title: Case C-325/06 PP: Appeal brought on 25 July 2006 by Galileo International Technology LLC, Galileo International LLC, Galileo Belgium SA, Galileo Danmark A/S, Galileo Deutschland GmbH, Galileo España, SA, Galileo France SARL, Galileo Nederland BV, Galileo Nordiska AB, Galileo Portugal Ltd, Galileo Sigma Srl, Galileo International Ltd, The Galileo Company, Timas Ltd (trading as Galileo Ireland) against the judgment delivered on 10 May 2006 in Case T-279/03 Galileo International Technology LLC and Others v Commission of the European Communities

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/28

         Appeal brought on 25 July 2006 by Galileo International Technology LLC, Galileo International LLC, Galileo Belgium SA, Galileo Danmark A/S, Galileo Deutschland GmbH, Galileo España, SA, Galileo France SARL, Galileo Nederland BV, Galileo Nordiska AB, Galileo Portugal Ltd, Galileo Sigma Srl, Galileo International Ltd, The Galileo Company, Timas Ltd (trading as Galileo Ireland) against the judgment delivered on 10 May 2006 in Case T-279/03 Galileo International Technology LLC and Others v Commission of the European Communities

   (Case C-325/06 PP)
   (2006/C 224/53)
   Language of the case: French
   Parties

      Appellants: Galileo International Technology LLC, Galileo International LLC, Galileo Belgium SA, Galileo Danmark A/S, Galileo Deutschland GmbH, Galileo España, SA, Galileo France SARL, Galileo Nederland BV, Galileo Nordiska AB, Galileo Portugal Ltd, Galileo Sigma Srl, Galileo International Ltd, The Galileo Company, Timas Ltd (trading as Galileo Ireland) (represented by: J.-N. Louis and C. Delcorde, avocats)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               Set aside in its entirety the judgment of the Court of First Instance (Second Chamber, Extended Composition) of 10 May 2006 in Case T-279/03 Galileo and Others v Commission of the European Communities.

               —

               Adjudicate on the basis of new provisions, and

                           I.

                                       (a)

                                       Prohibit the Commission from making any use of the word Galileo in connection with the satellite radio navigation system project and order it to cease to induce, directly or indirectly, any third parties whomsoever to use that word in connection with that project and, last, prohibit it from participating in any way whatsoever in the use of that word by a third party.

                                       (b)

                                       Order the Commission to pay the applicants, jointly and severally, the sum of EUR 50 million by way of compensation for the material harm sustained.

                           II.

                           In the alternative,
                           In the event that the Commission should persist in using the word Galileo, order it to pay the applicants the sum of EUR 240 million.

                           III.

                           Order the Commission to pay the applicants, with effect from the date of introduction of the present application, default interest calculated by reference to the reference rate of the ECB plus 2 percentage points from the date on which the formal letter of 30 April 2001 was sent.

                           IV.

                           Order the defendant to pay the costs.

         Pleas in law and main arguments
   By their appeal, the appellants rely on the error which, in their submission, the Court of First Instance made in making the supply of goods or services on the market by the owner of the trade mark a condition of recognition of the breach of its rights within the meaning of Article 9(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) and Article 5(1) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (2).
   They then challenge the restrictive interpretation of the concept of ‘us[e] in the course of a trade’, in that that concept necessarily envisages an activity of a commercial nature. In the applicants submission, the judgment of the Court of First Instance is also vitiated by contradictions on a number of points, in particular as regards the commercial or non-commercial purpose of the ‘Galileo’ project and the certain or foreseeable nature of the harm.
   The appellants also criticise the Court of First Instance for having failed to adjudicate in a satisfactory manner on the arguments alleging harm to their trade and company names and for having ignored the fact that Article 8 of the Paris Convention for the Protection of Industrial Property of 20 March 1883, last revised at Stockholm on 14 July 1967 and amended on 28 September 1979 (3), constitutes a binding minimum basis.
   Last, the appellants criticise the Court of First Instance for having disregarded the rules applicable to the liability of the Commission for an unlawful act. They maintain that a trade mark right is a right of appropriation and not a right of creation.

      (1)  OJ 1994 L 11, p. 1.

      (2)  OJ 1989 L 40, p. 1.

      (3)  United Nations Treaty Series, Vol. 828, No 11847, p. 108.


title: Case C-211/07: Action brought on 20 April 2007 — Commission of the European Communities v Ireland

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/11

         Action brought on 20 April 2007 — Commission of the European Communities v Ireland
   (Case C-211/07)
   (2007/C 155/21)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: N. Yerrell, Agent)

      Defendant: Ireland
   The applicant claims that the Court should:

               —

               declare that in maintaining in force Sections 5.2 and 5.3 of the Motor Insurance Agreement of 31st May 2004 and in particular by i) excluding compensation to users of vehicles if all vehicles involved are uninsured, and ii) limiting the right to compensation in respect of persons in an uninsured vehicle which did not cause the damage or injury, the Republic of Ireland has failed to fulfil its obligations under Council Directive 84/5/EEC of 30th December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and in particular Article 1(4), third subparagraph thereof, and

               —

               order Ireland to pay the costs.

         Pleas in law and main arguments
   Section 5.3 of the Agreement between the Minister of Transport and the Motor Insurers' Bureau of Ireland of 31st May 2004 (‘the Agreement’) provides for the exclusion of compensation for all drivers of uninsured vehicles, whether causing the accident or not), and thus goes beyond the permitted scope of the exclusion laid down in the third subparagraph of Article 1(4) of the directive.
   As regards the situation of passengers travelling in uninsured vehicles, section 5.2 of the Agreement provides for a general exclusion from compensation in all cases where the injured person ‘knew or ought reasonably to have known that there was not in force an approved policy of insurance’. All passengers in uninsured vehicles are accordingly treated identically, regardless of whether they were travelling in the vehicle causing the damage or injury or not. This is in clear contradiction with the wording of the third subparagraph of Article 1(4) of the directive, which expressly distinguishes between these two situations and limits the exclusion of compensation in relation to those persons (including the driver) in the vehicle that caused the damage or injury.


title: Case T-341/15: Action brought on 27 June 2015 — Polski Koncern Naftowy Orlen v OHIM (Shape of a service station)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/47

         Action brought on 27 June 2015 — Polski Koncern Naftowy Orlen v OHIM (Shape of a service station)
   (Case T-341/15)
   (2015/C 279/59)
   Language of the case: Polish

      Parties

      Applicant: Polski Koncern Naftowy Orlen SA (Płock, Poland) (represented by: M. Siciarek, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Three-dimensional Community trade mark (Shape of a service station) — Application No 12 411 138

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 2 April 2015 in Case R 2248/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs, including those of the applicant in the course of the proceedings before the Board of Appeal of OHIM and before the Court.

      Plea in law

               —

               Infringement of Article 7(1)(b), Article 7(2) and Article 75 of Regulation No 207/2009.


title: Case C-494/14: Judgment of the Court (Fifth Chamber) of 15 October 2015 (request for a preliminary ruling from the Tribunal de première instance de Bruxelles — Belgium) — European Union v Axa Belgium SA (Reference for a preliminary ruling — Officials — Staff Regulations — Articles 73, 78 and 85a — Traffic accident — National law establishing strict liability — Subrogation of the European Union — Concept of a ‘third party’ — Autonomous concept of EU law — Concept covering any person required, under national law, to pay compensation for the damage suffered by the victim or those entitled under him — Benefits not definitively payable by the European Union)

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/12

         Judgment of the Court (Fifth Chamber) of 15 October 2015 (request for a preliminary ruling from the Tribunal de première instance de Bruxelles — Belgium) — European Union v Axa Belgium SA
   (Case C-494/14) (1)

   ((Reference for a preliminary ruling - Officials - Staff Regulations - Articles 73, 78 and 85a - Traffic accident - National law establishing strict liability - Subrogation of the European Union - Concept of a ‘third party’ - Autonomous concept of EU law - Concept covering any person required, under national law, to pay compensation for the damage suffered by the victim or those entitled under him - Benefits not definitively payable by the European Union))
   (2015/C 406/12)
   Language of the case: French

      Referring court

   Tribunal de première instance de Bruxelles

      Parties to the main proceedings

      Applicant: European Union

      Defendant: Axa Belgium SA

      Operative part of the judgment

               1.

