title: Case C-12/13 P: Appeal brought on 10 January 2013 by Gérard Buono. Jean-Luc Buono, Roger Del Ponte, Serge Antoine Di Rocco, Jean Gérald Lubrano, Jean Lubrano, Jean Lucien Lubrano, Fabrice Marin, Robert Marin against the judgment of the General Court (Fifth Chamber) delivered on 7 November 2012 in Case T-574/08 Syndicat des thoniers méditerranéens and Others v Commission

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/12

         Appeal brought on 10 January 2013 by Gérard Buono. Jean-Luc Buono, Roger Del Ponte, Serge Antoine Di Rocco, Jean Gérald Lubrano, Jean Lubrano, Jean Lucien Lubrano, Fabrice Marin, Robert Marin against the judgment of the General Court (Fifth Chamber) delivered on 7 November 2012 in Case T-574/08 Syndicat des thoniers méditerranéens and Others v Commission

   (Case C-12/13 P)
   2013/C 71/18
   Language of the case: French

      Parties

      Appellants: Gérard Buono, Jean-Luc Buono, Roger Del Ponte, Serge Antoine Di Rocco, Jean Gérald Lubrano, Jean Lubrano, Jean Lucien Lubrano, Fabrice Marin, Robert Marin (represented by: A. Arnaud and P-O. Koubi-Flotte, lawyers)

      Other parties to the proceedings: European Commission, Syndicat des thoniers méditerranéens, Marc Carreno, Jean Lous Donnarel, Jean-François Flores, Gérald Jean Lubrano, Hervé Marin, Nicolas Marin, Sébastien Marin, Serge Antoine José Perez

      Form of order sought

               —

               Set aside the judgment of 7 November 2012 in Case T-574/08;

               —

               Order the Union to pay them the following sums:

                           —

                           For Mr Gérard Buono (appellant No 1) and Mr Jean Luc Buono (appellant No 2), acting jointly in respect of their boats GERARD LUC III and IV, the sum of EUR 1 523 588,94 is sought;

                           —

                           For Mr Roger Del Ponte (appellant No 3), acting in respect of the boat ROGER CHRISTIAN IV, the sum of EUR 1 068 600 is sought;

                           —

                           For Mr Serge Antoine Di Rocco (appellant No 4), acting in respect of the boat ANNE ANTOINE II, the sum of EUR 1 094 800 is sought;

                           —

                           For Mr Jean Gérald Lubrano (appellant No 5), acting in respect of the boat VILLE D’ARZEW II, the sum of EUR 855 628,20 is sought;

                           —

                           For Mr Jean Lubrano (appellant No 6) and Mr Jean Lucien Lubrano (appellant No 7), acting jointly in respect of their boats GERALD JEAN III and IV, the sum of EUR 1 523 588,94;

                           —

                           For Mr Fabrice Marin (appellant No 8) and Mr Robert Marin (appellant No 9), acting jointly for their boat ERIC MARIN, the sum of EUR 865 784,59 is sought;

               —

               In the alternative, refer the case back to the General Court to enable it to rule again on the basis of the solutions given by the Court.

      Pleas in law and main arguments

   The appellants rely on three pleas in law in support of their appeal.
   First, the appellants complain that the General Court wrongly assessed the harm suffered by them in the context of the plea referring to non-contractual liability for an illegal act.
   Second, the appellants maintain that the General Court, by not carrying out a correct assessment of the harm individually suffered by each appellant, infringed fundamental rights guaranteed under European Union law.
   Third, and in the alternative, the appellants complain that the General Court failed to acknowledge, on the basis of the general principles common to the laws of the Member States, non-contractual liability for a lawful act.


title: Case T-304/12: Judgment of the General Court of 16 January 2014 — Message Management v OHIM — Absacker (ABSACKER of Germany) (Community trade mark — Opposition proceedings — Application for Community figurative mark ABSACKER of Germany — Earlier national figurative mark ABSACKER — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/35

         Judgment of the General Court of 16 January 2014 — Message Management v OHIM — Absacker (ABSACKER of Germany)
   (Case T-304/12) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark ABSACKER of Germany - Earlier national figurative mark ABSACKER - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2014/C 52/64
   Language of the case: German

      Parties

      Applicant: Message Management GmbH (Wiesbaden, Germany) (represented by: C. Konle, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Absacker GmbH (Cologne, Germany)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 21 March 2012 (case R 1028/2011-1), relating to opposition proceedings between Absacker GmbH and Message Management GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Message Management GmbH to pay the costs.

      (1)  OJ C 273, 8.9.2012.


title: Case C-8/09: Judgment of the Court (Seventh Chamber) of 24 September 2009 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2006/17/EC — Technical requirements for the donation, procurement and testing of human tissues and cells — Failure to transpose within the prescribed period)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/15

         Judgment of the Court (Seventh Chamber) of 24 September 2009 — Commission of the European Communities v Kingdom of Belgium
   (Case C-8/09) (1)

   (Failure of a Member State to fulfil obligations - Directive 2006/17/EC - Technical requirements for the donation, procurement and testing of human tissues and cells - Failure to transpose within the prescribed period)
   2009/C 282/29
   Language of the case: French

      Parties

      Applicant: Commission of the European Communities (represented by: C. Cattabriga and J. Sénéchal, Agents)

      Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)

      Re:

   Failure of a Member State to fulfil obligations — Failure to adopt or notify, within the prescribed period, the measures necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells (OJ 2006 L 38, p. 40)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by not adopting, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 69, 21.3.2009.


title: Case T-195/05: Judgment of the Court of First Instance of 18 April 2007 — Deloitte Business Advisory v Commission (Public service contracts — Call for tenders for programme evaluation activities and other activities in the public health sector — Rejection of a tender — Conflict of interest)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/34

         Judgment of the Court of First Instance of 18 April 2007 — Deloitte Business Advisory v Commission
   (Case T-195/05) (1)

   (Public service contracts - Call for tenders for programme evaluation activities and other activities in the public health sector - Rejection of a tender - Conflict of interest)
   (2007/C 96/70)
   Language of the case: Dutch
   Parties

      Applicant: Deloitte Business Advisory NV (Brussels, Belgium) (represented by: D. Van Heuven, S. Ronse and S. Logie, lawyers)

      Defendant: Commission of the European Communities (represented by: L. Pignataro-Nolin and E. Manhaeve, acting as Agents)
   Re:
   Application for annulment, firstly, of the Commission's decision rejecting the tender from Euphet for the public procurement contract ‘Evaluation Framework Contract covering the policy areas of [the Directorate-General for Health and Consumer Protection], Lot 1 (Public Health) — call for tenders SANCO/2004/01/041 ’and, secondly, of the Commission's decision awarding that contract to a third party
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action.

               2.

               Orders the applicant, Deloitte Business Advisory NV, to pay the costs, including those of the application for interim measures.

      (1)  OJ C 193, 6.8.2005.


title: Case T-209/04: Action brought on 10 June 2004 by the Kingdom of Spain against the Commission of the European Communities

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/24

         Action brought on 10 June 2004 by the Kingdom of Spain against the Commission of the European Communities
   (Case T-209/04)
   (2004/C 201/47)
   Language of the case: Spanish
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 June 2004 by the Kingdom of Spain, represented by N. Díaz Abad, Abogado del Estado, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that, by failing to take a decision within a reasonable time on the authorisations applied for by the Spanish authorities, the Commission has failed to fulfil its obligations under Article 7(3) of Regulation No 2792/99, as amended by Regulation No 2369/02, and is thereby liable for failure to act; and

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   The Spanish authorities applied to the Commission for a series of exemptions in order to be in a position to grant the aid for the constitution of joint enterprises provided for in Council Regulation (EC) No 2792/99 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector, as amended by Council Regulation (EC) No 2369/02 of 20 December 2002 (1). Where the vessel is transferred to a third country with which there is no fisheries agreement with the European Community, it is necessary for the Commission to grant the appropriate derogation (Article 7(3) of Regulation No 2792/99, as amended by Regulation No 2369/02). The aid may only be granted by the national authorities until 31 December 2004.
   A formal request was made to the Commission on 16 February 2004 asking it to take a decision on the pending applications and, since no decision has been taken on any of them, the Kingdom of Spain has decided to bring an action against the Commission, having regard also to the fact that the Spanish authorities, which are waiting for the Commission's decision on the derogations applied for, have already exceeded the periods allowed them by national legislation and within which they should reach a decision.

