title: Case C-3/00: Action brought on 6 January 2000 by the Government of the Kingdom of Denmark against the Commission of the European Communities

text:
C 122/6                 EN                     Official Journal of the European Communities                                      29.4.2000
Reference for a preliminary ruling by the Sozialgericht                   Action brought on 6 January 2000 by the Government of
Nürnberg by order of that court of 22 November 1999 in                    the Kingdom of Denmark against the Commission of the
the case of (1) Alfredo Martinez Dominguez, (2) Joaquin                                        European Communities
Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen
Dolores Calvo Fernandez against Bundesanstalt für
                                                                                (Case C-3/00)
                     Arbeit, Kindergeldkasse
                                                                                (2000/C 122/11)
                          (Case C-471/99)
                                                                          An action against the Commission of the European Communi-
                          (2000/C 122/10)                                 ties was brought before the Court of Justice of the European
                                                                          Communities on 6 January 2000 by the Government of
                                                                          the Kingdom of Denmark, represented by Jørgen Molde,
Reference has been made to the Court of Justice of the                    Kontorchef in the Danish Ministry of Foreign Affairs, acting as
European Communities by order of the Sozialgericht Nürnberg               Agent, with an address for service in Luxembourg at the Royal
(Social Court, Nuremberg) of 22 November 1999, received at                Danish Embassy, 4 Boulevard Royal. The applicant claims that
the Court Registry on 9 December 1999, for a preliminary                  the Court should:
ruling in the case of (1) Alfredo Martinez Dominguez, (2)
Joaquin Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen               — Annul the Commission’s decision of 26 October 1999
Dolores Calvo Fernandez against Bundesanstalt für Arbeit,                      on the national provisions notified by the Kingdom of
Kindergeldkasse, on the following questions:                                   Denmark concerning the use of sulphites, nitrites and
                                                                               nitrates in foodstuffs;
1. Is Article 77(2)(b) in conjunction with Article 79(1) of               — Order the Commission to pay the costs of the proceedings.
     Regulation (EEC) No 1408/71 (1) to be interpreted as
     meaning that family allowances for the dependent children
     of pensioners who acquired entitlement to a pension in a
     Member State not solely under the legislation of the                 Pleas in law and main arguments
     Member State but under the coordinating provisions of
     European social law, must be paid as a full benefit where            — Essential formal defects
     the pension entitlement from the state of non-residence
     subsists in respect of periods or only as from a period in                — failure to provide Denmark with an opportunity to
     respect of which there is no (or no longer any) entitlement                   state its case before the contested decision was adopted
     to family benefit provided for under the legislation of the
     state of residence owing either to the fact that an age limit                 The principle of audi alteram partem was infringed
     or an income limit has been exceeded or it was not applied                    inasmuch as the Danish Government was not given an
     for?                                                                          opportunity to set out its views on the content or
                                                                                implications of the Commission’s decision prior to its
                                                                                adoption.
2. Is Article 78(2)(b) in conjunction with Article 79(1) of
     Regulation (EEC) No 1408/71 to be interpreted as meaning
     that family allowances for orphans of a deceased employee                 — failure to provide Denmark with an opportunity to
     or self-employed person, to whom the legislation of several                   state its views on the opinions received from other
     Member States applied, must be paid as a full benefit,                        countries
     where there is no entitlement to an orphan’s pension in a
     Member State whose legislation applied, either solely                         These opinions must be assumed to have had an
     under the legislation of the Member State or under                            influence on the Commission’s decision and the Com-
     the coordinating legislation of European social law, and                      mission ought to have given Denmark an opportunity
     entitlement to the orphan’s pension from the state of                         to comment on those opinions, which are to some
     non-residence subsists in respect of periods or only as                       extent based on a misunderstanding of the Danish
     from a period in respect of which there is no (or no longer                   rules.
     any) entitlement to family benefit provided for under the
     legislation of the state of residence owing either to the fact       — Legal defects
     that an age limit or an income limit was exceeded or it was
     not applied for?                                                          — The Commission’s decision is based on an error of law:
                                                                                In determining rules, it is not possible to draw a
                                                                                distinction between the assessment of a given substance
(1) English Special Edition 1971 (II), p. 416.                                     in regard to health and the assessment of the techno-
                                                                                logical need governing its use. The use of any given
                                                                                additive involves a potential risk to human health, and
                                                                                its use can therefore be authorised only in so far as
                                                                                there is a technological need for it. Technological need
                                                                                is thus a relevant criterion in assessing matters relating
 ---pagebreak--- 29.4.2000             EN                     Official Journal of the European Communities                                        C 122/7
       to human health in Article 30 of the Treaty and                         proportionality: the discretion conferred on the Com-
       consequently also in Article 95(4) of the Treaty. The                   mission by Article 95 EC also imposes on it a special
       Commission errs in law when it states that technologi-                  obligation to base its decision on a scientifically correct
       cal need has no connection with the objective of                        and fully reasoned basis. That has not been done in
       protecting public health, as mentioned in Article 30 of                 this case. In its decision, the Commission confined
       the Treaty. The Danish Government does not agree                        itself to setting out entirely undocumented allegations
       that, once the EU’s law-making institutions have                        concerning technological needs. In contrast to the
       assessed the relevant matters and adopted a legal                       directive’s maximum levels for the use of nitrites and
       measure, the Member States are no longer entitled                       nitrates in foodstuffs, the Danish rules are fully in
       to question that assessment, since the objective of                     accordance with the recommendations made by the
       Article 95(4) and (6) is precisely to give the Member                   Scientific Committee on Food (the Committee’s
       States an opportunity, should they find it necessary,                   opinions from 1990 and 1995). This fact establishes a
       to maintain national provisions on the basis of an                      clear presumption that the Danish rules accord with
       assessment other than that made by the EU institutions.                 the principle of proportionality.
                                                                           — So far as sulphites are concerned, the Commission’s
                                                                               decision is based on an error of law, as well as on a
   — So far as nitrites and nitrates are concerned, the
                                                                               misapplication of the principle of proportionality.
       Commission’s decision is based on misapplication of
       the principle of proportionality
                                                                               The designation, by the Danish rules, of the products
                                                                               in which sulphites are permitted is neither arbitrary
                                                                               nor inconsistent, as the Commission suggests. The
       It is clear from the contested decision that the Com-                   choice of products is not arbitrary, since what is
       mission takes the view that the Danish measures go                      involved is the maintenance of the applicable Danish
       further than is necessary to protect human health, and                  rules in accordance with Article 95(4) of the Treaty.
       that technological need has no connection with the                      The rules in force are based on a careful examination
       objective of protecting public health, as mentioned in                  of, first, how low the quantities of sulphites may be in
       Article 30 of the Treaty. The Commission thus appears                   order to satisfy the technological need in various
       to believe that the Danish measures constitute an                       products and, second, the products for which alterna-
       unnecessary (over)protection of public health. In this                  tive conservation methods may be found.
       regard the Commission’s decision is based on misappli-
       cation of the principle of proportionality. There is in
       this case no scientific uncertainty with regard to the
       fact that carcinogenic nitrosamines are created when                    Further, the Danish rules are proportionate inasmuch
       nitrites and nitrates are added to meat products. The                   as they are in full accord with the recommendations
       EU’s Scientific Committee on Food has concluded that                    made by the Scientific Committee on Food (the
       it is not possible to set a lower limit below which no                  Committee’s opinion of 25 February 1994).
       risk of contracting cancer exists if nitrosamines are
       ingested, and thus it must a fortiori be possible for
       Member States to adopt measures for the protection of               — The Commission erroneously includes the issue of
       human health, in accordance with the precautionary                      special conditions in Denmark in the grounds of its
       principle. The principle of proportionality must be                     decision
       construed as not precluding national measures which,
       in order to protect human health, lay down maximum
       values for the use of nitrites and nitrates in foodstuffs
       which correspond to the strictly necessary technologi-                  The issue of whether special conditions exist in a
       cal need to achieve the requisite preservative effect in                Member State such as to justify application of
       the meat products in question and to dispel any danger                  Article 95(4) is not mentioned in the matters set out in
       to health from microbiological contamination. The                       that provision. Article 95(4) mentions only ‘major
       Danish rules have been laid down in accordance with                     needs referred to in Article 30, or relating to the
       these requirements of proportionality, and the Danish                   protection of the environment or the working environ-
       maximum values allow products to be marketed in                         ment’.
       respect of which the addition of nitrites and nitrates
       satisfies a real technological need.
                                                                           — The Commission’s decision is based on a series of
                                                                               factually incorrect and/or incomplete assumptions.
       In the alternative, it is submitted that the Commission,
       in its decision, manifestly exceeded the limits of                  — Defective statement of views, infringement of
       its discretion in its application of the principle of                   Article 95(6) of the Treaty
 ---pagebreak--- C 122/8                EN                   Official Journal of the European Communities                                     29.4.2000
         The Commission failed to address the question, as it          on the control of administrative bodies amount to restrictions
         should have done under Article 95(6), whether the             on the establishment of companies, in particular in the case of
         Danish rules notified are a means of arbitrary discrimi-      branch offices, agencies or subsidiaries of companies estab-
         nation or a disguised restriction on trade between            lished in other Member States where such restrictions do not
         Member States, or whether they constitute an obstacle         exist. In the case of companies or firms managed by nationals
         to the functioning of the internal market.                    of non-Member countries, the restrictions would force them
                                                                       to change the composition of their administrative bodies
     — Defective statement of reasons.                                 should they wish to register a ship and establish themselves
                                                                       in France. Consequently, the requirements laid down in
                                                                       Article 3(2)(a), (b) and (c) infringe Article 48 in that they
                                                                       impose on the holders of capital and on the administrative
                                                                       organs of companies or firms nationality requirements which
                                                                       are not stipulated in Article 48. Those requirements thus cause
                                                                       companies or firms to be treated differently from natural
                                                                       persons as regards freedom of establishment when registering
                                                                       a ship. Although the provisions apply without discrimination
Action brought on 6 January 2000 by the Commission of                  to both French and foreign EEC companies or firms, they
 the European Communities against the French Republic                  nevertheless infringe Article 43 and Article 48, as do
                                                                       Article 3(3) and (4) and Article 3-1(1) and (2) in so far as they
                           (Case C-4/00)                               refer to Article 3(2). Failure by a Member State to fulfil its
                                                                       obligations — Articles 43 and 48 of the EC Treaty —
                                                                       conditions under which commercial vessels may sail under the
                         (2000/C 122/12)                               French flag — nationality requirements for holders of company
                                                                       capital and directors.
An action against the French Republic was brought before the
Court of Justice of the European Communities on 6 January
2000 by the Commission of the European Communities,
represented by Frank Benyon, Legal Adviser, and Bernard
Mongin, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gómez de la
Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                                                                       Action brought on 14 January 2000 by Commission of
The Commission of the European Communities claims that                 the European Communities against European Central
the Court should:                                                                                Bank
1. Declare that, by keeping in force Article 3 and Article 3-1                                   (Case C-11/00)
     of Law No 67-5 defining the status of ships and other
     sea-going vessels, and Article 219 of the Customs Code, as                                 (2000/C 122/13)
     amended by Law No 96-151 of 26 February 1996 on
     transport, the French Republic has failed to fulfil its
     obligations under Article 43 and Article 48 of the EC             An action against European Central Bank was brought before
     Treaty;                                                           the Court of Justice of the European Communities on 14 Janua-
                                                                       ry 2000 by Commission of the European Communities,
2. Order the French Republic to pay the costs.                         represented by Christiaan Timmermans, Assistant Director
                                                                       General of the Legal Service, Hans Peter Hartvig and Ulrich
                                                                       Wölker, Legal Advisers, acting as Agents, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
Pleas in law and main arguments                                        Cruz, of its Legal Service, Wagner Centre, Kirchberg.
Under the third subparagraph, letters (a), (b) and (c), of             The applicant claims that the Court should:
Article 3(2) of Law No 67-5, shipowners who adopt the
form of a company or firm must satisfy certain nationality             — annul the decision of the governors of the European
requirements in regard to both the members of its administrat-             Central Bank of 7 October 1999 on fraud prevention (1);
ive and managerial bodies (paragraph 2(a), (b) and (c)) and the
holders of its capital (paragraph 2(c)). However, the Member           — order the European Central Bank to pay the costs.
States are required to treat any company or firm satisfying the
criteria set out in Article 48 of the Treaty in the same way as
they treat natural persons who are nationals of other Member
States, even where the majority of the members of the board            Pleas in law and main arguments
are not nationals of a Member State of the Community, or
where the company or firm is set up by persons from                    Infringement of Regulation (EC) No 1073/1999 of the Euro-
non-Member countries, or is funded by capital from                     pean Parliament and of the Council of 25 May 1999 concern-
non-Member countries, or is a subsidiary of a parent company           ing investigations conducted by the European Anti-Fraud
established in a non-Member country. The French restrictions           Office (OLAF):


