Article 81 EC.
   In support of its application, the claimant invokes the same pleas in law and arguments as does the claimant in Case T-351/06 Dura Vermeer Groep NV v Commission.


title: Action brought on 20 September 2001 by Japan Tobacco Inc. and JT International S.A. against the Council of the European Union and the European Parliament (Case T-223/01)

text:
C 3/32                 EN                       Official Journal of the European Communities                                          5.1.2002
      ORDER OF THE COURT OF FIRST INSTANCE                                 Ferroatlántica, established in Madrid, represented by D. Voille-
                                                                           mot and O. Prost, avocats, against Commission of the Euro-
                         of 10 July 2001                                   pean Communities (Agents: V. Kreuschitz, S. Meany and
                                                                           A.P. Bentley) — application for the amendment of the
                                                                           operative part of the order of the President of the Court of
in Case T-191/00: Werner F. Edlinger v Commission of                       First Instance of 1 August 2001 in Case T-132/01 R Euroalliag-
                the European Communities (1)                               es and Others v Commission, not yet published in the ECR —
                                                                           the President of the Court of First Instance made an order on
(Action for failure to act — Actionable omissions —                        12 September 2001, the operative part of which is as follows:
                         Inadmissibility)
                          (2002/C 3/55)                                    1.    The application is dismissed.
                  (Language of the case: German)                           2.    The costs are reserved.
In Case T-191/00, Werner F. Edlinger, resident in Vienna,
represented by F. Frisch, lawyer, against the Commission of
the European Communities (Agents: U. Wölker and C. Laden-
burger) — application for a declaration that the Commission
unlawfully failed to act in relation to measures taken on
31 January 2000 against the Republic of Austria by the Heads
of State or Government of the fourteen other Member States
of the European Union — the Court of First Instance (Fourth                Action brought on 20 September 2001 by Japan Tobacco
Chamber), composed of P. Mengozzi, President and V. Tiili                  Inc. and JT International S.A. against the Council of the
and R. M. Moura Ramos, Judges; Registrar H. Jung, made an                         European Union and the European Parliament
order on 10 July 2001, the operative part of which is the
following:
                                                                                (Case T-223/01)
1)   The case is dismissed as inadmissible.
                                                                                (2002/C 3/57)
2)   The applicant is ordered to pay the costs.
                                                                                (Language of the case: English)
(1) OJ C 285 of 7.10.2000.
                                                                           An action against the Council of the European Union and the
                                                                           European Parliament was brought before the Court of First
                                                                           Instance of the European Communities on 20 September 2001
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               by Japan Tobacco Inc. and JT International S.A., represented
                           INSTANCE                                        by Mr Onno Brouwer and Mr Paul Lomas of Freshfields
                                                                           Bruckhaus Deringer, London (United Kingdom)
                     of 12 September 2001
in Case T-132/01 R: Euroalliages and Others v Com-                         The applicants claim that the Court should:
           mission of the European Communities
(Application for interim measures — Article 108 of the                     —     annul Article 7 of the Directive in its entirety; alternatively
                       Rules of Procedure)
                                                                           —     annul Article 7 of the Directive to the extent that it
                          (2002/C 3/56)                                          precludes the applicants from using their trade mark
                                                                                MILD SEVEN within the European Union; and
                   (Language of the case: French)
                                                                           —     order that, pursuant to Article 87 of the Rules of
                                                                                Procedure of the Court of First Instance, the European
In Case T-132/01 R: Euroalliages, established in Brussels,                       Parliament and/or the Council of the European Union
Péchiney électrométallurgie, established in Courbevoie                           pay the costs of these proceedings, including those of the
(France), Vargön Alloys AB, established in Vargön (Sweden),                      applicants and any third parties.
 ---pagebreak--- 5.1.2002               EN                     Official Journal of the European Communities                                           C 3/33
Pleas in law and main arguments                                          Action brought on 24 September 2001 by Houghton
                                                                         Durferrit GmbH against the Office for Harmonisation in
                                                                                the Internal Market
The Applicants are the owner and the licensee of the trade
                                                                                (Case T-224/01)
mark ‘MILD SEVEN’, used as a cigarette brand worldwide and
protected as intellectual property. The Applicants fear that the
prohibition, against using descriptors indicating that a tobacco                                   (2002/C 3/58)
product is less harmful than others, contained in Article 7 of
Directive 2001/37, will deprive the Applicants of the possi-
bility of marketing their brand ‘MILD SEVEN’ in the European                               (Language of the case: English)
Union.
                                                                         An action against the Office for Harmonisation in the Internal
In support of their application, the Applicants claim that there         Market was brought before the Court of First Instance of the
is no sufficient legal basis for the adaptation of Article 7 of the      European Communities on 24 September 2001 by Houghton
Directive. The Directive in question is based on Articles 95             Durferrit GmbH, represented by Ms Patricia Koch Moreno of
and 133 of the EC Treaty. Neither of them provides, according            Madrid (Spain). Kolone Corporation was also a party to the
to the Applicants, a sufficient basis for Article 7 of this              proceedings before the Board of Appeal
Directive. Article 133 does not apply since the common
commercial policy has no relevance to Article 7. Article 95 EC
Treaty does not provide a legal basis either since there is no           The applicant claims that the Court should:
need to harmonise legislation on this point for the establish-
ment of the internal market. According to the Applicants,                —     declare invalid the Decision no. 949/1999 dated 15 Octo-
there is no barrier to trade that needs to be removed. Further,                ber 1999 of the Opposition Division of the Office for
the Applicants claim that Article 7 of the Directive violates                  Harmonisation in the Internal Market in opposition
Article 152(4)(c) EC Treaty. According to the Applicants,                      procedure B4905, and the decision of the First Board of
Article 95 EC Treaty is being used as a legal basis for the                    Appeal dated 6 July 2001 that dismissed the remedy
circumvention of the prohibition contained in Article 152(4)(c)                of Appeal filed by the applicant against the previous
EC Treaty to harmonise legislation designed to protect and                     resolution
improve human health.
                                                                         —     declare incompatible the Community trade mark filed by
                                                                               Kolene Corporation, no. 40.568 NU-TRIDE, in classes 1
                                                                               and 40, on the grounds of its incompatibility with the
The Applicants also claim that Article 7 of the Directive                      earlier trade mark belonging to the applicant,
violates their right to property and the principle of pro-                     no. 764.560, in classes 1, 7 and 11
portionality since it would deprive the Applicants of the use
of their trade mark in the European market. According to the             —     refuse the registration of Community trade mark
Applicants, Article 7 is not an appropriate means by which to                  no. 40.568 NU-TRIDE in classes 1 and 40
attain the objective of this Article, which is to promote health
and consumer protection. The Applicants claim that the use               —     order payment of the costs of these proceedings by
of descriptors provides the consumer with information that                     the holder of the foregoing Community trade mark
allows him to choose to smoke cigarettes with a lower tar and                  application, Kolene Corporation.
nicotine content. Article 7 is in any event not the least
restrictive method, since provision could have been made for
the protection of existing trade marks.
                                                                         Pleas in law and main arguments
The Applicants claim further that Article 7 of the Directive             Applicant for the Com-         Kolone Corporation
violates the principle of equal treatment. The Applicants make           munity trade mark:
clear that they are the only tobacco producers in the European
Union who would be deprived of the use of a brand as a                   The Community trade            Verbal mark ‘NU-TRIDE’ —
consequence of Article 7 of the Directive.                               mark concerned:                Application no. 40.568, relating
                                                                                to goods in classes 1 and 40
                                                                                (chemicals for use in the treatment
                                                                                of metals and metal treatment)
Finally, the Applicants submit that the grounds upon which
Article 7 of the Directive is based are insufficient.                    Proprietor of the right to     The Applicant
                                                                         the trade mark or sign
                                                                         asserted by way of oppo-
                                                                         sition in the opposition
                                                                         proceedings:


title: Case C-44/13: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 28 January 2013 — Hauptzollamt Krefeld v Rhein-Ruhr Beschichtungs-Service GmbH

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/10

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 28 January 2013 — Hauptzollamt Krefeld v Rhein-Ruhr Beschichtungs-Service GmbH
   (Case C-44/13)
   2013/C 123/15
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Defendant and appellant: Hauptzollamt Krefeld

      Applicant and respondent: Rhein-Ruhr Beschichtungs-Service GmbH

      Question referred

   Does Article 2(3) of Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity, (1) in relation to the taxation of energy products other than those for which a level of taxation is specified in the Directive, require the application of a rate of tax which national law specifies for the use of an energy product as heating fuel, provided that that other energy product is also used as heating fuel? Or, in cases where the other energy product — in circumstances where it is used as heating fuel — is equivalent to a particular energy product, can the rate of tax specified by national law for this energy product be applied, even in the case where the rate of tax is the same irrespective of whether it is being used as motor fuel or as heating fuel?

      (1)  OJ 2003 L 283, p. 51.


               20.11.2010

               EN

               Official Journal of the European Union

               C 317/3

         Appointment of the First Advocate General
   2010/C 317/05
   The Court of Justice appointed Mr Bot as First Advocate General for a period of one year expiring on 6 October 2011, pursuant to the third subparagraph of Article 10(1) of the Rules of Procedure.


title: Case T-607/11: Action brought on 30 November 2011 — Henkel and Henkel France v Commission

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/64

      Action brought on 30 November 2011 — Henkel and Henkel France v Commission
      (Case T-607/11)
      (2012/C 25/123)
      Language of the case: English

         Parties

         Applicants: Henkel AG & Co. KGaA (Düsseldorf, Germany), Henkel France (Boulogne-Billancourt, France) (represented by: R. Polley, T. Kuhn, F. Brunet and E. Paroche, lawyers)

         Defendant: European Commission

         Form of order sought

                  —

                  annul the Commission’s decision of 30 September 2011 not to transfer fifteen documents produced in the Case COMP/39.579 (consumer detergents) to the French Competition Authority;

                  —

                  order that the Commission allows the applicants to rely on the requested documents in the ongoing proceedings before the Authority;

                  —

                  order the Commission to pay the applicants’ legal and other costs and expenses incurred in relation to the present application; and

                  —

                  take any other measures that the General Court considers appropriate.

         Pleas in law and main arguments

      The action contains one plea. According to this single plea, the Commission unlawfully dismissed the French Competition Authority’s request to transfer the requested fifteen documents and thereby infringed its duties under Article 4(3) of the Treaty on European Union and the applicants’ fundamental rights of defense and the principle of equality of arms.


title: Judgment of the Court (First Chamber) of 10 March 2005 in Case C-336/03 Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division: easyCar (UK) Ltd v Office of Fair Trading (Protection of consumers in respect of distance contracts — Directive 97/7/EC — Contracts for the provision of transport services — Meaning — Contracts for car hire)

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/4

      JUDGMENT OF THE COURT

   (First Chamber)
   of 10 March 2005
   in Case C-336/03 Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division: easyCar (UK) Ltd v Office of Fair Trading (1)

   (Protection of consumers in respect of distance contracts - Directive 97/7/EC - Contracts for the provision of transport services - Meaning - Contracts for car hire)
   (2005/C 115/08)
   Language of the case: English
   In Case C-336/03: reference for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division (United Kingdom), made by decision of 21 July 2003, received at the Court on 20 July 2003, in the proceedings pending before that court between easyCar (UK) Ltd and Office of Fair Trading — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, J.N. Cunha Rodrigues, K. Schiemann and M. Ilešič (Rapporteur), Judges; C. Stix-Hackl, Advocate General, K. Sztranc, Administrator, for the Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:
   Article 3(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts is to be interpreted as meaning that ‘contracts for the provision of transport services’ includes contracts for the provision of car hire services.