      (1)  Council Regulation (EC) No 2369/2002 of 20 December 2002 amending Regulation (EC) No 2792/1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ L 358 of 31.12.2002, p. 49).


title: Case T-120/07: Action brought on 16 April 2007 — MB Immobilien and MB System v Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/29

         Action brought on 16 April 2007 — MB Immobilien and MB System v Commission
   (Case T-120/07)
   (2007/C 140/50)
   Language of the case: German
   Parties

      Applicant(s): MB Immobilien Verwaltungs GmbH (established in Neukirch/Lausitz, Germany) and MB System GmbH & Co. KG (established in Nordhausen, Germany), represented by: G. Brüggen, Rechtsanwalt.

      Defendant(s): Commission of the European Communities
   Form of order sought

               —

               Annulment of the Commission's Decision K(2007) 130 endg. of 24 January 2007 on State Aid No C 38/2005 (ex NN 52/2004) of Germany to the Biria-Gruppe

               —

               the Commission to pay the costs.

         Pleas in law and main arguments
   The applicants challenge the Commission's Decision K(2007) 130 endg. of 24 January 2007, in which it decided that state aid by Germany, encompassing three measures in favour of Bike Systems GmbH & Co Thüringer Zweiradwerk KG, Sachsen Zweirad GmbH and Biria GmbH (subsequently Biria AG) was incompatible with the common market.
   The first applicant is the legal successor of Biria AG, the second of Bike Systems GmbH & Co Thüringer Zweiradwerk DG. The applicants argue that they are directly and individually concerned by the contested decision.
   In support of their action, the applicants argue first that Community law has been infringed through defective interpretation of an approved aid regulation. In that context, they argue that the Commission failed to use as the basis of its decision the definition of an undertaking in difficulties which is contained in the aid regulation which it approved.
   The Commission further infringed Community law through misassessment of the evidence. The applicants argue that, contrary to what the Commission maintains, the undertakings concerned by the contested decision were not undertakings in difficulty at the time the aid was granted.
   The applicants further argue that Community law has been infringed by serious errors in the statement of reasons.


title: Case T-392/09: Judgment of the General Court (Third Chamber) of 12 December 2012 — 1. garantovaná v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Imputability of the unlawful conduct — Fines — Ceiling of 10 % of turnover — Relevant turnover — Rights of the defence — Obligation to state reasons — Proportionality — 2006 Guidelines on the method of setting fines — Ability to pay)

text:
               2.2.2013

               EN

               Official Journal of the European Union

               C 32/16

         Judgment of the General Court (Third Chamber) of 12 December 2012 — 1. garantovaná v Commission
   (Case T-392/09) (1)

   (Competition - Agreements, decisions and concerted practices - Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom - Decision finding an infringement of Article 81 EC - Price-fixing and market-sharing - Imputability of the unlawful conduct - Fines - Ceiling of 10 % of turnover - Relevant turnover - Rights of the defence - Obligation to state reasons - Proportionality - 2006 Guidelines on the method of setting fines - Ability to pay)
   2013/C 32/23
   Language of the case: English

      Parties

      Applicant: 1. garantovaná a.s. (Bratislava, Slovakia) (represented initially by: M. Powell, Solicitor, A. Sutton and G. Forwood, Barristers, and subsequently by M. Powell, G. Forwood, M. Staroň and P. Hodál, lawyers)

      Defendant: European Commission (represented by: J. Bourke, N. von Lingen and A. Tokár, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, a reduction of the fine imposed on the applicant by that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders 1. garantovaná a.s. to pay the costs.

      (1)  OJ C 297, 5.12.2009.


title: Action brought on 3 November 1995 by Miwon Co. Ltd against the Commission of the European Communities (Case T-208/95)