title: Case C-332/13: Request for a preliminary ruling from the Kúria (Hungary) lodged on 19 June 2013 — Ferenc Weigl v Nemzeti Innovációs Hivatal

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/3

         Request for a preliminary ruling from the Kúria (Hungary) lodged on 19 June 2013 — Ferenc Weigl v Nemzeti Innovációs Hivatal
   (Case C-332/13)
   2013/C 274/05
   Language of the case: Hungarian

      Referring court

   Kúria

      Parties to the main proceedings

      Applicant: Ferenc Weigl

      Defendant: Nemzeti Innovációs Hivatal

      Questions referred

               1.

               Must the Charter of Fundamental Rights of the European Union be considered applicable to the legal status of government officials and public officials?

               2.

               Must Article 30 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the provision thereof concerning protection against unjustified termination of employment must be applied regardless of whether or not the Member State recognises Article 24 of the Revised European Social Charter as being binding upon it?

               3.

               If that is the case, must Article 30 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that a national provision under which, when the employment of a government official is terminated, it is not necessary to disclose to him the reasons for termination, corresponds to the concept of ‘unjustified dismissal’?

               4.

               Is it appropriate to interpret the expression ‘in accordance with Union law and national laws and practices’ contained in Article 30 of the Charter of Fundamental Rights of the European Union as meaning that the Member State may define by legislation a special category of persons to whom it is not necessary to apply Article 30 of the Charter if their legal relationship is brought to an end?

               5.

               Having regard to the answer to questions 2 to 4, is it appropriate to interpret Article 51(1) of the Charter of Fundamental Rights of the European Union as meaning, with regard to government officials, that the national courts must disapply national provisions that are contrary to Article 30 of that Charter?


title: Case T-347/06: Judgment of the General Court of 27 September 2012 — Nynäs Petroleum and Nynas Belgium v Commission (Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Fines — Cooperation during the administrative procedure — Significant added value — Equal treatment)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/14

         Judgment of the General Court of 27 September 2012 — Nynäs Petroleum and Nynas Belgium v Commission
   (Case T-347/06) (1)

   (Competition - Agreements, decisions and concerted practices - Netherlands market in road pavement bitumen - Decision finding an infringement of Article 81 EC - Imputability of the unlawful conduct - Fines - Cooperation during the administrative procedure - Significant added value - Equal treatment)
   2012/C 355/25
   Language of the case: English

      Parties

      Applicants: Nynäs Petroleum AB (Stockholm, Sweden) and Nynas Belgium AB (Stockholm) (represented by: A. Howard, Barrister, M. Dean and D. McGowan, Solicitors)

      Defendant: European Commission (represented by: F. Castillo de la Torre, Agent, and by L. Gyselen, lawyer)

      Re:

   APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)) and, in the alternative, for reduction of the fine imposed on the applicants by that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Nynäs Petroleum AB and Nynas Belgium AB to pay the costs.