               The concept of ‘the third party’ (‘le tiers responsable’) referred to in Article 85a(1) of the Staff Regulations of Officials of the European Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, as amended by Council Regulation (EC, ECSC, Euratom) No 781/98 of 7 April 1998, must be given an autonomous and uniform interpretation within the EU legal order.

               2.

               The concept of ‘the third party’ (‘le tiers responsable’), referred to in Article 85a(1) of the Staff Regulations of Officials of the European Communities laid down by Regulation No 259/68, as amended by Regulation No 781/98, covers any person, including insurers, required under national law to pay compensation for the damage suffered by the victim or those entitled under him.

               3.

               The Staff Regulations of Officials of the European Communities laid down by Regulation No 259/68, as amended by Regulation No 781/98, may not be interpreted as meaning that, in the context of a direct action under Article 85a(4) of those regulations, the benefits that the European Union is required to provide under, first, Article 73 of those regulations, covering risks of sickness and accident, and, secondly, Article 78 of the regulations, in respect of the payment of an invalidity pension, must definitively remain its own responsibility.

      (1)  OJ C 34, 2.2.2015.


title: Case T-693/15: Action brought on 27 November 2015 — Clover Canyon v OHIM — Kaipa Sportswear (CLOVER CANYON)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/68

         Action brought on 27 November 2015 — Clover Canyon v OHIM — Kaipa Sportswear (CLOVER CANYON)
   (Case T-693/15)
   (2016/C 038/92)
   Language in which the application was lodged: English

      Parties

      Applicant: Clover Canyon, Inc. (Los Angeles, United States) (represented by: T. Schmitz, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Kaipa Sportswear GmbH (Heilbronn, Germany)

      Details of the proceedings before OHIM

      Applicant: Applicant

      Trade mark at issue: International registration designating the European Union in respect of the word mark ‘CLOVER CANYON’ — Application for registration No 1 120 485

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 4 August 2015 in Case R 3018/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               impose the costs of the application on the Defendant including the costs of the appeal proceedings;
               or

               —

               impose the costs of the application on the other party to the proceedings before the Board of Appeal of OHIM including the costs of the appeal proceedings.

      Plea in law

               —

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


title: Case T-352/09: Action brought on 14 September 2009 — Novácke chemické závody/Commission

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/77

         Action brought on 14 September 2009 — Novácke chemické závody/Commission
   (Case T-352/09)
   2009/C 267/138
   Language of the case: English

      Parties

      Applicant: Novácke chemické závody, a.s. (Nováky, Slovak Republic) (represented by: A. Černejová, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul the contested decision with respect to the applicant and consequently cancel the fine imposed on the applicant; or

               —

               in the alternative, cancel the fine imposed on the applicant in the Article 2 of the decision or at least significantly decrease the fine imposed on the applicant; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   By means of the present application, the applicant seeks the annulment of Commission decision of 22 July 2009 (Case No COMP/F/39.396 — Calcium and magnesium reagents for the steel and gas industries) where the Commission found the applicant together with other undertakings liable for the infringement of Article 81 EC and Article 53 EEA through market sharing, quotas, customer allocation, price fixing and exchanges of sensitive commercial information between suppliers of calcium carbide and magnesium granulates. Alternatively, the applicant seeks the cancellation or reduction of the fine imposed on it pursuant to Article 31 of Council Regulation (EC) No 1/2003.
   The application is based on the following grounds:

               First, the applicant submits that the Commission has breached the principle of proportionality and equal treatment which are general principles of Community law, by imposing an excessive and disproportionate fine on the applicant.

               Second, that applicant claims that the Commission failed to investigate the applicant’s ability to pay the fine and the risk that the fine may lead to its bankruptcy. The applicant submits, in particular, that the Commission failed to adhere to the essential procedural requirements, that it did not properly examine the evidence supplied by the applicant showing the imminent risk of a bankruptcy proceeding should the Commission impose a fine on it. Hence, it is submitted that the Commission committed a manifest error of appraisal in failure to establish the aforementioned risk and to apply paragraph 35 of the Guidelines in respect of the applicant.

               Third, the applicant contends that the imposition of the fine on the applicant will directly cause its bankruptcy as well as its elimination as a competitor on the relevant market. Thus, according to the applicant, the Commission has violated Article 3(1)(g) EC by distorting or eliminating competition on the relevant market.


title: Case C-427/09: Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 28 October 2009 — Generics (UK) Ltd v Synaptech Inc

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/18

         Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 28 October 2009 — Generics (UK) Ltd v Synaptech Inc
   (Case C-427/09)
   2010/C 11/29
   Language of the case: English

      Referring court

   Court of Appeal (Civil Division) (England and Wales)

      Parties to the main proceedings

      Applicant: Generics (UK) Ltd

      Defendant: Synaptech Inc

      Questions referred

               1.

               For the purposes of Article 13(1) of Council Regulation (EEC) No 1768/92 (1), is the ‘first authorisation to place the product on the market in the Community’ the first authorisation to place the product on the market in the Community which was issued in accordance with Council Directive 65/65/EEC (2) (now replaced with Directive 2001/83/EC (3)) or will any authorisation that enables the product to be placed on the market in the Community or EEA suffice?

               2.

               If, for the purposes of Article 13(1) of Council Regulation (EEC) No 1768/92, an ‘authorisation to place the product on the market in the Community’ must have been issued in accordance with Directive 65/65/EEC (now replaced with Directive 2001/83/EC), is an authorisation that was granted in 1963 in Austria in accordance with the national legislation in force at that time (which did not comply with the requirements of Directive 65/65/EEC) and that was never amended to comply with Directive 65/65/EEC and was ultimately withdrawn in 2001 to be treated as an authorisation granted in accordance with Directive 65/65/EEC for that purpose?

      (1)  Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products
   OJ L 182, p. 1

      (2)  Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to proprietary medicinal products
   OJ 22, p. 369

      (3)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use
   OJ L 311, p. 67


title: Case C-379/07: Reference for a preliminary ruling from the Rethymnon Court of First Instance (Single Judge) lodged on 8 August 2007 — Kharikleia Giannoudi v Municipality of Geropotamos

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/25

         Reference for a preliminary ruling from the Rethymnon Court of First Instance (Single Judge) lodged on 8 August 2007 — Kharikleia Giannoudi v Municipality of Geropotamos
   (Case C-379/07)
   (2007/C 269/48)
   Language of the case: Greek
   Referring court
   Rethymnon Court of First Instance
   Parties to the main proceedings

      Applicant: Kharikleia Giannoudi

      Defendant: Municipality of Geropotamos
   Questions referred

               1.

               Do clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which forms an integral part of Council Directive 1999/70/EC (OJ 1999 L 175 p. 43), mean that Community law (by reason of the application of the said Framework Agreement) does not allow a Member State to adopt measures

                           (a)

                           where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force and

                           (b)

                           where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law?

               2.

               If question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70/EC entered into force, such as Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level [of protection] afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement:

                           (a)

                           when the legal measure in question applying the Framework Agreement was adopted after the time-limit for transposing Directive 1999/70/EC had elapsed, but only fixed-term employment contracts and relationships which were in effect before its entry into force or had expired within a certain period before its entry into force but after the time-limit for transposing the Directive had elapsed fall within its chronological scope, although the equivalent legal measure which already existed does not have a chronologically restricted scope of application and covers all fixed-term employment contracts which had been concluded, were in effect or had expired when Directive 199/70/EC came into force and the time-limit for its transposition had elapsed;

                           (b)

                           when fixed-term employment contracts or relationships only fall within the scope of application of the legal measure in question applying the Framework Agreement if they can be regarded as successive within the meaning of that measure, satisfying the cumulative requirements:

                                       (1)

                                       that there is a maximum period of three months between them;

                                       (2)

                                       that they extend for a total of at least 24 months before the measure in question enters into force, irrespective of the number of contract renewals or that, on the basis of those renewals, there has been a minimum total period of work of 18 months over an overall period of 24 months from the original contract, provided that there are at least three renewals since the original contract, whereas the existing equivalent legal measure does not lay down such conditions but covers all the fixed-term (successive) employment contracts, irrespective of a minimum total period of work and a minimum number of contract renewals;

                           (c)

                           when the legal measure in question applying the Framework Agreement provides as a legal consequence for the protection of fixed-term workers and the prevention of abuse, within the meaning of the Framework Agreement on fixed-term work, for the qualification thereafter (ex nunc) of fixed-term employment contracts as contracts of indefinite duration, whereas the pre-existing legal measure provides for the qualification of fixed-term contracts as contracts of indefinite duration from the time they were originally concluded (ex tunc)?