      (1)  OJ C 226 of 20.09.2003.


title: Removal from the register of Case C-100/94

text:
No C 137/ 16          EN                  Official Journal of the European Communities                                    3 . 6 . 95
      Removal from the register of Case C-l 00/94 ( )                      Removal from the register of Case C-176/94 f 1 )
                          ( 95/C 137/37 )                                                      ( 95/C 137/38 )
By order of 9 March 19 95 the President of the Court of
Justice of the European Communities ordered the removal              By order of 1 March 1995 the President of the Court of
from the register of Case C-l 00/94 : Commission of the              Justice of the European Communities ordered the removal
European Communities v. Hellenic Republic .                          from the register of Case C-176/94 : Commission of the
                                                                     European Communities v. Grand Duchy of Luxembourg.
(») OJ No C 132 , 14 . 5 . 1994 .
                                                                     (') OJ No C 218 , 6 . 8 . 1994 .
                                                    COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                             the Paris Bar, with an address for service in Luxembourg at
                        of 6 April 1995                              the Chambers of Elvinger and Hoss , 15 Cote d'Eich,
                                                                     T-93/89 , Den Norske Stats Oljeselskap AS ( Statoil ), whose
in Joined Cases T-80/89, T-81 /89, T-83/89, T-87/89,                 registered office is in Stavanger (Norway ), represented by
T-88/ 89 , T-90/89 , T-93 /89 , T-95 / 89 , T-97/89 , T-99/89,       Graham Child , Solicitor, with an address for service in
T-100/89, T-101 /89, T-103/89, T-105/89, T-107/89 and
T-l 12/ 89 : BASF AG and Others v. Commission of the
                                                                     Luxembourg at the Chambers of Elvinger and Hoss, 15
                                                                     Cote d'Eich, T-95/89 , Enichem SpA, whose registered office
                 European Communities (')                            is in Milan ( Italy ), represented by Mario Siragusa, of the
(Competition — Procedure — Competence                       —        Rome Bar, Giuseppe Scassellati Sforzolini, of the Bologna
              Commission 's rules of procedure)                      Bar, and Gianfranco Arcidiacono, of the Milan Bar, with an
                          ( 95/C 137/39 )                            address for service in Luxembourg at the Chambers of
                                                                     Arendt and Medernach, 8—10 Rue Mathias Hardt,
                                                                     T-97/89 , Hoechst AG , whose registered office is in
(Languages of the case: German, English, Spanish , French,           Frankfurt-am-Main ( Germany), represented by Hans
                      Italian and Dutch)
                                                                     Hellmann and Hans-Joachim Voges, Rechtsanwalte,
                                                                     Cologne , with an address for service in Luxembourg at the
In Joined Cases T-80/89 , BASF AG, whose registered office           Chambers of Loesch & Wolter, 11 Rue Goethe, T-99/89 ,
is in Ludwigshafen ( Germany ), represented by Ferdinand             Imperial Chemical Industries pic ( ICI ), whose registered
Hermanns and Karl Kaiser, Rechtsanwalte, Diisseldorf,                office is in London, represented by David Vaughan QC and
with an address for service in Luxembourg at the Chambers            David Anderson, Barrister, of the Bar of England and Wales,
of Loesch & Wolter, 11 Rue Goethe, T-81 /89 , Monsanto               instructed by Victor White , Richard Coles and Andrew
Company, whose registered office is in St Louis , Missouri           Ransom, Solicitors, with an address for service in
( United States of America ), represented by Clive Stanbrook         Luxembourg at the Chambers of Dupong and Konsbruck,
QC and John Ratliff, Barrister, of the Bar of England and            14A Rue des Bains , T-100/89 , Neste Oy, whose registered
Wales , with an address for service in Luxembourg at the             office is in Espoo ( Finland ), represented by Georges van
Chambers of Arsene Kronshagen, 12 Boulevard de la Foire,             Hecke, Avocat with right of audience before the Belgian
T-83/89 , NV DSM and DSM Kunststoffen BV, whose                      Court of Cassation, and Gerwin Van Gerven, of the Brussels
registered offices are in Heerlen ( Netherlands ), represented       Bar, with an address for service in Luxembourg at the
by Inne G. F. Cath, of the Hague Bar, with an address for            Chambers of Freddy Brausch, 11 Rue Goethe, T-101 /89 ,
service in Luxembourg at the Chambers of Dupong and                  Repsol Quimica SA, whose registered office is in Madrid ,
Konsbruck, 14A Rue des Bains, T-87/89 , Orkem SA, whose              represented by Jose Perez Santos , of the Madrid Bar, with an
registered office is in Paris, represented by Dominique              address for service in Luxembourg at the Chambers of
Voillemot and Joelle Salzmann, of the Paris Bar , with an            Ernest Arendt, 8—10 Rue Mathias Hardt, T-103/89 , Shell
address for service in Luxembourg at the Chambers of                 International Chemical Company Ltd, whose registered
Loesch & Wolter, 11 Rue Goethe, T-88/89 , Bayer AG,                  office is in London, represented by Kenneth Parker QC , of
whose registered office is in Leverkusen ( Germany ),                the Bar of England and Wales, instructed by John Osborne,
represented by Oliver Axster and Holger Wissel,                      Solicitor, with an address for service in Luxembourg at the
Rechtsanwalte , Diisseldorf, Michel Waelbroeck, Denis                Chambers of Elvinger and Hoss, 15 Cote d'Eich, T-105/89 ,
Waelbroeck and Alexandre Vandencasteele, of the Brussels             Montedison SpA, whose registered office is in Milan ( Italy ),
Bar, with an address for service in Luxembourg at the                represented by Giuseppe Celona, Avvocato with right of
Chambers of Loesch & Wolter, 11 Rue Goethe, T-90/89 ,                audience before the Italian Court of Cassation, Giorgio
Atochem SA, whose registered office is in Puteaux ( France ),        Aghina, of the Milan Bar, and Piero Ferrari,, of the Rome
represented by Xavier de Roux and Charles-Henri Leger, of            Bar, with an address for service in Luxembourg at the