      (1)  OJ C 20, 27.1.2007.


title: Case T-405/05: Order of the Court of First Instance of 15 October 2008 — Powerserv Personalservice v OHIM — Manpower (MANPOWER) (Community trade mark — Invalidity proceedings — Community word mark MANPOWER — Absolute grounds for refusal — Descriptive character — Partial alteration — Distinctive character acquired through use — Article 7(1)(c), Article 51(1) and (2) and Article 63(3) of Regulation (EC) No 40/94)

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/28

         Order of the Court of First Instance of 15 October 2008 — Powerserv Personalservice v OHIM — Manpower (MANPOWER)
   (Case T-405/05) (1)

   (Community trade mark - Invalidity proceedings - Community word mark MANPOWER - Absolute grounds for refusal - Descriptive character - Partial alteration - Distinctive character acquired through use - Article 7(1)(c), Article 51(1) and (2) and Article 63(3) of Regulation (EC) No 40/94)
   (2008/C 313/49)
   Language of the case: German
   Parties

      Applicant: Powerserv Personalservice GmbH, formerly Manpower Personalservice GmbH (Sankt Pölten, Austria) (represented by: B. Kuchar, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, and intervener before the Court of First Instance: Manpower, Inc. (Milwaukee, Wisconsin, United States) (represented initially by: R. Moscona, Solicitor, subsequently by R. Moscona and A. Bryson, Barrister, and lastly by A. Bryson and V. Marsland, Solicitor)
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 22 July 2005 (Case R 499/2004-4) relating to an application for a declaration that Community trade mark No 76059, MANPOWER, is invalid.
   Operative part of the order

               1.

               Alters the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 July 2005 in Case R 499/2004-4 relating to an application for a declaration that Community trade mark No 76059, MANPOWER, is invalid, to the effect that that trade mark is not descriptive, in the Netherlands, Sweden, Finland or Denmark, of the goods and services for which it was registered. The operative part of that decision is maintained.

               2.

               Dismisses, as to the remainder, the application by Manpower Inc. seeking alteration of the above decision of the Board of Appeal of OHIM.

               3.

               Dismisses the action.

               4.

               Orders Powerserv Personalservice GmbH to pay the costs.

      (1)  OJ C 22, 28.1.2006.


title: Removal from the register of Joined Cases C-183/89 and C-138/90

text:
No C 119/ 10             EN                  Official Journal of the European Communities                                  13 . 5 . 95
on the same questions as in Case C-47/95 , C-48/95 ,                    from the register of Case C-455/93 : Italian Republic v.
C-49/95 , C-50/95 and C-60/95 ( 1 ).                                    Commission of the European Communities.
i 1 ) See page 5 of this Official Journal .                             0 ) OJ No C 18 , 21 . 1 . 1994 .
   Removal from the register of Joined Cases C-183/89 H
                          and C-138/90 ( 2 )                                   Removal from the register of Case C- 1 1 7/94 ( x )
                            ( 95/C 119/21                                                           ( 95/C 119/23 )
fiy order of 21 February 1995 the President of the Court of             By order of 17 February 1995 the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Joined Cases C-183/89 and C-138/90 :               from the register of Case C- 1 17/94 (reference for a
1 . Gesamtverband des Deutschen Steinkohlenbergbaus,                    preliminary ruling from the Landgericht Diisseldorf):
2 . Eschweiler Bergwerks-Verein AG, 3 . Gewerkschaft                    Ratiopharm GmbH & Co . v. Mundipharma GmbH.
Auguste Victoria, 4 . Gewerkschaft Sophia-Jacoba, 5 .
Preussag AG Kohle, 6 . Ruhrkohle AG, 7. Saarbergwerke
AG v. Commission of the European Communities and                        (!) OJ No C 174, 25 . 6 . 1994 .
Federal Republic of Germany v. Commission of the
European Communities.
f 1 ) OJ No C 192 , 29 . 7 . 1989 .
( 2 ) OJ No C 146, 15 . 6 . 1990 .
                                                                               Removal from the register of Case C-183/94 (*)
                                                                                ( 95/C 119/24 )
                                                                        By order of 7 February 1995 the President of the Court of
        Removal from the register of Case C-455/93 ( )                  Justice of the European Communities ordered the removal
                            ( 95/C 119/22 )                             from the register of Case C-l 83/94: Commission of the
                                                                        European Communities v. Italian Republic .
By order of 17 February 1 995 the President of the Court of
Justice of the European Communities ordered the removal                 f 1 ) OJ No C 233 , 20 . 8 . 1994 .
                                                       COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                Parliament (Agents: M. Peter and J. Pantalis) — application
                         of 22 March 1995                               for the annulment of the decision of the European
                                                                        Parliament of 29 September 1992 refusing the payment of
        in Case T-43/93 : Sylviane Dachy and Others v.                  the applicant of the expatriation allowance from
                     European Parliament (*)                            1 September 1992 — the Court of First Instance ( Second
(Officials   — Expatriation allowance — Services performed              Chamber), composed of B. Vesterdorf, President, and
                for an international organization)                      D. P. M. Barrington and A. Saggio, Judges; H. Jung,
                            ( 95/C 119/25                               Registrar, has given a judgment on 22 March 1995 , in which
                                                                        it:
                  (Language of the case: French)
                                                                        1 , dismisses the action;
In Case T-43/93 : Sylviane Dachy, Loris and Fabio Lo                    2, orders the parties to pay their own costs.
Giudice, the next-of-kin of Mario Lo Giudice, formerly an
official of the European Parliament, residing at Namur
( Belgium ), represented by Manuel Campolini, of the                    f 1 ) OJ No C 210, 4 . 8 . 1993 .
Brussels Bar, with an address for service in Luxembourg at
the Chambers of Charles Duro, 6 Rue Heine, v. European


title: Case C-146/06: Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on  17 March 2006  — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/23

         Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on 17 March 2006 — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento
   (Case C-146/06)
   (2006/C 143/41)
   Language of the case: Italian
   Referring court
   Commissione tributaria di secondo grado di Trento
   Parties to the main proceedings

      Applicant: Fendt Italiana Srl

      Defendant: Agenzia Dogane Ufficio Dogane di Trento
   Question referred
   Are the taxation arrangements in Article 62 of Legislative Decree No 504/95 compatible with Directive 2003/96/EC (1) which restructured the Community framework for the taxation of energy products where those products are used for purposes other than as motor fuel or heating fuel?

      (1)  OJ 2003 L 283, p. 51.


title: Case T-498/10: Judgment of the General Court of 8 March 2013 — Mayer Naman v OHIM — Daniel e Mayer (David Mayer) (Community trade mark — Invalidity proceedings — Community figurative mark David Mayer — Earlier national word mark DANIEL & MAYER MADE IN ITALY — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 — Request for proof of genuine use made for the first time before the Board of Appeal — Out of time — Article 57(2) and (3) of Regulation No 207/2009)

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/32

         Judgment of the General Court of 8 March 2013 — Mayer Naman v OHIM — Daniel e Mayer (David Mayer)
   (Case T-498/10) (1)

   (Community trade mark - Invalidity proceedings - Community figurative mark David Mayer - Earlier national word mark DANIEL & MAYER MADE IN ITALY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 - Request for proof of genuine use made for the first time before the Board of Appeal - Out of time - Article 57(2) and (3) of Regulation No 207/2009)
   2013/C 114/50
   Language of the case: Italian

      Parties

      Applicant: David Mayer Naman (Rome, Italy) (represented initially by S. Sutti, S. Cazzaniga and V. Fedele, and subsequently by V. Fedele and M. Spolidoro, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Daniel e Mayer Srl (Milan, Italy) (represented by: M. Andreolini and A. Parini, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 26 July 2010 (Case R 413/2009-1) relating to invalidity proceedings between Daniel e Mayer Srl and Mr David Mayer Naman.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr David Mayer Naman to pay the costs.

      (1)  OJ C 346, 18.12.2010.


title: Case T-471/13: Action brought on 30 August 2013 — Xellia Pharmaceuticals and Zoetis Products v Commission

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/47

         Action brought on 30 August 2013 — Xellia Pharmaceuticals and Zoetis Products v Commission
   (Case T-471/13)
   2013/C 325/75
   Language of the case: English

      Parties

      Applicant: Xellia Pharmaceuticals ApS (Copenhagen, Denmark) and Zoetis Products, LLC (New Jersey, United States) (represented by: D. Hull, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Articles 1(3), 2(3) and 3 of Commission Decision C(2013) 3803 final of 19 June 2013 (COMP/39.229 — Lundbeck) in so far as they concern the applicants; or

               —

               In the alternative, declare Article 1(3) of the Decision partially null and void, and reduce the amount of the fine imposed; and

               —

               Order the Commission to bear the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment in finding that the restrictions set forth in the Settlement Agreement exceeded the scope of Lundbeck’s patents.