               3.

               If question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70/EC, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 7 of Presidential Decree 164/2004 at issue in the main proceedings an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, when that provides, as the sole means of protection of fixed-term workers from abuse, for an obligation on the part of the employer to pay wages and severance pay where workers have wrongfully been employed under successive fixed-term employment contracts, bearing in mind

                           (a)

                           that the obligation to pay wages and severance pay is provided for under national law for all employment relationships and is not intended specifically to prevent abuse within the meaning of the Framework Agreement, and

                           (b)

                           that the legal consequence of the application of the earlier equivalent legal measure is that successive fixed-term contracts of employment are recognised as a contract of indefinite duration?

               4.

               If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70/EC, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as Articles 7 and 11 of Presidential Decree 164/2004 and apply instead an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law 2112/1920?

               5.

               If the national court finds that — in principle — a provision (in this case Article 8(3) of Law 2112/1920) that constitutes an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which is an integral part of Directive 1999/70/EC, is applicable to a dispute over fixed-term work and, on the basis of that provision, the finding that successive contracts of employment were concluded as a fixed-term contract for no objective reason relating to the nature, type or features of the work offered means that the contracts must be recognised as a contract of employment of indefinite duration, then

                           (a)

                           is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary, exceptional needs was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were in fact fixed and permanent, and

                           (b)

                           is it compatible with Community law for a national court to interpret and apply national law to the effect that a provision prohibiting the conversion of fixed-term contracts of employment in the public sector to contracts of indefinite duration must be construed as an absolute prohibition in any circumstance to convert a fixed-term employment contract or relationship in the public sector to an employment contract or relationship of indefinite duration, even if it was wrongfully concluded as a fixed-term contract, that is to say, when the requirements met were in fact fixed and permanent, and that the national court has no discretion in such cases to make a finding as to the true character of the legal employment relationship at issue and correctly qualify it as a contract of indefinite duration? Alternatively should the prohibition in question be restricted solely to fixed-term contracts of employment which were in fact concluded in order to meet temporary, unforeseeable, urgent, exceptional or similar types of special requirements and not to cases in which they were in fact concluded in order to meet fixed and permanent requirements?


title: Case T-262/13: Judgment of the General Court of 15 October 2014  — Skysoft Computersysteme v OHIM — British Sky Broadcasting Group and Sky IP International (SKYSOFT) (Community trade mark — Opposition proceedings — Application for Community word mark SKYSOFT — Earlier Community word mark SKY — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/37

         Judgment of the General Court of 15 October 2014 — Skysoft Computersysteme v OHIM — British Sky Broadcasting Group and Sky IP International (SKYSOFT)
   (Case T-262/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark SKYSOFT - Earlier Community word mark SKY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   2014/C 421/50
   Language of the case: English

      Parties

      Applicant: Skysoft Computersysteme GmbH (Kleinmachnow, Germany) (represented by: P. Ehrlinger and T. Hagen, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock and N. Bambara, acting as Agents)

      Other parties to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: British Sky Broadcasting Group plc (Isleworth, United Kingdom); and Sky IP International Ltd (Isleworth) (represented by J. Barry and S. Wright, solicitors, and P. Roberts, barrister)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 March 2013 (Case R 2503/2011-4) concerning opposition proceedings between British Sky Broadcasting Group plc and Sky IP International Ltd, on one side, and Skysoft Computersysteme GmbH, on the other.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Skysoft Computersysteme GmbH to pay the costs.

      (1)  OJ C 207, 20.7.2013.


title: Case C-129/15: Order of the Court (Ninth Chamber) of 7 July 2016 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — H.M. v Agentsia za darzhavna finansova inspektsia (ADFI) (Reference for a preliminary ruling — Public supply contracts — Directive 2004/18/EC — Article 1(9) — Concept of ‘body governed by public law’ — Hospital set up to make a profit, whose capital is entirely private — Over 50 % or 30 % of income coming from payments by the public sickness insurance scheme in exchange for the provision of medical services — Article 7(b) — Estimated value of the contract — Threshold not met — Certain cross-border interest — Lack of information — Article 53(2) of the Court’s Rules of Procedure — Manifest inadmissibility)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/10

         Order of the Court (Ninth Chamber) of 7 July 2016 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — H.M. v Agentsia za darzhavna finansova inspektsia (ADFI)
   (Case C-129/15) (1)

   ((Reference for a preliminary ruling - Public supply contracts - Directive 2004/18/EC - Article 1(9) - Concept of ‘body governed by public law’ - Hospital set up to make a profit, whose capital is entirely private - Over 50 % or 30 % of income coming from payments by the public sickness insurance scheme in exchange for the provision of medical services - Article 7(b) - Estimated value of the contract - Threshold not met - Certain cross-border interest - Lack of information - Article 53(2) of the Court’s Rules of Procedure - Manifest inadmissibility))
   (2016/C 343/13)
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Sofia-grad

      Parties to the main proceedings

      Applicant: H.M.

      Defendant: Agentsia za darzhavna finansova inspektsia (ADFI)

      Operative part of the order

   The request for a preliminary ruling made by the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria) by decision of 4 March 2015 is manifestly inadmissible.

      (1)  OJ C 171, 26.5.2015.


title: Case T-74/10: Judgment of the General Court of 11 May 2011 — Flaco Geräte v OHIM — Delgado Sámchez (FLACO) (Community trade mark — Opposition proceedings — Application for Community word mark FLACO — Earlier national word mark FLACO — Relative ground for refusal — Identical goods — Article 8(1)(a) and (b) of Regulation (EC) No 207/2009 — Request for proof of genuine use of the earlier mark submitted for the first time before the Board of Appeal — Article 42(2) and (3) of Regulation No 207/2009 and Rule 22 of Regulation (EC) No 2868/95)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/25

         Judgment of the General Court of 11 May 2011 — Flaco Geräte v OHIM — Delgado Sámchez (FLACO)
   (Case T-74/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark FLACO - Earlier national word mark FLACO - Relative ground for refusal - Identical goods - Article 8(1)(a) and (b) of Regulation (EC) No 207/2009 - Request for proof of genuine use of the earlier mark submitted for the first time before the Board of Appeal - Article 42(2) and (3) of Regulation No 207/2009 and Rule 22 of Regulation (EC) No 2868/95)
   2011/C 186/46
   Language of the case: English

      Parties

      Applicant: Flaco Geräte GmbH (Gütersloh, Germany) (represented by: M. Wirtz, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Jesús Delgado Sánchez (Socuellamos, Spain)

      Re:

   ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 November 2009 (Case R 86/2009-2) concerning opposition proceedings between Mr Jesús Delgado Sánchez and Flaco Geräte GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Flaco-Geräte GmbH to pay the costs.