text:
30 . 12 . 95          EN                  Official Journal of the European Communities                                   No C 351 / 19
Bar, with an address for service in Luxembourg at the                Moreover, the Commission itself decided to allow all
Chambers of Evelyne Korn, 21 Rue Nassau .                            members of the temporary staff whose entry into service
                                                                     commenced after July 1988 and before March 1992 — as in
The applicant claims that the Court should :                         the case of the applicant — to take part in two competitions,
                                                                     provided that they could show that they had completed not
— declare the action admissible ,                                    less than three years' service as members of the temporary
                                                                     staff. Since the Commission restricted its powers by stating
— declare notice of competition COM/T/B/95 illegal and               that the category of servants eligible for equal treatment as
     inapplicable to the applicant,                                  regards access to competitions leading to establishment was
                                                                     to comprise servants who entered into service within those
— annul the decision of the selection board of 7 November            two dates, the applicant's inability to obtain an extension
     1994    refusing    to    admit    her   to   competition       until 30 September 1994 of her status as a member of the
    COM/T/B/95 ,                                                     temporary staff cannot constitute objective justification for
                                                                     the difference in treatment .
— declare that the decisions by which the Commission
    adopted its general policy regarding temporary staff in          Lastly, the applicant pleads a breach in the present case of
     March 1992 and February 1994 are in breach of the               the duty to have regard for the welfare and interests of
    principles referred to in the applicant's pleas, and declare     officials .
    them inapplicable to the applicant,
— annul the decision of the Commission of 27 July 1995
    refusing to admit her to any competition leading to
    establishment other than competition COM/T/B/95 ,
— order the Commission to pay her damages on account of              Action brought on 3 November 1995 by Miwon Co. Ltd
    the erroneous and prejudicial nature of the contested               against the Commission of the European Communities
    decisions; the applicant reserves the right to submit later                              ( Case T-208/95 )
    on in the proceedings detailed calculations of the loss
    suffered by her,                                                                           ( 95/C 351 /37 )
— order the defendant to pay the costs .                                              (Language of the case: English)
Pleas in law and main arguments adduced in support:                  An action against the Commission of the European
                                                                     Communities was brought .before the Court of First
The applicant, formerly a member of the temporary staff in           Instance of the European Communities on 3 November
category B and currently a member, in the same category, of          1995 by Miwon Co . Ltd, represented by Mr Jean-Francois
the auxiliary staff of the Commission, contests the refusal by       Bellis, with an address for service in Luxembourg at the
the selection board in internal competition COM/T/B/95 to            Chambers of A. F. Brausch , 8 Rue Zithe .
admit her to the tests in that competition on the ground that
she was not a member of the temporary staff on the date
when she submitted her application . That decision was               The applicant claims that the Court should :
taken on the basis of a notice of competition requiring
candidates to have completed, by 30 September 1994 at the            — annul Commission Regulation ( EC ) No 1754/95 of
latest, a minimum of three years' service as a servant of the              18 July 1995 imposing a provisional anti-dumping duty
Communities , as defined in the Conditions of Employment                  on imports of monosodium glutamate originating, inter
of other Servants, and to be a member of the temporary staff              alia, in the Republic of Korea in so far as it considers that
in category B on that date .                                              the applicant violated its undertaking and imposes
                                                                          a provisional anti-dumping duty on imports of
The applicant points out in that regard that she signed, in               monosodium glutamate manufactured by the applicant,
accordance with the indications given by the administration,              and
a contract of employment as a member of the auxiliary staff
of one month 's duration, in order to be eligible to take part       — order the Commission to pay the costs of these
in a competition leading to establishment. It was in fact for             proceedings .
that reason that the applicant, legitimately believing on the
basis of what she had been told that she would be admitted
to the tests, did not lodge a complaint against the notice of        Pleas in law and main arguments adduced in support:
competition in question .
                                                                     The applicant, a limited company established under the laws
The applicant maintains, first, that there has been a breach         of the Republic of Korea, produces a wide range of food and
of the principle of legitimate expectations , inasmuch as she        chemical products , including monosodium glutamate
was given clear assurances by the competent departments of            ( hereinafter ' MSG'), a product used as a flavour enhancer
the Commission that she had the right to take part in the            in food products. It states that on 27 June 1990 , the
competition in question as a member of the auxiliary                  Council adopted Regulation ( F'EC ) No 1798/90 imposing
staff.                                                                a definitive anti-dumping duty on imports of MSG
 ---pagebreak--- No C 351 /20             EN                    Official Journal of the European Communities                                      30 . 12 . 95
originating in Indonesia , the Republic of Korea , Taiwan and             Action brought on 3 November 1995 by Windstar Sail
Thailand and collecting definitively the provisional duty .               Cruises Limited, Wind Star Limited and Wind Spirit Limited
MSG produced and exported to the Community by                               against the Commission of the European Communities
companies which offered undertakings which had been                                                ( Case T-209/95 )
accepted by the Commission was exempted from definitive
duties and the applicant was among the companies                                                     ( 95/C 351 /38 )
exempted from the definitive anti-dumping duty . Following
a request for a review under Article 14 of Council
Regulation ( EEC ) No 2423/88 lodged by Orsan , the sole                                   (Language of the case: English)
Community producer of MSG , the Commission on 9 July
1994 published notice 94/C 187/06 concerning the
initiation of a review of all the anti-dumping measures                   An action against the Commission of the European
applicable to imports of MSG originating in Indonesia , the               Communities was brought before the Court of First
Republic of Korea , Taiwan and Thailand . On 8 June 1995                  Instance of the European Communities on 3 November
the Commission sent a disclosure letter to the applicant                  1995 by Windstar Sail Cruises Limited, Wind Star Limited
announcing its intention to withdraw its price undertakings               and Wind Spirit Limited, represented by Alfred Merckx, of
and to replace it by a provisional anti-dumping duty based                the Brussels Bar ( Sinclair Roche & Temperley ), Broadwalk
on the facts established before the acceptance of the price               House, 5 Appold Street, London ..
undertaking. The Commission considered that ' even if the
export prices , taken at their face value, did correspond to the
terms of the undertakings, the level of the resale prices of the
merchandise in the Community nevertheless constitute a                    The applicants claim that the Court should :
clear indication of the violation of the undertakings'. On
18 July the Commission adopted Regulation ( EC )                          — annul pursuant to Articles 173 and 174 of the EC Treaty
No 1754/95 , the act contested in the present application .                    the Commission decision of 21 June 1995 in so far as it
                                                                               considers the aid granted by the French government
                                                                               for the building of the 'Tahiti Nui ' as development aid
The applicant asserts that the contested Regulation is                         under Article 4 ( 7 ) of the shipbuilding Directive and
manifestly unlawful in that it is based on invalid grounds . It                compatible with the common market,
explains that the Commission based its decision on
Article 10 ( 6 ) of Council Regulation ( EEC ) No 2423/88 ,
that is , on the finding that the applicant was in breach of its          — order the Commission to pay the costs .
undertaking . The applicant maintains that this finding is
manifestly unlawful :
                                                                          Pleas in law and main arguments adduced in support:
( 1 ) to the extent that it is based on facts which do not
       individually concern the applicant;                                The applicants who operate cruises between various EC
                                                                          ports in the Mediterranean and between ports of call in the
                                                                          Caribbean and French Polynesia are challenging the
                                                                          Commission 's decision not to raise objections to State aid
( 2 ) in that it rests on a fundamental error of law, namely              granted to their French competitor ' Services et Transports'
       the notion that a finding of a breach of a price                   for the building, by the French shipbuilding yard Ateliers et
       undertaking can be based on an analysis of the resale              Chantiers du Flavre, of a ship to be named 'Tahiti Nui '
       prices of the product concerned by independent                     which would go into operation in French Polynesia from
       importers in the Community;                                         1996 . The Commission has considered this aid to be
                                                                          development aid as within the meaning of Article 4 ( 7 ) of the
                                                                          shipbuilding Directive and therefore to be compatible with
 ( 3 ) in that it is based on a secret file of which no details have       Community law.
       been disclosed to the applicant, thus depriving it of its
       fundamental right to be heard; and
                                                                          In support of their application the applicants state as
                                                                           follows :
 ( 4 ) in that it is unjustified for the Commission to consider
       that the importer in Germany referred to in point 6 of             — the decision infringes Article 93 of the EC Treaty, in so
       the contested Regulation was related to the applicant                    far as the Commission can only take a decision to raise
       during the investigation period and that, in any event,                  no objections without initiating the procedure under
       this question is unrelated to the question of whether the                Article 93 ( 2 ) when it is prima facie manifestly apparent
       applicant was in breach of its undertaking.                              that the aid is compatible with Community law .
                                                                                However, in the present case whilst the defendant
                                                                                institution had initially expressed serious doubts about
                                                                                opening the Article 93 ( 2 ) procedure, it had de facto
                                                                                taken this aid out of the scope of this procedure and
                                                                                examined it under the simplified verification procedure


title: Case T-267/01: Action brought on 22 October 2001 by Confederación Empresarial Vasca against Commission of the European Communities

text:
C 3/42                 EN                     Official Journal of the European Communities                                         5.1.2002
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant is challenging Commission Decision                         The applicant contests Commission Decision C(2001) 1760
C(2001)1765 final of 11 July 2001 in so far as it characterises          final of 11 July 2001 declaring incompatible with the common
as State aid incompatible with the common market the tax                 market the tax reductions under Article 26 of Norma Foral
reductions under the fourth addendum to Norma Foral                      (Regional Law) No 24/1996 of 5 July 1996 on corporation tax
(Regional Law) No 7/1996 of 26 December 1996, and the                    (Boletı́n Oficial del Territorio Histórico de Alava of 9 August
tenth addendum to Norma Foral 4/1998 of 2 December 1998,                 1996), which provides for a reduction of 99 %, 75 %, 50 %
which provide for a tax credit of 45 % of the investment in              and 25 % of the taxable basis for the aforementioned tax
new fixed material assets in excess of PTA 2 500 million                 applicable during the first four tax years for undertakings
(EUR 15 025 303) made by undertakings in the Territorio                  which set up business in the Territorio Histórico de Alava with
Histórico de Vizcaya.                                                   effect from the entry into force of the Law, provided that they
                                                                         have disbursed capital amounting to more than PTA 20 million
                                                                         (EUR 120 202), invest more than PTA 80 million
                                                                         (EUR 430 810) and create more than 10 new jobs.
The pleas in law and main arguments on which the applicant
relies are similar to those put forward in Case T-225/01.
                                                                         The pleas in law and main arguments put forward by the
                                                                         applicant are identical with those put forward in Case
                                                                         T-225/01.
Action brought on 22 October 2001 by Confederación
Empresarial Vasca against Commission of the European
                           Communities                                   Action brought on 22 October 2001 by Confederación
                                                                         Empresarial Vasca against Commission of the European
                                                                                Communities
                          (Case T-267/01)
                                                                                (Case T-268/01)
                           (2002/C 3/72)
                                                                                (2002/C 3/73)
                   (Language of the case: Spanish)
                                                                                (Language of the case: Spanish)
An action against the Commission of the European Communi-                An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               ties was brought before the Court of First Instance of the
European Communities on 22 October 2001 by Confedera-                    European Communities on 22 October 2001 by Confedera-
ción Empresarial Vasca, whose registered office is at Bilbao            ción Empresarial Vasca, whose registered office is at Bilbao
(Spain), represented by Marcos Araujo Boyd, lawyer.                      (Spain), represented by Marcos Araujo Boyd, lawyer.
The applicant claims that the Court should:                              The applicant claims that the Court should:
                                                                         —     annul the defendant’s decision of 11 July 2001 on the
—     annul the defendant’s decision of 11 July 2001 on the
                                                                               system of State aid applied by Spain to certain newly
      system of State aid applied by Spain to certain newly
                                                                               created undertakings in Vizcaya (Spain);
      created undertakings in Alava (Spain);
                                                                         —     in the alternative, annul Articles 3 and 4 of the defendant’s
—     in the alternative, annul Articles 3 and 4 of the defendant’s            decision of 11 July 2001 on the system of State aid
      decision of 11 July 2001 on the system of State aid                      applied by Spain to certain newly created undertakings in
      applied by Spain to certain newly created undertakings in                Vizcaya, inasmuch as the obligation to recover the
      Alava, inasmuch as the obligation to recover the amounts                 amounts not levied by the regional revenue authorities
      not levied by the regional revenue authorities of Alava                  of Vizcaya pursuant to the disputed tax legislation is
      pursuant to the disputed tax legislation is unjustified;                 unjustified;
—     order the Commission to pay the costs.                             —     order the Commission to pay the costs.


title: Case C-533/09: Action brought on 18 December 2009 — European Commission v Portuguese Republic

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/23

         Action brought on 18 December 2009 — European Commission v Portuguese Republic
   (Case C-533/09)
   2010/C 51/37
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: H. Støvlbæk and P. Guerra e Andrade, Agents)

      Defendant: Portuguese Republic

      Form of order sought

               —

               Declare that, by requiring Portuguese nationality as a condition of access to the notarial profession, in accordance with the decision of the Ministry of Justice of 12 December 1991 which endorsed the opinion of the Conselho Consultivo da Procuradoria-Geral da República (the Consultative Council of the Attorney General’s Office) on Article 15 of the Portuguese Constitution, the Portuguese Republic has failed to fulfil its obligations under Article 49 TFEU, since the requirement laid down in Article 51 TFUE has not been satisfied.