               2.

               Second plea in law, alleging an error of law in using the wrong legal standard to determine whether Alpharma was a potential competitor; and a manifest error of assessment in finding that Alpharma was a potential competitor.

               3.

               Third plea in law, alleging a manifest error of assessment in finding that the Settlement Agreement constituted a restriction of competition ‘by object’.

               4.

               Fourth plea in law, alleging an error of law in finding a restriction of competition within the meaning of Article 101 despite the fact that the Settlement Agreement solely reflected the exclusionary scope of Lundbeck’s patents, which, as a matter of law, must be presumed to be valid.

               5.

               Fifth plea in law, alleging violation of the Applicants’ rights of defence by belatedly notifying them of (i) the existence of the investigation and (ii) the Commission’s specific objections.

               6.

               Sixth plea in law, alleging violation of the principle of non-discrimination by addressing the Decision to Zoetis.

               7.

               Seventh plea in law, alleging an error of law in calculating the fine without taking into account the limited gravity of the alleged infringement and a manifest error of assessment in setting the fine proportionately higher than the fine imposed on Lundbeck and failing to take into account the uncertainty in the law, the less serious nature of the infringement, and the geographic scope.

               8.

               Eighth plea in law, alleging a manifest error of assessment in applying the 10 % fine cap to A.L. Industrier based upon its 2011 turnover instead of its significantly higher 2012 turnover, thereby forcing the Applicants to pay a higher proportion of the fine


title: Reference for a preliminary ruling from the Gerechtshof te Arnhem by judgment of that Court of 29 October 1996 in the case of Municipality of Arnhem and Municipality of Rheden v. BFI Holding BV (Case C-360/96)

text:
21 . 12 . 96           I EN                 Official Journal of the European Communities                                 No C 388 /7
1 . Is Article 7 ( 1 ) of the first Council Directive 89/104/          2 . If the answer to Question 1 is that the distinction to
     EEC of 21 December 1988 to approximate the laws of                    be drawn is that set out in ( i ):
     the Member States relating to trade marks ('the Trade
     Marks Directive ') ( J ) to be interpreted as meaning that            ( a ) is the phrase 'needs in the general interest' to be
     the trade mark entitles its proprietor to prohibit a                        understood as meaning that there can be no
     third party from using the mark for goods which have                        question of meeting needs in the general interest
     been put on the market under that mark in a State                           where private undertakings meet such needs ?
     which is not a Contracting State ?                                    ( b ) if so, is the phrase 'needs having an industrial or
                                                                                commercial     character'     to be understood    as
2 . May the proprietor of the trade mark on the basis of
     Article 7 ( 1 ) of the Trade Marks Directive alone seek
                                                                                meaning that needs having an industrial or
                                                                                commercial character are met whenever private
     an order that the third party cease using the trade
                                                                                undertakings meet such needs ?
     mark for goods which have been put on the market
     under that mark in a State which is not a Contracting
     State ?                                                           3 . If the answer to the first question is that the
                                                                           distinction to be drawn is that set out in ( ii ), is the
(') OJ No L 40, 11 . 2 . 1989, p . 1 .
                                                                           difference between ' needs in the general interest not
                                                                           having an industrial or commercial character' and
                                                                           'needs in the general interest having an industrial or
                                                                           commercial character' to be determined according to
                                                                           whether ( competing ) private undertakings meet such
                                                                           needs or not ?
Reference for a preliminary ruling from the Gerechtshof te
Arnhem by judgment of that Court of 29 October 1996 in
the case of Municipality of Arnhem and Municipality of                 4. Is the requirement that the body must be established
                     Rheden v. BFI Holding BV                              'for the specific purpose of meeting needs in the
                                                                           general interest, not having an industrial or
                          ( Case C-360/96 )
                                                                           commercial character' to be interpreted as meaning
                             96/C 388/ 14 )                                that such a 'specific purpose' can exist only where the
                                                                           body was established exclusively to meet such needs ?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Gerechtshof                  5 . If not, must a body meet needs in the general interest,
te Arnhem ( Regional Court of Appeal, Arnhem ) of                          not having an industrial or commercial character,
29 October 1996, which was received at the Court                           almost exclusively, substantially, preponderantly or to
Registry on 5 November 1996, for a preliminary ruling in                   some other degree in order to be or remain able to
the case of Municipality of Arnhem and Municipality of                     meet the requirement that it must be established for
Rheden v. BFI Holding BV, on the following questions :                     the specific purpose of meeting such needs ?
1 . For the purposes of interpreting Article 6 of Council              6 . Does it make any difference to the answers to
     Directive 92/50/EEC of 18 June 1992 relating to the                   Questions 1 to 5 whether the needs in the general
     coordination of procedures for the award of public                    interest, not having an industrial or commercial
     service contracts ( l ) ('the Directive'), is the first indent
                                                                           character, which the body was set up to meet, derive
     of the second subparagraph of Article 1 ( b ) of the                  from legislation in the formal sense, from
     Directive, which specifies that ' body governed by                    administrative provisions, from acts of the
     public law means any body [. . .] established for the                 administration or otherwise ?
     specific purpose of meeting needs in the general
     interest, not having an industrial or commercial                  7. Does it make any difference to the answer to
     character', to be interpreted as distinguishing:                      Question 4 if responsibility for the commercial
     ( i ) between needs in the general interest and needs                 activities is entrusted to a separate legal entity forming
            having an industrial or commercial character, or               part of a single group or concern within which
     ( ii ) between needs in the general interest not having an            activities meeting needs in the general interest are also
            industrial or commercial character and needs in                carried out ?
            the general interest having an industrial or
            commercial character ?                                     (!) OJ No L 209, 24 . 7 . 1992, p . 1 .


title: Judgment of the Court of First Instance of 7 October 1999 in Case T-119/98: André Hecq v Commission of the European Communities (Officials - Mission expenses - Calculation of daily subsistance allowance - Duration of the mission - Journey in private car)