title: JUDGMENT OF THE COURT 14 December 1995 in Case C-444/93(reference for a preliminary ruling from the Sozialgericht Speyer): Ursula Megner and Hildegard Scheffel v. Innungskrankenkasse Vorderpfalz, now Innungskrankenkasse Rheinhessen-Pfalz (Equal treatment for men and women in matters of social security - Article 4 (1) of Directive 79/7/EEC - Minor and short-term employment - Exclusion from compulsory old-age insurance and sickness insurance and from the obligation to pay unemployment insurance contributions)

text:
No C 64/2             EN                   Official Journal of the European Communities                                         2 . 3 . 96
Article 4 (1 ) of Council Directive 79/7/EEC of 19 December                 national market for products from other Member States
1978 on the progressive implementation of the principle of                  or does not impede such access more than it impedes
equal treatment for men and women in matters of social                      access for domestic products within the distribution
security must be interpreted as not precluding national                     network, does not fall within the scope of Article 30 of
provisions under which employment regularly consisting of                   the EC Treaty;
fewer than 15 hours ' work a week and regularly attracting
remuneration of up to one-seventh of the average monthly              3 . Articles 5, 90 and 86 of the EC Treaty do not preclude
salary is excluded from the statutory old-age insurance                     national legislation, such as that in force in Italy, from
scheme, even where they affect considerably more women                      reserving the retail sale of manufactured tobacco
than men, since the national legislature was reasonably                     products to distributors who have been authorized by
entitled to consider that the legislation in question was                   the State;
necessary in order to achieve a social policy aim unrelated to
any discrimination on grounds of sex.                                 4 . Article 30 of the EC Treaty does not preclude national
                                                                            legislation, such as that in force in Italy, from penalizing
(!) OJ No C 205 , 29 . 7 . 1993 .                                           as a smuggling offence the unlawful possession by a
                                                                            consumer of manufactured tobacco products from
                                                                            other Member States on which excise duty in accord
                                                                            with Community law has not been paid, where the retail
                                                                            sale of those products is, like the retail sale of identical
                                                                            domestic products, reserved to distributors authorized
                                                                            by the State.
               JUDGMENT OF THE COURT
                     of 14 December 1995                              ( 1 ) OJ No C 256 , 21 . 9 . 1993 .
in Case C-387/93 (reference for a preliminary ruling made
by the Pretura Circondariale di Genova): criminal
     proceedings against Giorgio Domingo Banchero ( 1 )
(Articles 5, 30, 37, 85, 86, 90, 92 and 95 of the EC
                                                                                JUDGMENT OF THE COURT
                               Treaty)
                                                                                14 December 1995
                           ( 96/C 64/03 )
                                                                      in Case C-444/93 (reference for a preliminary ruling from
                                                                      the Sozialgericht Speyer): Ursula Megner and Hildegard
                 (Language of the case: Italian)                      Scheffel v. Innungskrankenkasse Vorderpfalz, now
                                                                                Innungskrankenkasse Rheinhessen-Pfalz ( 1 )
(Provisional translation; the definitive translation will be          (Equal treatment for men and women in matters of social
         published in the European Court Reports)                     security — Article 4(1) ofDirective 79/7/EEC — Minor and
                                                                      short-term employment — Exclusion from compulsory
                                                                      old-age insurance and sickness insurance and from the
In Case C-387/93 : reference to the Court under Article 177
                                                                      obligation to pay unemployment insurance contributions)
of the EC Treaty by the Pretura Circondariale di Genova
                                                                                96/C 64/04
( District Magistrate's Court, Genoa ) ( Italy ), for a
preliminary ruling in the criminal proceedings before that
court against Giorgio Domingo Banchero — on the                                        (Language of the case: German)
interpretation of Articles 5 , 30, 37, 85 , 86 , 90, 92 and 95 of
the EC Treaty — the Court, composed of: G. C. Rodriguez                (Provisional translation; the definitive translation will be
Iglesias, President, D. A. O. Edward, J. -P. Puissochet                          published in the European Court Reports)
( Rapporteur) and G. Hirsch ( Presidents of Chambers ), G. F.
Mancini, F. A. Schockweiler, J. C. Moitinho de Almeida, P.            In Case C-444/93 : reference to the Court under Article 177
J. G. Kapteyn, C. Gulmann, J. L. Murray, for the Registrar,           of the EC Treaty from the Sozialgericht ( Social Court )
has given a judgment on 14 December 1995 , the operative              Speyer ( Germany ) for a preliminary ruling in the
part of which is as follows :                                         proceedings pending before that court between Ursula
                                                                      Megner and Hildegard Scheffel and Innungskrankenkasse
 1 . Article 37 ofthe EC Treaty has no relevance with regard          Vorderpfalz, now Innungskrankenkasse Rheinhessen-Pfalz,
     to national legislation, such as that in force in Italy,          supported by Landesversicherungsanstalt Rheinland-Pfalz,
                                                                       Bundesanstalt fur Arbeit and Firma G. F. Hehl & Co . — on
     which reserves the retail sale of manufactured tobacco
     products to distributors authorized by the State,                 the interpretation of Article 4 ( 1 ) of Council Directive
     provided that the State does not intervene in the                 79/7/EEC of 19 December 1978 on the progressive
     procurement choices of retailers;                                 implementation of the principle of equal treatment for men
                                                                       and women in matters of social security ( OJ No L 6 , 1979 ,
