title: Case C-429/14: Judgment of the Court (Third Chamber) of 17 February 2016 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — Air Baltic Corporation AS v Lietuvos Respublikos specialiųjų tyrimų tarnyba (Reference for a preliminary ruling — Air transport — Montreal Convention — Articles 19, 22 and 29 — Liability of air carrier in the event of delay in the international carriage of passengers — Contract of carriage concluded by the passengers’ employer — Damage caused by delay — Damage suffered by the employer)

text:
               25.4.2016

               EN

               Official Journal of the European Union

               C 145/9

         Judgment of the Court (Third Chamber) of 17 February 2016 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — Air Baltic Corporation AS v Lietuvos Respublikos specialiųjų tyrimų tarnyba
   (Case C-429/14) (1)

   ((Reference for a preliminary ruling - Air transport - Montreal Convention - Articles 19, 22 and 29 - Liability of air carrier in the event of delay in the international carriage of passengers - Contract of carriage concluded by the passengers’ employer - Damage caused by delay - Damage suffered by the employer))
   (2016/C 145/09)
   Language of the case: Lithuanian

      Referring court

   Lietuvos Aukščiausiasis Teismas

      Parties to the main proceedings

      Applicant: Air Baltic Corporation AS

      Defendant: Lietuvos Respublikos specialiųjų tyrimų tarnyba

      Operative part of the judgment

   The Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999, in particular Articles 19, 22 and 29 thereof, must be interpreted as meaning that an air carrier which has concluded a contract of international carriage with an employer of persons carried as passengers, such as the employer at issue in the main proceedings, is liable to that employer for damage occasioned by a delay in flights on which its employees were passengers pursuant to that contract, on account of which the employer incurred additional expenditure.

      (1)  OJ C 421, 24.11.2014.


title: Judgment of the Court of First Instance of 28 November 2002 in Case T-40/01: Scan Office Design SA v Commission of the European Communities (Public procurement — Supply of office furniture — Actions for damages)

text:
C 44/26                  EN                          Official Journal of the European Union                                        22.2.2003
with an address for service in Luxembourg, against Com-                      the other party before the Court being Richard John Harrison,
mission of the European Communities (Agents: C. Berardis-                    of Doncaster, South Yorkshire (United Kingdom), represented
Kayser and D. Waelbroeck) — application for annulment of                     by M. Edenborough, Barrister, and S. Pilling, Solicitor: Action
the Commission’s decision not to appoint the applicant to the                brought against the decision of the First Board of Appeal of
post of Head of Unit 3 ‘Distributive trade and other services’               the Office for Harmonisation in the Internal Market (Trade
within Directorate D ‘Services’ within the Directorate-General               Marks and Designs) of 4 December 2000 (Case R 116/2000-
for Competition (COM/001/00) and of its decision to appoint                  1), the Court of First Instance (Fourth Chamber), composed of:
a different applicant to the post and an application for damages             M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; J. Plin-
— the Court of First Instance (Third Chamber), composed of                   gers, Administrator, for the Registrar, has given a judgment on
M. Jaeger, President, and K. Lenaerts and J. Azzizi, Judges;                 12 December 2002, in which it:
J. Palacio González, Principal Administrator, for the Registrar,
gave a judgment on 12 December 2002, in which it:
                                                                             1.     Dismisses the application;
1.     Annulled the Commission’s decisions of 4 March 2000                   2.     Orders the applicant to pay the costs.
       appointing Mrs Evans to the post of Head of Unit 3
       ‘Distributive trade and other services’ within Directorate D
       ‘Services’ within the Directorate-General for Competition and         (1 ) OJ C 150 of 19.5.2001.
       dismissing the applicant’s application for that post;
2.     Ordered the Commission to pay the applicant EUR 2 500;
3.     Dismissed the remainder of the action;
4.     Ordered the Commission to pay the costs.                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 28 November 2002
( 1) OJ C 45 of 10.2.2001.
                                                                             in Case T-40/01: Scan Office Design SA v Commission of
                                                                                the European Communities (1)
                                                                             (Public procurement — Supply of office furniture — Actions
                                                                                for damages)
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                                            (2003/C 44/49)
                                                                                (Language of the case: French)
                        of 12 December 2002
in Case T-39/01: Kabushiki Kaisha Fernandes v Office for
Harmonisation in the Internal Market (Trade Marks and                        In Case T-40/01: Scan Office Design SA, a company established
                         Designs) (OHIM) ( 1)                                in Brussels, represented by B. Mertens and C. Steyaert, Lawyers,
                                                                             against Commission of the European Communities (Agents:
                                                                             L. Parpala and D. Martin) — application for compensation of
(Community trade mark — Opposition procedure — Earlier                       damages allegedly sustained by the applicant as a result of the
word mark HIWATT — Application for Community word                            Commission’s decision to award to a third party the contract
mark HIWATT — Proof of genuine use of earlier mark —                         which was the subject of its call for tenders No 96/31/IX.C1
Article 43(2) and (3) of Regulation (EC) No 40/94 and Rule                   for the supply of office furniture — the Court of First Instance
                 22 of Regulation (EC) No 2868/95)                           (Third Chamber), composed of M. Jaeger, President, and
                                                                             K. Lenaerts and J. Azizi, Judges; J. Palacio González, Adminis-
                                                                             trator, for the Registrar, gave a judgment on 28 December
                            (2003/C 44/48)                                   2002, in which it:
                     (Language of the case: English)                         1.     Dismissed the action;
                                                                             2.     Ordered the Commission to pay the costs.
In Case T-39/01, Kabushiki Kaisha Fernandes, established in
                                                                             (1 ) OJ C 150 of 19.5.2001.
Tokyo (Japan), represented by R. Hacon, N. Phillips and
I. Wood, lawyers, v Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) (Agent: S. Laitinen),


title: Case F-50/11: Action brought on 19 April 2011 — ZZ v Parliament

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/36

         Action brought on 19 April 2011 — ZZ v Parliament
   (Case F-50/11)
   2011/C 186/69
   Language of the case: French

      Parties

      Applicant: ZZ (Luxembourg, Luxembourg) (represented by: P. Nelissen Grade and G. Leblanc, lawyers)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Application for annulment of the decision of the appointing authority to grant the applicant only one merit point in the context of the reporting exercise for 2009.

      Form of order sought

               —

               annul the decision of the appointing authority of 20 January 2011 rejecting the applicant’s complaint;

               —

               annul the decision of the appointing authority of 11 May 2010, communicated to the applicant on 27 May 2010, to award only one merit point to the applicant for the reporting exercise for 2009;

               —

               inform the appointing authority of the effects entailed by the annulment of the contested decision;

               —

               grant the applicant 2 000 Euros as compensation for non-material loss suffered;

               —

               order the European Parliament to pay the costs.


title: Case C-37/08: Judgment of the Court (First Chamber) of 3 September 2009 (Reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — RCI Europe v Commissioners for Her Majesty’s Revenue and Customs (Sixth VAT Directive — Fiscal connection — Supply of services connected with immovable property — Services consisting in facilitating the exchange by owners of rights to occupy holiday homes)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/15

         Judgment of the Court (First Chamber) of 3 September 2009 (Reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — RCI Europe v Commissioners for Her Majesty’s Revenue and Customs
   (Case C-37/08) (1)

   (Sixth VAT Directive - Fiscal connection - Supply of services connected with immovable property - Services consisting in facilitating the exchange by owners of rights to occupy holiday homes)
   2009/C 267/25
   Language of the case: English

      Referring court

   VAT and Duties Tribunal, London

      Parties to the main proceedings

      Applicant: RCI Europe

      Defendant: Commissioners for Her Majesty’s Revenue and Customs

      Re:

   REFERENCE for a preliminary ruling — VAT and Duties Tribunal, London — Interpretation of Articles 9(2)(a) and 26 of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Determination of the place where supplies are deemed to be provided — Supplies of services consisting in facilitating the exchange by the holders of rights to occupy a property intended for use by holidaymakers who are members of an association established by the taxable person for that purpose, for the rights of other owners.

      Operative part of the judgment

   Article 9(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the place where services are supplied by an association whose business consists in organising the exchange between its members of their timeshare usage rights in holiday accommodation, in return for which that association receives from its members enrolment, annual subscription and exchange fees, is the place where the property in respect of which the member concerned holds timeshare usage rights is situated.

