title: Case C-415/00: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by order of that court of 9 November 2000 in the appeal concerning (1) Dr Herbert Pflanzl, (2) Bürgermeister der Landeshauptstadt Salzburg, (3) Grundverkehrsbeauftragter des Landes Salzburg and (4) Grundverkehrslandeskommission des Landes Salzburg

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:
 ---pagebreak--- 27.1.2001              EN                    Official Journal of the European Communities                                     C 28/17
Are the provisions of Article 56 et seq. of the EC Treaty to be         4.    must Article 14(4) of Law No 580 of 4 July 1967
interpreted as precluding the application of Paragraphs 13, 36                (replaced by Article 44(4) of Law No 146 of 22 February
and 43 of the Salzburger Grundverkehrsgesetz (Salzburg land                   1994) be disapplied by the Italian courts?
Transfer Law) of 1997 in the version published in LGBl.
No. 11/1999, whereby any person who wishes to acquire a
building plot in the federal Land of Salzburg must comply with          5.    must bread baked from frozen or non-frozen part-baked
a notification or authorisation procedure in respect of the                   bread (lawfully manufactured in and imported from
acquisition of that plot, with the consequence that one of the                France) be allowed into free circulation without any
fundamental freedoms of the acquirer of title as guaranteed by                restriction, such as the previous packaging requirement
the laws of the European Union has been infringed in this                     provided for in Article 14(4) of Law No 580 of 4 July
case?                                                                         1967 (replaced by Article 44(4) of Law No 146 of
                                                                              22 February 1994)?
Reference for a preliminary ruling by the Tribunale di
Padova by order of that court of 16 October 2000 in the
  case of Tommaso Morellato against Comune di Padova                    Reference for a preliminary ruling by the Unabhängiger
                                                                        Verwaltungssenat Salzburg by order of that court of
                                                                        31 October 2000 in the appeal concerning (1) Dr Werner
                                                                        Salentinig, (2) Bürgermeister der Landeshauptstadt Salz-
                         (Case C-416/00)
                                                                        burg, and (3) Grundverkehrsbeauftragter des Landes Salz-
                                                                                burg
                          (2001/C 28/31)
                                                                                (Case C-420/00)
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Civile di
                                                                                (2001/C 28/32)
Padova — Sezione II (Padua Civil District Court — Second
Chamber) of 16 October 2000, which was received at the
Court Registry on 13 November 2000, for a preliminary ruling
in the case of Tommaso Morellato against Comune di Padova               Reference has been made to the Court of Justice of the
on the following questions:                                             European Communities by order of the Unabhängiger Verwal-
                                                                        tungssenat Salzburg of 31 October 2000, received at the Court
                                                                        Registry on 14 November 2000, for a preliminary ruling
1.    must Article 14(4) of Law No 580 of 4 July 1967                   in the appeal concerning Dr (1) Werner Salentinig, (2)
      (replaced by Article 44(4) of Law No 146 of 22 February           Bürgermeister der Landeshauptstadt Salzburg, and (3) Grund-
      1994), as interpreted by the Mayor of the Commune of              verkehrsbeauftragter des Landes Salzburg:
      Padua in the contested order, in so far as it prohibits the
      sale of bread baked from frozen or non-frozen part-baked
      bread (lawfully manufactured in and imported from                 Are the provisions of Article 56 et seq. of the EC Treaty to be
      France), if it has not previously been packaged by the            interpreted as precluding the application of Paragraphs 12, 36
      reseller, be regarded as incompatible with Articles 30 and        and 43 of the Salzburger Grundverkehrsgesetz (Salzburg Land
      36 of the EC Treaty?                                              Transfer Law) of 1997 in the version published in LGBl.
                                                                        No. 11/1999, whereby any person who wishes to acquire a
2.    must Article 14(4) of Law No 580 of 4 July 1967                   building plot in the federal Land of Salzburg must comply with
      (replaced by Article 44(4) of Law No 146 of 22 February           a notification or authorisation procedure in respect of the
      1994) and the subsequent construction placed upon it by           acquisition of that plot, with the consequence that one of the
      the Mayor of the Commune of Padua be regarded as a                fundamental freedoms of the acquirer of title as guaranteed by
      quantitative restriction or a measure having equivalent           the laws of the European Union has been infringed in this
      effect within the meaning of Article 30 of the EC Treaty?         case?
3.    if so, may the Italian State avail itself of the derogation
      provided for by Article 36 of the Treaty for the purpose
      of protecting the health and lives of humans?


title: Case C-341/04: Reference for a preliminary ruling by the Supreme Court, Ireland, by order of that court dated 27 July 2004, in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/7

         Reference for a preliminary ruling by the Supreme Court, Ireland, by order of that court dated 27 July 2004, in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders
   (Case C-341/04)
   (2004/C 251/13)
   Reference has been made to the Court of Justice of the European Communities by order of the Supreme Court, Ireland, dated 27 July 2004, which was received at the Court Registry on 9 August 2004, for a preliminary ruling in the matter of Eurofood IFSC Ltd and in the matter of the Companies Acts 1963 to 2003, Enrico Bondi against Bank of America N.A., Pearse Farrell (the Official Liquidator), Director of Corporate Enforcement and the Certificate/Note holders on the following questions:

               1.

               Where a petition is presented to a Court of competent jurisdiction in Ireland for the winding up of an insolvent company and that Court makes an Order, pending the making of an Order for winding up, appointing a provisional liquidator with powers to take possession of the assets of the company, manage its affairs, open a bank account and appoint a solicitor all with the effect in law of depriving the directors of the company of power to act, does that Order combined with the presentation of the petition constitute a Judgment opening of insolvency proceedings for the purposes of Article 16, interpreted in the light of Articles 1 and 2, of Council Regulation (EC) No 1346 of 2000? (1)

               2.

               If the answer to Question 1 is in the negative, does the presentation, in Ireland, of a petition to the High Court for the compulsory winding up of a company by the Court constitute the opening of insolvency proceedings for the purposes of that Regulation by virtue of the Irish legal provision (section 220(2) of the Companies Act, 1963) deeming the winding up of the company to commence at the date of the presentation of the petition?

               3.

               Does Article 3 of the said Regulation, in combination with Article 16, have the effect that a Court in a Member State other than that in which the registered office of the company is situate and other than where the company conducts the administration of its interests on a regular basis in a manner ascertainable by third parties, but where insolvency proceedings are first opened has jurisdiction to open main insolvency proceedings?

               4.

               Where,

                           (a)

                           the registered offices of a parent company and its subsidiary are in two different member states,

                           (b)

                           the subsidiary conducts the administration of its interests on a regular basis in a manner ascertainable by third parties and in complete and regular respect for its own corporate identity in the member state where its registered office is situated and

                           (c)

                           the parent company is in a position, by virtue of its shareholding and power to appoint directors, to control and does in fact control the policy of the subsidiary,

                     in determining the ‘centre of main interests’, are the governing factors those referred to at (b) above or on the other hand those referred to at (c) above?

               5.

               Where it is manifestly contrary to the public policy of a Member State to permit a judicial or administrative decision to have legal effect in relation to persons or bodies whose right to fair procedures and a fair hearing has not been respected in reaching such a decision, is that Member State bound, by virtue of Article 17 of the said Regulation, to give recognition to a decision of the courts of another Member State purporting to open insolvency proceedings in respect of a company, in a situation where the Court of the first Member State is satisfied that the decision in question has been made in disregard of those principles and, in particular, where the applicant in the second Member State has refused, in spite of requests and contrary to the Order of the Court of the second Member State, to provide the provisional liquidator of the company, duly appointed in accordance with the law of the first Member State, with any copy of the essential papers grounding the application?