                                                                       p. 24 ) — the Court, composed of: G. C. Rodriguez Iglesias,
 2 . national legislation, such as that in force in Italy, which       President, C. N. Kakouris ( Rapporteur ), D. A. O. Edward
     reserves the retail sale of manufactured tobacco                  and G. Hirsch ( Presidents of Chambers ), F. A. Schockweiler,
     products, irrespective of their origin, to authorized             J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray, P.
     distributors but does not thereby bar access to the               Jann, H. Ragnemalm and L. Sevón, Judges; P. Leger,
 ---pagebreak--- 2 . 3 . 96           I EN 1                 Official Journal of the European Communities                                     No C 64/3
Advocate-General; D. Louterman-Hubeau, Principal                       ( Rapporteur), President of the Chamber, J. C. Moitinho de
Administrator, for the Registrar, has given a judgment on              Almeida, C. Gulmann, L. Sevon and M. Wathelet, Judges;
14 December 1995 , in which it rules :                                 C. O. Lenz, Advocate-General; R. Grass, Registrar, has
                                                                       given a judgment on 14 December 1995 , in which it:
Article 4 (1 ) of Council Directive 79/7/EEC of 19 December
1978 on the progressive implementation of the principle of             1 . declares that, by failing to bring into force all the laws,
equal treatment for men and women in matters of social                       regulations and administrative provisions necessary to
security must be interpreted as meaning that national                        comply with Council Directive 90/675/EEC of
provisions under which employment regularly consisting of                    10 December 1990 laying down the principles
fewer than 15 hours a week and regularly attracting                          governing the organization of veterinary checks on
remuneration ofup to one-seventh of the monthly reference                    products entering the Community from third countries,
amount is excluded from compulsory insurance under the                       Ireland has failed to fulfil its obligations under the first
statutory sickness and old-age insurance schemes, and                        subparagraph of Article 32 (1 ) of that Directive;
national provisions under which employment which tends
by its nature to be regularly limited to fewer than 1 8 hours a
week or is so limited in advance by a contract ofemployment            2 . orders Ireland to pay the costs.
is excluded from the obligation to contribute to the
statutory unemployment insurance scheme, do not                        •(>) OJ No C 174, 25 . 6 . 1994 .
constitute discrimination on grounds ofsex, even where the
relevant provisions affect considerably more women than
men, since the national legislature was reasonably entitled to
consider that the legislation in question was necessary jn
order to achieve a social policy aim unrelated to any
discrimination on grounds of sex.
(!) OJ No C 1 , 4 . 1 . 1994 .                                                         JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                                                                                of 14 December 1995
                                                                        in Case C-138/94 : Commission of the European
                                                                                Communities v. Ireland C )
                                                                        (Failure to fulfil obligations — Directive 91/496/EEC —
                                                                                Veterinary checks — Failure to transpose)
                                                                                ( 96/C 64/06 )
               JUDGMENT OF THE COURT
                         (Fifth Chamber)
                                                                                (Language of the case: English)
                      of 14 December 1995
in Case C-l 32/94: Commission of the European
                   Communities v. Ireland (^                            In Case C-138/94 : Commission of the European
 (Failure to fulfil obligations — Directive 90/675/EEC —                Communities ( Agents : Jose Luis Iglesias Buhigues and James
           Veterinary checks — Failure to transpose)                    Macdonald Flett ) v. Ireland ( Agent: Michael A. Buckley ) —
                                                                        application for a declaration that, by failing to bring into
                           ( 96/C 64/05                                 force the laws, regulations and administrative provisions
                                                                        necessary to comply with Council Directive 91 /496/EEC of
                                                                         15 July 1991 laying down the principles governing the
                (Language of the case: English)                         organization of veterinary checks on animals entering the
                                                                        Community from third countries and amending Directives
                                                                         89/662/EEC, 90/425/EEC and 90/675/EEC ( OJ No L 268 ,
 In Case C-l 32/94 : Commission of the European                          1991 , p. 56 ) and/or in failing to inform the Commission
 Communities ( Agents : Jose Luis Iglesias Buhigues and James           forthwith thereof, Ireland has failed to fulfil its obligations
 Macdonald Flett ) v. Ireland (Agent: Michael A. Buckley ) —            under that Directive, in particular Article 30 thereof, and
 application for a declaration that, by failing to bring into           under the Treaty establishing the European Community —
 force the laws, regulations and administrative provisions              the Court ( Fifth Chamber ), composed of: D. A. O. Edward
 necessary to comply with Council Directive 90/675/EEC of                ( Rapporteur ), President of the Chamber, J. C. Moitinho de
 10 December 1990 laying down the principles governing the              Almeida , C. Gulmann, L. Sevon and M. Wathelet, Judges;
 organization of veterinary checks on products entering the              C. O. Lenz, Advocate-General; R. Grass, Registrar, has
 Community from third countries ( OJ No L 373 , 1990, p. 1 )             given a judgment on 14 December 1995 , in which it:
 and/or by failing to inform the Commission forthwith
 thereof, Ireland has failed to fulfil its obligations under that
 Directive, in particular Article 32 thereof, and under the              1 . declares that, by failing to bring into force all the laws,
 Treaty establishing the European Community — the Court                       regulations and administrative provisions necessary to
 ( Fifth Chamber ), composed of: D. A. O. Edward                              comply with Council Directive 91 /496/EEC of 15 July