      (1)  OJ C 100, 17.4.2010.


title: Case C-141/07: Judgment of the Court (Fourth Chamber) of 11 September 2008 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Measures having equivalent effect to a quantitative restriction — Protection of public health — Justification — Pharmacies — Supply of medicinal products directly to hospitals — Proximity to the hospital concerned)

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/8

         Judgment of the Court (Fourth Chamber) of 11 September 2008 — Commission of the European Communities v Federal Republic of Germany
   (Case C-141/07) (1)

   (Failure of a Member State to fulfil obligations - Measures having equivalent effect to a quantitative restriction - Protection of public health - Justification - Pharmacies - Supply of medicinal products directly to hospitals - Proximity to the hospital concerned)
   (2008/C 285/11)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: B. Schima, acting as Agent)

      Defendant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 28 EC and 30 EC — National rules stipulating requirements to be met by pharmacies in order to be permitted to supply pharmaceutical products directly to hospitals and capable of being met in practice only by pharmacies located in the vicinity of the hospital concerned
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

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

      (1)  OJ C 117, 26.5.2007.


title: Case C-554/07: Judgment of the Court (Third Chamber) of 16 July 2009 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Value added tax — Directive 2006/112/EC — Articles 2, 9 and 13 — Economic activity in which the State, local authorities and other bodies governed by public law engage — Exemption)

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/6

         Judgment of the Court (Third Chamber) of 16 July 2009 — Commission of the European Communities v Ireland
   (Case C-554/07) (1)

   (Failure of a Member State to fulfil obligations - Value added tax - Directive 2006/112/EC - Articles 2, 9 and 13 - Economic activity in which the State, local authorities and other bodies governed by public law engage - Exemption)
   2009/C 220/09
   Language of the case: English

      Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and M. Afonso, Agents)

      Defendant: Ireland (represented by: D. O’Hagan, acting as Agent, and E. Fitzsimons SC and N. Travers BL)

      Re:

   Failure of a Member State to fulfil obligations — Incorrect transposition of Article 13 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Exemption of all economic activities carried on by the State, local authorities and other bodies governed by public law

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to lay down, in its national legislation, a general requirement that economic activities in which bodies governed by public law engage otherwise than in their capacity as a public authority are to be subject to value added tax;
               by failing to lay down, in its national legislation, either a general requirement that bodies governed by public law acting in their capacity as a public authority are to be subject to value added tax where their treatment as non-taxable persons gives rise to significant distortions of competition or any criterion providing a framework for the exercise, in that connection, of the Minister for Finance’s discretion, and
               by failing to lay down, in its national legislation, a general requirement that bodies governed by public law engaged in activities listed in Annex I to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax are to be subject to such tax, provided that those activities are not carried out on such a small scale as to be negligible,
               Ireland has failed to fulfil its obligations under Articles 2, 9 and 13 of the Directive.

               2.

               Orders Ireland to pay the costs.

      (1)  OJ C 51, 23.2.2008.


title: Case C-236/15: Order of the President of the Court of 23 September 2016 (request for a preliminary ruling from the Curtea de Apel Constanţa — Romania) — Dinu Antoci v Instituția Prefectului — județul Constanța — Serviciul Public Comunitar Regim Permise de Conducere și Înmatriculare a Vehiculelor

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/15

         Order of the President of the Court of 23 September 2016 (request for a preliminary ruling from the Curtea de Apel Constanţa — Romania) — Dinu Antoci v Instituția Prefectului — județul Constanța — Serviciul Public Comunitar Regim Permise de Conducere și Înmatriculare a Vehiculelor
   (Case C-236/15) (1)

   (2016/C 475/23)
   Language of the case: Romanian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 270, 17.8.2015.


title: Case T-26/14 P: Judgment of the General Court of 16 October 2014  — Schönberger v Court of Auditors (Appeal — Civil service — Officials — Promotion — 2011 promotion year — Guiding multiplication rates — Inter partes proceedings)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/41

         Judgment of the General Court of 16 October 2014 — Schönberger v Court of Auditors
   (Case T-26/14 P) (1)

   ((Appeal - Civil service - Officials - Promotion - 2011 promotion year - Guiding multiplication rates - Inter partes proceedings))
   2014/C 421/58
   Language of the case: German

      Parties

      Appellant: Peter Schönberger (Luxembourg, Luxembourg) (represented by: O. Mader, lawyer)

      Other party to the proceedings: Court of Auditors of the European Union (represented by: B. Schäfer and I. Ní Riagáin Düro, acting as Agents)

      Re:

   Appeal against the judgment of the European Union Civil Service Tribunal (First Chamber) of 5 November 2013 in Schönberger v Court of Auditors (F-14/12, ECR-SC, EU:F:2013:167), seeking the setting aside of that judgment.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 5 November 2013 in Schönberger v Court of Auditors (F-14/12);

               2.

               Refers the case back to the Civil Service Tribunal;

               3.

               Reserves the costs.

      (1)  OJ C 93, 29.3.2014.


title: Case T-229/08: Order of the Court of First Instance of 30 September 2009 — Impala v Commission (Competition — Concentration — Sony BMG joint venture — Original decision annulled by the Court of First Instance — New decision declaring the concentration compatible with the common market — Action deprived of purpose — No need to adjudicate)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/48

         Order of the Court of First Instance of 30 September 2009 — Impala v Commission
   (Case T-229/08) (1)

   (Competition - Concentration - Sony BMG joint venture - Original decision annulled by the Court of First Instance - New decision declaring the concentration compatible with the common market - Action deprived of purpose - No need to adjudicate)
   2009/C 282/93
   Language of the case: English

      Parties

      Applicant: Independent Music Publishers and Labels Association (Impala, association internationale (Brussels, Belgium) (represented by: S. Crosby, J. Golding, Solicitors and I. Wekstein, lawyer)

      Defendant: Commission of the European Communities (represented by: X. Lewis, F. Arbault and K. Mojzesowicz, Agents)

      Interveners in support of the defendant: Sony Corporation of America, (New York, New York, United States), (represented by N. Levy, Barrister, R. Snelders and T. Graf, lawyers); and Bertelsmann AG (Gütersloh, Germany) (represented by P. Chappatte, J. Boyce and A. Lyle-Smythe, Solicitors)

      Re:

   Application for annulment of Commission Decision C (2007) 4507 of 3 October 2007 declaring compatible with the common market and the functioning of the EEA Agreement a concentration whereby the activities of Sony Corporation of America and Bertelsmann AG in the recorded music sector were combined into a joint venture (Case COMP/M.3333 — Sony/BMG), adopted following the annulment by the judgment delivered in Case T-464/04 Impala v Commission [2006] ECR II-2289 of Commission Decision 2005/188/EC of 19 July 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.3333 — Sony/BMG) (OJ 2005 L 62, p. 30).

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               Independent Music Publishers and Labels Association (Impala, association internationale) shall bear its own costs and those of the Commission of the European Communities.

               3.

               Bertelsmann AG and Sony Corporation of America shall bear their own costs.

      (1)  OJ C 197, 2.8.2008.


title: Case T-103/06: Action brought on  27 March 2006  — ESOTRADE v OHIM

text:
               20.5.2006

               EN

               Official Journal of the European Union

               C 121/17

         Action brought on 27 March 2006 — ESOTRADE v OHIM
   (Case T-103/06)
   (2006/C 121/30)
   Language in which the application was lodged: Spanish
   Parties

      Applicant: ESOTRADE, S.A. (Madrid, Spain) (represented by Jaime de Rivera Lamo de Espinosa, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Other party to the proceedings before the Board of Appeal: Antonio Segura Sánchez
   Form of order sought

               —

               Annul the Decision of the Second Board of Appeal of OHIM of 10 January 2006 in Case R 217/2004-2 in the dispute between the marks YOKANA and YOKONO;

               —

               declare the Community trade mark No 1 600 659, ‘YOKANA’ eligible for registration;

               —

               order the defendant to pay the costs of both the present and the earlier proceedings.