      (1)  OJ C 92, 12.4.2008.


title: Case C-471/06: Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Farmakemporiki Anonimi Etairia Emporias kai Dianomis Farmakeftikon Proionton v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/5

         Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Farmakemporiki Anonimi Etairia Emporias kai Dianomis Farmakeftikon Proionton v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   (Case C-471/06)
   (2007/C 20/06)
   Language of the case: Greek
   Referring court
   Efetio Athinon
   Parties to the main proceedings

      Claimant: Farmakemporiki Anonimi Etairia Emporias kai Dianomis Farmakeftikon Proionton

      Defendant: GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   Questions referred:

               1.

               Where the refusal of an undertaking holding a dominant position to meet fully the orders sent to it by pharmaceutical wholesalers is due to its intention to limit their export activity and, thereby, the harm caused to it by parallel trade, does the refusal constitute per se an abuse within the meaning of Article 82 EC? Is the answer to that question affected by the fact that the parallel trade is particularly profitable for the wholesalers because of the different prices, resulting from State intervention, in the Member States of the European Union, that is to say by the fact that pure conditions of competition do not prevail in the pharmaceuticals market, but a regime which is governed to a large extent by State intervention? Is it ultimately the duty of a national competition authority to apply Community competition rules in the same way to markets which function competitively and those in which competition is distorted by State intervention?

               2.

               If the Court holds that limitation of parallel trade, for the reasons set out above, does not constitute an abusive practice in every case where it is engaged in by an undertaking holding a dominant position, how is possible abuse to be assessed? In particular:

               2.1

               Do the percentage by which normal domestic consumption is exceeded and/or the loss suffered by an undertaking holding a dominant position compared with its total turnover and total profits constitute appropriate criteria? If so, how are the level of that percentage and the level of that loss determined (the latter as a percentage of turnover and total profits), above which the conduct in question may be abusive?

               2.2

               Is an approach entailing the balancing of interests appropriate, and, if so, what are the interests to be compared? In particular:

                           (a)

                           is the answer affected by the fact that the ultimate consumer/patient derives limited financial advantage from the parallel trade and

                           (b)

                           is account to be taken, and to what extent, of the interests of social insurance bodies in cheaper medicinal products?

               2.3

               What other criteria and approaches are considered appropriate in the present case?


title: Case C-165/06: Reference for a preliminary ruling from the Commissione tributaria provinciale di Roma lodged on  27 March 2006  — Leasys SpA v Agenzia Entrate Ufficio Roma 7

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/7

         Reference for a preliminary ruling from the Commissione tributaria provinciale di Roma lodged on 27 March 2006 — Leasys SpA v Agenzia Entrate Ufficio Roma 7
   (Case C-165/06)
   (2006/C 154/14)
   Language of the case: Italian
   Referring court
   Commissione tributaria provinciale di Roma (Italy)
   Parties to the main proceedings

      Applicant: Leasys SpA

      Defendant: Agenzia Entrate Ufficio Roma 7
   Question referred
   Must Article 33 of Directive 77/388/EEC (1) (as amended by Directive 91/680/EEC (2)) be interpreted as meaning that net output value arising from regular engagement in independent activities involving the production or exchange of goods or the rendering of services cannot be made liable to IRAP (Imposta Regionale sulle Attività Produttive — Regional tax on production activities)?

      (1)  OJ L 145, 13/06/1977, p. 1.

      (2)  OJ L 376, 31/12/1991, p. 1.


title: Corrigendum to the notice to the Official Journal in Case T-159/09 ( OJ C 153, 4.7.2009, p. 44 )

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/52

         Corrigendum to the notice to the Official Journal in Case T-159/09
   (
         Official Journal of the European Union C 153 of 4 July 2009, p. 44
      )
   2009/C 205/95
   The notice to the OJ in Case T-159/09 Biofrescos v Commission is to be read as follows:

         ‘Action brought on 21 April 2009 — Biofrescos — Comércio de Produtos Alimentares Lda v Commission of the European Communities
         (Case T-159/09)
         2009/C 193/67
         Language of the case: Portuguese

            Parties

            Applicant: Biofrescos — Comércio de Produtos Alimentares Lda (Linda-a-Velha, Portugal) (represented by: A. Magalhães e Menezes, lawyer)

            Defendant: Commission of the European Communities

            Forms of order sought

                     —

                     Annul Commission Decision C (2009) 72 final of 16 January 2009 rejecting the applicant’s request for remission of import duties in the sum of EUR 41 271,09 and ordering that that amount be entered into the accounts a posteriori.

            Pleas in law and main arguments

         Between September 2003 and February 2005, the applicant imported a number of consignments of frozen prawns from Indonesia, for which it sought remission of import duties pursuant to Articles 220(2)(b), 236 and 239(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. (1)

         The applicant submits that the Commission infringed, at the very least, those provisions in so far as: first, it made no observations on any of the arguments put forward by the applicant in its request for remission of import duties; secondly, the reasons given by the Commission were inadequate, misleading and incomprehensible; thirdly, it misinterpreted the error made by the Indonesian authorities themselves; fourthly and last, the Commission deemed to be proved facts which are not actually proved, the burden of proving which fell, subsequently, to the bodies involved in the procedure and not the applicant.

      (1)  OJ 1992 L 97, p. 38.’


title: Case C-14/12 P: Order of the Court (Seventh Chamber) of 30 May 2013 — Sheilesh Shah, Akhil Shah v Three-N-Products Private Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Application for registration of the Community word mark AYUURI NATURAL — Opposition by the proprietor of the earlier Community word and figurative marks AYUR — Appeal manifestly inadmissible and manifestly unfounded)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/43

         Order of the Court (Seventh Chamber) of 30 May 2013 — Sheilesh Shah, Akhil Shah v Three-N-Products Private Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-14/12 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Application for registration of the Community word mark AYUURI NATURAL - Opposition by the proprietor of the earlier Community word and figurative marks AYUR - Appeal manifestly inadmissible and manifestly unfounded)
   2013/C 225/73
   Language of the case: English

      Parties

      Appellants: Sheilesh Shah, Akhil Shah (represented by: M. Chapple, Barrister)

      Other parties to the proceedings: Three-N-Products Private Ltd (represented by: C. Jäger, Rechtsanwältin), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis and D. Walicka, acting as Agents)

      Re:

   Appeal against the judgment of the General Court (Fifth Chamber) of 10 November 2011 in Case T-313/10 THREE-N-PRODUCTS PRIVATE v OHIM — SHAH (AYUURI NATURAL), by which that Court annulled the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 1 June 2010 in Case R 1005/2009-4 annulling the Opposition Division’s decision rejecting the application for registration of the word mark ‘AYUURI NATURAL’ for goods in Classes 3 and 5 in the opposition proceedings brought by the proprietor of the Community figurative and word marks including the word element ‘AYUR’ in respect of goods in Classes 3 and 5 — Interpretation and application of Article 8(1)(b) of Regulation No 207/2009 — Likelihood of confusion — Similarity of the signs

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Sheilesh Shah and Mr Akhil Shah shall pay the costs.

               3.

               The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) shall bear its own costs.

      (1)  OJ C 73, 10.3.2012.


title: Case C-322/09 P: Appeal brought on 12 August 2009 by NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB against the judgment of the Court of First Instance (First Chamber) delivered on 9 June 2009 in Case T-152/06: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v Commission of the European Communities

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/12

         Appeal brought on 12 August 2009 by NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB against the judgment of the Court of First Instance (First Chamber) delivered on 9 June 2009 in Case T-152/06: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v Commission of the European Communities
   (Case C-322/09 P)
   2009/C 233/21
   Language of the case: English

      Parties

      Appellant: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB (represented by: M. Merola and L. Armati, avvocati)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment under appeal in its entirety;

               —

               declare the action of Destination Stockholm in case T-152/06 admissible and grounded, and therefore grant the forms of order sought at first instance;

               —

               order the Commission to bear costs.

         In the alternative:

               —

               set aside the judgment under appeal in its entirety and declare the action of Destination Stockholm in case T-152/06 admissible;

               —

               refer the case back to the Court of First Instance for the examination of the merits of the case;

               —

               reserve the costs of the proceedings at first instance and on appeal.