               —

               Order the Portuguese Republic to pay the costs.

      Pleas in law and main arguments

   In Portugal, the interests pursued by a notary are not State interests, a notary is not directly and specifically involved in the exercise of official authority, and does not form part of public administration. The exception provided for in Article 51 of the Treaty on the Functioning of the European Union is not applicable to the notarial profession in Portugal. The consultative opinion of the Attorney General’s Office endorsed on 12 December 1991 does not state that the profession of notary falls within the scope of Article 15(2) of the Portuguese Constitution. The functions of a notary in Portugal are exclusively technical in nature. They are based on professional competence, and not on political trust.


title: Case T-202/10: Action brought on 29 April 2010 — Stichting Woonlinie and Others v Commission

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/50

         Action brought on 29 April 2010 — Stichting Woonlinie and Others v Commission
   (Case T-202/10)
   2010/C 179/86
   Language of the case: Dutch

      Parties

      Applicants: Stichting Woonlinie (Woudrichem, Netherlands), Stichting Allee Wonen (Roosendaal, Netherlands), Woningstichting Volksbelang (Wijk bij Duurstede, Netherlands), Stichting WoonInvest (Leidschendam-Voorburg, Netherlands), Stichting Woonstede (Ede, Netherlands) (represented by: E. Henny, T. Ottervanger and P. Glazener, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission’s decision concerning existing aid, in accordance with Article 263 TFEU;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The applicants seek annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations. The applicants rely on eight pleas in law in support of their application.
   First, the Commission erred in its application of the law by deeming all the measures to form part of an aid scheme. According to the applicants, the third and fourth measures referred to by the Commission were erroneously regarded as forming part of an existing aid scheme within the meaning of Article 1(d) of Regulation No 659/1999, (1) irrespective of whether those measures constitute aid within the meaning of Article 107(1) TFEU. Consequently, the Commission exceeded its powers by including both measures in its examination of the compatibility of an existing aid scheme with the common market.
   Second, the Commission’s decision in case E 2/2005 was based on an incomplete and manifestly incorrect assessment of the national legislation applicable and of the relevant facts. According to the applicants, the Commission did not examine whether there is actually a manifest error in the definition of service of general economic interest in the current Netherlands system of social housing funding.
   Third, the Commission’s assessment was erroneous and negligent in so far as it concluded that the letting of social housing to persons with a relatively high income is part of the public service mission of social housing corporations.
   Fourth, the Commission erred in law and abused its powers by demanding that the Netherlands State redefine ‘social housing provision’. According to the applicants, the Commission exceeds its powers by putting forward its own definition of social housing provision as a service of general economic interest, notwithstanding the fact that the Netherlands must be regarded as having a wide discretion to determine its own policy in that area.
   Fifth, the Commission erred in law by failing to distinguish between the definition of a service of general economic interest and the manner in which it is financed.
   Sixth, the Commission disregarded Decision 2005/842/EG (2) in that it demanded a specific description of the service of general economic interest. According to the applicants, the Commission erroneously decided that a Member State must define the service of general economic interest on the basis of an income threshold.
   Seventh, the Commission made an error of assessment and disregarded Article 5 of Decision 2005/842/EC in so far as it did not find that the manner in which the service of general economic interest was financed was manifestly inappropriate. According to the applicants, the Commission failed to ascertain whether, taking into account the definition of the service of general economic interest, there was any possibility of overcompensation.
   Eighth, the Commission abused the procedure for the assessment of existing aid schemes by requiring, on the basis of that procedure, an exhaustive list of buildings which are to be categorised as social property, as a result of which buildings that are not included in that list no longer fall within the category of a service of general economic interest.

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

      (2)  Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (notified under document number C(2005) 2673) (OJ 2005 L 312, p. 67).


title: Case C-310/14: Judgment of the Court (Sixth Chamber) of 15 October 2015 (request for a preliminary ruling from the Helsingin hovioikeus — Finland) — Nike European Operations Netherlands BV v Sportland Oy, in liquidation (Reference for a preliminary ruling — Regulation (EC) No 1346/2000 — Articles 4 and 13 — Insolvency proceedings — Detrimental legal acts — Action for restitution of payments made before the date on which insolvency proceedings were opened — Law of the Member State in which insolvency proceedings were opened — Law of the Member State governing the legal act at issue — Law not allowing ‘any means of challenging that act in the relevant case’ — Burden of proof)

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/10

         Judgment of the Court (Sixth Chamber) of 15 October 2015 (request for a preliminary ruling from the Helsingin hovioikeus — Finland) — Nike European Operations Netherlands BV v Sportland Oy, in liquidation
   (Case C-310/14) (1)

   ((Reference for a preliminary ruling - Regulation (EC) No 1346/2000 - Articles 4 and 13 - Insolvency proceedings - Detrimental legal acts - Action for restitution of payments made before the date on which insolvency proceedings were opened - Law of the Member State in which insolvency proceedings were opened - Law of the Member State governing the legal act at issue - Law not allowing ‘any means of challenging that act in the relevant case’ - Burden of proof))
   (2015/C 406/10)
   Language of the case: Finnish

      Referring court

   Helsingin hovioikeus

      Parties to the main proceedings

      Applicant: Nike European Operations Netherlands BV

      Defendant: Sportland Oy, in liquidation

      Operative part of the judgment

               1.

               Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that, after taking account of all the circumstances of the case, the article applies provided that the act at issue cannot be challenged on the basis of the law governing that act (lex causae).

               2.

               For the purposes of the application of Article 13 of Regulation No 1346/2000 and in the event that the defendant in an action relating to the voidness, voidability or unenforceability of an act relies on a provision of the law governing that act (lex causae) under which that act can be challenged only in the circumstances provided for in that provision, it is for the defendant to plead that those circumstances do not exist and to bear the burden of proof in that regard.

               3.

               Article 13 of Regulation No 1346/2000 must be interpreted as meaning that the expression ‘does not allow any means of challenging that act …’ applies, in addition to the insolvency rules of the law governing that act (lex causae), to the general provisions and principles of that law, taken as a whole.

               4.

               Article 13 of Regulation No 1346/2000 must be interpreted as meaning that the defendant in an action relating to the voidness, voidability or unenforceability of an act must show that the law governing that act (lex causae), taken as a whole, does not allow for that act to be challenged. The national court before which such an action is brought may rule that it is for the applicant to establish the existence of a provision or principle of the lex causae on the basis of which that act can be challenged only where that court considers that the defendant has first proven, in accordance with the rules generally applicable under its national rules of procedure, that the act at issue cannot be challenged on the basis of the lex causae.

      (1)  OJ C 292, 1.9.2014.


title: Case C-658/13: Request for a preliminary ruling from the Landgericht Hannover (Germany) lodged on 12 December 2013 — Wilhelm Spitzner, Maria-Luise Spitzner v TUIfly GmbH

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/12

         Request for a preliminary ruling from the Landgericht Hannover (Germany) lodged on 12 December 2013 — Wilhelm Spitzner, Maria-Luise Spitzner v TUIfly GmbH
   (Case C-658/13)
   2014/C 85/20
   Language of the case: German

      Referring court

   Landgericht Hannover

      Parties to the main proceedings

      Appellants: Wilhelm Spitzner and Maria-Luise Spitzner

      Respondent: TUIfly GmbH

      Questions referred

               1.