         Pleas in law and main arguments
   Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Figurative mark ‘YOKANA’ (application No 1 600 659) for goods in Classes 14, 18 and 25
   Proprietor of the mark or sign cited in the opposition proceedings: Antonio Segura Sánchez

      Mark or sign cited in opposition: Figurative Community and Spanish trade marks ‘YOKONO’ for goods in Classes 25 (No 1 099 356) and 18, 25 and 39 (No 336 750)

      Decision of the Opposition Division: Opposition upheld in part and refusal of the application for registration for certain goods in Classes 18 and 25
   Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Incorrect application of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark


title: Case T-336/13: Order of the Court of 2 September 2014  — Borghezio v Parliament (Action for annulment — Declaration of the President of the European Parliament, in plenary session, informing the assembly of the exclusion of an MEP from the political group to which he was attached — Act not amenable to review — Action manifestly inadmissible)

text:
               27.10.2014

               EN

               Official Journal of the European Union

               C 380/12

         Order of the Court of 2 September 2014 — Borghezio v Parliament
   (Case T-336/13) (1)

   ((Action for annulment - Declaration of the President of the European Parliament, in plenary session, informing the assembly of the exclusion of an MEP from the political group to which he was attached - Act not amenable to review - Action manifestly inadmissible))
   2014/C 380/16
   Language of the case: French

      Parties

      Applicant: Mario Borghezio (Turin, Italy) (represented by: H. Laquay, lawyer)

      Defendant: European Parliament (represented by: N. Lorenz, N. Görlitz and M. Windisch, acting as Agents)

      Re:

   Action for annulment of the decision of the Parliament, in the form of a declaration of its President on 10 July 2013, in plenary session, according to which the applicant was, since 3 June 2013, sitting as a non-attached MEP, as a result of his exclusion from the political group ‘Europe of Freedom & Democracy’ as from that date.

      Operative part

               1)

               The action is dismissed.

               2)

               Mr Mario Borghezio shall bear his own costs, and pay those of the European Parliament, including those incurred in the interim relief proceedings.

      (1)  OJ C 252, 31.8.2013.


title: Case T-179/06: Action brought on 7 July 2006 — Commission of the European Communities v Burie Onderzoek en Advies B.V.

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/48

         Action brought on 7 July 2006 — Commission of the European Communities v Burie Onderzoek en Advies B.V.
   (Case T-179/06)
   (2006/C 224/101)
   Language of the case: Dutch
   Parties

      Applicant: Commission of the European Communities (represented by: A. Weimar, as Agent, assisted by W.A.M. Rupert, lawyer)

      Defendant: Burie Onderzoek en Advies B.V. (Nijeholtpade, Netherlands)
   Form of order sought

               —

               Order the defendant to pay to the Commission the sum of EUR 646 871,28, namely a principal sum of EUR 454 832,62 and EUR 192 039,66 default interest, plus interest at the statutory rate from the date of lodging this application until the date on which the debt has been paid in full;

               —

               order the defendant to pay the costs of the judicial and extra-judicial proceedings.

         Pleas in law and main arguments
   The European Community, represented by the Commission, concluded two contracts with the defendant and other contractors relating to activities carried out in the framework of research and development in the field of advanced communication technologies in Europe (RACE II — project R2022 Barbara) and telematics applications of common interest (Telepromise program).
   In accordance with the agreement, the Commission carried out an audit. Following the results of that audit, the Commission sent the defendant a debit note. The Commission submits that it follows from the general conditions of the contracts that the defendant is obliged to repay the difference between the agreed costs and the payments already made by the Commission and that this is a case of an undue payment under Article 203 of Book 6 of the Netherlands Civil Code, which applies to the contracts in question.


title: Case T-368/09 P: Appeal brought on 23 September 2009 by Roberto Sevenier against the order of the Civil Service Tribunal delivered on 8 July 2009 in Case F-62/08, Sevenier v Commission

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/53

         Appeal brought on 23 September 2009 by Roberto Sevenier against the order of the Civil Service Tribunal delivered on 8 July 2009 in Case F-62/08, Sevenier v Commission
   (Case T-368/09 P)
   2009/C 282/101
   Language of the case: French

      Parties

      Appellant: Roberto Sevenier (Paris, France) (represented by E. Boigelot and L. Defalque, lawyers)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought by the appellant

               —

               set aside the order delivered on 8 July 2009 by the Third Chamber of the European Union Civil Service Tribunal in Case F-62/08 Sevenier v Commission, served on the appellant on 13 July 2009;

               —

               allow the appellant to rely on his submissions to the European Union Civil Service Tribunal;

               —

               order the defendant to pay the costs of both instances.

      Pleas in law and main arguments

   By the present appeal, the appellant seeks to have set aside the order of the Civil Service Tribunal (CST) of 8 July 2009, delivered in Case F-62/08 Sevenier v Commission, by which the CST dismissed as manifestly inadmissible the action by which the appellant had sought annulment of a decision of the Commission of 24 September 2007 rejecting the appellant’s application, firstly, to retract his offer to resign dated 19 October 1983 and, secondly, for a referral to the invalidity committee.
   In support of his appeal, the appellant submits, principally, a single plea in law alleging an error in law committed by the CST in the interpretation of the concept of a purely confirmatory act, since the CST categorised the express decision, made following the implied rejection of the appellant’s application, as a purely confirmatory act despite the fact that the express decision upheld in part the application made by the appellant.
   In the alternative, the appellant submits that the CST distorted and disregarded documents in the file and failed to fulfil its duty to give reasons by holding that there was no particular fact peculiar to the case which justified the CST not applying the established case-law on purely confirmatory acts.


title: Case F-8/11: Order of the Civil Service Tribunal (Third Chamber) of 17 June 2011 — Nieminen v Council

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/58

         Order of the Civil Service Tribunal (Third Chamber) of 17 June 2011 — Nieminen v Council
   (Case F-8/11) (1)

   2011/C 252/134
   Language of the case: French
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 95, 26.3.2011, p. 14.


title: Case T-419/16: Action brought on 28 July 2016 — Carrera Brands v EUIPO — Autec (Carrera)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/44

         Action brought on 28 July 2016 — Carrera Brands v EUIPO — Autec (Carrera)
   (Case T-419/16)
   (2016/C 343/59)
   Language in which the application was lodged: German

      Parties

      Applicant: Carrera Brands Ltd (Hong Kong, People’s Republic of China) (represented by: C. Markowsky, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Autec AG (Nuremberg, Germany)

      Details of the procedure before EUIPO

      Proprietor of the mark at issue: the applicant

      Mark at issue: EU word mark ‘Carrera’ — EU trade mark No 4 630 711

      Proceedings before EUIPO: revocation proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 6 June 2016 in Case R 278/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul paragraph 2 of the operative part of the contested decision and amend it to the extent that the decision of the Cancellation Division of 21 January 2015 is annulled;

               —

               annul the contested decision with regard to the rejection of the applicant’s request for the proceedings to be stayed; and

               —

               in the alternative: amend the contested decision in such a way that the applicant’s request of 22 August 2014 for the proceedings to be stayed, repeated on 21 May 2015 in the appeal proceedings, is granted;

               —

               order EUIPO to pay the costs, including those incurred in the appeal proceedings.

      Pleas in law

               —

               Infringement of Article 56(1)(a) of Regulation No 207/2009;

               —

               Infringement of Rule 20(7)(c) of Regulation No 2868/95.


title: Case C-388/08: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 5 September 2008 — Criminal proceedings against Artur Leymann, Aleksei Pustovarov

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/13

         Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 5 September 2008 — Criminal proceedings against Artur Leymann, Aleksei Pustovarov
   (Case C-388/08)
   (2008/C 272/23)
   Language of the case: Finnish
   Referring court
   Korkein oikeus
   Parties to the main proceedings
   Artur Leymann, Aleksei Pustovarov
   Questions referred

               1.

               How must the expression ‘offence … other than that for which he or she was surrendered’ used in Article 27(2) of the Framework Decision (1) be interpreted; more specifically, what criteria are decisive in assessing whether the description of the offence on which prosecution in based differs so much from the description of the offence on which the surrender was based that it must be regarded as an ‘other offence’ within the meaning of Article 27(2), so that any prosecution requires the consent referred to in Article 27(3)(g) and Article 27(4)?

               2.

               Must Article 27(2) of the Framework Decision be interpreted as meaning that the consent procedure referred to in Article 27(3)(g) and Article 27(4) is to be applied in a situation where the basis of both the arrest warrant and the final prosecution was an (aggravated) narcotics offence but the description of the offence in the indictment was subsequently altered so that the prosecution related to a different narcotic from that referred to in the arrest warrant?