      Pleas in law and main arguments

   The appellant submits that, in judgment under appeal, the Court of First Instance:

               —

               misapplied Article 230 EC by manifestly distorting of the content of the contested letters, the intention of their author and the evidence adduced before the CFI;

               —

               incorrectly classified the Commission's position on the compatibility of the contested measures as preliminary and used a contradictory reasoning on the same issue;

               —

               inappropriately made reference to Article 88(1) EC by considering that the Commission rejected a request to recommend appropriate measures;

               —

               incorrectly applied Articles 4, 10, 13 and 20(2) of the Regulation No 659/1999 (1), in particular by ruling that the classification by the Commission of the contested measures as existing aid prevents the rejection of a complaint from being challenged.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty OJ L 83, p. 1.


title: Case C-666/13: Judgment of the Court (Eighth Chamber) of 20 November 2014 (request for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Rohm Semiconductor GmbH v Hauptzollamt Krefeld (Reference for a preliminary ruling — Customs union — Tariff classification — Common Customs Tariff — Combined Nomenclature — Headings 8541 and 8543 — Modules for short-range data transmission and reception — Subheadings 8543 89 95 and 8543 90 80 — Definition of parts of electrical machinery and apparatus)

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/7

         Judgment of the Court (Eighth Chamber) of 20 November 2014 (request for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Rohm Semiconductor GmbH v Hauptzollamt Krefeld
   (Case C-666/13) (1)

   ((Reference for a preliminary ruling - Customs union - Tariff classification - Common Customs Tariff - Combined Nomenclature - Headings 8541 and 8543 - Modules for short-range data transmission and reception - Subheadings 8543 89 95 and 8543 90 80 - Definition of parts of electrical machinery and apparatus))
   (2015/C 026/09)
   Language of the case: German

      Referring court

   Finanzgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Rohm Semiconductor GmbH

      Defendant: Hauptzollamt Krefeld

      Operative part of the judgment

               1.

               The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1832/2002 of 1 August 2002 must be interpreted as meaning that modules, each consisting of the interconnection of a light emitting diode, a photo-diode and a number of other semiconductor devices, and which may be used as infrared transmitters/receivers where their electricity supply derives from the devices in which they are incorporated, come under CN heading 8543 of that nomenclature;

               2.

               The Combined Nomenclature in Annex I to Regulation No 2658/87, as amended by Regulation No 1832/2002 must be interpreted as meaning that modules such as those at issue in the main proceedings incorporated in devices for the mechanical or electrical functioning of which they are not necessary, do not constitute parts for the purposes of subheading 8543 90 80 of that nomenclature, but do come under subheading 8543 89 95 of that nomenclature, relating to other electrical machines and apparatus having individual functions, not specified or included elsewhere in Chapter 85 of that nomenclature.

      (1)  OJ C 85, 22.3.2014.


title: Case T-636/15: Action brought on 13 November 2015 — Infratel Italia and Others v Commission

text:
               18.1.2016

               EN

               Official Journal of the European Union

               C 16/49

         Action brought on 13 November 2015 — Infratel Italia and Others v Commission
   (Case T-636/15)
   (2016/C 016/59)
   Language of the case: Italian

      Parties

      Applicants: Infrastrutture e telecomunicazioni per l’Italia SpA (Infratel Italia SpA) (Rome, Italy), Ericsson telecomunicazioni SpA (Rome, Italy), Italdata SpA (Avellino, Italy) and Linea Com Srl (Cremona, Italy) (represented by: G.M. Roberti, I. Perego, M.S. Serpone and M. Serpone, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision, in full or in part;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action is brought against the decision contained in the European Commission’s letter of 28 August 2015 (Ref. Ares [2015] 3 551 496) regarding Termination of grant agreement 621078 project VIRGO.
   In support of their action, the applicants rely on four pleas in law.

               1.

               First plea in law, alleging infringement of the rights of the defence, the principle of sound administration, Articles 41 and 48 of the Charter, Article 135 of Regulation (EU, Euratom) No 966/2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), and Article 208 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), and a breach of the duty to provide a statement of reasons.

                           —

                           The Commission did not hear the applicants prior to the adoption of the decision by which it made provision for the termination of the grant agreement and ordered the repayment of the amounts received as advance funding. The Commission infringed the applicants’ rights of the defence, and also infringed Article 135 of Regulation No 966/2012, Article 208 of Regulation No 1268/2012, and Articles 41 and 48 of the Charter. In addition, the Commission based the decision purely on assessments made by external experts, making reference to those assessments without providing a self-standing statement of reasons in that decision. The Commission thus infringed the principle of sound administration and breached its duty to provide an adequate statement of reasons.

               2.

               Second plea in law, alleging errors of assessment, a breach of the duty to provide a statement of reasons, and infringement of the principle of non-discrimination, Article 135 of Regulation No 966/2012, and Article 208 of Regulation No 1268/2012.

                           —

                           The assessments carried out by the Commission and by its external experts forming the basis of the decision are the result of incorrect assessments of fact and of law and are not supported by a consistent and adequate statement of reasons. The Commission also infringed Article 135(3) and (4) of Regulation No 966/2012.

               3.

               Third plea in law, alleging errors of assessment, infringement of the principles of proportionality and sound administration, a breach of the duty to provide a statement of reasons, and infringement of Article 135 of Regulation No 966/2012, Article 208 of Regulation No 1268/2012, and the Guide to Financial Issues relating to ICT PSP Grant Agreement.

                           —

                           The Commission did not correctly assess the differing levels of importance of individual deliverables to the project as a whole, thereby failing to fulfil its obligations to ensure sound administration and infringing the rules laid down in that regard by the Guide to Financial Issues relating to ICT PSP Grant Agreement. The Commission also failed to provide a specific and adequate statement of reasons in that regard.

               4.

               Fourth plea in law, alleging infringement of Article 135 of Regulation No 966/2012, Article 208 of Regulation No 1268/2012, and the principle of proportionality, and a breach of the duty to provide a statement of reasons.

                           —

                           The Commission imposed the order for recovery of the full amount of advance funding without taking due account of the importance of the project for European Union policies and the reusability of the work carried out by the consortium. In so doing, the Commission infringed Article 135 of Regulation No 966/2012, Article 208 of Regulation No 1268/2012, and the principle of proportionality.


title: Case C-422/08: Judgment of the Court (Seventh Chamber) of 18 June 2009 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 2004/35/EC — Environmental liability — Prevention and remedying of environmental damage — Failure to transpose within the prescribed period)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/22

         Judgment of the Court (Seventh Chamber) of 18 June 2009 — Commission of the European Communities v Republic of Austria
   (Case C-422/08) (1)

   (Failure of a Member State to fulfil obligations - Directive 2004/35/EC - Environmental liability - Prevention and remedying of environmental damage - Failure to transpose within the prescribed period)
   2009/C 180/37
   Language of the case: German

      Parties

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

      Defendant: Republic of Austria (represented by: E. Riedl, acting as Agent)

      Re:

   Failure of a Member State to fulfil its obligations — Failure to adopt within the prescribed period the measures necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary in order to transpose Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the Republic of Austria has failed to fulfil its obligations under that directive;

               2.

               Orders the Republic of Austria to pay the costs

      (1)  OJ C 301 of 22.11.2008.


title: Case C-384/08: Judgment of the Court (Third Chamber) of 11 March 2010 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio — Italy) — Attanasio Group Srl v Comune di Carbognano (Articles 43 EC and 48 EC — Regional legislation laying down mandatory minimum distances between roadside service stations — Jurisdiction of the Court and admissibility of the reference for a preliminary ruling — Freedom of establishment — Restriction)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/11

         Judgment of the Court (Third Chamber) of 11 March 2010 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio — Italy) — Attanasio Group Srl v Comune di Carbognano
   (Case C-384/08) (1)

   (Articles 43 EC and 48 EC - Regional legislation laying down mandatory minimum distances between roadside service stations - Jurisdiction of the Court and admissibility of the reference for a preliminary ruling - Freedom of establishment - Restriction)
   2010/C 113/14
   Language of the case: Italian

      Referring court

   Tribunale amministrativo regionale del Lazio

      Parties to the main proceedings

      Applicant: Attanasio Group Srl

      Defendant: Comune di Carbognano

      Intervening party: Felgas Petroli Srl

      Re:

   Reference for a preliminary ruling — Tribunale amministrativo regionale per il Lazio (Italy) — Compatibility of national provisions laying down mandatory minimum distances between roadside petrol stations with Articles 43, 48, 49 and 56 EC and the principles of non-discrimination.

      Operative part of the judgment

   Article 43 EC, read in conjunction with Article 48 EC, is to be interpreted as meaning that domestic provisions such as those at issue in the main proceedings, which lay down mandatory minimum distances between roadside service stations, constitute a restriction on the freedom of establishment enshrined in the EC Treaty. In circumstances such as those in the main proceedings, that restriction does not appear to be justified by the objectives of road safety, protection of health and the environment, or the rationalisation of the service provided to users, these being matters for the national court to verify.