title: Order of the Court (Fourth Chamber) of 11 February 1999 in Case C-75/98 P: Mario Costacurta v. Commission of the European Communities (Officials - Decision reassigning an official - Article 7 of the Staff Regulations - Annex X to the Staff Regulations - Manifestly inadmissible and unfounded appeal)

text:
1.5.1999                 EN                     Official Journal of the European Communities                                            C 121/7
                  JUDGMENT OF THE COURT                                                        ORDER OF THE COURT
                           (Fifth Chamber)
                                                                                (Fourth Chamber)
                          of 4 March 1999
                                                                                of 11 February 1999
in Case C-87/97 (reference for a preliminary ruling from
the Handelsgericht Wien): Consorzio per la Tutela del
Formaggio Gorgonzola v. Käserei Champignon Hofmeis-                        in Case C-75/98 P: Mario Costacurta v. Commission of the
      ter GmbH & Co. KG, Eduard Bracharz GmbH (1)                                             European Communities (1)
(Articles 30 and 36 of the EC Treaty — Regulation (EEC)
No 2081/92 on the protection of geographical indications                   (Officials — Decision reassigning an official — Article 7 of
and designations of origin for agricultural products and                   the Staff Regulations — Annex X to the Staff Regulations
                              foodstuffs)                                       — Manifestly inadmissible and unfounded appeal)
                           (1999/C 121/12)                                                           (1999/C 121/13)
                   (Language of the case: German)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                           (Provisional translation; the definitive translation will be published
In Case C-87/97: reference to the Court under Article 177 of                                  in the European Court Reports)
the EC Treaty by the Handelsgericht Wien (Austria), for a
preliminary ruling in the proceedings pending before that
court between Consorzio per la Tutela del Formaggio Gorgon-                In Case C-75/98 P: Mario Costacurta, an official of the
zola and Käserei Champignon Hofmeister GmbH & Co. KG,                      Office for Official Publications of the European Communities,
Eduard Bracharz GmbH on the interpretation of Articles 30                  residing in Luxembourg, represented by Albert Rodesch, of the
and 36 of the EC Treaty — the Court (Fifth Chamber),                       Luxembourg Bar, with an address for service in Luxembourg
composed of: J.-P. Puissochet (Rapporteur), President of the               at the latter’s Chambers, 7-11 Route d’Esch — appeal against
Chamber, P. Jann, C. Gulmann, D. A. O. Edward and L.                       the judgment of the Court of First Instance of the European
Sevón, Judges; Advocate-General: F.G. Jacobs; L. Hewlett,                 Communities (Third Chamber) of 22 January 1998 in Case
Administrator, for the Registrar, has given a judgment on 4                T-98/96 Costacurta v. Commission [1998] ECR-SC II-49,
March 1999, in which it held that:                                         seeking to have that judgment set aside, the other party to
                                                                           the proceedings being the Commission of the European
                                                                           Communities (Agent: Gianluigi Valsesia, assisted by Denis
In the present state of Community law, the principle of the free           Waelbroeck and Olivier Speltdoorn) — the Court (Fourth
movement of goods does not preclude Member States from taking the          Chamber ), composed of: P. J. G. Kapteyn, President of the
measures incumbent upon them in order to ensure the protection of          Chamber, H. Ragnemalm (Rapporteur) and K. M. Ioannou,
designations of origin registered under Council Regulation (EEC)           Judges; P. Léger, Advocate-General; R. Grass, Registrar, has
No 2081/92 of 14 July 1992 on the protection of geographical               made an order on 11 February 1999, the operative part of
indications and designations of origin for agricultural products and       which is as follows:
foodstuffs. Use of a name such as ‘Cambozola’ may therefore be
deemed, for the purposes of Article 13(1) (b) of that Regulation, to
evoke the protected designation of origin ‘Gorgonzola’, irrespective of
the fact that the packaging indicates the product’s true origin. It is
for the national court to decide whether, on the facts, the conditions
laid down in Article 14(2) of Regulation (EEC) No 2081/92 allow            1. The appeal is dismissed.
use of an earlier trade mark to continue notwithstanding the
registration of the protected designation of origin ‘Gorgonzola’,
having regard in particular to the law in force at the time of             2. The appellant is to pay the costs.
registration could have been made in good faith, on the basis that use
of a name such as ‘Cambozola’ does not, per se, constitute an attempt
to deceive the consumer.
                                                                           (1) OJ C 166, 30.5.1998.
(1) OJ C 131, 26.4.1997.


title: Case C-171/02: Action brought on 8 May 2002 by the Commission of the European Communities against the Portuguese Republic