               3.

               How must Article 27(2) of the Framework Decision be interpreted in so far as, under that provision, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for another offence, especially in relation to the consent procedure referred to in Article 27(4) and having regard to the provision in Article 27(3)(c) under which the speciality rule does not apply if the criminal proceedings do not give rise to the application of a measure restricting personal liberty?

                           (a)

                           In cases which fall within the scope of the consent procedure, must the abovementioned provisions be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for the offence in question prior to receipt of consent, provided that the suspect is not deprived of liberty or has his or her liberty restricted as a result of being suspected of the offence in question?

                           (b)

                           Of what relevance is it that the criminal proceedings associated with the restriction on liberty relate to more than one offence, one of which falls within the scope of the consent procedure? Must the abovementioned provisions then be interpreted as meaning that they do not preclude prosecution being brought, proceedings being carried on or judgment being given for an offence subject to the consent procedure prior to receipt of consent, despite the fact that the suspect has been subject to a restriction on his or her personal liberty in connection with the proceedings, where there is a lawful basis for that restriction on liberty on grounds of other pending charges?

      (1)  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).


title: Case T-134/03: Action brought on 18 April 2003 by Common Market Fertilizers (CMF) against the Commission of the European Communities

text:
C 158/24              EN                          Official Journal of the European Union                                            5.7.2003
Decision of the Oppo-         Refusal of the Opposition.                  majority being obtained and that therefore no opinion was
sition Division:                                                          delivered by the Committee, which precluded the defendant
                                                                          from itself taking a decision as it did. The applicant also alleges
Decision of the Board of      Rejection of the Appeal.                    infringement of Article 906 of Regulation No 2454/93 (4),
Appeal:                                                                   inasmuch as the defendant did not forward to the Member
                                                                          States a copy of the case documents received by the French
Pleas in Law:                 Infringement of Article 8(1)(b) of          Customs Authorities, within 15 days following their receipt,
                              Regulation No. 40/94.                       as well as infringement of the rules of procedure of the
                                                                          Customs Code Committee, inasmuch as the applicant’s sub-
                                                                          missions were not sent to the permanent representations and
                                                                          to the members of the Committee within 14 days prior to the
                                                                          date of the meeting. It also alleges infringement of Article 3 of
                                                                          Regulation No 1/1958 (5), maintaining that certain representa-
                                                                          tives of the Member States did not receive a copy of the case
                                                                          documents in their own national language, as well as breach
Action brought on 18 April 2003 by Common Market                          of the right to a fair hearing in so far as the defendant refused
Fertilizers (CMF) against the Commission of the European                  the applicant the right to a hearing and did not give it access
                          Communities                                     to the documents required under Regulation No 1049/
                                                                          2001 (6). Finally, the applicant alleges failure to state reasons
                                                                          for the contested decision.
                        (Case T-134/03)
                        (2003/C 158/44)
                   (Language of the case: French)                         With regard to the substance, the applicant maintains that the
                                                                          defendant made a manifest error of assessment in considering
                                                                          that the requirements of Article 239 of Regulation No 2913
                                                                          were not satisfied. The applicant considers that it is in a special
An action against the Commission of the European Communi-                 situation by reason of the fault committed by its customs
ties was brought before the Court of First Instance of the                agent, who employed a fictitious bonded warehouse without
European Communities on 18 April 2003 by Common                           the applicant’s knowledge, and the absence of circumvention
Market Fertilizers (CMF), a company established in Brussels,              of the provisions of Regulation No 3319/94. It also states that
represented by Alastair Sutton and Nathalie Flandin, lawyers.             no dishonest conduct can be imputed to it and that it has not
                                                                          displayed any manifest negligence.
The applicant claims that the Court should:
—     annul Commission Decision REM 02/02;
                                                                          (1 ) Council Regulation (EEC) No 2913/92 of 12 October 1992
                                                                               establishing the Community Customs Code (OJ L 302,
—     order the Commission to pay the costs.                                   19.10.1992, p. 1).
                                                                          (2 ) Council Regulation (EC) No 3319/94 of 22 December 1994
                                                                               imposing a definitive anti-dumping duty on imports of urea
                                                                               ammonium nitrate solution originating in Bulgaria and Poland,
Pleas in law and main arguments                                                exported by companies not exempted from the duty, and col-
                                                                               lecting definitively the provisional duty imposed (OJ L 350,
                                                                               31.12.1994, p. 20).
The applicant is a wholesaler of chemical products and in                 (3 ) 1999/468/EC: Council Decision of 28 June 1999 laying down the
particular nitrogen solutions. It applied to the French customs                procedures for the exercise of implementing powers conferred on
                                                                               the Commission (OJ L 184, 17.7.1999, p. 23).
authorities, under Article 239 of Regulation (EC) No 2913/
                                                                          (4 ) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
92 (1), for remission of duties in accordance with Article 3(1)                down provisions for the implementation of Council Regulation
of Regulation (EC) No 3319/94 ( 2). That application was                       (EEC) No 2913/92 establishing the Community Customs Code
forwarded by the French authorities to the defendant which,                    (OJ L 253, 11.10.1993, p. 1).
by its contested decision, refused remission.                             (5 ) EEC Council: Regulation No 1 determining the languages to be
                                                                               used by the European Economic Community (OJ, English Special
                                                                               Edition 1952-1958, p. 59).
In support of its action, the applicant relies on pleas in law            (6 ) Regulation (EC) No 1049/2001 of the European Parliament and
based both on alleged infringements of essential procedural                    of the Council of 30 May 2001 regarding public access to
requirements and on the substance. With regard to essential                    European Parliament, Council and Commission documents (OJ
procedural requirements, the applicant first alleges infringe-                 L 145, 31.5.2001, p. 43).
ment of Article 7 of the EC Treaty and of Article 5 of
Council Decision No 468/1999 (3). The applicant argues that
application of the principle of weighting of votes, provided for
by Article 205 EC, to the final vote within the Customs
Code Committee, repayment section, resulted in no qualified


title: Case T-576/11: Action brought on 10 November 2011 — Schenker Customs Agency v Commission

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/56

      Action brought on 10 November 2011 — Schenker Customs Agency v Commission
      (Case T-576/11)
      (2012/C 25/109)
      Language of the case: Dutch

         Parties

         Applicant: Schenker Customs Agency BV (Rotterdam, Netherlands) (represented by: A. Jansen and J. Biermasz, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the European Commission’s decision of 27 July 2011 in Case REM 01/2010;

                  —

                  declare that the remission of the post-clearance duties is well founded.

         Pleas in law and main arguments

      Between 19 February 1999 and 19 July 2001, the applicant, as a customs agent, submitted 52 declarations in its own name for the release for free circulation of the product glyphosate. ‘Taiwan’ is referred to as the country of origin on all the declarations. It appeared, following an investigation by OLAF, that the glyphosate declared was of Chinese rather than Taiwanese origin. Consequently, anti-dumping duties claimed by the Netherlands customs authorities are due.
      The applicant claims that the European Commission was wrong to decide that remission of the import duties was not well founded.
      In support of the action, the applicant relies on six pleas in law.

                  1.

                  In the applicant’s submission, the European Commission was wrong to consider that breach of the rights of the defence, the late post-clearance recovery of duties and the fact that Schenker was not able to make declarations as a direct representative are arguments that relate to the existence of the customs debt itself. According to the applicant, those arguments could well constitute a specific situation as referred to in Article 239 of Regulation No 2913/92 (1) and ought therefore to have been assessed on the substance.

                  2.

                  In the applicant’s submission, the European Commission was wrong to take the view that the issue of certificates of incorrect origin by the Taiwanese Chambers of Commerce could not constitute a specific situation for the purposes of Article 239 of Regulation No 2913/92.

                  3.

                  The European Commission was wrong to take the view that its conduct in this case does not constitute a specific situation for the purposes of Article 239 of Regulation No 2913/92. The applicant submits however that the European Commission did not exercise any effective control over the fraud investigation and did not coordinate the case.

                  4.