      (1)  Of 29 May 2000 on insolvency proceedings (OJ L 160, 30.6.2000, p. 1).


title: Case T-267/07: Action brought on 9 July 2007 — Italian Republic v Commission

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/12

         Action brought on 9 July 2007 — Italian Republic v Commission
   (Case T-267/07)
   (2007/C 223/18)
   Language of the case: Italian
   Parties

      Applicant: Italian Republic (represented by: G. Aiello and S. Fiorentino, Avvocati dello Stato)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Commission Decision C(2007) 1901 final of 27 April 2007 on the clearance of the accounts of the paying agencies of Member States concerning expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section, for the 2006 financial year, in so far as it charges to the Italian Republic, as provided for in Article 32(5) of Regulation (EC) No 1290/2005, 50 % of the financial consequences of the non-recovery of amounts in the cases of irregularity or negligence under consideration in the present application.

         Pleas in law and main arguments
   The Italian Government has challenged before the Court of First Instance of the European Communities Commission Decision C(2007) 1901 final of 27 April 2007, notified on even date, on the clearance of the accounts of the paying agencies of Member States concerning expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section, for the 2006 financial year, in so far as it charges to the Italian Republic, as provided for in Article 32(5) of Regulation (EC) No 1290/2005, 50 % of the financial consequences of the non-recovery of amounts in particular cases of irregularity or negligence.
   In support of its action the Italian Government complained of the inclusion in the decision of cases which the Commission ought to have decided expressly, with diligence and within a reasonable period, at a earlier time, by charging in full to the EAGGF. That is also having regard to the fact that, in respect of several of those positions, the Commission had taken a favourable decision.
   The Italian Government therefore pleaded the following grounds of appeal:

               (a)

               infringement and/or misapplication of Article 5(2) of Regulation (EEC) No 595/91 and Article 8 of Regulation (EC) No 1663/95. Infringement of Article 253 EC in respect of failure to state the grounds;

               (b)

               infringement and/or misapplication of Article 8(2) of Regulation (EEC) No 729/70 and Article 8(2) of Regulation (EC) No 1258/99. Infringement of Article 253 EC in respect of failure to state the grounds;

               (c)

               infringement and/or misapplication of Article 5(2) of Regulation (EEC) No 595/91, Article 8 of Regulation (EC) No 1663/95, Article 8(2) of Regulation (EEC) No 729/70 and Article 8(2) of Regulation (EC) No 1258/99 (in relation to the amounts less than EUR 500 000,00). Infringement of Article 253 EC in respect of failure to state the grounds (in relation to amounts less than EUR 500 000,00).


title: Case C-464/13: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 August 2013 — Europäische Schule München v Silvana Oberto

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/7

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 August 2013 — Europäische Schule München v Silvana Oberto
   (Case C-464/13)
   2013/C 336/16
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Appellant on a point of law: Europäische Schule München

      Respondent on a point of law: Silvana Oberto

      Questions referred

               1.

               Is the first sentence of Article 27(2) of the Convention defining the Statute of the European Schools of 21 June 1994 (SES) (1) to be interpreted as meaning that part-time teachers employed by a European School, who are not seconded by the Member States, are persons covered by the Convention and are not — unlike the administrative and ancillary staff — excepted from the application of that provision?

               2.

               If the Court of Justice answers the first question in the affirmative:
               Is the first sentence of Article 27(2) of the SES to be interpreted as meaning that that provision also covers the legality of any act, based on the Convention or on the rules made under it, which is performed in relation to part-time teachers by the headteacher of a school in the exercise of his powers as specified by that Convention and which adversely affects such teachers?

               3.

               If the Court of Justice answers the second question in the affirmative:
               Is the first sentence of Article 27(2) of the SES to be interpreted as meaning that the conclusion of a contract between the headteacher of a European School and a part-time teacher concerning the fixed-term nature of the part-time teacher’s employment relationship also constitutes an act which is performed by the headteacher in relation to that part-time teacher and which adversely affects the latter?

               4.

               If the Court of Justice answers the second or third question in the negative:
               Is the first sentence of Article 27(2) of the SES to be interpreted as meaning that the Complaints Board referred to therein has exclusive jurisdiction in the first and final instance, once all administrative channels have been exhausted, in any dispute relating to the fixed-term nature of a contract of employment which the headteacher of a school concludes with a part-time teacher if that contract is essentially based on the requirement of the Board of Governors in point 1.3 of the Conditions of Employment for Part-time Teachers recruited after 31 August 1994, which provides for ‘annual contracts’?

      (1)  OJ 1994 L 212, p. 3.


title: Case C-40/05: Reference for a preliminary ruling from the Överklagandenämnden för högskolan by decision of that court of 1 February 2005 in Kaj Lyyski v Umeå universitet

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/8

         Reference for a preliminary ruling from the Överklagandenämnden för högskolan by decision of that court of 1 February 2005 in Kaj Lyyski v Umeå universitet
   (Case C-40/05)
   (2005/C 93/15)
   Language of the case: Swedish
   Reference has been made to the Court of Justice of the European Communities by decision of the Överklagandenämnden för högskolan (Sweden) of 1 February 2005, received at the Court Registry on 3 February 2005, for a preliminary ruling in the proceedings between Kaj Lyyski and Umeå universitet on the following question:

               1.

               Does Community law, in particular Article 12 EC, prevent the imposition, on assessment of an applicant's eligibility for admission to teacher training intended in the short term to meet the need for qualified teachers in Sweden, of a requirement of employment in a Swedish school? Can such a requirement be considered justified and proportional?

               2.

               Does it make a difference to the answer to the first question if an applicant for the training course who is employed in a school in a Member State other than Sweden is a Swedish national or a national of another Member State?

               3.

               Does it make a difference to the answer to the first question if the teacher training is intended to be of limited duration or if the teacher involved is of a longer duration?


title: Judgment of the Court of 10 December 2002 in Case C-362/01: Commission of the European Communities v Ireland (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 98/5/EC — Reasoned opinion — Failure to take into account observations submitted by the Member State in response to the formal notice — Bearing on admissibility)

text:
C 19/8                   EN                         Official Journal of the European Communities                                          25.1.2003
                   JUDGMENT OF THE COURT                                                          JUDGMENT OF THE COURT
                        of 10 December 2002                                                                (Third Chamber)
                                                                                of 28 November 2002
in Case C-362/01: Commission of the European Communi-
                            ties v Ireland ( 1)
                                                                               in Case C-392/01: Commission of the European Communi-
                                                                                ties v Kingdom of Spain (1)
(Failure by a Member State to fulfil its obligations — Failure
to transpose Directive 98/5/EC — Reasoned opinion —
Failure to take into account observations submitted by the                     (Failure by a Member State to fulfil its obligations —
Member State in response to the formal notice — Bearing on                     Directive 97/55/EC — Comparative advertising — Failure
                              admissibility)                                               to implement within the prescribed period)
                            (2003/C 19/14)                                                                  (2003/C 19/15)
                     (Language of the case: English)                                                 (Language of the case: Spanish)
                                                                               (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-362/01, Commission of the European Communities
(Agent: K. Banks) v Ireland (Agent: D. J. O’Hagan, assisted by
D. McGuinness, SC, and D. R. Phelan, BL): Application for a
declaration that, by failing to adopt the laws, regulations and                In Case C-392/01, Commission of the European Communities
administrative provisions necessary to comply with Directive                   (Agent: I. Martínez del Peral) v Kingdom of Spain (Agent:
98/5/EC of the European Parliament and the Council of                          L. Fraguas Gadea): Application for a declaration that, by failing
16 February 1998 to facilitate practice of the profession of                   to adopt the laws, regulations and administrative provisions
lawyer on a permanent basis in a Member State other than                       necessary to comply with Directive 97/55/EC of the European
that in which the qualification was obtained (OJ 1998 L 77,                    Parliament and of the Council of 6 October 1997 amending
p. 36), or by failing to inform the Commission thereof, Ireland                Directive 84/450/EEC concerning misleading advertising so as
has failed to fulfil its obligations under that directive, the                 to include comparative advertising (OJ 1997 L 290, p. 18), or,
Court, composed of: G.C. Rodríguez Iglesias, President,                        in any event, by failing to inform the Commission of the
J.-P. Puissochet (Rapporteur), M. Wathelet and C.W.A. Timmer-                  adoption of any such measures, the Kingdom of Spain has
mans (Presidents of Chambers), D.A.O. Edward, A. La Pergola,                   failed to fulfil its obligations under that directive, the Court
P. Jann, F. Macken, N. Colneric, S. von Bahr and J.N. Cunha                    (Third Chamber), composed of: J.-P. Puissochet, President
Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advocate General;                   of the Chamber, C. Gulmann and J.N. Cunha Rodrigues
R. Grass, Registrar, has given a judgment on 10 December                       (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
2002, in which it:                                                             R. Grass, Registrar, has given a judgment on 28 November
                                                                               2002, in which it:
1.     Declares that, by failing to adopt within the period prescribed
       the laws, regulations and administrative provisions necessary to        1.    Declares that, by failing to adopt, within the prescribed period,
       comply with Directive 98/5/EC of the European Parliament                      the laws, regulations and administrative provisions necessary to
       and the Council of 16 February 1998 to facilitate practice of                 comply with Directive 97/55/EC of the European Parliament
       the profession of lawyer on a permanent basis in a Member                     and of the Council of 6 October 1997 amending Directive 84/
       State other than that in which the qualification was obtained,                450/EEC concerning misleading advertising so as to include
       Ireland has failed to fulfil its obligations under that directive.            comparative advertising, the Kingdom of Spain has failed to
                                                                                fulfil its obligations under that directive.
2.     Orders Ireland to pay the costs.
                                                                               2.    Orders the Kingdom of Spain to pay the costs.
( 1) OJ C 317 of 10.11.2001.
                                                                               (1 ) OJ C 331 of 24.11.2001.