      (1)  OJ C 301, 22.11.2008.


title: Case T-65/17: Action brought on 1 February 2017 — Westbrae Natural v EUIPO — Kaufland Warenhandel (COCONUT DREAM)

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/32

         Action brought on 1 February 2017 — Westbrae Natural v EUIPO — Kaufland Warenhandel (COCONUT DREAM)
   (Case T-65/17)
   (2017/C 086/42)
   Language in which the application was lodged: English

      Parties

      Applicant: Westbrae Natural, Inc. (Delaware, United States) (represented by: D. McFarland, Barrister)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Kaufland Warenhandel GmbH & Co. KG (Neckarsulm, Germany)

      Details of the proceedings before EUIPO

      Applicant: Applicant

      Trade mark at issue: EU word mark ‘COCONUT DREAM’ — Application for registration No 13 599 501

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 2 November 2016 in Case R 182/2016-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               make an order concerning the costs in favour of the applicant.

      Plea in law

               —

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


title: Judgment of the Court (Sixth Chamber) of 3 March 2005 in Case C-499/03 P: Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH v Commission of the European Communities (Appeal — Common Customs Tariff — Subsequent recovery of import duties — Waiver of duties to be recovered — Conditions — Article 220(2)(b) of Regulation (EEC) No 2913/92 — Error of the customs authorities — Detectable error — Combined nomenclature — Remarks — Scope)

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/8

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 3 March 2005
   in Case C-499/03 P: Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH v Commission of the European Communities (1)

   (Appeal - Common Customs Tariff - Subsequent recovery of import duties - Waiver of duties to be recovered - Conditions - Article 220(2)(b) of Regulation (EEC) No 2913/92 - Error of the customs authorities - Detectable error - Combined nomenclature - Remarks - Scope)
   (2005/C 106/14)
   Language of the case: German
   In Case C-499/03 P: appeal under Article 56 of the Statute of the Court of Justice lodged at the Court on 25 November 2003 by Peter Biegi Nahrungsmittel GmbH, established in Frankfurt am Main (Germany) and Commonfood Handelsgesellschaft für Agrar-Produkte mbH, established in Langen (Germany) (laywers: K. Landry and L. Harings), the other party to the proceedings being the Commission of the European Communities (Agents: X. Lewis and J. Schieferer) — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and J. Malenovský (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 3 March 2005, in which it:

               1.

               Sets aside the judgment of the Court of First Instance of the European Communities of 17 September 2003 in Joined Cases T-309/01 and T-239/02 Biegi Nahrungsmittel and Commonfood v Commission;

               2.

               Annuls Commission Decision C (2001) 2533 of 14 August 2001 (REC 4/00) in so far as it orders the subsequent entry in the accounts of import duties payable by Peter Biegi Nahrungsmittel GmbH in the amount of DEM 218 605,64;

               3.

               Annuls Commission Decision C (2002) 857 of 5 March 2002 (REC 4/01) ordering the subsequent entry in the accounts of import duties payable by Commonfood Handelsgesellschaft für Agrar-Produkte mbH in the amount of DEM 222 116,06;

               4.

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

      (1)  OJ C 21 of 24.01.2004.


title: Case T-610/17: Action brought on 6 September 2017 — ICL-IP Terneuzen and ICL Europe Coöperatief v Commission

text:
               23.10.2017

               EN

               Official Journal of the European Union

               C 357/30

         Action brought on 6 September 2017 — ICL-IP Terneuzen and ICL Europe Coöperatief v Commission
   (Case T-610/17)
   (2017/C 357/39)
   Language of the case: English

      Parties

      Applicants: ICL-IP Terneuzen, BV (Terneuzen, Netherlands) and ICL Europe Coöperatief UA (Amsterdam, Netherlands) (represented by: R. Cana and E. Mullier, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare the application admissible and well-founded;

               —

               annul the Commission Regulation (EU) 2017/999 of 13 June 2017 amending Annex XIV to Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2017, L 150, p. 7) as far as it includes nPB on Annex XIV of the REACH Regulation;

               —

               order the defendant to pay the costs of these proceedings; and

               —

               take such other or further measure as justice may require.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the European Commission committed a manifest error of assessment by failing to take into account all relevant facts and breached the principle of sound administration.

                           —

                           The applicants submit that the European Commission made a manifest error of assessment by failing to carefully and impartially consider the relevant information submitted to the European Commission by the Applicants which showed that the Substance did not meet the criteria for prioritisation and inclusion on Annex XIV of the REACH Regulation. According to the applicants, if the European Commission had taken the information into account, the scoring received by the substance would have been lower or similar to the scoring of other substances which were not prioritised in the same round of prioritisation, and the substance would not have been included in Annex XIV to the REACH Regulation by the contested Regulation.

               2.

               Second plea in law, alleging that the contested Regulation breaches Article 55 of the REACH Regulation and runs contrary to the REACH Regulation’s competitiveness objective, as well as interferes with the right to trade.

                           —

                           The applicants submit that the contested Regulation runs counter the objectives of competitiveness of the REACH Regulation and in particular of its authorisation Title VII, thereby affecting the applicants’ competitive position, as well as impeding the applicants’ rights to trade by prioritizing the Substance despite information which showed that the Substance did not meet the criteria for prioritisation and inclusion on Annex XIV.

               3.

               Third plea in law, alleging that the European Commission breached the applicants’ rights of defence and breached its obligation to state reasons

                           —

                           The Applicants submit that the European Commission breached their right of defence and breached its duty to state reasons in not setting out the reasons for ‘grouping’ the substance with trichioroethylene, despite the European Chemical’s Agency express recognition (in the Prioritisation Approach Guidance) that in the case of factors such as ‘grouping’ are taken into account, which are not part of the formal Article 5 8(3) criteria, reasons for prioritisation must be clearly set out and be in line with the role and purpose of the recommendation step in the authorisation process.

               4.

               Fourth plea in law, alleging that the contested Regulation breaches the applicants’ legitimate expectations.

                           —

                           The applicants submit that the adoption of the contested Regulation breaches their legitimate expectations in so far as it does not comply with the guidance on prioritisation. Specifically, the applicants submit that the prioritisation and inclusion of nPB on Annex XIV breached their legitimate expectations that the volume criterion and the grouping considerations would be applied asthey are set out in the Prioritisation Approach Guidance and the General Approach Guidance.

               5.

               Fifth plea in law, alleging that the contested Regulation breaches the principle of proportionality.

                           —

                           The Applicants submit that the European Commission should have considered it appropriate to postpone the inclusion of nPB on Annex XIV in the contested Regulation, and that this would have been less onerous since the applicants would not have had to suffer the consequences of inclusion on Annex XIV already now but only when nPB was correctly included on Annex XIV in light of a real high relative priority.

               6.

               Sixth plea in law, alleging that the contested Regulation breaches the principle of equal treatment and non-discrimination

                           —

                           The applicants submit that the contested Regulation breaches the principle of equal treatment and non-discrimination by treating the substance differently — by including it on Annex XIV of the REACH Regulation — than other substances, including antimony lead yellow. According to the applicants, both substances were in a comparable situation: they were both considered as part of the same prioritisation round, they both received (or should have received) a total prioritisation score of 17, and in both cases their priority assessment involved grouping considerations. However, so the applicants state, they were treated differently by ECHA and the European Commission as the substance was recommended and later included in Annex XIV whereas antimony lead yellow was not recommended for inclusion and thus not included on Annex XIV.


title: Case C-120/09: Action brought on 1 April 2009 — Commission of the European Communities v Kingdom of Belgium

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/28

         Action brought on 1 April 2009 — Commission of the European Communities v Kingdom of Belgium
   (Case C-120/09)
   2009/C 141/50
   Language of the case: French

      Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek and J.-B. Laignelot, acting as Agents)

      Defendant: Kingdom of Belgium

      Form of order sought

               —

               Declare that, by failing to transpose into Walloon law Article 2(f), (j) and (k) of, and point 4C of Annex III to, Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Belgium to pay the costs.