                  The European Commission was wrong to take the view that the conduct of the Netherlands authorities did not result in the applicant being placed in a specific situation. The applicant states that the European Commission failed to have regard to the fact that the Netherlands authorities did not act properly given that they were aware of the commission of fraud through the importation of glyphosate from Taiwan.

                  5.

                  The European Commission was moreover wrong to consider that the applicant did not exercise all the diligence that can normally be expected of a customs agent and that remission is not therefore justified. The applicant states that no fraudulent conduct or obvious negligence can be alleged against it and refers in that regard to the decision of the Customs Chamber of the Gerechtshof Amsterdam of 18 December 2008 (see paragraph 5.2.3 of the decision).

                  6.

                  The European Commission erred in not investigating all the relevant facts and circumstances.

         (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).


title: Case C-377/06: Order of the President of the Court of 29 January 2007 — Commission of the European Communities v Republic of Finland

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/29

         Order of the President of the Court of 29 January 2007 — Commission of the European Communities v Republic of Finland
   (Case C-377/06) (1)

   (2007/C 82/63)

      Language of the case: Finnish

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 261, 28.10.2006.


title: Case C-191/05: Judgment of the Court (Second Chamber) of 13 July 2006 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Conservation of wild birds — Special protection area — Alteration without scientific basis)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/12

         Judgment of the Court (Second Chamber) of 13 July 2006 — Commission of the European Communities v Portuguese Republic
   (Case C-191/05) (1)

   (Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Conservation of wild birds - Special protection area - Alteration without scientific basis)
   (2006/C 224/22)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek and A. Caeiros, Agents)

      Defendant: Portuguese Republic (represented by: L. Fernandes, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Special protection area — Alteration without scientific basis
   Operative part of the judgment
   The Court hereby:

               1.

               Declares that, by altering the demarcation of the ‘Moura, Mourão, Barrancos’ Special Protection Area, thereby excluding from it areas providing a habitat for species of wild birds for whose protection that area was designated, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

               2.

                  Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 155, 25.6.2005.


title: Judgment of the Court of First Instance of 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd and Others v Commission of the European Communities (Competition — Appeal — Cartel — Graphite electrodes market — Price-fixing and market-sharing — Calculation of fines — Concurrent sanctions — Guidelines on the method of setting fines — Applicability — Gravity and duration of the infringement — Aggravating circumstances — Attenuating circumstances — Ability to pay — Cooperation during the administrative procedure — Arrangements for payment)

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/13

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 29 April 2004
   in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd and Others v Commission of the European Communities (1)

   (Competition - Appeal - Cartel - Graphite electrodes market - Price-fixing and market-sharing - Calculation of fines - Concurrent sanctions - Guidelines on the method of setting fines - Applicability - Gravity and duration of the infringement - Aggravating circumstances - Attenuating circumstances - Ability to pay - Cooperation during the administrative procedure - Arrangements for payment)
   (2004/C 251/24)
   Language of the case: German and English
   In Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd, established in Tokyo (Japan), represented initially by G. Van Gerven, T. Franchoo and M. De Grave and, subsequently, by G. Van Gerven and T. Franchoo, lawyers, with an address for service in Luxembourg, SGL Carbon AG, established in Wiesbaden (Germany), represented by M. Klusmann, F. Wiemer and C. Canenbley, lawyers, Nippon Carbon Co. Ltd, established in Tokyo (Japan), represented by H. Gilliams, lawyer, Showa Denko KK, established in Tokyo (Japan), represented by M. Dolmans and P. Werdmuller, lawyers, and J. Temple Lang, Solicitor, GrafTech International Ltd, formerly UCAR International Inc., established in Wilmington, Delaware (United States), represented by K. Lasok QC and B. Hartnett, Barrister, BL, with an address for service in Luxembourg, SEC Corp., established in Amagasaki, Hyogo (Japan), represented by K. Platteau, lawyer, The Carbide/Graphite Group, Inc., established in Pittsburgh (United States), represented initially by M. Seimetz and J. Brücher and, subsequently, by P. Grund, lawyers, with an address for service in Luxembourg, against Commission of the European Communities, represented by W. Mölls and P. Hellström, and, in Case T-246/01, by W. Wils, acting as Agents, with, in Case T-239/01, H.-J. Freund, lawyer, and, in Cases T-244/01, T-246/01, T-251/01 and T-252/01, J. Flynn and C. Kilroy, Barristers, with an address for service in Luxembourg — applications for annulment, in whole or in part, of Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002 L 100, p. 1) — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it:

               1.

               In Case T-236/01 Tokai Carbon v Commission:

                           —

                           sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 12 276 000;

                           —

                           dismisses the remainder of the application;

                           —

                           orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

               2.

               In Case T-239/01 SGL Carbon v Commission:

                           —

                           sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 69 114 000;

                           —

                           dismisses the remainder of the application;

                           —

                           orders the applicant to bear seven eighths of its own costs and to pay seven eighths of the costs incurred by the Commission and the Commission to bear one eighth of its own costs and to pay one eighth of the costs incurred by the applicant.

               3.

               In Case T-244/01 Nippon Carbon v Commission:

                           —

                           sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 274 400;

                           —

                           dismisses the remainder of the application;

                           —

                           orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

               4.

               In Case T-245/01 Showa Denko v Commission:

                           —

                           sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 10 440 000;

                           —

                           dismisses the remainder of the application;

                           —

                           orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

               5.

               In Case T-246/01 GrafTech International, formerly UCAR International v Commission:

                           —

                           sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 42 050 000;

                           —

                           dismisses the remainder of the application;

                           —

                           orders the applicant to bear four fifths of its own costs and to pay four fifths of the costs incurred by the Commission and the Commission to bear one fifth of its own costs and to pay one fifth of the costs incurred by the applicant.

               6.

               In Case T-251/01 SEC Corporation v Commission:

                           —

                           sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 138 000;

                           —

                           dismisses the remainder of the application;

                           —

                           orders each party to bear one half of its own costs and to pay one half of the costs incurred by the opposing party.

               7.

               In Case T-252/01 The Carbide/Graphite Group v Commission:

                           —

                           sets the amount of the fine imposed on the applicant by Article 3 of Decision 2002/271 at EUR 6 480 000;

                           —

                           dismisses the remainder of the application;

                           —

                           orders the applicant to bear three fifths of its own costs and to pay three fifths of the costs incurred by the Commission and the Commission to bear two fifths of its own costs and to pay two fifths of the costs incurred by the applicant.

      (1)  OJ C 17, 19.1.2002.


title: Case T-765/15: Action brought on 30 December 2015 — BelTechExport/Council

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/44

         Action brought on 30 December 2015 — BelTechExport/Council
   (Case T-765/15)
   (2016/C 068/56)
   Language of the case: English

      Parties

      Applicant: BelTechExport ZAO (Minsk, Belarus) (represented by: J. Jerņeva and E. Koškins, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Regulation (EU) 2015/1948 of 29 October 2015 amending Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2015 L 284, p. 62) to the extent that it extends the applicability of the restrictive measures, even if temporarily suspended, with respect to the applicant,

               —

               annul Council Decision (CFSP) 2015/1957 of 29 October 2015 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2015 L 284, p. 149), to the extent that it extends the applicability of the restrictive measures, even if temporarily suspended, with respect to the applicant, and

               —

               order the Council to pay the costs of the applicant.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested acts do not provide for adequate reasoning for the continuous listing of the applicant in the relevant annexes and that the Council has failed to comply with the provisions of Article 296(2) TFEU, which requires the Council to give reasons

               2.

               Second plea in law, alleging that the contested acts infringe the right of defence and the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) in that they were adopted without the applicant being provided with the possibility to effectively exercise its rights of defence, in particular the right to be heard and the right to benefit from a procedure allowing him to effectively request his removal from the lists of persons covered by the restrictive measures

               3.

               Third plea in law, alleging that the contested acts are vitiated by manifest errors of assessment in that they are based upon false assumption that the applicant, as a major company in the Belarusian sector of arms manufacture and arms export, benefits from the Lukashenka regime

               4.