title: Case T-283/03: Judgment of the Court of First Instance of 13 September 2005 — Recalde Langarica v Commission (Officials — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Rights of the defence — Article 26 of the Staff Regulations — Manifest error of assessment — Meaning of ‘habitually reside’ — Work done for another State)

text:
               15.10.2005

               EN

               Official Journal of the European Union

               C 257/10

         Judgment of the Court of First Instance of 13 September 2005 — Recalde Langarica v Commission
   (Case T-283/03) (1)

   (Officials - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Rights of the defence - Article 26 of the Staff Regulations - Manifest error of assessment - Meaning of ‘habitually reside’ - Work done for another State)
   (2005/C 257/18)
   Language of the case: Spanish
   Parties:

      Applicant: Recalde Langarica (Brussels, Belgium) [represented by: R.García-Gallardo Gil-Fournier and D. Domínguez Pérez, lawyers]

      Defendant: Commission of the European Communities [represented by: J. Currall, acting as Agent, and J. Rivas Andrés and J. Gutiérrez Gisbert, lawyers]
   Application for:
   annulment of the Commission's decision withdrawing the applicant's entitlement to the expatriation allowance.
   Operative part of the judgment:
   The Court:

               1)

               Dismisses the action.

               2)

               Orders the parties to bear their own costs.

      (1)  OJ C 239 of 4.10.2003.


title: Case C-379/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 12 September 2001 in the case of Ortner Gesellschaft m.b.H. v Allgemeine Unfallversicherungsanstalt

text:
C 3/14                EN                   Official Journal of the European Communities                                       5.1.2002
Reference for a preliminary ruling by the Bundesverga-                (C-395/01) and 17 October 2001 (C417/01) by the Unabhän-
beamt (Austria) by order of 12 September 2001 in                      giger Verwaltungssenat of the Land Vorarlberg (Independent
the case of Ortner Gesellschaft m.b.H. v Allgemeine                   Administrative Chamber of the Land Vorarlberg), which were
                   Unfallversicherungsanstalt                         received at the Court Registry on 10 October 2001 and
                                                                      22 October 2001 for a preliminary ruling in the appeals
                                                                      brought by Herbert Bregenzer on the following questions:
                        (Case C-379/01)
                         (2002/C 3/19)
                                                                      1.   Does Article 2(1)(b) of Council Directive 79/112/EEC (1)
                                                                           of 18 December 1978 on the approximation of the
                                                                           laws of the Member States relating to the labelling,
Reference has been made to the Court of Justice of the                     presentation and advertising of foodstuffs for sale to
European Communities by order of 12 September 2001 by                      the ultimate consumer (now consolidated in European
the Bundesvergabeamt (Austrian Federal Procurement Office),                Parliament and Council Directive 2000/13/EC of
which was received at the Court Registry on 3 October 2001,                20 March 2000, OJ 2000 L 109, p. 29; hereinafter
for a preliminary ruling in the case of Ortner Gesellschaft                ‘the labelling Directive’), under which — subject to
m.b.H. v Allgemeine Unfallversicherungsanstalt on the follow-              Community provisions applicable to natural mineral
ing questions:                                                             waters and to foodstuffs for particular nutritional uses,
                                                                           the labelling and methods used may not attribute to any
1.   Is Article 1(3) of Council Directive 89/665/EEC (1) of                foodstuff the property of preventing, treating or curing a
     21 December 1989 on the coordination of the laws,                     human disease, or suggest that it possesses such proper-
     regulations and administrative provisions relating to the             ties, preclude national legislation which makes it an
     application of review procedures to the award of public               offence when marketing foodstuffs:
     supply and public works contracts to be interpreted as
     meaning that any person seeking the award of a specific
     pending public contract is entitled to institute a review             (a)   to refer to physiological or pharmacological effects,
     procedure?                                                                  in particular those which preserve youthfulness,
                                                                                inhibit signs of ageing, promote slimming or main-
2.   In the event that the answer given to Question 1 is no:                     tain health, or to create the impression of any such
                                                                                effect;
     Is the abovementioned provision to be understood as
     meaning that, if a tenderer’s bid is not eliminated by the
     contracting authority, but the review body finds in the
     course of the review procedure that the contracting                   (b) to refer to case histories, recommendations made by
     authority would have been bound to eliminate it, the                        doctors or medical experts’ reports;
     tenderer has been or risks being harmed by the infringe-
     ment alleged by him — in this case the finding by the
     contracting authority that a rival tenderer submitted the
     best bid — and that he must therefore have the right to               (c)   to use health-related, pictorial or stylised represen-
     bring a review procedure?                                                   tations of organs of the human body, pictures
                                                                                of members of the health-care professions or of
                                                                                sanatoria or other pictures or illustrations referring
(1) OJ L 395, p. 33.                                                             to health-care activities?
                                                                      2.   Do the labelling Directive or Articles 28 and 30 EC
                                                                           preclude a national provision which, on the placing into
                                                                           circulation of foodstuffs, permits health-related infor-
                                                                           mation such as that described in question (1) to be affixed
Reference for a preliminary ruling by the Unabhängiger                     thereto only after prior authorisation by the competent
Verwaltungssenat of the Land Vorarlberg by orders of                       federal minister, whereby a condition of authorisation is
8 October 2001 and 17 October 2001 in the appeals                          that the health-related information is consistent with
                 brought by Herbert Bregenzer                              protecting the consumer from being misled?
                (Cases C-395/01 and C-417/01)
                         (2002/C 3/20)                                (1) OJ L 33, p. 1.
Reference has been made to the Court of Justice of the
European Communities by orders of 8 October 2001


title: Case C-410/02: Action brought on 18 November 2002 by the Commission of the European Communities against Ireland