text:
13.7.2002               EN                   Official Journal of the European Communities                                      C 169/19
The Commission of the European Communities claims that                  Action brought on 8 May 2002 by the Commission of the
the Court should:                                                        European Communities against the Portuguese Republic
—     declare that, by failing to communicate measures trans-
      posing into national law the provisions of Directive                                       (Case C-171/02)
      1999/94/EC of the European Parliament and of the
      Council of 13 December 1999 relating to the availability
      of consumer information on fuel economy and CO2                                           (2002/C 169/36)
      emissions in respect of the marketing of new passenger
      cars (1), or at any rate by not informing the Commission
      fully thereof, the French Republic has failed to fulfil its
      obligations under that directive;
                                                                        An action against the Portuguese Republic was brought before
                                                                        the Court of Justice of the European Communities on 8 May
—     order the French Republic to pay the costs.                       2002 by the Commission of the European Communities,
                                                                        represented by Maria Patakia and António Caeiros, acting as
                                                                        Agents.
Pleas in law and main arguments
                                                                        The applicant claims that the Court should:
The time-limit for transposition expired on 18 January 2001.
                                                                        I.   Declare that:
(1) OJ L 12 of 18 January 2000, p. 16.
                                                                             1.   inasmuch as the system for issuing authorisations
                                                                                by the Ministro de Administração Interna requires
                                                                                that foreign undertakings, in the private security
                                                                                services sector, wishing to pursue in Portugal activi-
                                                                                ties in the security sector in respect of persons and
                                                                                property:
Reference for a preliminary ruling by the Oberster
Gerichtshof (Austria) by order of that Court of 9 April                           (a)   must have their main offices in or be estab-
2002 in the case of Rudolf Kronhofer against (1) Marianne                               lished in Portugal;
Maier, (2) Christian Möller, (3) Wirich Hofius and (4) Zeki
                               Karan
                                                                                (b) cannot rely on the guarantees already submit-
                          (Case C-168/02)                                               ted in their Member State of origin;
                         (2002/C 169/35)                                          (c)   must have legal personality;
                                                                                (d) must have a specific amount of capital;
Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof
                                                                             2.   inasmuch as the employees of foreign security
(Supreme Court) of 9 April 2002, received at the Court
                                                                                undertakings, in the private security services sector,
Registry on 6 May 2002, for a preliminary ruling in the case
                                                                                wishing to pursue in Portugal security services
of Rudolf Kronhofer against (1) Marianne Maier, (2) Christian
                                                                                activities in respect of persons and property must be
Möller, (3) Wirich Hofius and (4) Zeki Karan on the following
                                                                                in possession of an employer’s identity card issued
question:
                                                                                by the Portuguese authorities;
Is the expression ‘place where the harmful event occurred’
contained in Article 5(3) of the Convention on jurisdiction                  3.   inasmuch as work in the private security sector is not
and the enforcement of judgments in civil and commercial                          covered by the Community system of recognition of
matters of 27.9.1968 (‘the Convention’) to be construed in                        professional qualifications;
such a way that, in the case of purely financial damage arising
on the investment of part of the injured party’s assets, it also
encompasses in any event the place where the injured party is                the Portuguese Republic has failed to fulfil its obligations
domiciled if the investment was made in another Member                       under Articles 39, 43 and 49 of the EC Treaty and
State of the Community?                                                      Directive 92/51/EEC (1);
                                                                        II.  Order the Portuguese Republic to pay the costs.
 ---pagebreak--- C 169/20               EN                       Official Journal of the European Communities                                        13.7.2002
Pleas in law and main arguments                                            —     obligation on staff of foreign undertakings to be in
                                                                                possession of an employer’s identity card issued by the
                                                                                Portuguese authorities: in so far as Portuguese law
                                                                                requires that all employees of private security firms
                                                                                should obtain an authorisation from the Ministério da
—     requirement that foreign undertakings have their main                      Administração Interna in the form of an ‘employer’s
      offices in or be established in Portugal: although the                     identity card’ before pursuing an activity in Portugal and
      Portuguese authorities have interpreted their legislation                  that the legislation makes no provision for the Portuguese
      otherwise, the Commission remains convinced that                           authorities to take account of whether equivalent statu-
      Article 22(1) of Decree Law No 231/98 requires entities                    tory conditions have been fulfilled in the Member State
      established in other Member States to have their main                      of establishment, as well as of checks and verifications
      offices or a branch in Portugal if they wish to pursue, in                 already carried out there, the Commission takes the view
      Portugal, temporarily (under Article 49 EC), in the private                that the requirement of an ‘employer’s identity card’ is
      security sector, security activities in respect of persons and             both a barrier to the free movement of workers with
      property. Administrative considerations cannot justify a                   regard to the employees (Article 39 EC) and an obstacle
      derogation, on the part of a Member State, from the rules                  to the freedom to provide services with regard to their
      of Community law, particularly where such a derogation                     employer whose right to post members of his staff from
      has the effect of fettering exercise of one of the freedoms                the Member State of establishment is restricted (Article 49
      guaranteed by the Treaty.                                                  EC).
                                                                           —     the fact that pursuit of an activity in the private security
                                                                                sector is not covered by the Community system of
—     account taken by the Portuguese authorities of the                         recognition of professional qualifications: an activity in
      qualifications and guarantees already submitted by for-                    the private security sector may only be pursued in
      eign undertakings in their Member State of establishment:                  Portugal by staff employed on surveillance and escort,
      it is impossible to conclude from Article 24 of Decree                     personal defence and protection duties who have success-
      Law No 231/98 that the Portuguese authorities, when                        fully followed an approved compulsory training course
      assessing applications for authorisations, take account of                 according to the Portuguese provision. Furthermore,
      qualifications and guarantees submitted by the service                     access by such employees to those professional activities
      provider in respect of the pursuit of its activities in the                and their pursuit is only permitted to those holding an
      Member State of establishment.                                             employer’s identity card. That card essentially constitutes
                                                                                an attestation of competence within the meaning of the
                                                                                first indent of Article 1(1)(c) of Directive 92/51/EEC in
                                                                                that it certifies, according to Portuguese law, that its
                                                                                holder fulfilled all the statutory requirements, including
—     requirement that foreign undertakings have legal person-                   successful completion of tests of knowledge and physical
      ality: the requirement to become incorporated places at a                  skills, whose content and duration are fixed by statute,
      disadvantage any self-employed worker or any business                      and enables the holder to pursue an activity in the private
      person or individual established in another Member State                   security sector. Accordingly, private security services
      wishing to pursue an activity in the private security sector               constitute, in Portugal, a regulated profession within the
      in Portugal.                                                               meaning of Article 1(1)(e) in conjunction with the
                                                                                first indent of Article 1(1)(c) and Article 1(1)(f) of the
                                                                                abovementioned directive. Therefore, Portuguese legis-
                                                                                lation implementing Directive 92/51/EEC does not cover
                                                                                the professions falling within the scope of the private
                                                                                security sector which are thus not subject in Portugal to
—     requirement that foreign undertakings have a certain                       the provisions relating to the recognition of professional
      amount of capital: the Portuguese provision makes the                      qualifications provided for in the aforementioned direc-
      setting-up of a subsidiary or a branch in Portugal subject                 tive.
      to the condition that the foreign parent company should
      have capital in an amount that must not be less than that
      prescribed by the Portuguese measure. That condition is
      thus tantamount to indirect application of the treatment
      reserved by domestic law for primary businesses to a
      measure whereby an individual exercises the right of                 (1) Council Directive 92/51/EC of 18 June 1992 on a second general
      establishing a secondary presence. Such a condition                      system for the recognition of professional education and training
      prevents an economic operator from pursuing his activity                 to supplement Directive 89/48/EEC — OJ 1992 L 209, p. 25.
      throughout the Community with an amount of capital
      which complies with the legal requirements of the
      Member State in which the company was incorporated
      but which is less than that required in the Member State
      where that economic operator intends to set up a
      secondary establishment.