               Fourth plea in law, alleging that the contested acts infringe the fundamental right to property provided for in Article 17 of the Charter and Article 1 of the Protocol No 1 of the ECHR, and that this infringement is not based upon compelling evidence, is unjustified and is disproportionate


title: Opinion 1/08: Opinion of the Court (Grand Chamber) of 30 November 2009 — Commission of the European Communities (Opinion pursuant to Article 300(6) EC — General Agreement on Trade in Services (GATS) — Schedules of specific commitments — Conclusion of agreements on the grant of compensation for modification and withdrawal of certain commitments following the accession of new Member States to the European Union — Shared competence — Legal bases — Common commercial policy — Common transport policy)

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/2

         Opinion of the Court (Grand Chamber) of 30 November 2009 — Commission of the European Communities
   (Opinion 1/08) (1)

   (Opinion pursuant to Article 300(6) EC - General Agreement on Trade in Services (GATS) - Schedules of specific commitments - Conclusion of agreements on the grant of compensation for modification and withdrawal of certain commitments following the accession of new Member States to the European Union - Shared competence - Legal bases - Common commercial policy - Common transport policy)
   2011/C 211/02
   Language of the case: all the official languages

      Parties

      Applicant: Commission of the European Communities

      Re:

   Request for an Opinion — World Trade Organisation (WTO) — General Agreement on Trade in Services (GATS) — Schedules of specific commitments concerning market access and the grant of national treatment — Agreements relating to the modification and withdrawal of specific commitments following the accession of new Member States to the European Union and to the compensatory adjustments for WTO members affected by that modification and withdrawal — Nature of the Community’s competence (exclusive or shared) to conclude such agreements and appropriate legal bases — Scope of the common commercial policy and the common transport policy respectively

      Operative part

               1.

               The conclusion of the agreements with the affected members of the World Trade Organisation, pursuant to Article XXI of the General Agreement on Trade in Services (GATS), as described in the request for an Opinion, falls within the sphere of shared competence of the European Community and the Member States.

               2.

               The Community act concluding the abovementioned agreements must be based both on Article 133(1), (5) and (6), second subparagraph, EC and on Articles 71 EC and 80(2) EC, in conjunction with Article 300(2) and (3), first subparagraph, EC.

      (1)  OJ C 183, 19.7.2008.


title: Case C-170/06: Reference for a preliminary ruling by the Tribunale di Napoli lodged on  30 March 2006  — Giuseppina Montoro and Michelangelo Liguori v Beth Israel Deaconess Medical Center

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/25

         Reference for a preliminary ruling by the Tribunale di Napoli lodged on 30 March 2006 — Giuseppina Montoro and Michelangelo Liguori v Beth Israel Deaconess Medical Center
   (Case C-170/06)
   (2006/C 143/45)
   Language of the case: Italian
   Referring court
   Tribunale di Napoli
   Parties to the main proceedings

      Applicants: Giuseppina Montoro and Michelangelo Liguori

      Defendant: Beth Israel Deaconess Medical Center
   Question referred
   Interpretation of Article 5(3) of the Brussels Convention of 1968 requested in order to establish whether or not, leaving aside the hypothesis of multiple instances of damage, the test of the courts for the place where the harmful event occurred can serve to found jurisdiction also for the courts of the place where the person injured became aware of the existence of damage attributable to an act that took place in another State.


title: Judgment of the Court (First Chamber) of 14 July 2005 in Case C-57/02 P: Compañía española para la fabricación de aceros inoxidables SA (Acerinox) v Commission of the European Communities (Appeal — ECSC Treaty — Agreement, decisions and concerted practices — Alloy surcharge — Parallel conduct — Reduction of the fine — Cooperation in the administrative procedure — Rights of the defence)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/2

      JUDGMENT OF THE COURT

   (First Chamber)
   of 14 July 2005
   in Case C-57/02 P: Compañía española para la fabricación de aceros inoxidables SA (Acerinox) v Commission of the European Communities (1)

   (Appeal - ECSC Treaty - Agreement, decisions and concerted practices - Alloy surcharge - Parallel conduct - Reduction of the fine - Cooperation in the administrative procedure - Rights of the defence)
   (2005/C 217/04)
   Language of the case: English
   In Case C-57/02 P, Compañía española para la fabricación de aceros inoxidables SA (Acerinox), established in Madrid (Spain) (Lawyers: A. Vandencasteele and D. Waelbroeck), the other party to the proceedings being: Commission of the European Communities (Agent: A. Whelan, and J. Flynn, Barrister) — appeal under Article 49 of the ECSC Statute of the Court of Justice, brought on 22 February 2002 — the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and S. von Bahr (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 14 July 2005, in which it:

               1.

               Annuls the judgment of the Court of First Instance of the European Communities of 13 December 2001 in Case T-48/98 Acerinox v Commission to the extent to which it rejected the plea in law put forward by Compañía española para la fabricación de aceros inoxidables SA (Acerinox) alleging the lack of a statement of reasons relating to its alleged participation in an agreement on the Spanish market;

               2.

               For the rest, dismisses the appeal;

               3.

               Dismisses the action for annulment brought by Compañía española para la fabricación de aceros inoxidables SA (Acerinox) to the extent to which it is based on a plea in law alleging that the Commission of the European Communities was wrong to attribute evidential value to the fax sent on 14 January 1994 by Avesta Sheffield AB to its subsidiaries;

               4.

               Orders Compañía española para la fabricación de aceros inoxidables SA (Acerinox) to pay the costs of the present proceedings. The costs of the proceedings at first instance leading to the judgment of the Court of First Instance referred to in paragraph 1 of the operative part of this judgment shall be borne in the manner set out in paragraph 3 of the operative part of that judgment.

      (1)  OJ C 109 of 04.05.2002.


title: Case T-456/12: Action brought on 17 October 2012 — British Telecommunications v Commission

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/27

         Action brought on 17 October 2012 — British Telecommunications v Commission
   (Case T-456/12)
   2012/C 379/48
   Language of the case: English

      Parties

      Applicant: British Telecommunications plc (London, United Kingdom) (represented by: J. Rivas Andrés and G. van de Walle de Ghelcke, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the Decision of the European Commission of 12 June 2012 given in State Aid Case SA.33540 (2012/N) — United Kingdom City of Birmingham — Digital District NGA Network; and

               —

               Order the defendant to pay the costs incurred by the present action.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that

                           —

                           the Commission infringed Article 107(3)(c) TFEU and paragraph 35 of the Broadband Guidelines (1) by failing to analyse whether the objective of the aid is well defined;

               2.

               Second plea in law, alleging that

                           —

                           the Commission failed to assess the proportionality of the proposed measure under Article 107(3)(c) TFEU and paragraphs 51 and 79 of the Broadband Guidelines and should have opened the formal investigation procedure;

               3.

               Third plea in law, alleging that

                           —

                           the Commission should have opened the formal investigation procedure because the proposed aid has effects on markets other than NGA for which there is no market failure and the Commission failed to analyse them;

               4.

               Fourth plea in law, alleging that

                           —

                           by requiring the selected operator to ‘satisfy all different types of network access that operators may seek’ the contested decision removes the ‘incentive effect’ and is incompatible with the Broadband Guidelines and Article 107(3)(c) TFEU;

               5.

               Fifth plea in law, alleging that

                           —

                           the Commission has infringed Article 107(3)(c) TFEU and the Broadband Guidelines by approving the use of State aid for the duplication of pre-existing leased lines networks in the Target Area;

               6.

               Sixth plea in law, alleging that

                           —

                           by requiring the New Network to ‘satisfy all different types of network access that operators may seek’ the contested decision is disproportionate and inconsistent with the Community regulatory framework for electronic communications;

               7.

               Seventh plea in law, alleging that

                           —

                           the contested decision is vitiated by errors of fact and manifest errors of appreciation and the Commission infringed its obligations in relation to the preliminary investigation to state adequate reasons on which it based the contested decision.

      (1)  Communication from the Commission — Community Guidelines for the application of State aid rules in relation to rapid deployment of broadband networks [OJ 2009 C 235, p. 7]