               Is Article 5(3) of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, to be interpreted as meaning that an extraordinary circumstance causing a delay to a flight also constitutes an extraordinary circumstance, within the meaning of that provision, for another, subsequent flight, in the case where the effect of the extraordinary circumstance causing a delay affects the later flight solely by reason of the operational organisation of the air carrier?

               2.

               Is Article 5(3) of Regulation (EC) No 261/2004 to be interpreted as meaning that the concept of avoidability relates, not to the extraordinary circumstances as such, but to the delay to or cancellation of the flight caused by those extraordinary circumstances?

               3.

               Is Article 5(3) of Regulation (EC) No 261/2004 to be interpreted as meaning that it is reasonable for air carriers which operate their flights in a so-called rotation system to factor in a minimum time reserve between flights, the length of which corresponds to the time spans laid down in Article 6(1)(a) to (c) of Regulation (EC) No 261/2004?

               4.

               Is Article 5(3) of Regulation (EC) No 261/2004 to be interpreted as meaning that it is reasonable for air carriers which operate their flights in a so-called rotation system to deny boarding to passengers whose flight has already been significantly delayed due to an extraordinary event, or to transport such passengers later, in order to avoid a delay to subsequent flights?

      (1)  OJ 2004 L 46, p. 1.


title: Case T-106/06: Judgment of the Court of First Instance of 23 January 2008 — Demp v OHIM — BAU HOW (BAU HOW) (Community trade mark — Opposition proceedings — Application for Community figurative mark BAU HOW — Earlier figurative marks BAUHAUS — Relative ground for refusal — No likelihood of confusion — Article 8(1)(a) and (b), and Article 73 of Regulation (EC) No 40/94)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/36

         Judgment of the Court of First Instance of 23 January 2008 — Demp v OHIM — BAU HOW (BAU HOW)
   (Case T-106/06) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark BAU HOW - Earlier figurative marks BAUHAUS - Relative ground for refusal - No likelihood of confusion - Article 8(1)(a) and (b), and Article 73 of Regulation (EC) No 40/94)
   (2008/C 64/57)
   Language of the case: German
   Parties

      Applicant: Demp BV, formerly Demp Holding BV (Maastricht, Netherlands) (represented by: R.-D. Härer, C. Schultze, J Ossing and C. Weber, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider)

      Other party to the proceedings before the Board of Appeal of OHIM: BAU HOW GmbH (Hattersheim/Okriftel, Germany)
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 31 January 2006 (Case R 92/2004-4) on opposition proceedings between Demp BV and BAU HOW GmbH.
   Operative part of the judgment

               1.

               The action is dismissed;

               2.

               Demp BV is ordered to pay the costs.

      (1)  OJ C 143 of 17.6.2006.


title: Case C-130/12: Action brought on 9 March 2012 — European Commission v Portuguese Republic

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/20

         Action brought on 9 March 2012 — European Commission v Portuguese Republic
   (Case C-130/12)
   2012/C 133/37
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: P. Guerra e Andrade and J. Hottiaux, acting as Agents)

      Defendant: Portuguese Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, by failing to adopt the legislative, regulatory and administrative provisions necessary to comply with Commission Directive 2009/113/EC (1) of 25 August 2009 amending Directive 2006/126/EC of the European Parliament and of the Council on driving licences, or, in any event, by failing to inform the Commission of such provisions, the Portuguese Republic has failed to fulfil its obligations under Article 2(1) of that directive;

               —

               order the Portuguese Republic to pay the costs.

      Pleas in law and main arguments

   The time-limit for transposing the directive expired on 14 September 2010.

      (1)  OJ 2009 L 223, p. 31.


title: Case T-202/11: Action brought on 4 April 2011 — Aeroporia Aigaiou Aeroporiki and Marfin Investment Group Symmetochon v Commission

text:
               28.5.2011

               EN

               Official Journal of the European Union

               C 160/25

         Action brought on 4 April 2011 — Aeroporia Aigaiou Aeroporiki and Marfin Investment Group Symmetochon v Commission
   (Case T-202/11)
   2011/C 160/40
   Language of the case: English

      Parties

      Applicants: Aeroporia Aigaiou Aeroporiki AE (Athens, Greece) and Marfin Investment Group Symmetochon AE (Athens, Greece) (represented by: A. Ryan, Solicitor, G. Bushell, Solicitor, P. Stamou and I. Dryllerakis, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Decision of the European Commission No C(2011) 316 of 26 January 2011 on Case COMP/M.5830 related to the proposed merger of Aegean Airlines S.A. and Olympic Air S.A., Olympic Handling S.A. and Olympic Engineering S.A. under Council Regulation (EC) No 139/2004 (1); and

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging breach of essential procedural requirements and/or manifest error of assessment in defining a market for time-sensitive air passengers only, as:

                           —

                           The Commission uses yield or revenue management as a basis for defining a market for time sensitive passengers which was never discussed in the administrative procedure; and

                           —

                           The Decision cannot be based on a market comprising of time sensitive air passengers only, as this cannot be supported by mainstream economic thinking and is contradicted by the Commission’s own file.

               2.

               Second plea in law, alleging manifest error of assessment in concluding that ferries exert only a “limited competitive constraint” on air services on eight routes, as:

                           —

                           The evidence cited by the Commission in support of its conclusions is highly selective, breaches all rules of evidence and does not contain any empirical or survey work. Moreover, this evidence, if read objectively, in fact supports the opposite conclusion, i.e. that ferries do exert a real competitive constraint for non-time sensitive and/or all passengers on these eight routes.

               3.

               Third plea in law, alleging failure to state reasons and/or error of law and/or manifest error of assessment in concluding that there would be a significant impediment to effective competition due to the elimination of the close competitive relationship between Aegean and Olympic, as:

                           —

                           The Decision fails to state what the precise theory of harm is; and

                           —

                           The Commission fails to provide consistent and cogent evidence to show that passengers of one of the applicants would not switch to ferries in the event of a 5-10 % rise in air fares, which would be the relevant question.

               4.

               Fourth plea in law, alleging manifest error of assessment and/or error of law in concluding there are barriers to entry which make post-merger entry unlikely, as:

                           —

                           The Commission has applied the wrong legal test, requiring definite and substantiated entry plans pre-merger, which is an impossible test to meet; and

                           —

                           The Commission’s factual assessment is flawed, based on highly selective evidence and fails completely to undertake a diligent investigation.

               5.

               Fifth plea in law, alleging breach of essential procedural requirements and/or manifest error of assessment in the analysis of the counterfactual, as:

                           —

                           As regards the counterfactual of Aegean, the conclusions of the Decision rest entirely on a breach of the applicants’ rights of defence. Despite extensive submissions by the applicants the Commission failed to discuss the Aegean counterfactual during the administrative procedure and substantiated its views for the first time in the Decision. Furthermore, the Commission’s assessment is erroneous, being based merely on ex post analysis; and

                           —

                           With regard to the counterfactual of Olympic, the Commission’s analysis limits itself to a criticism of the model put forward by Marfin and fails to conduct a proper ex ante assessment mainly because it does not go beyond the IATA summer 2011 season. Moreover, its conclusions are mere assertions, not based on any data.

               6.

               Sixth plea in law, alleging breach of applicants’ fundamental rights, as:

                           —

                           The administrative procedure before the Commission failed to meet the standards of administrative fairness as reflected in the right to a fair hearing provided by Article 6(1) of the European Convention on Human Rights and the duty of good administration enshrined in Article 41 of the Charter of Fundamental Rights. The Commission failed to comply with its duty of a diligent investigation, thereby effectively reversing the burden of proof onto the applicants.