      Pleas in law and main arguments

   The European Commission raises two grounds of complaint in support of its action.
   First, it alleges that the defendant has not transposed into the law of the Walloon Region the concepts of ‘underground storage’, ‘landfill gas’ and ‘eluate’ provided for by the provisions of Article 2(f), (j) and (k) of Directive 1999/31/EC on the landfill of waste. The Commission draws attention to the importance of those concepts which, being key concepts for the application of the directive, are also referred to in other provisions adopted on the basis of and in application of that directive.
   Secondly, the applicant complains that Walloon law does not include any provisions relating to the trigger levels from which it can be considered that the location of the landfill has a significant adverse effect on groundwater quality. Point 4C of Annex III to the directive, which provides for the drawing up of such provisions, is crucially important in order to ensure effective control of groundwater quality and, consequently, to guarantee the protection of the environment which constitutes the essential objective of the directive.

      (1)  OJ 1999 L 182, p. 1.


title: Case T-445/05: Judgment of the Court of First Instance of 4 March 2009 — Associazione italiana del risparmio gestito and Fineco Asset Management v Commission (State aid — Aid scheme implemented by the Italian authorities for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies — Decision declaring the aid incompatible with the common market — Actions for annulment — Direct and individual concern — Admissibility — Obligation to state the reasons on which the decision is based — Selective nature of the measure — Obligation of recovery)

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/24

         Judgment of the Court of First Instance of 4 March 2009 — Associazione italiana del risparmio gestito and Fineco Asset Management v Commission
   (Case T-445/05) (1)

   (State aid - Aid scheme implemented by the Italian authorities for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies - Decision declaring the aid incompatible with the common market - Actions for annulment - Direct and individual concern - Admissibility - Obligation to state the reasons on which the decision is based - Selective nature of the measure - Obligation of recovery)
   2009/C 90/38
   Language of the case: Italian

      Parties

      Applicants: Associazione italiana del risparmio gestito (Rome, Italy); and Fineco Asset Management SpA (Rome) (represented by: G. Escalar, G. Cipolla and V. Giordano, lawyers)

      Defendant: Commission of the European Communities (represented by: V. Di Bucci and E. Righini, Agents)

      Re:

   Annulment of Commission Decision 2006/638/EC of 6 September 2005 on the aid scheme implemented by Italy for certain undertakings for collective investment in transferable securities specialised in shares of small- and medium-capitalisation companies listed on regulated markets (OJ 2006 L 268, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders the applicants to pay the costs.

      (1)  OJ C 48, 25.2.2006.


title: Case C-414/00: Action brought on 10 November 2000 by the Commission of the European Communities against the Portuguese Republic

text:
C 28/16                  EN                   Official Journal of the European Communities                                     27.1.2001
Pleas in law and main arguments                                          Action brought on 10 November 2000 by the Com-
                                                                         mission of the European Communities against the Portu-
The pleas in law and main arguments are similar to those                                            guese Republic
relied on in Case C-407/00 (4); the time-limit for transposition
expired on 13 February 1999, 31 March 1999 and 30 April                                             (Case C-414/00)
1999 respectively.
                                                                                (2001/C 28/29)
( 1) OJ 1998 L 208, p. 49.                                               An action against the Portuguese Republic was brought
( 2) OJ 1998 L 261, p. 32.                                               before the Court of Justice of the European Communities on
( 3) OJ 1998 L 290, p. 25.                                               10 November 2000 by the Commission of the European
( 4) See p. 13 of this Official Journal.                                 Communities, represented by Ana Maria Alves Vieira, of its
                                                                         Legal Service, acting as Agent, with an address for service in
                                                                         Luxembourg at the office of Carlos Gómez de la Cruz, of its
                                                                         Legal Service, Wagner Centre, Kirchberg.
                                                                         The applicant claims that the Court should:
                                                                         —     Declare that, by failing to bring into force within the
Action brought on 9 November 2000 by the Commission                            prescribed period all the provisions necessary to comply
of the European Communities against the Kingdom of the                         with Council Directive 97/78/EC (1) of 18 December
                               Netherlands                                     1997 laying down the principles governing the organis-
                                                                               ation of veterinary checks on products entering the
                            (Case C-413/00)                                    Community from third countries, the Portuguese Repub-
                                                                               lic has failed to fulfil its obligations under Articles 10
                                                                               and 249 of the EC Treaty; and
                             (2001/C 28/28)
                                                                         —     Order the Portuguese Republic to pay the costs.
An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on               Pleas in law and main arguments
9 November 2000 by the Commission of the European
Communities, represented by B. Mongin and H. M. H. Speyart,              The pleas in law and main arguments are similar to those
of its Legal Service, acting as Agents, with an address for              relied on in Case C-407/00 (2); the time-limit for transposition
service in Luxembourg at the office of C. Gómez de la Cruz, of          of the directive expired on 1 June 1999.
its Legal Service, Wagner Centre, Kirchberg.
                                                                         (1) OJ 1998 L 24, p. 9.
The applicant claims that the Court should:                              (2) See p. 13 of this Official Journal.
1.     Declare that, by not adopting the laws, regulations
       and administrative provisions necessary to comply with
       Council Directive 98/41/EC (1) of 18 June 1998 on the
       registration of persons sailing on board passenger ships
       operating to or from ports of the Member States of the
       Community, or in any event by not informing the                   Reference for a preliminary ruling by the Unabhängiger
       Commission of such measures, the Kingdom of the                   Verwaltungssenat Salzburg by order of that court of
       Netherlands has failed to fulfil its obligations under that       9 November 2000 in the appeal concerning (1) Dr Herbert
       directive.                                                        Pflanzl, (2) Bürgermeister der Landeshauptstadt Salzburg,
                                                                         (3) Grundverkehrsbeauftragter des Landes Salzburg and
2.     Order the Kingdom of the Netherlands to pay the costs.            (4) Grundverkehrslandeskommission des Landes Salzburg
                                                                                (Case C-415/00)
Pleas in law and main arguments
                                                                                (2001/C 28/30)
The pleas in law and main arguments are similar to those in
Case C-407/00 (2); the period for transposition expired on               Reference has been made to the Court of Justice of the
1 January 1999.                                                          European Communities by order of the Unabhängiger Verwal-
                                                                         tungssenat Salzburg of 9 November 2000, received at the
                                                                         Court Registry on 13 November 2000, for a preliminary
(1) OJ 1998 L 188, p. 35.                                                ruling in the appeal concerning (1) Dr Herbert Pflanzl, (2)
(2) See p. 13 of this Official Journal.                                  Bürgermeister der Landeshauptstadt Salzburg, (3) Grundver-
                                                                         kehrsbeauftragter des Landes Salzburg and (4) Grundver-
                                                                         kehrslandeskommission des Landes Salzburg on the following
                                                                         question:


title: Judgment of the Court (Fifth Chamber) of 6 June 2002 in Case C-159/00 (Reference for a preliminary ruling from the Cour de cassation): Sapod Audic v Eco-Emballages SA (Directive 83/189/EEC — Procedure for the provision of information in the field of technical standards and regulations — Obligation to communicate draft technical regulations — Directives 75/442/EEC and 91/156/EEC — Waste — Obligation to make notification of planned measures — National regulations on disposal of packaging waste — Obligation on producers or importers to identify packaging to be disposed of by an approved undertaking — Obligation on the approved undertaking to ensure that packaging for which it is responsible meets technical requirements)