text:
C 352/34                 EN                    Official Journal of the European Communities                                    4.12.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 7 October 1999
                         of 14 October 1999
                                                                          in Case T-42/98: Maria Paola Sabbatucci v European
                                                                                Parliament (1)
in Case T-309/27: The Bavarian Lager Company Ltd v                        (Officials — Application for annulment of decisions of the
        Commission of the European Communities (1)                        Committee of Tellers — Interpretation of the electoral rules
                                                                          of the European Parliament — Exclusion of the applicant
                                                                                from the persons elected to the Staff Committee)
(Transparency — Access to information — Commission
Decision 94/90/ECSC, EC, Euratom on public access to                                              (1999/C 352/61)
Commission documents — Scope of the exception relating to
protection of the public interest — Draft reasoned opinion
  under Article 169 of the EC Treaty (now Article 226 EC))                                   (Language of the case: Italian)
                                                                          In Case T-42/98: Maria Paola Sabbatucci, an official at the
                                                                          European Parliament, residing in Luxembourg, represented by
                           (1999/C 352/60)                                Alberto Dal Ferro and Andrea Cevese, of the Vicenza Bar,
                                                                          Chambers of Morresi Law Office, 67 Avenue des Nerviens,
                                                                          Brussels, against European Parliament (Agents: Antonio Caiola
                                                                          and Evelyn Waldherr) — application for annulment of the
                                                                          decisions of the Committee of Tellers of 27 January and
                    (Language of the case: English)                       17 February 1998 in so far as she was excluded from the
                                                                          persons elected to the Staff Committee — the Court of First
                                                                          Instance (Third Chamber), composed of K. Lenaerts, acting on
                                                                          behalf of the President, V. Tiili and J. Azizi, Judges; A. Mair,
In Case T-309/97 The Bavarian Lager Company Ltd, whose                    Administrator, for the Registrar, has given a judgment on
registered office is in Lancashire, United Kingdom, represented           7 October 1999, in which it:
by Stephen Hornsby, Solicitor, with an address for service in
Luxembourg at the Chambers of André Marc, 36-58 Rue                       1. Dismisses the application.
Charles Martel v Commission of the European Communities
(Agents: Carmel O’Reilly and Ulrich Wölker and, at the                    2. Orders each party to bear its own costs.
hearing, Xavier Lewis), supported by United Kingdom of Great
Britain and Northern Ireland, (Agents: John Collins and, at the           (1) OJ C 137 of 2.5.1998.
hearing, Jessica Simor) — application for the annulment of a
Commission decision of 18 September 1997 refusing the
applicant access to a draft reasoned opinion drawn up by
the Commission under Article 169 of the EC Treaty (now
Article 226 EC) — the Court (Fourth Chamber), composed of:
R.M. Moura Ramos, President, V. Tiili and P. Mengozzi, Judges;
B. Pastor, Principal Administrator, for the Registrar, has given
a judgment on 14 October 1999, in which it:                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 7 October 1999
1. Dismisses the application;
                                                                          in Case T-119/98: André Hecq v Commission of the
                                                                                European Communities (1)
2. Orders the applicant to bear, in addition to its own costs, those
     of the defendant;
                                                                          (Officials — Mission expenses — Calculation of daily
                                                                          subsistance allowance — Duration of the mission — Journey
3. Orders the United Kingdom of Great Britain and Northern                                          in private car)
     Ireland to bear its own costs.
                                                                                (1999/C 352/62)
(1) OJ C 55 of 20.2.1998.                                                                    (Language of the case: French)
                                                                          In Case T-119/98: André Hecq, an official of the Commission
                                                                          of the European Communities, residing in Bonlez (Belgium)
                                                                          represented by Lucas Vogel, of the Brussels Bar, with an
                                                                          address for service in Luxembourg at the Chambers of Christian
                                                                          Kremer, 6 Rue Heinrich Heine, against Commission of the
 ---pagebreak--- 4.12.1999               EN                     Official Journal of the European Communities                                            C 352/35
European Communities (Agents: Florence Duvieusart-Clotuche                   Sugar v Commission[1999] ECR II-0000, and in accordance
and Christine Berardis-Kayser) — application for annulment                   with the first paragraph of the operative part therof, operation of
of the decision of the Commission of 17 October 1997                         Article 108b of Council Decision 91/482/EEC of 25 July 1991
relating to the reimbursement of expenses incurred by the                    on the association of the overseas countries and territories with
applicant during a mission to Ispra, Italy, from 16 September                the European Community, of Commission Regulation (EC) No
1997 to 20 September 1997 — the Court of First Instance                      2553/97 of 17 December 1997 on rules for issuing import
(Fourth Chamber), composed of R.M. Moura Ramos, President,                   licences for certain products covered by CN codes 1701, 1702,
V. Tiili and P. Mengozzi, Judges; H. Jung, Registrar, gave a                 1703 and 1704 and qualifying as ACP/OCT originating
judgment on 7 October 1999, in which it:                                     products and of the Commission Decision of 23 December 1997
                                                                             (VI/51329) is suspended with respect to Emesa Sugar (Free
1. Dismisses the application.                                                Zone) NV.
2. Orders the parties to bear their own costs.
                                                                          2. Emesa Sugar (Free Zone) NV is authorised to import into the
                                                                             Community milled sugar originating in the overseas countries
(1) OJ 1998 C 312.                                                           and territories (OCT), within the meaning of Article 6 of Annex
                                                                             II to Decision 91/482 and, in accordance with the conditions
                                                                             set out in the version of that Decision which remained in force
                                                                             until 30 November 1997, subject to the following conditions
                                                                             and restrictions:
                                                                             — the imports hereby authorised are subject to the provisions of
                                                                                Decision 91/482 applicable before the entry into force
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                      of Council Decision 97/803/EC of 24 November 1997
                            INSTANCE                                              amending at mid-term Decision 91/482 and, in particular,
                                                                                to the obligation to obtain an import licence in accordance
                                                                                with Article 5(1) of Commission Regulation (EEC)
                      of 29 September 1999                                        No 3719/88 of 16 November 1988 laying down common
                                                                                detailed rules for the application of the system of import and
                                                                                export licences and advance fixing certificates for agricultural
in Case T-44/98 R II: Emesa Sugar (Free Zone) NV v
                                                                                products, to the obligation to obtain an EUR-I certificate
        Commission of the European Communities                                    and to lodge security of 3 euro/tonne, which will be released
                                                                                if importation is effected in conformity with the import
(Association regime for overseas countries and territories —                      licence;
Decisions 91/482/EEC and 97/803/EC — Regulation (EC)
No 2553/97 — Proceedings for interim measures — Exten-
                     sion of interim measures)                               — the maximum volume authorised for importation is 7 500
                                                                                tonnes for the period between 31 October 1999 and
                                                                                29 February 2000; after 29 February 2000, Emesa Sugar
                          (1999/C 352/63)                                         (Free Zone) NV may continue to import to the Community
                                                                                sugar delivered to it free on board (FOB) before that date,
                                                                                provided that the volume imported does not exceed the ceiling
                    (Language of the case: Dutch)                                 of 7 500 tonnes and that importation is conducted in
                                                                                accordance with the conditions herein set out;
In Case T-44/98 R II: Emesa Sugar (Free Zone) NV, established
at Oranjestad, Aruba, represented by Gerard van der Wal,                     — OCT originating sugar imported into the Community must
Advocate with a right of audience before the Hoge Raad der                        be sold at a price which is at least equal to the intervention
Nederlanden, with an address for service in Luxembourg at the                     price referred to in Article 3(1)(a) of Council Regulation
Chambers of Aloyse May, 31 Grand-Rue, supported by the                            (EEC) No 1785/81 of 30 June 1981 on the common
Government of Aruba, represented by Pierre V.F. Bos and                           organisation of the markets in the sugar sector;
Marco M. Slotboom, of the Rotterdam Bar, with an address for
service in Luxembourg at the Chambers of Loesch & Wolter,
11 Rue Goethe, against Commission of the European Com-                       — Emesa Sugar (Free Zone) NV may import into the Com-
munities (Agent: Thomas van Rijn), supported by the Council                       munity OCT originating sugar, provided that it lodges
of the European Union (Agents: Jürgen Huber and Guus                              security in the form of a bank guarantee in the amount of
Houttuin), the Kingdom of Spain (Agent: Mónica López-Monis                      USD 28 per tonne of the volume of sugar which it wishes to
Gallego) and the French Republic (Agent: Claude Chavance) —                       import in conformity with the present Order; the security
application for extension of the interim relief granted to the                    must be lodged no later than the day on which the sugar is
applicant by the President of the Court of First Instance in his                  declared to the customs authorities and it must cover the
Order of 30 April 1999 in Case T-44/98 R II Emesa Sugar v                         tonnage which enters customs at that time; the amount to be
Commission [1999] ECR II-0000 — the President of the Court                        lodged by way of security per tonne of sugar will be increased
of First Instance made an order on 29 September 1999, the                         or reduced in the light of:
operative part of which is as follows:
1. On the grounds set out in the Order of the President of the Court              — any rise or fall in the intervention price referred to in
    of First Instance of 30 April 1999 in Case T-44/98 R II Emesa                      Article 3(1)(a) of Regulation No 1785/81;


title: Judgment of the Court of First Instance of 9 July 2002 in Case T-158/01: Alexandre Tilgenkamp v Commission of the European Communities (Officials — Post of Assistant Director General — Vacancy notice — Assessment of the merits of the candidates — Manifest error of assessment)