      (1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1)


title: Case C-333/11: Order of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the Hof van Cassatie van België, Belgium) — Koninklijke Federatie van Belgische Transporteurs en Logistiek Dienstverleners (Febetra) v Belgische Staat (Article 104(3), first subparagraph, of the Rules of Procedure — TIR Convention — Community Customs Code — Excise duties — Transport carried out under cover of a TIR carnet — Unlawful unloading — Determination of the place of the offence — Recovery of customs and excise duties — Jurisdiction)

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/7

         Order of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the Hof van Cassatie van België, Belgium) — Koninklijke Federatie van Belgische Transporteurs en Logistiek Dienstverleners (Febetra) v Belgische Staat
   (Case C-333/11) (1)

   (Article 104(3), first subparagraph, of the Rules of Procedure - TIR Convention - Community Customs Code - Excise duties - Transport carried out under cover of a TIR carnet - Unlawful unloading - Determination of the place of the offence - Recovery of customs and excise duties - Jurisdiction)
   2012/C 194/12
   Language of the case: Netherlands

      Referring court

   Hof van Cassatie van België

      Parties to the main proceedings

      Applicant: Koninklijke Federatie van Belgische Transporteurs en Logistiek Dienstverleners (Febetra)

      Defendant: Belgische Staat

      Re:

   Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 454(3), second subparagraph, of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1992 L 253, p. 1), of Articles 6(1) and 7(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1) and of Article 37 of the Customs Convention on the International Transport of Goods under cover of TIR carnets (TIR Convention) — Offences or irregularities — Place of the offence or irregularity — Place deemed to be where the offence or irregularity is detected, where it is impossible to determine the place where it was committed

      Operative part of the order

               1.

               Article 454(3) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 1662/1999 of 28 July 1999, must be interpreted as meaning that a guaranteeing association may prove the place where an offence or irregularity was committed by relying on the place where the TIR carnet was accepted and/or where the seals were affixed. If that association succeeds in reversing the presumption of jurisdiction of the customs authorities of the Member State on the territory of which an offence or irregularity was detected in the course of transport under cover of a TIR carnet in favour of those of the Member State on the territory of which that offence or irregularity was actually committed — which is for the referring court to determine — the customs authorities of that latter State assume jurisdiction to recover the customs debt.

               2.

               Articles 6(1) and 7(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 96/99/EC of 30 December 1996, must be interpreted as meaning that the customs authorities of the Member State on the territory of which the goods were discovered, seized and confiscated enjoy jurisdiction to recover the excise duty, even if those goods were introduced into the territory of the European Union in another Member State, in so far as those goods are held for commercial purposes, which is for the referring court to establish.

      (1)  OJ C 269, 10.9.2011.


title: Judgment of the Court (Fourth Chamber) of 14 June 2001 in Case C-207/00: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Failure to implement Directive 97/36/EC amending Directive 89/552/EEC — Coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities)

text:
C 212/4                  EN                     Official Journal of the European Communities                                          28.7.2001
                  JUDGMENT OF THE COURT                                                     JUDGMENT OF THE COURT
                          (Third Chamber)                                                           (Fourth Chamber)
                           of 14 June 2001
                                                                                of 14 June 2001
in Case C-84/00: Commission of the European Communi-
                     ties v French Republic (1)                            in Case C-207/00: Commission of the European Communi-
                                                                                ties v Italian Republic (1)
(Failure by a Member State to fulfil its obligations —
Article 30 of the EC Treaty (now, after amendment,
                                                                           (Failure by a Member State to fulfil its obligations —
Article 28 EC) — Free movement of articles of precious
                                                                           Failure to implement Directive 97/36/EC amending Directive
     metal — Rules on acceptable standards of fineness)
                                                                           89/552/EEC — Coordination of certain provisions laid down
                                                                           by law, regulation or administrative action in Member States
                           (2001/C 212/06)                                  concerning the pursuit of television broadcasting activities)
                                                                                (2001/C 212/07)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published                         (Language of the case: Italian)
                    in the European Court Reports)
In Case C-84/00: Commission of the European Communities                    (Provisional translation; the definitive translation will be published
(Agent: R. Wainwright) v French Republic (Agents: K. Rispal-                                  in the European Court Reports)
Bellanger and S. Seam) — application for a declaration that,
by failing to allow the marketing within France of articles of
precious metals which come from other Member States and                    In Case C-207/00: Commission of the European Communities
purport to have a standard of fineness of ‘999 parts per                   (Agents: K. Banks and L. Pignataro) v Italian Republic (Agent:
thousand’, despite the fact that that standard is commonly                 U. Leanza, assisted by I.M. Braguglia) — application for a
used in commercial practice, the French Republic has failed to             declaration that, by failing to adopt the laws, regulations and
comply with its obligations under Article 30 of the EC Treaty              administrative provisions necessary to comply with Directive
(now, after amendment, Article 28 EC) — the Court (Third                   97/36/EC of the European Parliament and of the Council of
Chamber), composed of: C. Gulmann, President of the Chamb-                 30 June 1997 amending Council Directive 89/552/EEC on the
er, F. Macken and J.N. Cunha Rodrigues (Rapporteur), Judges;               coordination of certain provisions laid down by law, regulation
J. Mischo, Advocate General; R. Grass, Registrar, has given a              or administrative action in Member States concerning the
judgment on 14 June 2001, in which it:                                     pursuit of television broadcasting activities (OJ 1997 L 202,
                                                                           p. 60), specifically Article 1(1) amending Article 1(c) of Council
1.    Declares that, by failing to allow the marketing within France       Directive 89/552/EEC of 3 October 1989 on the coordination
      of articles of precious metals which come from other Member          of certain provisions laid down by law, regulation or adminis-
      States and purport to have a standard of fineness of ‘999 parts      trative action in Member States concerning the pursuit of
      per thousand’, despite the fact that that standard is commonly       television broadcasting activities (OJ 1989 L 298, p. 23);
      used in commercial practice, the French Republic has failed to       Article 1(2) which replaces Article 2 of Directive 89/552 with
      comply with its obligations under Article 30 of the EC Treaty        the exception of Article 2(3), (4), (5) and (6); Article 1(3) which
      (now, after amendment, Article 28 EC);                               inserts Article 2a into Directive 89/552; Article 1(4) which
                                                                           incorporates Article 3a(3) in Directive 89/552; Article 1(12),
                                                                           which replaces Article 10 of Directive 89/552, with the
2.    Orders the French Republic to pay the costs.                         exception of Article 10(2); Article 1(14) which amends the
                                                                           first sentence of Article 12 of Directive 89/552; Article 1(15)
                                                                           which replaces Article 13 of Directive 89/552; and lastly
                                                                           Article 1(18) which adds a paragraph 2 to Article 16 to
(1) OJ C 163 of 10.6.2000.                                                 Directive 89/552, the Italian Republic has failed to fulfil its
                                                                           obligations under that directive — the Court (Fourth Chamber),
                                                                           composed of: A. La Pergola, President of the Chamber,
                                                                           D.A.O. Edward (Rapporteur) and S. von Bahr, Judges; S. Alber,
                                                                           Advocate General; R. Grass, Registrar, has given a judgment
                                                                           on 14 June 2001, in which it:
 ---pagebreak--- 28.7.2001                 EN                    Official Journal of the European Communities                                          C 212/5
1.    Declares that, by failing to adopt, within the prescribed period,    —    Council Directive 76/464/EEC of 4 May 1976 on pol-
      the laws, regulations and administrative provisions necessary to          lution caused by certain dangerous substances discharged
      comply with Articles 1(c), 2(1) and (2), 2a, 3a(3) and                    into the aquatic environment of the Community (OJ
      10(1)(3) and (4), Article 12, inasmuch as it regulates                    1976 L 129, p. 23),
      teleshopping, and Articles 13 and 16(2) of,Council Directive
      89/552/EEC of 3 October 1989 on the coordination of certain          —    Council Directive 80/68/EEC of 17 December 1979 on
      provisions laid down by law, regulation or administrative                 the protection of groundwater against pollution caused
      action in Member States concerning the pursuit of television              by certain dangerous substances (OJ 1980 L 20, p. 43),
      broadcasting activities, as amended by Directive 97/36/EC of
      the European Parliament and of the Council of 30 June 1997,          —    Council Directive 84/360/EEC of 28 June1984 on the
      the Italian Republic has failed to fulfil its obligations under           combating of air pollution from industrial plants (OJ
      that directive.                                                           1984 L 188, p. 20), and
2.    Orders the Italian Republic to pay the costs.                        —    Council Directive 85/337/EEC of 27 June 1985 on the
                                                                                assessment of the effects of certain public and private
                                                                                projects on the environment (OJ 1985 L 175, p. 40),
(1) OJ C 211 of 22.7.2000.
                                                                           the Kingdom of Belgium has failed to fulfil its obligations
                                                                           under Articles 9 of Directive 75/442, 3, 4, 5 and 7 of Directive
                                                                           76/464, 3, 4, 5, 7 and 10 of Directive 80/68, 3, 4, 9 and 10
                                                                           of Directive 84/360, 2 and 8 of Directive 85/337 and
                                                                           Article 189 of the EC Treaty (now Article 249 EC) — the
                                                                           Court (Third Chamber), composed of: C. Gulmann, President
                                                                           of the Chamber, J.-P. Puissochet and J.N. Cunha Rodrigues
                                                                           (Rapporteur), Judges; J. Mischo, Advocate General; R. Grass,
                                                                           Registrar, has given a judgment on 14 June 2001, in which it:
                  JUDGMENT OF THE COURT
                                                                           1.   Declares that by failing to adopt the laws, regulations and
                           (Third Chamber)                                      administrative provisions necessary to implement fully:
                                                                                —     Council Directive 75/442/EEC of 15 July 1975 on
                            of 14 June 2001
                                                                                waste, as amended by Council Directive 91/156/EEC of
                                                                                18 March 1991,
in Case C-230/00: Commission of the European Communi-
                   ties v Kingdom of Belgium (1)                                —     Council Directive 76/464/EEC of 4 May 1976 on
                                                                                pollution caused by certain dangerous substances dis-
                                                                                charged into the aquatic environment of the Community,
(Failure by a Member State to fulfil its obligations —
Failure to implement Directives 75/442/EEC, 76/464/EEC,                         —     Council Directive 80/68/EEC of 17 December 1979 on
80/68/EEC, 84/360/EEC and 85/337/EEC — Pollution and                                  the protection of groundwater against pollution caused by
nuisance — Waste — Dangerous substances — Pollution of                                certain dangerous substances,
           the aquatic environment — Air pollution)
                                                                                —     Council Directive 84/360/EEC of 28 June 1984 on the
                            (2001/C 212/08)                                           combating of air pollution from industrial plants, and
                                                                                —     Council Directive 85/337/EEC of 27 June 1985 on the
                                                                                assessment of the effects of certain public and private
                      (Language of the case: Dutch)                                   projects on the environment,
                                                                                the Kingdom of Belgium has failed to fulfil its obligations
(Provisional translation; the definitive translation will be published          under Articles 9 of Directive 75/442, as amended by Directive
                     in the European Court Reports)                             91/156, 3, 4, 5, and 7 of Directive 76/464, 3, 4, 5, 7 and
                                                                                10 of Directive 80/68, 3, 4, 9 and 10 of Directive 84/360
                                                                                and 2 and 8 of Directive 85/337.
In Case C-230/00: Commission of the European Communities
(Agent: H. van Lier, assisted by M.H. van der Woude and                    2.   Orders the Kingdom of Belgium to pay the costs.
T.E.M. Chellingsworth) v Kingdom of Belgium (Agent:
A. Snoecx) — application for a declaration that, by failing to
adopt the laws, regulations and administrative provisions
necessary to implement fully the following:                                (1) OJ C 233 of 12.8.2000.
—     Council Directive 75/442/EEC of 15 July 1975 on waste
      (OJ 1975 L 194, p. 39), as amended by Council Directive
      91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32),