text:
C 180/4                  EN                      Official Journal of the European Communities                                          27.7.2002
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                             (Fifth Chamber)
                                                                                of 6 June 2002
                           of 13 June 2002
                                                                            in Case C-159/00 (Reference for a preliminary ruling from
in Case C-158/00: Grand Duchy of Luxembourg v Com-                          the Cour de cassation): Sapod Audic v Eco-Emballages
           mission of the European Communities (1)                                                           SA (1)
(Clearance of accounts — EAGGF — 1996 to 1998 financial                     (Directive 83/189/EEC — Procedure for the provision of
years — Arable crops — Procedure to be followed by the                      information in the field of technical standards and regu-
                             Commission)                                    lations — Obligation to communicate draft technical regu-
                                                                            lations — Directives 75/442/EEC and 91/156/EEC — Waste
                                                                            — Obligation to make notification of planned measures —
                           (2002/C 180/06)                                  National regulations on disposal of packaging waste —
                                                                            Obligation on producers or importers to identify packaging
                                                                            to be disposed of by an approved undertaking — Obligation
                     (Language of the case: French)                         on the approved undertaking to ensure that packaging for
                                                                                which it is responsible meets technical requirements)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                     (2002/C 180/07)
                                                                                (Language of the case: French)
In Case C-158/00, Grand Duchy of Luxembourg (Agent:                         (Provisional translation; the definitive translation will be published
M. F. Hoffstetter, assisted by R. Nothar) v Commission of the                                   in the European Court Reports)
European Communities (Agents: P. Oliver and G. Berscheid):
Application for partial annulment of Commission Decision
2000/216/EC of 1 March 2000 excluding from Community
financing certain expenditure incurred by the Member States                 In Case C-159/00: Reference to the Court under Article 234
under the Guarantee Section of the European Agricultural                    EC by the Cour de Cassation (France) for a preliminary ruling
Guidance and Guarantee Fund (EAGGF) (OJ 2000 L 67, p. 37),                  in the proceedings pending before that court between Sapod
in so far as it excluded from Community financing, for the                  Audic and Eco-Emballages SA on the interpretation of
1996 to 1998 ;financial years, expenditure of LUF 56 106 800                Articles 1 and 10 of Council Directive 83/189/EEC of 28 March
;incurred by the Grand Duchy of Luxembourg in the arable                    1983 laying down a procedure for the provision of information
crops sector, the Court (Fifth Chamber), composed of: P. Jann,              in the field of technical standards and regulations (OJ 1983
President of the Chamber, S. von Bahr (Rapporteur),                         L 109, p. 8), as amended by Council Directive 88/182/EEC of
D.A.O. Edward, A. La Pergola and M. Wathelet, Judges;                       22 March 1988 (OJ 1988 L 81, p. 75), Article 3(2) of Council
A. Tizzano, Advocate General; R. Grass, Registrar, has given a              Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975
judgment on 13 June 2002, in which it:                                      L 194, p. 39), as amended by Council Directive 91/156/EEC
                                                                            of 18 March 1991 (OJ 1991 L 78, p. 32), and Article 30 of
                                                                            the EC Treaty (now, after amendment, Article 28 EC), the
1.    Annuls Commission Decision 2000/216/EC of 1 March                     Court (Fifth Chamber), composed of: P. Jann, President of the
      2000 excluding from Community financing certain expenditure           Chamber, S. von Bahr and C.W.A. Timmermans (Rapporteur),
      incurred by the Member States under the Guarantee Section of          Judges; F.G. Jacobs, Advocate General; H. von Holstein, Deputy
      the European Agricultural Guidance Fund (EAGGF), in so far            Registrar, has given a judgment on 6 June 2002, in which it
      as it excludes from Community financing expenditure incurred          has ruled:
      by the Grand Duchy of Luxembourg in the arable crops sector
      prior to 26 May 1996;
                                                                            1.    A provision of national law such as the second paragraph of
2.    Dismisses the remainder of the application;                                 Article 4 of Decree No 92-377 of 1 April 1992 implementing,
                                                                                in respect of packaging waste, Law No 75-633 of 15 July
                                                                                1975 relating to the disposal of waste and the recovery of
3.    Orders each of the parties to bear its own costs.                           materials, as amended, could constitute a technical regulation
                                                                                within the meaning of Council Directive 83/189/EEC of
                                                                                28 March 1983 laying down a procedure for the provision of
(1) OJ C 176 of 24.6.2000.                                                        information in the field of technical standards and regulations,
                                                                                as amended by Council Directive 88/182/EEC of 22 March
                                                                                1988, only if the national court were to hold that it had to be
                                                                                interpreted as requiring a mark or label to be applied.
 ---pagebreak--- 27.7.2002               EN                        Official Journal of the European Communities                                             C 180/5
2.   Article 10 of Directive 83/189, as amended by Directive 88/                               JUDGMENT OF THE COURT
     182, is to be interpreted as meaning that, where a provision of
     national law such as the second paragraph of Article 4 of
     Decree No 92-377 must be understood as requiring a mark or                                         (Fifth Chamber)
     label to be applied, that provision is not exempted from the
     notification requirement under Article 8 of Directive 83/189.
                                                                                of 25 April 2002
3.   In the event that a national provision such as the second
     paragraph of Article 4 of Decree No 92-377 were to be                   in Case C-183/00 (reference for a preliminary ruling from
     interpreted as requiring a mark or label to be applied, an              the Juzgado de Primera Instancia e Instrucción no 5 de
     individual may invoke the failure to make notification of that          Oviedo): Marı́a Victoria González Sánchez v Medicina
     national provision in accordance with Article 8 of Directive                                       Asturiana SA (1)
     83/189. It is then for the national court to refuse to apply that
     provision, the question of the conclusions to be drawn from the
     inapplicability of that national provision as regards the severity
                                                                             (Approximation of laws — Directive 85/374/EEC — Product
     of the sanction under the applicable national law, such as
                                                                                liability — Relationship with other systems of liability)
     nullity or unenforceability of the contract, being a question
     governed by national law. That conclusion is, however, subject
     to the condition that the applicable rules of national law are
     not less favourable than those governing similar domestic                                          (2002/C 180/08)
     actions and are not framed in such a way as to render impossible
     in practice the exercise of rights conferred by Community law.
                                                                                (Language of the case: Spanish)
4.   If Directive 83/189 does not apply to the provisions of Decree
     No 92-377, the Member State concerned ought to have                     (Provisional translation; the definitive translation will be published
     informed the Commission of the proposed national provisions                                 in the European Court Reports)
     in accordance with Article 3(2) of Council Directive 75/442/
     EEC of 15 July 1975 on waste, as amended by Council
     Directive 91/156/EEC of 18 March 1991.
                                                                             In Case C-183/00: reference to the Court under Article 234
5.   Article 3(2) of Directive 75/442, properly construed, does not          EC by the Juzgado de Primera Instancia e Instrucción no 5 de
     give individuals any right which they may enforce before                Oviedo (Spain), for a preliminary ruling in the proceedings
     national courts in order to obtain the annulment or suspension          pending before that court between Marı́a Victoria González
     of national rules falling within the scope of that provision on         Sánchez and Medicina Asturiana SA — on the interpretation
     the ground that the rules were adopted without having been              of Article 13 of Council Directive 85/374/EEC of 25 July
     previously communicated to the Commission.                              1985 on the approximation of the laws, regulations and
                                                                             administrative provisions of the Member States concerning
                                                                             liability for defective products (OJ 1985 L 210, p. 29) — the
6.   If the national court were to interpret a provision such as the         Court (Fifth Chamber), composed of: P. Jann (Rapporteur),
     second paragraph of Article 4 of Decree No 92-377 as not                President of the Chamber, S. von Bahr and C. W. A. Timmer-
     requiring a mark or label to be applied but as imposing only a          mans, Judges; L. A. Geelhoed, Advocate General; H. von
     general obligation to identify the packaging collected for              Holstein, Deputy Registrar, has given a judgment on 25 April
     disposal by an approved undertaking, that provision may be              2002, in which it ruled:
     regarded as a selling arrangement. It is for the national court
     to verify whether the relevant conditions under the case-law of
     the Court for exempting such an obligation from the scope of            Article 13 of Council Directive 85/374/EEC of 25 July 1985 on
     application of Article 30 of the EC Treaty (now, after                  the approximation of the laws, regulations and administrative
     amendment, Article 28 EC) are met, namely that the provision            provisions of the Member States concerning liability for defective
     at issue applies to all relevant traders operating within the           products must be interpreted as meaning that the rights conferred
     national territory and that it affects in the same manner, in law       under the legislation of a Member State on the victims of damage
     and in fact, the marketing of domestic products and of those            caused by a defective product under a general system of liability
     from other Member States.                                               having the same basis as that put in place by the Directive may be
                                                                             limited or restricted as a result of the Directive’s transposition into
                                                                             the domestic law of that State.
(1) OJ C 176 of 24.6.2000.
                                                                             (1) OJ C 192, 8.7.2000.


title: Case F-93/10: Order of the Civil Service Tribunal of 25 May 2011 — AL v Parliament

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/43

         Order of the Civil Service Tribunal of 25 May 2011 — AL v Parliament
   (Case F-93/10) (1)

   2011/C 232/79
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

      (1)  OJ C 328, 4.12.10, p. 61.


title: Case T-461/08: Action brought on 6 October 2008 — Evropaïki Dynamiki v BEI

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/30

         Action brought on 6 October 2008 — Evropaïki Dynamiki v BEI
   (Case T-461/08)
   (2009/C 19/57)
   Language of the case: English
   Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athènes, Greece) (represented by: N. Korogiannakis and P. Katsimani, lawyers)

      Defendant: European Investment Bank
   Form of order sought

               —

               Annul the decision of the European Investment Bank to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