title: Case C-170/07: Action brought on 30 March 2007 — Commission of the European Communities v Republic of Poland

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/16

         Action brought on 30 March 2007 — Commission of the European Communities v Republic of Poland
   (Case C-170/07)
   (2007/C 183/26)
   Language of the case: Polish
   Parties

      Applicant: Commission of the European Communities (represented by: J. Hottiaux and K. Herrmann, acting as Agents)

      Defendant: Republic of Poland
   Form of order sought

               —

               declare that, by introducing a requirement for roadworthiness tests of imported second-hand vehicles prior to their registration whereas there is no such requirement in relation to domestic vehicles in the same circumstances, the Republic of Poland has failed to fulfil its obligations under Article 28 EC;

               —

               order the Republic of Poland to pay the costs.

         Pleas in law and main arguments
   Article 28 EC prohibits quantitative restrictions on imports between Member States and all measures having equivalent effect. According to the Court's case-law, in the absence of harmonisation ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions’.
   A measure having equivalent effect to a quantitative restriction constitutes an infringement of Article 28 EC unless it is justified on the basis of Article 30 EC or, in accordance with the Court's case-law, by mandatory requirements in the public interest.
   The Polish Law on Road Traffic imposes an obligation to carry out a roadworthiness test prior to the first registration of vehicles in Poland. Since new vehicles are exempted from that obligation, in practice only second-hand vehicles imported from other Member States are subject to mandatory roadworthiness tests prior to their registration in Poland. Consequently, that requirement constitutes a measure discriminating against vehicles imported from other Member States compared with domestic vehicles. Moreover, the above conclusion is supported by the fact that the Polish authorities charge for the roadworthiness tests carried out a significant fee almost twice as high as the fee for periodical tests for a domestic vehicle of the same category. In the Commission's view, the Polish authorities have not put forward a legitimate justification for such differentiation. In accordance with settled case-law, national provisions which impose additional costs on imported goods in comparison with similar domestic goods constitute a restriction on intra-Community trade for the purposes of Article 28 EC.
   In order to justify such a measure, the Member State must prove that it is necessary and proportionate to the objective pursued. In accordance with Article 30 EC, such a measure cannot constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
   In this regard, the Commission acknowledges that the fact that a vehicle has been used on the public highway since the last roadworthiness test may justify, on grounds of the protection of health and life of humans, a test carried out at the time of the vehicle's registration establishing that it has not been involved in an accident and is in a good mechanical condition. The Member States may therefore subject vehicles to roadworthiness tests prior to registration, provided however that such a requirement does not constitute arbitrary discrimination, that is to say it concerns both vehicles imported from other Member States and domestic vehicles in a similar position. However, if provisions of national law do not require roadworthiness tests for domestic vehicles submitted for registration in the same circumstances as vehicles imported from other Member States, such provisions must be found to constitute arbitrary discrimination.
   Furthermore, the Commission takes the view that the Polish provisions restricting intra-Community trade cannot be justified by the protection of health and life of humans, because they do not meet the requirement that they be necessary and proportionate.
   First, if the roadworthiness of a vehicle has been tested in one of the Member States, the principle of equivalence and of mutual recognition resulting from Article 3(2) of Directive 96/96/EC obliges all Member States to recognise a certificate issued in such circumstances as if they had issued it themselves. The Commission has to reject the argument of the Polish authorities that periodical roadworthiness tests carried out in another Member State are immaterial. In the Commission's view, marking in the registration documents the fact that the vehicle's registration has been cancelled is not intended to invalidate all roadworthiness tests and other certificates concerning the vehicle's mechanical state and, moreover, the cancellation of a vehicle's registration has nothing to do with its mechanical state. Second, selective checking would be more proportionate to safeguarding road safety, because it would concern only those vehicles imported from other Member States in relation to which there is reason to suppose that they endanger road safety or the environment. Third, the Commission does not agree with the Polish Government that roadworthiness tests are necessary for the identification of vehicles and the fight against crime. In the Commission's view, the carrying out of thorough roadworthiness tests which cost almost twice as much as periodical roadworthiness tests is not necessary for determining the category, sub-category, intended use or type of a vehicle. That information is usually already contained in the vehicle documents submitted to the Polish registration bodies. Fourth, the Commission rejects the Polish authorities' argument concerning the Vienna Convention. In the Commission's view, a lack of appropriate rules at international level has no effect on the Republic of Poland's obligations in relation to the Community.