text:
C 219/18                 EN                      Official Journal of the European Communities                                         14.9.2002
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                           of 9 July 2002
                                                                                of 9 July 2002
in Case T-21/01: Georgios Zavvos v Commission of the
                     European Communities ( 1)                              in Case T-158/01: Alexandre Tilgenkamp v Commission
                                                                                of the European Communities ( 1)
(Officials — Disciplinary measures — Downgrading —
First paragraph of Article 11 and Article 14 of the Staff
                            Regulations)                                    (Officials — Post of Assistant Director General — Vacancy
                                                                            notice — Assessment of the merits of the candidates —
                                                                                Manifest error of assessment)
                          (2002/C 219/45)
                                                                                (2002/C 219/46)
                     (Language of the case: French)
                                                                                (Language of the case: French)
In Case T-21/01: Georgios Zavvos, an official of the Com-
mission of the European Communities, residing in Linkebeek
(Belgium), represented by G. Vandersanden and L. Levi,
lawyers, with an address for service in Luxembourg, against
Commission of the European Communities (Agents: J. Currall                  In Case T-158/01: Alexandre Tilgenkamp, an official of
and D. Waelbroeck) — an application for annulment of the                    the Commission of the European Communities, residing in
decision of the Commission of 11 January 2000 downgrading                   Overijse (Belgium), represented by E. Boigelot, lawyer, with an
the applicant from Grade A 5 to Grade A 6, maintaining the                  address for service in Luxembourg, against Commission of the
same step, and a claim for damages for the material and non-                European Communities (Agents: J. Currall et D. Waelbroeck)
material damage allegedly suffered by the applicant and                     — application for annulment of the decision of the Com-
assessed at EUR 1 350 000 — the Court of First Instance                     mission of 13 September 2000 appointing F. Barbaso to the
(Third Chamber), composed of M. Jaeger, President, K. Lenaerts              post of Assistant Director General ‘Agriculture’ notified in
and J. Azizi, Judges; Blanca Pastor, Principal Administrator, for           notice COM 094/00 and rejection of the applicant’s candi-
the Registrar, gave a judgment on 9 July 2002, in which it:                 dature for that post, and of the rejection of the complaint
                                                                            lodged by the applicant — the Court of First Instance (Third
                                                                            Chamber), composed of M. Jaeger, President, K. Lenaerts
1.     Annuls the decision of the Commission of 11 January 2000             and J. Azizi, Judges; D. Christensen, Administrator, for the
       downgrading the applicant from Grade A 5 to Grade A 6,               Registrar, gave a judgment on 9 July 2002, in which it:
       maintaining the same step;
2.     Orders the Commission to pay to the applicant EUR 2 000 by           1.     annuls the decision of the Commission of 13 September 2000
       way of compensation for the non-material damage suffered by                 to appoint F. Barbaso to the post of Assistant Director General
       him;                                                                        ‘Agriculture’ notified in notice COM 094/00 and reject the
                                                                                applicant’s candidature and the express rejection of the latter’s
                                                                                complaint.
3.     Dismisses the remainder of the application;
                                                                            2.     orders the Commission to pay the costs.
4.     Orders the Commission to bear its own costs and to pay those
       of the applicant.
                                                                            (1 ) OJ C 289 of 13.10.2001.
( 1) OJ C 79 of 10.3.2001.


title: Case T-269/02: Action brought on 2 September 2002 by Pepsico Inc. against Office for Harmonization in the Internal Market (trade marks and designs) (OHIM)

text:
26.10.2002            EN                      Official Journal of the European Communities                                     C 261/19
Pleas in law and main arguments                                          Pleas in law and main arguments
                                                                         Applicant for the Com-       The applicant
The applicant contests, first, the Commission’s rejection of the         munity trade mark:
applicant’s request that it institute legal proceedings with
regard to the harassment complained of. Secondly, the appli-             The Community trade          Word mark ‘RUFFLES’ — Appli-
cant contests the implied decision not to recognise the illness          mark concerned:              cation No 000096875, for goods
suffered by the applicant, following such harassment, as an                                           in Classes 29 and 30 (food and
occupational disease.                                                                                condiments)
                                                                         Proprietor of the right to   Convent Knabber-Gebäck GmbH.
In support of the action in respect of the first act, the applicant      the trade mark or sign
alleges infringement of Article 25(2) of the Staff Regulations.          asserted by way of oppo-
In the applicant’s view, the reasons for the decision are                sition in the opposition
inconsistent.                                                            proceedings:
                                                                         Trade mark or sign           German mark ‘RIFFELS’ registered
Moreover, the applicant alleges infringement of Article 24(1)            asserted by way of oppo-     for goods in Class 29 (potato
and (2) of the Staff Regulations in that the Commission refuses          sition in the opposition     chips)
to take legal action and in that it refuses to grant the applicant       proceedings:
access to information which it has available to it regarding the
harassing conduct.                                                       Decision of the Oppo-        Application upheld as regards
                                                                         sition Division:             ‘dried vegetables’ (Class 29) and
                                                                                ‘fine pastry and confectionery’
In support of the action in respect of the second act, the                                            (Class 30). Application dismissed
applicant alleges infringement of Article 25(2) of the Staff                                          as regards ‘cereal preparations’
Regulations. The applicant claims not to have received any                                            (Class 30).
reasons for the implied rejection of the request submitted.
                                                                         Decision of the Board of     Appeal dismissed.
                                                                         Appeal:
                                                                         Grounds of claim:            Breach of the principles that the
                                                                                rights of the defence are to be
                                                                                observed and that reasons must
                                                                                be provided, in accordance with
                                                                                Articles 73 and 74 of Regulation
Action brought on 2 September 2002 by Pepsico Inc.                                                    No 40/94, and of co-existence
against Office for Harmonization in the Internal Market                                               and comparability between Com-
              (trade marks and designs) (OHIM)                                                        munity trade marks and national
                                                                                trade marks
                        (Case T-269/02)
                        (2002/C 261/36)
                  (Language of the case: Spanish)
                                                                         Action brought on 4 September 2002 by Comune di
                                                                         Napoli against Commission of the European Communities
An action against Office for Harmonization in the Internal                                       (Case T-272/02)
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
2 September 2002 by Pepsico Inc., whose registered office is                                     (2002/C 261/37)
in New York (United States of America), represented by
Enrique Armijo Chávarri.
                                                                                (Language of the case: Italian)
The applicant claims that the Court should:
                                                                         An action against the Commission of the European Communi-
—     annul decision No 114/2000-1 of the OHIM of 10 June                ties was brought before the Court of First Instance of the
      2002;                                                              European Communities on 4 September 2002 by the Munici-
                                                                         pality of Naples, represented by Massimo Merola, Claudio
—     order OHIM to pay the costs.                                       Tesauro, Giuseppe Tarallo and Edoardo Barone, lawyers.


title: Case T-376/15: Action brought on 28 April 2016 — KK v EASME

text:
               4.7.2016

               EN

               Official Journal of the European Union

               C 243/33

         Action brought on 28 April 2016 — KK v EASME
   (Case T-376/15)
   (2016/C 243/35)
   Language of the case: French

      Parties

      Applicant: KK (Paris, France) (represented by: J.-P. Spitzer, lawyer)

      Defendant: Executive Agency for Small and Medium-sized Enterprises (EASME)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of 15 June 2015, by which EASME rejected the applicant’s proposal;

               —

               order EASME to pay the sum of EUR 50 000 in compensation for the loss of opportunity, and EUR 90 800 in compensation for material damage suffered by the applicant;

               —

               order EASME to pay all the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on three pleas in law in support of its claim for annulment.

               1.

               First plea in law, alleging the technical inaccessibility of the Internet portal where the applicant’s proposal in response to the call for proposals and related activities under Horizon 2020 — the Framework Programme for Research and Innovation (2014-20) should have been submitted.

               2.

               Second plea in law, alleging that the applicant, contrary to what is contended by EASME, did not fraudulently sign the commitment when submitting its proposal file.

               3.

               Third plea in law, alleging that the rejection of the proposal submitted by the applicant is contrary to the competition rules.

         The applicant also relies on two pleas in law in support of its claim for compensation.

               1.

               First plea in law, alleging that the applicant suffered material damage relating to the loss of opportunity.

               2.

               Second plea in law, alleging that the applicant suffered material damage resulting from the time dedicated to responding to the call for proposals.