title: Case C-479/16: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 September 2016 — Julia Markmann and Others v TUIfly GmbH

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/10

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 September 2016 — Julia Markmann and Others v TUIfly GmbH
   (Case C-479/16)
   (2016/C 475/15)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicants: Julia Markmann, Rene Markmann, Emilia Markmann, Jana Markmann

      Defendant: TUIfly GmbH
   The case was removed from the Register of the Court of Justice by order of the Court of 11 October 2016.


No C 77/ 10           EN                    Official Journal of the European Communities                                  16 . 3 . 96
      Removal from the register of Case C-108/95 (')                   from the register of Case C-252/95 : Commission of the
                           ( 96/C 77/22 )                              European Communities v. French Republic .
By order of 15 November 1995 the President of the Court of             f 1 ) OJ No C 248 , 23 . 9 . 1995 .
Justice of the European Communities ordered the removal
from the register of Case C-108/95 : Commission of the
European Communities v. Federal Republic of Germany .
(•) OJ No C 159 , 24 . 6 . 1995 .                                             Removal from the register of Case C-211 /94 ( 1 )
                                                                                96/C 77/25 )
                                                                       By order of 6 December 1995 the President of the Court of
                                                                       Justice of the European Communities ordered the removal
      Removal from the register of Case C-316/94 (')                   from the register of Case C-211 /94 ( reference for a
                           ( 96/C 77/23 )                              preliminary ruling from the Tribunal de Grande Instance de
                                                                       Caen ): criminal proceedings against Dominique Luback.
By order of 1 December 1995 the President of the Court of
Justice of the European Communities ordered the removal                (') OJ No C 275 , 1 . 10 . 1994 .
from the register of Case C-316/94 ( reference for a
preliminary ruling from the Tribunal de Commerce de
Bruxelles ): Belgian State v. Turner International Sales Ltd
and Coditel Brabant SA .
                                                                              Removal from the register of Case C-162/95 ( )
(') OJ No C 386 , 31 . 12 . 1994 .                                                                  ( 96/C 77/26 )
                                                                       By order of 19 December 1995 the President of the Court of
                                                                      Justice of the European Communities ordered the removal
                                                                       from the register of Case C- 162/95 ( reference for a
      Removal from the register of Case C-252/95 ( )                   preliminary ruling from the Tribunal de Police de Nancy ):
                           ( 96/C 77/24 )                              criminal proceedings against Philippe Baumert and Jean
                                                                       Loup Dirler.
By order of 1 December 1995 the President of the Court of
Justice of the European Communities ordered the removal                (') OJ No C 189 , 22 . 7 . 1995 .
                                                     COURT OF FIRST INSTANCE
JUDGMENT OF THE COURT OF FIRST INSTANCE                                application, first, for the annulment of the decision of the
                     of 1 February 1996                                Commission of 6 October 1994 requiring the applicant to
in Case T-122/95 : Daniel Chabert v. Commission of the
                                                                       repay the sum of Bfr 215 354 unduly paid by way of
                                                                       household allowance and, second, an order requiring the
                  European Communities ( 1 )                           Commission to repay the sums deducted from the
(Officials — Household allowance — Recovery of undue                   applicant's salary since November 1994, together with
                              payment)                                 default interest at the rate of 8 % per annum — the Court of
                           ( 96/C 77/27 )                              First Instance ( Fifth Chamber ), composed of R. Schintgen,
                                                                       President, and R. Garcia-Valdecasas and J. Azizi, Judges;
                                                                       B. Pastor, Registrar, has given a judgment on 1 February
                                                                       1996 , in which it:
               (Language of the case: French)
                                                                       1.    Dismisses the action .
In Case T-122/95 : Daniel Chabert, an official of the                  2 . Orders the parties to bear their own costs.
Commission of the European Communities, residing at
Kraainem       ( Belgium ),       represented     by     Georges
Vandersanden, of the Brussels Bar, with an address for                 (') OJ No C 208 , 12 . 8 . 1995 .
service in Luxembourg at the offices of Fiduciaire Myson
SARL, 1 Rue Glesener, v. Commission of the European
Communities ( Agent: Ana Maria Alves Vieira ) —


title: Judgment of the Court (Second Chamber) of 9 June 2005 in Case C-135/04: Commission of the European Communities v Kingdom of Spain (Conservation of wild fauna — Wild birds — Hunting periods — Hunting of woodpigeon during return journey in the province of Guipúzcoa)

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/7

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 9 June 2005
   in Case C-135/04: Commission of the European Communities v Kingdom of Spain (1)

   (Conservation of wild fauna - Wild birds - Hunting periods - Hunting of woodpigeon during return journey in the province of Guipúzcoa)
   (2005/C 193/10)
   Language of the case: Spanish
   In Case C-135/04 Commission of the European Communities (Agents: G. Valero Jordana and M. van Beek) v Kingdom of Spain (Agents: N. Díaz Abad and M. Muñoz Perez) — action under Article 226 EC for failure to fulfil obligations, brought on 12 March 2004 — the Court (Second Chamber), composed of C. W. A. Timmermans, President of the Chamber, R. Silva de Lapuerta, C. Gulmann (Rapporteur), R. Schintgen and G. Arestis, Judges; L. A. Geelhoed, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 9 June 2005, in which it:

               1.