text:
C 7/16                    EN                   Official Journal of the European Communities                                        11.1.2003
—       As regards amended Directive 78/659/EEC, not all of               another Member State, rely on the directive in order to obtain
        the requisite information was forwarded — thus, the               from the State of residence recognition of the licence issued in
        Commission had no information regarding the total                 the State of origin and thereby escape being charged with
        surface or length of water supporting fish life, nor              driving without a valid licence?
        whether the waters complied with the parameters laid
        down in that directive;
                                                                          (1 ) Council Directive 91/439/EEC of 29 July 1991 on driving licences
                                                                               (OJ L 237 of 24.08.1991, p. 1).
—       As regards amended Directive 80/68/EEC, not all of
        the requisite information was forwarded — thus, the
        Commission did not receive the requested information
        relating to authorisations, the measuring system and
        ground water.
The Commission points out that at the expiry of the period
                                                                          Action brought on 18 November 2002 by the Com-
granted to the Kingdom of Belgium by the reasoned opinion,
the missing information had still not been received by the                    mission of the European Communities against Ireland
Commission, the explanation for such absence of information
being that the competent authorities did not ensure collection                                      (Case C-410/02)
of the data necessary for the drawing up of the reports in
question.
                                                                                (2003/C 7/30)
( 1) Council Directive 76/464/EEC of 4 May 1976 on pollution caused
     by certain dangerous substances discharged into the aquatic
     environment of the Community (OJ 1976 L 129, p. 23).                 An action against Ireland was brought before the Court of
( 2) Council Directive 78/659/EEC of 18 July 1978 on the quality of       Justice of the European Communities on 18 November 2002
     fresh waters needing protection or improvement in order to           by the Commission of the European Communities, represented
     support fish life (OJ 1978 L 222, p. 1).                             by L. Ström and X. Lewis, acting as agents, with an address for
( 3) Council Directive 80/68/EEC of 17 December 1979 on the               service in Luxembourg.
     protection of groundwater against pollution caused by certain
     dangerous substances OJ 1980 L 20, p. 43).
( 4) OJ 1991 L 377, p. 48
                                                                          The Applicant claims that the Court should:
                                                                          1)     declare that by failing to adopt the laws, regulations
                                                                                or administrative provisions necessary to comply with
                                                                                Commission Directive 2001/8/EC ( 1) of 8 February 2001
                                                                                replacing Annex I to Council Directive 92/109/EEC on
                                                                                the manufacture and placing on the market of certain
                                                                                substances used in the illicit manufacture of narcotic
Reference for a preliminary ruling by the Cour de                                drugs and psychotropic substances or, in any event, by
Cassation du Grand-Duché de Luxembourg by judgment                               failing to notify such provisions to the Commission,
of that Court of 31 October 2002 in the case of José                             Ireland has failed to fully fulfil its obligations under
     Antonio Da Silva Carvalho against Ministère Public                          Article 2 of this directive;
                            (Case C-408/02)                               2)     order Ireland to pay the costs.
                             (2003/C 7/29)
                                                                          Pleas in law and main arguments
Reference has been made to the Court of Justice of the                    Article 249 EC, under which a directive shall be binding as to
European Communities by judgment of the Cour de Cassation                 the result to be achieved, upon each Member State, carries by
du Grand-Duché de Luxembourg of 31 October 2002, received                 implication an obligation on the Member States to observe the
at the Court Registry on 15 November 2002, for a preliminary              period for compliance laid down in the directive. That period
ruling in the case of José Antonio Da Silva Carvalho against              expired on 1 March 2001 without Ireland having enacted the
Ministère Public on the following question:                               provisions necessary to comply with the directive referred to
                                                                          in the conclusions of the Commission.
On a proper interpretation of Article 1(2) and (3) of Council
                                                                          (1 ) OJ L 39, 09.02.2001, p. 31.
Directive 91/439/EEC of 29 July 1991 (1), may a person who
has obtained a driving licence during a brief stay in his country
of origin, at a time when he was already normally resident in


title: Order of the Court (Fifth Chamber) of 8 June 2004 in Joined Cases C-250/02 to C-253/02 and C-256/02 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio): Telecom Italia Mobile SpA v Ministero dell'Economia e delle Finanze (Article 104(3) of the Rules of Procedure — Questions identical with questions on which the Court has already ruled)

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/17

      ORDER OF THE COURT

   (Fifth Chamber)
   of 8 June 2004
   in Joined Cases C-250/02 to C-253/02 and C-256/02 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio): Telecom Italia Mobile SpA v Ministero dell'Economia e delle Finanze (1)

   (Article 104(3) of the Rules of Procedure - Questions identical with questions on which the Court has already ruled)
   (2004/C 228/32)
   Language of the case: Italian
   In Joined Cases C-250/02 to C-253/02 and C-256/02: reference to the Court under Article 234 EC from the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio) (Italy) for a preliminary ruling in the proceedings pending before that court between Telecom Italia Mobile SpA (C-250/02), Blu SpA (C-251/02), Telecom Italia SpA (C-252/02), Vodafone Omnitel SpA, formerly Omnitel Pronto Italia SpA (C-253/02), WIND Telecomunicazioni SpA (C-256/02) and Ministero dell'Economia e delle Finanze, Ministero delle Comunicazioni, other parties to the procedure being Albacom SpA (C-251/02) and Telemar SpA (C-252/02), on the interpretation of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15), the Court of Justice (Fifth Chamber), composed of C. Gulmann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges; Advocate General: D. Ruiz-Jarabo Colomer; Registrar: R. Grass, made an order on 8 June 2004, the operative part of which is as follows:
   The provisions of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services, and in particular Article 11 thereof, prohibit Member States from requiring undertakings which hold individual licences in the area of telecommunications services, solely on the ground that they hold such licences, to pay charges such as those at issue in the main proceedings which are different from, and additional to, those authorised by that directive.

      (1)  OJ C 219 of 14.9.2002.


title: Order of the Court of First Instance of 6 March 2003 in Case T-226/00 DEP and T-227/00 DEP: Nan Ya Plastics Corporation and Far Eastern Textiles Ltd v Council of the European Union (Taxation of costs)

text:
24.5.2003              EN                          Official Journal of the European Union                                          C 124/21
       ORDER OF THE COURT OF FIRST INSTANCE                                The applicant claims that the Court should:
                         of 6 March 2003
                                                                           —     annul Commission Decision of 30 October 2002 (C 31/
                                                                                2001 (ex NN 156/1999 and N 288/1998));
in Case T-226/00 DEP and T-227/00 DEP: Nan Ya Plastics
Corporation and Far Eastern Textiles Ltd v Council of the
                       European Union ( 1)                                 —     order the Commission to pay the costs.
                        (Taxation of costs)
                         (2003/C 124/37)
                                                                           Pleas in law and main arguments
                   (Language of the case: English)
                                                                           In the contested decision the Commission found that the
In Cases T-226/00 DEP and T-227/00 DEP: Nan Ya Plastics                    applicant had received public funds from the Federal Republic
Corporation, established in Taipei, Taiwan (China), and Far                of Germany in the amount of DEM 6 636 000, which were
Eastern Textiles Ltd, established in Taipei, represented by P. De          regarded as State aid. The Commission ordered the Federal
Baere, lawyer, with an address for service in Luxembourg, v                Republic of Germany to recover from the applicant aid in
Council of the European Union (Agents: S. Marquardt and G.                 the amount of EUR 1 120 000 together with interest. The
Berrisch): Application for taxation of the costs to be paid by             Commission takes the view that the aid was not kept to a
the defendant to the applicants following the orders made by               minimum and, in support of that view, refers to the acquisition
the Court of First Instance on 19 September 2001 in Case                   by the applicant of a holding in a supply business.
T-226/00 Nan Ya Plastics v Council and Case T-227/00 Far
Eastern Textiles v Council, not published in the European
Court Reports, the Court of First Instance (Fifth Chamber,
Extended Composition), composed of: R. García-Valdecasas,
                                                                           The applicant claims that the Commission has abused its
President, P. Lindh, R.M. Moura Ramos, J.D. Cooke and H.
                                                                           discretion by ordering the recovery of aid.
Legal, Judges, Registrar: H. Jung, has made an order on 6 March
2003, the operative part of which is as follows:
The amount of costs to be paid by the Council to the applicants in         The applicant submits that the Commission’s assumption that
Cases T-226/00 and T-227/00 is fixed at EUR 43 000.                        the acquisition of the shareholding was merely beneficial to
                                                                           the success of the restructuring, but not necessary, is incorrect.
                                                                           The acquisition of that shareholding was an integral part of
( 1) OJ C 316 of 04.11.2000.
                                                                           the restructuring plan of the investors; only in that way, could
                                                                           they acquire in the short term know-how of the applicant’s
                                                                           business to ensure the success of the restructuring within a
                                                                           reasonable period.
Action brought on 16 January 2003 by Schmitz-Gotha                         Furthermore, the applicant claims that the Commission wrong-
Fahrzeugwerke GmbH against the Commission of the                           ly assumes that the profits from the acquisition of the
                     European Communities                                  shareholding were not taken into account in the investors’
                                                                           business plan. The profits were taken into account in the
                          (Case T-17/03)                                   investors’ plan as part of the expected growth in the applicant’s
                                                                           profits.
                         (2003/C 124/38)
                   (Language of the case: German)                          Finally, the applicant submits that even if the need to acquire
                                                                           the shareholding is denied, the order requiring repayment of
                                                                           the part sum of DEM 700 000 was an abuse of discretion,
                                                                           because liquid capital of the undertaking of that amount was
An action against the Commission of the European Communi-                  directly available in return for the purchase price.
ties was brought before the Court of First Instance of the
European Communities on 16 January 2003 by Schmitz-
Gotha Fahrzeugwerke GmbH, Gotha (Germany), represented
by M. Matzat, lawyer.