               —

               Order the European Investment Bank to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 1 940 000,00;

               —

               Order the European Investment Bank to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

         Pleas in law and main arguments
   By means of its application pursuant to Articles 230 EC and 235 EC, the applicant seeks, on one hand, the annulment of the decision of the European Investment Bank of 26 July 2008 to reject the bid of the applicant filed in response to the open Call for Tenders ‘EIB-Assistance in the Maintenance Support and Development of the loans front Office system (SERAPIS) at the European Investment Bank’ (OJ 2007/S 176-215155), and on the other hand, compensation for damages.
   The applicant claims that the outcome of the tender has not been communicated to it and that it came only incidentally to its knowledge that a contract award notice had been published in the Official Journal (1) of 26 July 2008. The applicant argues that the contested decision was taken by the defendant in violation of the principles of transparency and of equal treatment, and of the relevant provisions of the EIB's Guide for Procurement and the EC law on public procurement. It is submitted moreover that by not notifying the applicant of its award decision, by failing to provide sufficient justification of its decision to award the contract to another tenderer, by setting criteria that result in unequal treatment, by mixing selection and award criteria, by using a discriminatory evaluation formula of a ratio 75 %/25 %, the defendant allegedly failed to ensure undistorted competition through repeated infringements of the obligation of transparency and equal treatment.
   The applicant furthermore claims that should the Court find that the defendant infringed the community law of public procurement and/or principles of legal transparency and of equal treatment, the applicant requests monetary compensation equal to 50 % of EUR 3 880 000,00 (EUR 1 940 000,00) from EIB, corresponding to the estimated gross profit from the aforementioned public procurement procedure, should the contract have been awarded to the applicant.
   The applicant further requests the Court to condemn the defendant to pay the applicant's legal costs even if the Court rejects the application, in accordance with Article 87(3)(b) of the Rules of Procedure of the Court of First Instance, since it considers that it was the defendant's deficient evaluation of the applicant's tender, as well as the failure to state reasons and inform the applicant timely on the relative merits of the successful tenderer that forced the applicant to seek legal redress before this Court.

      (1)  OJ 2008/S 144-192307.


title: Judgment of the Court of First Instance of 6 July 2004 in Case T-117/02: Grupo El Prado Cervera, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark ‘CHUFAFIT’ — Earlier national word and figurative marks ‘CHUFI’ — Likelihood of confusion — Likelihood of association — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/18

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 6 July 2004
   in Case T-117/02: Grupo El Prado Cervera, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark ‘CHUFAFIT’ - Earlier national word and figurative marks ‘CHUFI’ - Likelihood of confusion - Likelihood of association - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2004/C 239/36)
   Language of the case: German
   In Case T-117/02: Grupo El Prado Cervera, SL, established in Valencia (Spain), represented by P. Koch Moreno, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J.F. Crespo Carrillo and G. Schneider), the other parties to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance, being Helene Debuschewitz and Others, as heirs of Johann Debuschewitz, residing at Rösrath-Forsbach (Germany), represented by E. Krings, lawyer — action for annulment of the decision of the First Board of Appeal of OHIM of 12 February 2002 (Case R 798/2001-1) concerning the opposition proceedings between Grupo El Prado Cervera, SL, and J. Debuschewitz — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and M.E. Martins Ribeiro, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 6 July 2004, in which it:

               1.

               Dismisses the application;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 156 of 29.6.2002.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 20 February 1997 in Case C-107/95 P: Bundesverband der Bilanzbuchhalter eV v. Commission of the European Communities (Appeals - Action for annulment - Admissibility - Refusal by the Commission to commence proceedings against a Member State for failure to fulfil obligations - Refusal by the Commission to take measures under Article 90 (3) of the EC Treaty)

text:
5 . 4 . 97             EN                  Official Journal of the European Communities                                   No C 108/5
                JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                        (Fifth Chamber)                                                       ( Second Chamber)
                      of 20 February 1997                                                   of 20 February 1997
in Case C-107/95 P: Bundesverband der Bilanzbuchhalter                in Case C-128/95 (reference for a preliminary ruling from
      eV v. Commission of the European Communities (')                the Tribunal de Commerce de Lyon ): Fontaine SA and
                                                                                Others v. Aqueducs Automobiles Sari (')
(Appeals — Action for annulment — Admissibility —
Refusal by the Commission to commence proceedings                     (Competition — Vehicle distribution — Parallel imports —
against a Member State for failure to fulfil obligations —            Regulation (EEC) No 123/85 — Applicability as against
Refusal by the Commission to take measures under                      third parties — Independent reseller — Definition of 'new
                Article 90 (3) of the EC Treaty)                                    vehicle ' and 'second-hand vehicle')
                                                                                ( 97/C 108/08 )
                          ( 97/C 108/07 )
                                                                                (Language of the case: French)
                (Language of the case: German)
                                                                         (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
  (Provisional translation; the definitive translation will be
           published in the European Court Reports)
                                                                      In Case C-128/95 : reference to the Court under Article 177
                                                                      of the EC Treaty from the Tribunal de Commerce
In Case C-107/95 P : Bundesverband der Bilanzbuchhalter               ( Commercial Court), Lyon ( France ), for a preliminary
eV, an association governed by German law, established                ruling in the proceedings pending before that court
in Bonn ( Germany), represented by Joachim Müller,                    between Fontaine SA, Garage Laval SA, Fahy SA, Renault
Rechtsanwalt, Munich, with an address for service in                  Lyon Ouest FLB Automobiles SA, Diffusion Vallis Auto
Luxembourg at the Chambers of Arsène Kronshagen,                      SA, Horizon Sud SA and Aqueducs Automobiles Sari —
12 Boulevard de la Foire — appeal against the order of                on the interpretation of Commission Regulation ( EEC )
the Court of First Instance ( Fourth Chamber ) of                     No 123/85 of 12 December 1984 on the application of
23 January 1995 in Case T-84/94 Bilanzbuchhalter v.                   Article 85 ( 3 ) of the EEC Treaty to certain categories of
Commission [ 1995] ECR 11-101 , seeking to have that                  motor vehicle distribution and servicing agreements ( OJ
order set aside — the other party to the proceedings being            No L 15, 18 . 1 . 1985 , p. 16 ) — the Court ( Second
Commission of the European Communities (Agents:                       Chamber ), composed of: G. F. Mancini, President of the
Marie-Jose Jonczy and Norbert Lorenz ) — the Court                    Chamber, G. Hirsch and R. Schintgen ( Rapporteur),
( Fifth Chamber ), composed of: L. Sevón, President of the            Judges; D. Ruiz-Jarabo Colomer, Advocate-General; D.
First Chamber, acting for the President of the Fifth                  Louterman-Hubeau, Principal Administrator, for the
Chamber ( Rapporteur), C. Gulmann, D. A. O. Edward,                   Registrar, has given a judgment on 20 February 1997, in
                                                                      which it has ruled :
J. -P. Puissochet and P. Jann, Judges; A. La Pergola,
Advocate-General; R. Grass, Registrar, has given a
judgment on 20 February 1997, in which it:
                                                                      Commission Regulation (EEC) No 123/85 of 12 December
                                                                      1984 on the application of Article 85 (3) of the EEC
                                                                      Treaty to certain categories of motor vehicle distribution
1 . dismisses the appeal;                                             and servicing agreements is to be interpreted as not
                                                                      preventing a trader who is neither an approved reseller in
                                                                      the distribution network of a manufacturer of a particular
                                                                      make of motor vehicle nor an authorized intermediary
2 . orders the Bundesverband der Bilanzbuchhalter eV to               within the meaning of Article 3 (11 ) of that Regulation
      pay the costs.                                                  from undertaking parallel imports and operating as an
                                                                      independent reseller of new vehicles of that make.
 H OJ No C 174, 8 . 7. 1995 .
                                                                       (») OJ No C 159, 24 . 6 . 1995 .


title: Case C-330/12: Action brought on 9 July 2012 — European Commission v Republic of Poland

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/23

         Action brought on 9 July 2012 — European Commission v Republic of Poland
   (Case C-330/12)
   2012/C 287/43
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: P. Hetsch, L. Nicolae and J. Hottiaux, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

               —

               declare that, by not adopting the laws, regulations and administrative provisions necessary to give effect to Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services, (1) and in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 5 of that directive;

               —

               impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a periodic penalty payment for failure to comply with its obligation to notify the Commission of the measures for transposing Directive 2009/140, at a daily rate of EUR 56 095,2, payable from the date on which judgment is delivered in the present case;

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The period within which Directive 2009/140 had to be transposed expired on 25 May 2011.