C 102/16                EN                     Official Journal of the European Communities                                     8.4.2000
The Applicant claims that the Court should:                                      Removal from the register of Case C-399/95 (1)
1) declare that by failing to notify the laws, regulations                                       (2000/C 102/29)
     or administrative provisions necessary to comply with
     Commission Directive 98/21/EC of 8 April 1998 (1)                    By order of 13 December 1999 the President of the Court of
     amending Council Directive 93/16/EEC (2) to facilitate the           Justice of the European Communities has ordered the removal
     free movement of doctors and the mutual recoginition of              from the register of Case C-399/95: Federal Republic of
     their diplomas, certificates and other evidence of formal            Germany v Commission of the European Communities.
     qualifications, or by failing to adopt the measures necessary
     to comply with it, Ireland has failed to fulfil its obligations
     under that Directive                                                 (1) OJ C 77 of 16.3.1996.
2) order Ireland to pay the costs of these proceedings.
Pleas in law and main arguments
                                                                                Removal from the register of Case C-195/96 (1)
Article 249 EC (ex Article 189 of the EC Treaty), under which
a directive shall be binding as to the result to be achieved,
upon each Member State, carries by implication an obligation                                     (2000/C 102/30)
on the Member States to observe the period for compliance
laid down in the directive. That period expired on 31 December            By order of 13 December 1999 the President of the Court of
1998 without Ireland having enacted the provisions necessary              Justice of the European Communities has ordered the removal
to comply with the directive referred to in the conclusions of            from the register of Case C-195/96: Federal Republic of
the Commission.                                                           Germany v Commission of the European Communities.
                                                                          (1) OJ C 247 of 24.8.1996.
(1) OJ L 119 of 22.4.1998, p. 15.
(2) OJ L 165 of 7.7.1993, p. 1.
                                                                                Removal from the register of Case C-333/98 (1)
      Removal from the register of Case C-255/92 P (1)                                           (2000/C 102/31)
                         (2000/C 102/27)                                  By order of 17 January 2000 the President of the Court of
                                                                          Justice of the European Communities has ordered the removal
By order of 9 December 1999 the President of the Court of                 from the register of Case C-333/98 (reference for a preliminary
Justice of the European Communities has ordered the removal               ruling from the Commissione dei v i Provvedimenti dell’Ufficio
from the register of Case C-255/92 P: BASF AG v Commission                Italiano Brevetti e Marchi): Merck & Co Inc. v Ufficio Italiano
of the European Communities.                                              Brevetti e Marchi.
(1) OJ C 187 of 24.7.1992.                                                (1) OJ C 327, 24.10.1998.
                                                                                Removal from the register of Case C-291/99 (1)
       Removal from the register of Case C-129/99 (1)
                                                                                (2000/C 102/32)
                         (2000/C 102/28)
                                                                          By order of 18 January 2000 the President of the Court of
By order of 10 December 1999 the President of the Court of                Justice of the European Communities has ordered the removal
Justice of the European Communities has ordered the removal               from the register of Case C-291/99 (reference for a preliminary
from the register of Case C-129/99: Federal Republic of                   ruling from the Tribunale di Trieste, Prima Sezione Civile):
Germany v Commission of the European Communities.                         Crossbow Srl v Ministero delle Finanze.
(1) OJ C 188 of 3.7.1999.                                                 (1) OJ C 314, 30.10.1999.


title: Case C-83/01 P: Appeal brought on 19 February 2001 by Chronopost SA against the judgment delivered on 14 December 2000 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-613/97 between Union Française de l'Express (UFEX), DHL International, Federal Express International (France) and CRIE and the Commission of the European Communities, supported by the French Republic, Chronopost SA and La Poste

text:
19.5.2001              EN                     Official Journal of the European Communities                                         C 150/9
1.   In determining whether a three-dimensional trade mark               Appeal brought on 19 February 2001 by Chronopost SA
     which depicts the shape of a product has distinctive                against the judgment delivered on 14 December 2000 by
     character within the meaning of Article 3(1)(b) of the              the Fourth Chamber (Extended Composition) of the Court
     above directive is there a stricter test for distinctive            of First Instance of the European Communities in Case
     character than in the case of other forms of trade marks?           T-613/97 between Union Française de l’Express (UFEX),
                                                                         DHL International, Federal Express International (France)
                                                                         and CRIE and the Commission of the European Communi-
2.   In the case of three-dimensional trade marks which depict           ties, supported by the French Republic, Chronopost SA
     the shape of the product, does Article 3(1)(c) of the                                          and La Poste
     Directive have any significance independently of
     Article 3(1)(e)? If so, when considering Article 3(1)(c) —
     or alternatively Article 3(1)(e) — must regard be had to                                     (Case C-83/01 P)
     the interest of the trade in having the shape of the product
     available for use, so that registration is, at least in                                      (2001/C 150/18)
     principle, ruled out and is possible as a rule only in the
     case of trade marks which meet the requirements of
                                                                         An appeal against the judgment delivered on 14 December
     Article 3(3), first sentence, of the directive?
                                                                         2000 by the Fourth Chamber (Extended Composition) of the
                                                                         Court of First Instance of the European Communities in Case
                                                                         T-613/97 between Union Française de l’Express (UFEX), DHL
(1) OJ 1989 L 40, p. 1.                                                  International, Federal Express International (France) and CRIE
                                                                         and the Commission of the European Communities, supported
                                                                         by the French Republic, Chronopost SA and La Poste, was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 19 February 2001 by Chronopost SA, represented by
                                                                         V. Bouaziz Torron and D. Berlin, Avocats, with an address for
                                                                         service in Luxembourg.
                                                                         The appellant claims that the Court should:
                                                                         —     quash the decision of the Court of First Instance of
Reference for a preliminary ruling by the Dioikitiko                           14 December 2000 in so far as it annuls Article 1 of
Efeteio (Three-member Chamber C) Athens by order of                            Decision 98/365/EC on the ground that the Commission
that court of 26 October 2000 in the case of Makedoniko                        should have considered whether, on account of La Poste’s
                       Metro v Greek State                                     reserved rights, the charges applied by that undertaking
                                                                               for services to its subsidiary were based on costs lower
                                                                               than those which a private operator with no reserved
                          (Case C-57/01)                                       rights would have had to bear;
                                                                         —     declare that there is no need to refer the case back to the
                         (2001/C 150/17)                                       Court of First Instance; and give final judgment in the
                                                                               matter, in accordance with the first paragraph of
                                                                               Article 54 of the Statute of the Court of Justice;
Reference has been made to the Court of Justice of the
European Communities by order of the Dioikitiko Efeteio                  —     in those circumstances, and in so far as the Court of First
(Administrative Court of Appeal), Athens, of 26 October 2000                   Instance rejected all the other pleas in law raised by UFEX
which was received at the Court Registry on 9 February 2001,                   in support of its action for annulment, declare that the
for a preliminary ruling in the case of Makedoniko Metro v                     action brought by UFEX contesting Decision 98/365/EC
Greek State on the following questions:                                        was unfounded;
                                                                         —     in so far as, under Article 69(2) of the Rules of Procedure,
‘Must a change in the composition of an association participat-                the unsuccessful party is to be ordered to pay the costs if
ing in procedures for the award of a public-works contract,                    they have been applied for in the successful party’s
which occurs after submission of tenders and selection of the                  pleadings, and in so far as the pleadings submitted by
association as the provisional contractor and is tacitly accepted              UFEX before the Court of First Instance in support of its
by the awarding authority, be interpreted in such a way as to                  action for annulment must be rejected, UFEX and the
result in the loss of that association’s right to participate in the           other applicants must be regarded as having been unsuc-
procedure and, by extension, also of its right to, or interest in,             cessful in their pleadings, order UFEX and the other
the award of the contract for execution of the works? Is such                  applicants to pay the costs;
an interpretation consistent with the provisions and spirit of
Directives 93/37/EEC and 89/665/EEC?’                                    —     in the alternative, refer the case back to the Court of First
                                                                               Instance for judgment and order UFEX and the other
                                                                               applicants to bear the costs incurred by Chronopost in
                                                                               the proceedings both before the Court of First Instance
                                                                               and the Court of Justice.
 ---pagebreak--- C 150/10                  EN                   Official Journal of the European Communities                                        19.5.2001
Pleas and main arguments                                                  —    Infringement of Article 88 EC
                                                                               In criticising the Commission for not considering whether
                                                                               La Poste was in receipt of aid from the French State, the
—     Infringement of Article 87 EC                                            Court of First Instance encourages the Commission to act
                                                                               in breach of the procedure set out in Article 88(2) and in
                                                                               disregard of the French Government’s right to a fair
                                                                               hearing.
      Contrary to the position maintained by the Court of First
      Instance, the existence of aid for the purposes of                       The Court of First Instance also rebukes the Commission
      Article 87 presupposes not only that an advantage be                     for failing to determine whether or not La Poste charged
      conferred on an undertaking but also that that advantage                 its subsidiary not only its total costs but also the difference
      be financed directly or indirectly through State resources.              between those and the costs which would have been
                                                                               borne by La Poste if it had been a private operator with
                                                                               no reserved market. In so doing, the Court of First
                                                                               Instance confuses procedures, out of a desire to ensure
      In holding that the Commission was under a duty to                       that the entry on to a competitive market of a subsidiary
      consider whether La Poste’s reserved rights in the ordinary              of a public undertaking is made in ‘normal’ conditions.
      mail sector enabled it to save so much on costs that its
      charges for its services did not have to be based on
      ‘normal market conditions’, the Court of First Instance is
      requiring the Commission to search for the causes of
      postulated aid, whereas the Court has consistently held
      that aid is not identified by its causes or the reasons for
      State intervention, but by its effects.
                                                                          Appeal brought on 21 February 2001 by the Commission
      Taking the criterion of the behaviour of a private investor         of the European Communities against the judgment deliv-
      or operator, the Court of First Instance applies it, not to         ered on 14 December 2000 by the Fourth Chamber of the
      the market in which the subsidiary conducts its business            Court of First Instance of the European Communitics
      and in which the services provided by the parent company            in Case T-105/99 between the Council of European
      were used, but to the quite separate market in which the            Municipalities and Regions (CEMR) and the Commission
      parent company itself operates. Then it distorts once                                of the European Communities
      again the rule set out in Article 87 EC by disregarding the
      ‘real life’ situation of public operators and contemplating
      instead the situation of private operators as it ideally                                     (Case C-87/01 P)
      should be, that is to say, it constructs a picture of an ideal
      market on which an ideal form of competition is at play.
      That approach, indirectly but inexorably, calls in question                                  (2001/C 150/19)
      the policies and measures adopted in recent years in
      connection with the opening up of sectors previously not
      exposed to competition. Ultimately, it would mean that,             An appeal against the judgment delivered on 14 December
      even through the creation of subsidiaries and with                  2000 by the Fourth Chamber of the Court of First Instance of
      due respect for the principle of transparency, public               the European Communities in Case T-105/99 between the
      undertakings would no longer be able to compete on                  Council of European Municipalities and Regions (CEMR) and
      those new markets. Also, to accept as a premiss that, in            the Commission of the European Communities was brought
      the case of the public service managed by La Poste, La              before the Court of Justice of the European Communities on
      Poste’s reserved rights constitute ‘State aid’ which enables        21 February 2001 by the Commission of the European
      it to cut operating costs and which can be passed on to             Communities, represented by P. Oliver and H.M.H. Speyart,
      its subsidiary in the form of undercharging for services,           acting as Agents, with an address for service in Luxembourg.
      implies a premature finding that La Poste receives State
      aid for discharging its public service responsibilities and
      that this must be removed so that the benefit cannot be             The appellant claims that the Court should:
      passed on to its subsidiary. That is tantamount to calling
      in question, contrary to Article 16 EC, the subsidising of
                                                                          —    set aside the judgment delivered by the Court of First
      public services; although, in any event, Article 87 EC
                                                                               Instance on 14 December 2000 in Case T-105/99 and
      should not be applied to such funding, by virtue of
                                                                               draw all the legal consequences of the setting aside of
      Article 86(2) EC. Lastly, the approach adopted by the
                                                                               that judgment;
      Court of First Instance appears at odds with the provisions
      of Article 86(1) and 82 EC which endorse a costs-based
      approach in relation to the fixing of rates for access to           —    order the applicant at first instance to pay the costs of the
      the network.                                                             present appeal.