title: Judgment of the Court (Fifth Chamber) of 3 July 2003 in Case C-156/01 (Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands): R.P. van der Duin v Onderlinge Waarborgmaatschappĳ ANOZ Zorgverzekeringen UA, and between Onderlinge Waarborgmaatschappĳ ANOZ Zorgverzekeringen UA and T.W. van Wegberg-van Brederode (Social security — Pensioners and members of their family residing in a Member State other than the State liable for payment of the pension — Medical costs incurred in the Member State liable for payment of the pension — Conditions for assumption of responsibility — Competent Member State and competent institution — Articles 21, 22, 28 and 31 of Regulation (EEC) No 1408/71)

text:
23.8.2003                EN                           Official Journal of the European Union                                                 C 200/5
2.    Annuls the decision of the Commission of the European                         1996 marketing campaign, calculated on the period February
      Communities contained in its letter to the Council of European                1997 to December 2000;
      Municipalities and Regions (CEMR) of 15 February 1999,
      effecting set-off of their mutual claims;                               2.    Ordered the Hellenic Republic and the Commission of the
                                                                                European Communities to bear their own costs;
3.    Orders the Commission to bear its own costs and to pay those
      incurred by the Council of European Municipalities and Regions          3.    Ordered the Federal Republic of Germany and the Kingdom of
      (CEMR) both at first instance and in connection with the                      Spain to bear their own costs.
      appeal.
                                                                              (1) OJ C 173 of 16.6.2001.
(1) OJ C 150 of 19.5.2001.
                                                                                JUDGMENT OF THE COURT
                   JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                            (Sixth Chamber)
                                                                                of 3 July 2003
                            of 12 June 2003
                                                                              in Case C-156/01 (Reference for a preliminary ruling from
in Case C-148/01: Hellenic Republic v Commission of the                       the Centrale Raad van Beroep (Netherlands): R.P. van der
                      European Communities (1)                                Duin v Onderlinge Waarborgmaatschappij ANOZ Zorgver-
                                                                              zekeringen UA, and between Onderlinge Waarborg-
                                                                              maatschappij ANOZ Zorgverzekeringen UA and T.W. van
(EAGGF — Clearing of accounts — Additional levy on milk                                           Wegberg-van Brederode (1)
— Late payment interest — Application for partial annul-
                  ment of Decision 2001/137/EC)
                                                                              (Social security — Pensioners and members of their family
                                                                              residing in a Member State other than the State liable for
                            (2003/C 200/08)                                   payment of the pension — Medical costs incurred in the
                                                                              Member State liable for payment of the pension — Condi-
                      (Language of the case: Greek)                           tions for assumption of responsibility — Competent Member
                                                                              State and competent institution — Articles 21, 22, 28 and
                                                                                31 of Regulation (EEC) No 1408/71)
(Provisional translation; the definitive translation will be published in
                       the European Court Reports)
                                                                                (2003/C 200/09)
                                                                                (Language of the case: Dutch)
In Case C-148/01: Hellenic Republic (Agent: V. Kontolaimos
and C. Tsiavou) supported by Federal Republic of Germany
(Agents: W.-D. Plessing and M. Lumma) and Kingdom of Spain                    (Provisional translation; the definitive translation will be published in
(Agent: M. López-Monís Gallego, subsequently S. Ortiz                                               the European Court Reports)
Vaamonde) against Commission of the European Communities
(Agent: M. Condou-Durande — application for partial annul-
ment of Commission Decision 2001/137/EC of 5 February
                                                                              In Case C-156/01: Reference to the Court under Article 234
2001 excluding from Community financing certain expenditure
                                                                              EC by the Centrale Raad van Beroep (Netherlands) for a
incurred by the Member States under the Guarantee Section of
                                                                              preliminary ruling in the proceedings pending before that
the European Agricultural Guidance and Guarantee Fund
                                                                              court between R.P. van der Duin and Onderlinge Waarborg-
(EAGGF) (OJ 2001 L 50, p. 9) — the Court (Sixth Chamber),
                                                                              maatschappij ANOZ Zorgverzekeringen UA, and between
composed of J.-P. Puissochet, President of the Chamber,
                                                                              Onderlinge Waarborgmaatschappij ANOZ Zorgverzekeringen
R. Schintgen and V. Skouris, F. Macken and J. N. Cunha
                                                                              UA and T. W. van Wegberg-van Brederode on the interpreta-
Rodrigues (Rapporteur), Judges; L. A. Geelhoed, Advocate
                                                                              tion of Articles 21, 22(1)(c), 28 and 31 of Council Regulation
General; R. Grass, Registrar, gave a judgment on 12 June
                                                                              (EEC) No 1408/71 of 14 June 1971 on the application of
2003, in which it:
                                                                              social security schemes to employed persons and their families
                                                                              moving within the Community, as amended and updated by
1.    Annulled Commission Decision 2001/137/EC of 5 February                  Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ
      2001 excluding from Community financing certain expenditure             1983 L 230, p. 6), the Court (Fifth Chamber), composed of:
      incurred by the Member States under the Guarantee Section of            M. Wathelet, President of the Chamber, C. W. A. Timmermans,
      the European Agricultural Guidance and Guarantee Fund                   A. La Pergola (Rapporteur), P. Jann and S. von Bahr, Judges;
      (EAGGF) in so far as it imposed on the Hellenic Republic a              D. Ruiz-Jarabo Colomer, Advocate General; M.-F. Contet, Prin-
      financial adjustment by way of late payment interest accruing           cipal Administrator for the Registrar, has given a judgment on
      on the late payment of the additional levy due for the 1995/            3 July 2003, in which it has ruled:
 ---pagebreak--- C 200/6                 EN                            Official Journal of the European Union                                                23.8.2003
1.    Article 22(1)(c) and (i) of Council Regulation (EEC) No 1408/           M.       Wathelet,       R.      Schintgen        (Rapporteur)       and
      71 of 14 June 1971 on the application of social security                C. W. A. Timmermans (Presidents of Chambers), C. Gulmann,
      schemes to employed persons and their families moving within            D. A. O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken,
      the Community, as amended and updated by Council Regula-                N. Colneric, S. von Bahr and J. N. Cunha Rodrigues, Judges;
      tion (EEC) No 2001/83 of 2 June 1983 must be interpreted                L. A. Geelhoed, Advocate General; M.-F. Contet, Principal
      as also applying to a pensioner and members of his family who           Administrator, for the Registrar, has given a judgment on
      reside in a Member State other than the one which is liable for         10 July 2003, in which it has ruled:
      payment of that pension, and who benefit on that basis,
      following their registration with the institution of the place of
      residence, from the system laid down by Article 28 of that              Article 9 of and Annex II to the Staff Regulations of Official of the
      regulation, where those socially insured persons wish to go to          European Communities and Article 79 of the Conditions of Employ-
      the Member State liable for payment of the pension in order to          ment of Other Servants of the European Communities must be
      receive medical treatment there.                                        interpreted as precluding the application to the local staff employed in
                                                                              the representation of the Commission of the European Communities in
                                                                              Vienna (Austria) of the Austrian legislation on labour relations in
2.    The institution competent to issue the prior authorisation              establishments in Part II of the Bundesgesetz betreffend die Arbeitsver-
      mentioned in the said Article 22(1)(c) and (i) where the                fassung (Arbeitsverfassungsgesetz) (Federal law on labour relations) of
      application for authorisation concerns socially insured persons         13 December 1973.
      in such a position is the institution of the place of residence of
      the persons concerned.
                                                                              (1) OJ C 200 of 14.7.2001.
(1) OJ C 200 of 14.7.2001.
                                                                                JUDGMENT OF THE COURT
                   JUDGMENT OF THE COURT
                                                                                (First Chamber)
                           of 10 July 2003
                                                                                of 19 June 2003
in Case C-165/01 (Reference for a preliminary ruling from
the Oberster Gerichtshof): Betriebsrat der Vertretung der                     in Case C-467/01 (reference for a preliminary ruling from
Europäischen Kommission in Österreich v European                              the Corte d'appello di Genova): Ministero delle Finanze v
Communities, Commission of the European Commu-                                                           Eribrand SpA (1)
                                nities (1)
                                                                              (Export refunds — Articles 47 and 48 of Regulation (EEC)
(Staff Regulations of Officials of the European Communities                               No 3665/87 — Extension of time-limits)
— Conditions of Employment of Other Servants — Local
staff — Representation of the Commission in Austria —
Applicability of national legislation concerning the represen-                                           (2003/C 200/11)
        tation of workers and defence of their interests)
                                                                                (Language of the case: Italian)
                           (2003/C 200/10)
                                                                              (Provisional translation; the definitive translation will be published in
                    (Language of the case: German)                                                  the European Court Reports)
(Provisional translation; the definitive translation will be published in
                      the European Court Reports)                             In Case C-467/01: reference to the Court under Article 234 EC
                                                                              from the Corte d'appello di Genova (Italy) for a preliminary
                                                                              ruling in the proceedings pending before that court between
                                                                              Ministero delle Finanze and Eribrand SpA, formerly Eurico
In Case C-165/01: Reference to the Court under Article 234                    Italia SpA — on the interpretation of Articles 47 and 48 of
EC by the Oberster Gerichtshof (Austria) for a preliminary                    Commission Regulation (EEC) No 3665/87 of 27 November
ruling in the proceedings pending before that court between                   1987 laying down common detailed rules for the application
Betriebsrat der Vertretung der Europäischen Kommission in                     of the system of export refunds on agricultural products (OJ
Österreich and European Communities, Commission of the                        1987 L 351, p. 1), as amended by Commission Regulation (EC)
European Communities, on the interpretation of Article 9 of                   No 1829/94 of 26 July 1994 (OJ 1994 L 191, p. 5) — the
and Annex II to the Staff Regulations of Officials of the                     Court (First Chamber), composed of M. Wathelet, President of
European Communities and Article 79 of the Conditions of                      the Chamber, P. Jann and A. Rosas (Rapporteur), Judges;
Employment of Other Servants of the European Communities,                     C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a
the Court, composed of: G. C. Rodríguez Iglesias, President,                  judgment on 19 June 2003, in which it held that:


title: Case T-670/15: Action brought on 20 November 2015 — Osho Lotus Commune v OHIM — Osho International Foundation (OSHO)

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/72

         Action brought on 20 November 2015 — Osho Lotus Commune v OHIM — Osho International Foundation (OSHO)
   (Case T-670/15)
   (2016/C 027/91)
   Language in which the application was lodged: German

      Parties

      Applicant: Osho Lotus Commune e.V. (Cologne, Germany) (represented by: M. Viefhues, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Osho International Foundation (Zurich, Switzerland)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community word mark ‘OSHO’ — Application for registration No 1 224 831

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 22 September 2015 in Case R 1997/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM and, where relevant, the other party to the proceedings to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b), (c) and (f) of Regulation No 207/2009.


title: Judgment of the Court (First Chamber) of 15 July 2004 in Case C-321/02 (reference for a preliminary ruling from the Bundesfinanzhof (Germany): Finanzamt Rendsburg v Detlev Harbs (Sixth VAT Directive — Article 25 — Common flat-rate scheme for farmers — Leasing of part of a farm)

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/6

      JUDGMENT OF THE COURT

   (First Chamber)
   of 15 July 2004
   in Case C-321/02 (reference for a preliminary ruling from the Bundesfinanzhof (Germany): Finanzamt Rendsburg v Detlev Harbs (1)

   (Sixth VAT Directive - Article 25 - Common flat-rate scheme for farmers - Leasing of part of a farm)
   (2004/C 228/11)
   Language of the case: German
   In Case C-321/02: reference to the Court under Article 234 EC from the Bundesfinanzhof (Federal Finance Court) (Germany) for a preliminary ruling in the proceedings pending before that court between Finanzamt Rendsburg and Detlev Harbs on the interpretation of Article 25 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 (OJ 1977 L 145, p. 1) — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr (Rapporteur), R. Silva de Lapuerta and K. Lenaerts, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 15 July 2004, in which it ruled:
   Article 25 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 is to be interpreted as meaning that a farmer who has leased and/or let on a long-term basis some of the material assets of his farming business but continues to farm with the rest of his assets and who, in respect of the continued farming activity, is subject to the common flat-rate scheme provided for in Article 25 may not treat the income from such a lease and/or letting as being taxable under that scheme. The turnover from that arrangement must be taxed under the normal scheme or, where appropriate, the simplified scheme of value added tax.

      (1)  OJ C 289 of 23.11.2002.


title: Case T-229/07: Order of the Court of First Instance of 13 February 2009 — Vitro Corporativo v OHIM — Vallon (√) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/24

         Order of the Court of First Instance of 13 February 2009 — Vitro Corporativo v OHIM — Vallon (√)
   (Case T-229/07) (1)

   (Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
   (2009/C 82/42)
   Language of the case: Spanish
   Parties

      Applicant: Vitro Corporativo, SA de C.V. (Nuevo Leon, Mexico) (represented by: J. Botella Reyna, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. López Fernández de Corres, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Vallon GmbH (Horb, Germany)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 7 November 2006 (Case R 1363/2005-1) concerning opposition proceedings between Vitro Corporativo, SA de C.V. and Vallon GmbH.
   Operative part of the order

               1.

               There is no longer any need to adjudicate in the action.

               2.

               The applicant is ordered to pay the costs.

      (1)  OJ C 199, 25.8.2007.


title: Case C-139/13: Judgment of the Court (Ninth Chamber) of 13 February 2014 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Area of freedom, security and justice — Standards for security features and biometrics in passports and travel documents issued by Member States — Regulation (EC) No 2252/2004 — Biometric passport — Inclusion of digital fingerprints — Failure to implement — Failure to issue within the prescribed periods)

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/18

         Judgment of the Court (Ninth Chamber) of 13 February 2014 — European Commission v Kingdom of Belgium
   (Case C-139/13) (1)

   (Failure of a Member State to fulfil obligations - Area of freedom, security and justice - Standards for security features and biometrics in passports and travel documents issued by Member States - Regulation (EC) No 2252/2004 - Biometric passport - Inclusion of digital fingerprints - Failure to implement - Failure to issue within the prescribed periods)
   2014/C 93/29
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: D. Maidani and G. Wils, acting as Agents)

      Defendant: Kingdom of Belgium (represented by: J.-C. Halleux and L. Van den Broeck, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 6 of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1) — Biometric passports containing digital fingerprints — Failure to issue such passports within the prescribed periods laid down by that regulation.