      (1)  OJ 2009 L 337, p. 37.


title: Case T-445/07: Judgment of the General Court of 27 June 2012 — Berning & Söhne v Commission (Competition — Agreements and concerted practices — Markets in zip fasteners and ‘other fasteners’ and attaching machines — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, sharing of customers and of markets and exchange of other business information — Proof — Rights of the defence — Single and continuing infringement — Time-bar — Fines — Duration and gravity of the infringement — Mitigating circumstances — Equal treatment — Proportionality)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/12

         Judgment of the General Court of 27 June 2012 — Berning & Söhne v Commission
   (Case T-445/07) (1)

   (Competition - Agreements and concerted practices - Markets in zip fasteners and ‘other fasteners’ and attaching machines - Decision finding an infringement of Article 81 EC - Coordinated price increases, fixing of minimum prices, sharing of customers and of markets and exchange of other business information - Proof - Rights of the defence - Single and continuing infringement - Time-bar - Fines - Duration and gravity of the infringement - Mitigating circumstances - Equal treatment - Proportionality)
   2012/C 243/21
   Language of the case: German

      Parties

      Applicant: Berning & Söhne GmbH & Co. KG (Wuppertal, Germany) (represented by: P. Niggemann and K. Gaßner, lawyers)

      Defendant: European Commission (represented by: K. Mojzesowicz and R. Sauer, agents)

      Re:

   Application for annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) or, in the alternative, reduction of the amount of the fine imposed on the applicant by that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Berning & Söhne GmbH & Co. KG to pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Case T-9/15: Action brought on 9 January 2015  — Ball Europe v OHIM — Crown Hellas Can

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/32

         Action brought on 9 January 2015 — Ball Europe v OHIM — Crown Hellas Can
   (Case T-9/15)
   (2015/C 089/39)
   Language in which the application was lodged: German

      Parties

      Applicant: Ball Europe GmbH (Zürich, Switzerland) (represented by: A. Renck, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Crown Hellas Can SA (Athens, Greece)

      Details of the proceedings before OHIM

      Proprietor of the design at issue: the applicant

      Design at issue: Community design No 230 990-0006

      Contested decision: Decision of the Third Board of Appeal of OHIM of 8 September 2014 in Case R 1408/2012-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the defendant and — in the event of a formal intervention — also the other party to the proceedings before the Board of Appeal to pay the costs, including the costs incurred by the applicant.

      Pleas in law

               —

               Infringement of Article 25(1)(b) in conjunction with Article 6 of Regulation No 6/2002;

               —

               Infringement of Article 62 of Regulation No 6/2002.


title: Case C-553/08 P: Appeal brought on 16 December 2008 by Powerserv Personalservice GmbH, formerly Manpower Personalservice GmbH, against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 October 2008 in Case T-405/05 Powerserv Personalservice GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/19

         Appeal brought on 16 December 2008 by Powerserv Personalservice GmbH, formerly Manpower Personalservice GmbH, against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 October 2008 in Case T-405/05 Powerserv Personalservice GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-553/08 P)
   (2009/C 69/35)
   Language of the case: German
   Parties

      Appellant: Powerserv Personalservice GmbH, formerly Manpower Personalservice GmbH (represented by: B. Kuchar, Rechtsanwältin)

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

               —

               Set aside the judgment under appeal of the Court of First Instance of 15 October 2008 in Case T-405/05 and declare Community trade mark No 76059 invalid in respect of all goods and services;

               —

               set aside the judgment under appeal of the Court of First Instance of 15 October 2008 in Case T-405/05 inasmuch as it relates to the failure to prove the acquired distinctive character of Community trade mark No 76059, and refer the case back to the Court of First Instance;

               —

               in any event, order OHIM and the proprietor of the Community trade mark to bear their own costs and to pay the appellant's costs as regards the proceedings before the Board of Appeal of OHIM, the Court of First Instance and the Court of Justice.

         Pleas in law and main arguments
   This appeal is brought against the judgment of the Court of First Instance dismissing the appellant's action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (‘OHIM’) of 22 July 2005 relating to a declaration of invalidity of the Community trade mark ‘MANPOWER’. The Court of First Instance decided that the Community trade mark ‘MANPOWER’ is descriptive of the designated goods and services only in the United Kingdom, Ireland, Germany and Austria and supports the decision of the Board of Appeal that the mark in question has acquired distinctive character through use in those Member States in which it is descriptive.
   The grounds of appeal relied upon are the infringement of Article 51(1)(a) and Article 51(2) in conjunction with Article 7(1)(c) and Article 7(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.
   Contrary to the view taken by the Court of First Instance, the ‘MANPOWER’ sign is, as the Board of Appeal of OHIM correctly determined, descriptive also in the Netherlands, Sweden, Denmark and Finland, as well as in all other Member States belonging to the Community before 1 May 2004. If the Court had acknowledged the fact that, according to European Commission figures, 47 % of relevant persons in the Community speak English, it would have had to conclude that the word mark ‘MANPOWER’ is descriptive not only in Germany and Austria but also in other EU States, in particular in the Netherlands, Sweden, Finland and Denmark. In respect of the other States belonging to the Community before 1 May 2004 also, the Court failed to recognise that, as a result of compulsory education in each of those Member States, the relevant section of the population has sufficient knowledge of English to be able to comprehend the meaning of basic vocabulary, such as the words ‘MAN’ and ‘POWER’, and thus also to recognise that the word ‘MANPOWER’ is descriptive of the goods and services of the trade mark proprietor. However, not only does the Court fail to give any reasons for declining to attribute even a basic knowledge of the English language to people outside the United Kingdom and Ireland, but it even contradicts its own case-law to date, according to which the population outside the United Kingdom and Ireland is acknowledged to have a certain basic knowledge of the English language in connection with the perception of a mark.
   In connection with proof of distinctive character acquired through use, the Court erred in law in so far as it extended the relevant public by comparison with the decision of the Board of Appeal without reassessing the evidence submitted in respect of distinctive character acquired. Even if the Court is deemed to have decided correctly that proof of reputation was required to be submitted only in relation to the United Kingdom, Ireland, Germany and Austria, it should, in view of the extended public, have annulled the decision of the Board of Appeal in that respect and referred the case back to the Board of Appeal. The Court also erred in law in confirming the Board of Appeal's view regarding a spillover effect from the United Kingdom to Ireland so far as concerns any reputation of the mark at issue, even though no assumption can be made as to the spillover of the reputation of a mark from one Member State to another or from one product or service to another.


C 144/32              EN                  Official Journal of the European Communities                                    15.6.2002
       Removal from the register of Case C-282/01 (1)                register of Case C-288/01 (Referral for a preliminary ruling by
                                                                     the Schleswig-Holsteinisches Finanzgericht): Ulf Thomsen v
                       (2002/C 144/66)                               Finanzamt Flensburg.
                                                                     (1) OJ C 275 of 29.9.2001.
By order of 21 March 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-282/01: Commission of the
European Communities v Portuguese Republic.
(1) OJ C 245 of 1.9.2001.                                                   Removal from the register of Case C-350/01 (1)
                                                                                (2002/C 144/69)
                                                                     By order of 6 March 2002 the President of the Court of Justice
       Removal from the register of Case C-287/01 (1)                of the European Communities ordered the removal from the
                                                                     register of Case C-350/01: Commission of the European
                       (2002/C 144/67)                               Communities v Italian Republic.
By order of 11 April 2002 the President of the Court of Justice      (1) OJ C 317 of 10.11.2001.
of the European Communities ordered the removal from the
register of Case C-287/01: Commission of the European
Communities v French Republic.
(1) OJ C 245 of 1.9.2001.                                                   Removal from the register of Case C-409/01 (1)
                                                                                (2002/C 144/70)
       Removal from the register of Case C-288/01 (1)                By order of 22 March 2002 the President of the Court of
                                                                     Justice of the European Communities ordered the removal
                       (2002/C 144/68)                               from the register of Case C-409/01 (Reference for a preliminary
                                                                     ruling by the Tribunale Civile e Penale di L’Aquila): Rolando
                                                                     Salusest v Giovanni Petrucci.
By order of 6 March 2002 the President of the Court of Justice
of the European Communities ordered the removal from the             (1) OJ C 348 of 8.12.2001.