title: Judgment of the Court of 13 May 2003 in Case C-98/01: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure by a Member State to fulfil its obligations — Articles 43 EC and 56 EC — Rights attaching to the United Kingdom's Special Share in BAA plc)

text:
C 158/4                  EN                          Official Journal of the European Union                                               5.7.2003
concerning Corporación Bancaria de España SA (Argentaria)                                      JUDGMENT OF THE COURT
(BOE No 15 of 17 January 1998, p. 1851), Royal Decree
No 552/1998 of 2 April 1998 concerning Tabacalera SA (BOE
No 80 of 3 April 1998, p. 11370), and Royal Decree No 929/                                                of 13 May 2003
1998 of 14 May 1998 concerning Endesa SA (BOE No 129 of
30 May 1998, p. 17939), in so far as they implement a system
of prior administrative approval                                             in Case C-98/01: Commission of the European Communi-
                                                                             ties v United Kingdom of Great Britain and Northern
                                                                                Ireland ( 1)
—     which is not justified by any overriding requirements of
      the general interest,
                                                                             (Failure by a Member State to fulfil its obligations —
                                                                             Articles 43 EC and 56 EC — Rights attaching to the United
—     which does not lay down objective and stable criteria                                Kingdom’s Special Share in BAA plc)
      which have been made public, and
                                                                                (2003/C 158/05)
—     which does not comply with the principle of pro-
      portionality,
                                                                                (Language of the case: English)
are incompatible with Article 43 EC and Article 56 EC, the
Court, composed of: G.C. Rodríguez Iglesias, President, J.-
P. Puissochet, M. Wathelet and R. Schintgen (Presidents of                   (Provisional translation; the definitive translation will be published
Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann                                      in the European Court Reports)
(Rapporteur), V. Skouris, F. Macken, N. Colneric, S. von Bahr
and A. Rosas, Judges; D. Ruiz-Jarabo Colomer, Advocate
General; L. Hewlett, Principal Administrator, for the Registrar,
has given a judgment on 13 May 2003, in which it:
                                                                             In Case C-98/01, Commission of the European Communities
                                                                             (Agents: F. Benyon and M. Patakia) v United Kingdom of Great
                                                                             Britain and Northern Ireland (Agents: R. Magrill, assisted by
1.    Declares that, by maintaining in force the provisions of Article 2     D. Wyatt, QC, and J. Crow, barrister): Application for a
      and Article 3(1) and (2) of Ley 5/1995 de régimen jurídico             declaration that the provisions limiting the possibility of
      de enajenación de participaciones públicas en determinadas             acquiring voting shares in BAA plc as well as the procedure
      empresas (Law 5/1995 on the legal arrangements for disposal            requiring consent to the disposal of the company’s assets, to
      of public shareholdings in certain undertakings) of 23 March           control of its subsidiaries and to winding-up are incompatible
      1995, as well as Royal Decree No 3/1996 of 15 January                  with Articles 43 EC and 56 EC, the Court, composed of:
      1996 concerning Repsol SA, Royal Decree No 8/1997 of                   G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
      10 January 1997 concerning Telefónica de España SA and                 and R. Schintgen (Presidents of Chambers), C. Gulmann,
      Telefónica Servicios Móviles SA, Royal Decree No 40/1998 of            D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,
      16 January 1998 concerning Corporación Bancaria de España              F. Macken, N. Colneric, S. von Bahr and A. Rosas, Judges;
      SA (Argentaria), Royal Decree No 552/1998 of 2 April                   D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
      1998 concerning Tabacalera SA, and Royal Decree No 929/                Deputy Registrar, has given a judgment on 13 May 2003, in
      1998 of 14 May 1998 concerning Endesa SA, in so far as                 which it:
      they implement a system of prior administrative approval, the
      Kingdom of Spain has failed to fulfil its obligations under
      Article 56 EC;                                                         1.    Declares that, by maintaining in force the provisions limiting
                                                                                the possibility of acquiring voting shares in BAA plc as well as
                                                                                the procedure requiring consent to the disposal of the company’s
2.    Orders the Kingdom of Spain to pay the costs;                                assets, to control of its subsidiaries and to winding-up, the
                                                                                United Kingdom of Great Britain and Northern Ireland has
                                                                                failed to fulfil its obligations under Article 56 EC;
3.    Orders the United Kingdom of Great Britain and Northern
      Ireland to bear its own costs.
                                                                             2.    Orders the United Kingdom of Great Britain and Northern
                                                                                Ireland to pay the costs.
( 1) OJ C 61 of 24.2.2001.
                                                                             (1 ) OJ C 134 of 5.5.2001.