      Operative part of the judgment

   The Court:

               1.

               Declares that, by having failed to implement, in the prescribed period, the technical specifications relating to issuing biometric passports containing digital fingerprints, the Kingdom of Belgium has failed to fulfil its obligations under Article 6 of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 156, 01.6.2013.


title: Case C-96/11 P: Appeal brought on 1 March 2011 by August Storck KG against the judgment of the General Court (First Chamber) delivered on 17 December 2010 in Case T-13/09 A ugust Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/12

         Appeal brought on 1 March 2011 by August Storck KG against the judgment of the General Court (First Chamber) delivered on 17 December 2010 in Case T-13/09 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-96/11 P)
   2011/C 152/21
   Language of the case: German

      Parties

      Appellant: August Storck KG (represented by: T. Reher, P. Goldenbaum, I. Rohr and T. Melchert, Rechtsanwälte)

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

      Form of order sought

               —

               Set aside the contested judgment which is appealed on points of law;

               —

               Uphold the claims submitted at first instance and give a final ruling on the dispute; in the alternative, refer the matter back to the General Court;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

   The present appeal is against the judgment of the General Court, by which it dismissed the appellant’s claim for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 12 November 2008 concerning the rejection of its application for registration of a three-dimensional mark consisting of the shape of a chocolate mouse.
   The appellant relies on the following three grounds of appeal:
   I.   Infringement of Article 7(1)(b) of [Regulation No 40/94]
       (1)

               1.

               The General Court has failed to take account of the concept of distinctive character and thus has incorrectly applied Article 7(1)(b) of [Regulation No 40/94] and wrongly denied the mark applied for original distinctive character.

               2.

               The General Court has erred in law by assessing the mark applied for in the light of the case-law on three-dimensional marks without graphical elements or word elements, despite the fact that the mark applied for has a graphical element in the form of bas-relief. The mark should have been correctly assessed on the basis of the principles applicable to figurative marks.

               3.

               The General Court has incorrectly assessed the fact that the shape of a product can also pursue objectives other than that of identification, such as, for example, aesthetics, without that detracting from the original distinctive character of the three-dimensional mark.

               4.

               The General Court has interpreted ‘usually not’ as meaning ‘not habitual’ and thus removed the possibility of the consumer of confectionery already being used to three-dimensional marks similar to that of the one at issue here and thus being able to regard it as distinctive. In so doing, the General Court has not correctly understood the significance of the shape of a product to the identity of goods in the relevant confectionery market and has therefore failed to have regard to the criterion in law for evidence of the distinctive character of three-dimensional marks in the confectionery sector, inasmuch as such three-dimensional marks are based on animals and/or other living beings or a combination of elements from different living beings respectively.

               5.

               The General Court has erred in law in making a distinction between ‘decorative structure’, on the one hand, and ‘analytical view’ on the other and thus also failed to take account of the fact that marks should be assessed on their overall impression.

               6.

               The combination of these errors in law have led to the result that the General Court has denied the mark applied for its distinctive character, despite the fact that it should have been found, on a correct application of Article 7(1)(b) of [Regulation No 40/94], that it had distinctive character.

         II.   Failure to grant the right to be heard

               7.

               By failing to take account of large parts of the appellant’s submissions in its decision, the General Court has infringed the appellant’s right to be heard.

         III.   Infringement of the first sentence of Article 73 of [Regulation No 40/94] (duty to state reasons)

               8.

               The General Court has based its judgment on the assumption that the pronounced individuality of the subject-matter of the shape comprising the mark was not proven, despite the fact that, under the principle of ex proprio motu investigation, it was for OHIM, by presentation of comparable shapes known on the market, to rebut the assumption of individuality of the shape. Clearly, the General Court did not wish to engage with the appellant’s argument and thus infringed its duty to state reasons.

               9.

               In so far as the General Court failed to take account, in its decision, of parts of the appellant’s submissions, but did not justify or, to a great extent, refer to this in its decision, it has failed to fulfil its duty to state full reasons for its decision.

      (1)  Council Regulation (EC) No 40/94 of 21 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)


title: Case C-20/03: Reference for a preliminary ruling by the Rechtbank van eerste Aanleg, Bruges by order of that Court of 17 January 2003 in the criminal matters brought by the Public Prosecutor against 1. Marcel Burmanjer, 2. René Alexander van der Linden, and 3. Anthony de Jong