               Declares that, by allowing the practice of 'a contrapasa' hunting of woodpigeons in the province of Guipúzcoa, the Kingdom of Spain has failed to fulfil its obligations under Article 7(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 106 of 30.4.2004.


title: Case T-12/01: Action brought on 22 January 2001 by Cristina Ascatigno Battistella against Commission of the European Communities

text:
24.3.2001              EN                      Official Journal of the European Communities                                    C 95/19
Action brought on 22 January 2001 by Cristina Ascatigno                   The applicant claims that the Court should:
Battistella against Commission of the European Com-
                             munities                                     —     Annul the decision of the Commission of 28 September
                                                                                2000 rejecting the complaint lodged by the applicant on
                                                                                28 March 2000 under No 168/2000;
                          (Case T-12/01)
                                                                          —     Order the Commission to pay the costs.
                          (2001/C 95/36)
                                                                          Pleas in law and main arguments
                   (Language of the case: Italian)
                                                                          The pleas in law and main arguments are the same as though
An action against the Commission of the European Communi-                 in Case T-11/01 Maschetti v Commission (1).
ties was brought before the Court of First Instance of the
European Communities on 22 January 2001 by Cristina
Ascatigno Battistella represented by Bruno Nascimbene and                 (1) Not yet published in the OJ.
Massimo Condinanzi, Avvocati, with an address for service in
Luxembourg.
The applicant claims that the Court should:
—     Annul the decision of the Commission of 28 September
      2000 rejecting the complaint lodged by the applicant on
      28 March 2000 under No 170/2000;                                    Action brought on 22 January 2001 by Fiorenzo Rizzello
                                                                              against Commission of the European Communities
—     Order the Commission to pay the costs.
                                                                                (Case T-14/01)
Pleas in law and main arguments                                                                     (2001/C 95/38)
The pleas in law and main arguments are the same as though
                                                                                (Language of the case: Italian)
in Case T-11/01 Maschetti v Commission (1).
                                                                          An action against the Commission of the European Communi-
(1) Not yet published in the OJ.                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 22 January 2001 by Fiorenzo
                                                                          Rizzello represented by Bruno Nascimbene and Massimo
                                                                          Condinanzi, Avvocati, with an address for service in Luxem-
                                                                          bourg.
                                                                          The applicant claims that the Court should:
                                                                          —     Annul the decision of the Commission of 28 September
Action brought on 22 January 2001 by Daniele Riva                               2000 rejecting the complaint lodged by the applicant on
    against Commission of the European Communities                              28 March 2000 under No 167/2000;
                          (Case T-13/01)                                  —     Order the Commission to pay the costs.
                          (2001/C 95/37)                                  Pleas in law and main arguments
                                                                          The pleas in law and main arguments are the same as though
                   (Language of the case: Italian)
                                                                          in Case T-11/01 Maschetti v Commission (1).
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                (1) Not yet published in the OJ.
European Communities on 22 January 2001 by Daniele Riva
represented by Bruno Nascimbene and Massimo Condinanzi,
Avvocati, with an address for service in Luxembourg.


title: Case T-45/05: Action brought on 31 January 2005 by Micronas GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/35

         Action brought on 31 January 2005 by Micronas GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-45/05)
   (2005/C 93/66)
   Language of the case: German
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 31 January 2005 by Micronas GmbH, Freiburg i.Br., Germany, represented by G. Herr, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of Appeal of 12 November 2004 (Decision R 366/2004-2-3D-Panorama) refusing to register the Community trade mark ‘3D-Panorama’ for Class 9 ‘electronic circuits, integrated circuits, and in particular semiconductor chips’;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               Micronas GmbH.

               Community trade mark sought:

               The word mark ‘3D Panorama’ for Class 9 goods (consumer electronics, in particular TV sets, video recorders, radios, electronic circuits, integrated circuits, and in particular semiconductor chips; software) — Registration No 2871218.

               Decision of the examiner contested before the Board of Appeal:

               Refusal to register the mark for all of the goods applied for.

               Decision of the Board of Appeal:

               Dismissal of the appeal.

               Pleas in law:

               The contested decision infringes Article 7(1)(b) and (c) of Regulation (EC) No 40/94, because as far as ‘electronic circuits, integrated circuits, and in particular semiconductor chips’ are concerned, the word combination 3D-Panorama neither consists exclusively of signs or indications nor is devoid of distinctive character.


title: Case T-348/14: Judgment of the General Court of 15 September 2016 –Yanukovych v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Inclusion of the applicant’s name — Obligation to state reasons — Legal basis — Rights of the defence — Right to effective judicial protection — Misuse of power — Failure to comply with the listing criteria — Manifest error of assessment — Right to property)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/36

         Judgment of the General Court of 15 September 2016 –Yanukovych v Council
   (Case T-348/14) (1)

   ((Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the applicant’s name - Obligation to state reasons - Legal basis - Rights of the defence - Right to effective judicial protection - Misuse of power - Failure to comply with the listing criteria - Manifest error of assessment - Right to property))
   (2016/C 402/39)
   Language of the case: English

      Parties

      Applicant: Oleksandr Viktorovych Yanukovych (Donetsk, Ukraine) (represented by: T. Beazley QC, P. Saini QC and S. Fatima QC, J. Hage and K. Howard, Barristers, and C. Kennedy, Solicitor)

      Defendant: Council of the European Union (represented initially by E. Finnegan and J.-P. Hix, and subsequently by J.-P. Hix and P. Mahnič Bruni, acting as Agents)

      Intervener in support of the defendant: European Commission (represented by: D. Gauci and S. Bartelt, acting as Agents)

      Re:

   Application under Article 263 TFEU seeking the annulment of (i) Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1) as amended, respectively, by Council Implementing Decision 2014/216/CFSP of 14 April 2014, implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33); (ii) Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1), and (iii) Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1), in so far as the applicant’s name was included or maintained in the list of persons, entities and bodies subject to those restrictive measures.

      Operative part of the judgment

   The Court:

               1.

               Annuls — until the entry into force of Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 — Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119, and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as amended by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014, in so far as Mr Oleksandr Viktorovych Yanukovych was named in the list of persons, entities and bodies subject to those restrictive measures;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Mr Yanukovych, with respect to the claim for annulment stated in the initiating application;

               4.

               Orders Mr Yanukovych to bear his own costs and to pay the costs incurred by the Council, with respect to the claim for annulment stated in the statement of modification of the form of order sought;

               5.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 253, 4.8.2014.


title: Case C-470/04: Reference for a preliminary ruling by the Gerechtshof Arnhem, by decision of that court of 27 October 2004 in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/5

         Reference for a preliminary ruling by the Gerechtshof Arnhem, by decision of that court of 27 October 2004 in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo
   (Case C-470/04)
   (2005/C 31/11)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by order of the Gerechtshof Arnhem, (Court of Appeal, Arnhem) (Netherlands) of 27 October 2004 received at the Court Registry on 2 November 2004, for a preliminary ruling in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo on the following questions:

               1.1.1

               Can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 18 EC, solely on the ground that the serving of a tax assessment linked with his departure entails, or may entail, an obstacle to that departure?

               1.1.2

               If the answer to question 1.1.1 is negative, can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 43 EC if it is not clear or plausible from the outset that he will be pursuing in the other Member State an economic activity as referred to in that article? Is it relevant to the answer to the previous question that that activity will be pursued within a foreseeable period? If so, how long may that period be?

               1.1.3

               If the answer to question 1.1.1 or 1.1.2 is affirmative, do Articles 18 or 43 EC preclude the relevant Dutch legislation by virtue of which an assessment to income tax and social insurance contributions is served in respect of the deemed enjoyment of profit from a substantial shareholding, solely on the ground that a resident of the Netherlands who ceases to be a domestic taxpayer because he has moved his place of residence to another Member State is deemed to have disposed of those of his shares which form part of a substantial holding?

               1.1.4

               If the answer to question 1.1.3 is affirmative because of the fact that security has to be provided to enable a deferment of payment of the tax assessed, can the existing obstacle then be removed with retroactive effect through the release of the security provided? Does the answer to this question depend on whether the security is released on the basis of legislation or a rule of policy, whether or not adopted in the context of enforcement? Does the answer to this question depend on whether compensation is provided for any loss incurred as a result of the provision of security?

               1.1.5

               If the answer to question 1.1.3 is affirmative and the answer to the first question in 1.1.4 is negative, can the obstacle which then exists be justified?