text:
22.3.2003              EN                       Official Journal of the European Union                                              C 70/7
      —     annul Commission Decision C (1999) 541 of                   1.    Is the first sentence of Article 5 of Regulation 1103/97 (1)
            4 March 1999                                                      to be understood as meaning that, in a private-law
                                                                              contractual relationship, only the final amount of the
      —     annul Commission Decision C (1999) 532 of                         invoice, or an individual amount detailed on the invoice,
            4 March 1999                                                      may or must be rounded, or does a contractually agreed
                                                                              unit price/tariff (in this case a price per minute) constitute
      —     annul Commission Decision C (1999) 533 of                         a monetary amount to be paid or accounted for within
            4 March 1999                                                      the meaning of that provision? In determining whether a
                                                                              tariff is a monetary amount to be paid or accounted for
      in the alternative, reduce the amount of subsidy to repay               within the meaning of Article 5 of Regulation 1103/97,
      to the Commission to a lesser amount as may be decided                  is it decisive whether the tariff relates to a particular
      in the course of proceedings;                                           multiple (in this case six) of a unit on the basis of which
                                                                              the final amount of the invoice is ascertained (in this case
2.    as a measure of inquiry, allow the claims submitted in the              a ten-second unit), or whether it is the tariff as perceived
      present proceedings;                                                    by consumers that represents the relevant amount of the
                                                                              invoice?
3.    in any event, order the Commission to pay the costs.
                                                                        2.    Is Regulation 1103/97(and in particular Article 5) to be
                                                                              understood as constituting an exhaustive rule whereby
                                                                              sums other than monetary amounts to be paid or
Pleas in law and main arguments
                                                                              accounted for (if any) may not be rounded in the manner
                                                                              described in Article 5, in other words, must they either
The judgment of the Court of First Instance rejected all the                  continue to be displayed in the former national currency,
pleas in law submitted by the appellants and thus dismissed                   or be quoted in the exact amount produced on conver-
the applications in their entirety. As regards the first plea in              sion?
law, the appellant undertakings share the view the Court of
First Instance in its reasoning from the legal point of view.
                                                                        (1 ) OJ L 162 of 19.06.1997, p. 1.
On the other hand, the appellants argue that so far as the
remaining pleas are concerned, the Court of First Instance has
not made clear the reasons for its own view, nor does it
even demonstrate that the Commission’s decisions were well
founded: it merely repeated the arguments used in the
contested decisions.                                                    Reference for a preliminary ruling by the Rechtbank van
                                                                        eerste Aanleg, Bruges by order of that Court of 17 January
                                                                        2003 in the criminal matters brought by the Public
According to the appellants, the judgment of the Court of First         Prosecutor against 1. Marcel Burmanjer, 2. René Alexan-
Instance is vitiated by the inadequacy, inconsistency and                        der van der Linden, and 3. Anthony de Jong
contradictions of the grounds.
                                                                                (Case C-20/03)
                                                                                (2003/C 70/12)
Reference for a preliminary ruling by the Landgericht
                                                                        Reference has been made to the Court of Justice of the
München by order of that Court of 17 December 2002 in
                                                                        European Communities by order of the Rechtbank van eerste
the proceedings between Verbraucher-Zentrale Hamburg
                                                                        Aanleg (Court of First Instance), Bruges of 17 January 2003,
          e.V. and 02 (Germany) GmbH & Co. OHG
                                                                        received at the Court Registry on 21 January 2003, for a
                                                                        preliminary ruling in the criminal matters brought by the
                          (Case C-19/03)                                Public Prosecutor against 1. Marcel Burmanjer, 2. René Alex-
                                                                        ander van der Linden, and 3. Anthony de Jong on the following
                          (2003/C 70/11)                                questions:
                                                                        (a)   Because the interests sought to be protected by the
                                                                              legislature could be safeguarded by other less stringent
Reference has been made to the Court of Justice of the                        means, are Articles 30 to 37 (free movement of goods) of
European Communities by order of the Landgericht München                      the EC Treaty, as applicable on 6 September 2001,
(Regional Court, Munich) of 17 December 2002, received at                     Article 48 et seq. of that Treaty (freedom of movement
the Court Registry on 20 January 2003, for a preliminary                      for persons), or Article 59 et seq. thereof (freedom to
ruling in the proceedings between Verbraucher-Zentrale Ham-                   provide services), infringed by Articles 2, 3, 5(3) and 13
burg e.V. and 02 (Germany) GmbH & Co. OHG on the                              of the Belgian law of 25 June 1993 on the exercise of
following questions:                                                          itinerant activities and the organisation of public markets,
 ---pagebreak--- C 70/8                   EN                           Official Journal of the European Union                                        22.3.2003
       construed individually or in conjunction to mean that                  Reference for a preliminary ruling by the Tribunale
       they make the itinerant selling on Belgian territory                   Ordinario di Torino, Sezione IV Penale by order of that
       by both Belgian nationals and other EU nationals of                    Court of 13 January 2003 in the case brought against
       subscriptions to periodicals subject to prior authorisation                               Michel Mulliez and Others
       by the Minister, or a Grade 1 official delegated by
       him, failing which a punishable offence is committed
       thereunder, where under those national provisions a
       German company selling or wishing to sell through the                                           (Case C-23/03)
       intermediary of vendors established in Belgium subscrip-
       tions to periodicals is required to obtain such prior
       provisional authorisation or, if it does not do so commits
       an offence under those provisions?                                                              (2003/C 70/14)
(b)    Does it make any difference to the answer to the first
       question that that law of 25 June 1993 does not make
       the sale of newspapers, periodicals and also subscriptions
       to newspapers subject to such prior authorisation?
                                                                              Reference has been made to the Court of Justice of the
                                                                              European Communities by order of the Tribunale Ordinario di
                                                                              Torino, Sezione IV Penale (District Court, Turin — Criminal
                                                                              Section IV) of 13 January 2003, received at the Court Registry
                                                                              on 23 January 2003, for a preliminary ruling in the case
                                                                              brought against Michel Mulliez and Others on the following
                                                                              questions:
                                                                              1.   May Article 6 of Directive 68/151/EEC (1) be interpreted
Reference for a preliminary ruling by the Rechtbank te
                                                                                as imposing an obligation upon the Member States to
Rotterdam by order of that Court of 21 January 2003 in
                                                                                establish appropriate penalties not only for failure on the
the proceedings between Optiver BV and 38 Others
                                                                                part of commercial companies to publish their balance
        against Stichting Autoriteit Financiële Markten
                                                                                sheet and profit and loss statement but also for publishing
                                                                                inaccurate versions of those statements or of other
                                                                                company information addressed to shareholders or the
                            (Case C-22/03)                                         public or of any other information concerning their
                                                                                economic, asset or financial position which they are
                                                                                required to provide and which concern the company
                           (2003/C 70/13)                                          itself or the group of companies to which it belongs?
                                                                              2.   With reference to the obligation upon each Member State
                                                                                to adopt ‘appropriate penalties’ for the infringements
Reference has been made to the Court of Justice of the                             provided for in the First Directive 68/151/EEC and the
European Communities by order of the Rechtbank te Rotter-                          Fourth Directive 78/660/EEC ( 2), must those directives
dam (District Court, Rotterdam) of 21 January 2003, received                       and, in particular, the combined provisions of
at the Court Registry on 23 January 2003, for a preliminary                        Article 44(2)(g) of the Treaty Establishing the European
ruling in the proceedings between Optiver BV and 38 Others                         Community, Article 2(1)(f) and Article 6 of the First
against Stichting Autoriteit Financiële Markten on the follow-                     Directive and Article 2(2), (3) and (4) of the Fourth
ing question:                                                                      Directive, as amended by Directive 83/349/EEC ( 3) and
                                                                                Directive 90/605/EEC ( 4), be interpreted as precluding the
                                                                                legislation of a Member State under which no penalty
                                                                                may be imposed for breach of the duty to publish true
Does the Directive ( 1), and in particular the interpretation of                   and fair company documents (including the balance sheet
Articles 11 and 12, preclude the imposition of a levy as                           and profit and loss statement) where:
described above on securities institutions in respect of their
gross profit from securities-related activities?
                                                                                (a)    the falsehood is qualitative only,
( 1) Council Directive 69/335/EEC of 17 July 1969 concerning
     indirect taxes on the raising of capital (OJ L 249 of 03.10.1969,             (b) the falsehood in, or omission from, the company
     p. 25).                                                                              statement in question gives rise to a distortion of
                                                                                year-end profits or of the value of net company
                                                                                assets that, nevertheless, remains below a certain
                                                                                threshold expressed in percentage terms,


title: Case C-199/10: Order of the Court (Fifth Chamber) of 22 November 2010 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Sociedade Unipessoal SL v Fazenda Pública (Article 104(3), first paragraph, of the Rules of Procedure — Articles 56 EC and 58 EC — Taxation of dividends — Deduction at source — National fiscal legislation which provides for an exemption of dividends paid to resident companies)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/16

         Order of the Court (Fifth Chamber) of 22 November 2010 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Sociedade Unipessoal SL v Fazenda Pública
   (Case C-199/10) (1)

   (Article 104(3), first paragraph, of the Rules of Procedure - Articles 56 EC and 58 EC - Taxation of dividends - Deduction at source - National fiscal legislation which provides for an exemption of dividends paid to resident companies)
   2011/C 63/30
   Language of the case: Portuguese

      Referring court

   Supremo Tribunal Administrativo

      Parties to the main proceedings

      Applicant: Secilpar — Sociedade Unipessoal SL

      Defendant: Fazenda Pública

      Re:

   Reference for a preliminary ruling — Supremo Tribunal Administrativo — Compatibility with Articles 12 EC, 43 EC, 56 EC, 58(3) EC (now Articles 18, 49, 63 and 65(3) TFEU) and with Article 5(1) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6) of national fiscal legislation on the taxation of dividends distributed by a resident company to a non-resident company which has a holding in the company paying the dividends of less than 25 % — Taxation by deduction at source at the rate of 15 % provided for by the double taxation agreement concluded between the two Member States at issue — Exemption of dividends paid to resident companies

      Operative part of the order

   Articles 56 EC and 58 EC must be interpreted as precluding a tax scheme under a double-taxation agreement concluded between two Member States, which provides for withholding tax of 15 % on the dividends distributed by a company established in one Member States to a company established in another Member State, where the national legislation of the first Member States exempts from that tax dividends paid to a resident company. It would be otherwise only if the tax withheld at source could be set off against the tax payable in the second Member State in the full amount of the difference in treatment. It is for the national court to determine whether such a neutralisation of the difference in treatment has been effected by the application of all the provisions of the convention for the avoidance of double taxation and prevention of the avoidance or evasion of taxes with respect to taxes on income, concluded on 26 October 1993 between the Portuguese republic and the Kingdom of Spain.

      (1)  OJ C 195, 17.7.2010.


               26.11.2005

               EN

               Official Journal of the European Union

               C 296/19

         Removal from the register of Case C-510/03 (1)

   (2005/C 296/37)

      (Language of the case: German)

   By order of 21 July 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-510/03 Commission of the European Communities v Federal Republic of Germany.

      (1)  OJ C 21, 24.1.2004.