title: Order of the Court (Third Chamber) of 15 December 2000 in Case C-86/98 (reference for a preliminary ruling from the Consiglio di Stato): Questore Macerata v Claudio Peroni (Article 104(3) of the Rules of Procedure — Question identical to a question on which the Court has already ruled)

text:
C 173/22                 EN                       Official Journal of the European Communities                                          16.6.2001
1.    Declares that,                                                         (J. L. Iglesias Buhigues and U. Wölker, assisted by B. Wägen-
                                                                             baur), supported by the French Republic (K. Rispal-Bellanger
      —     by failing to take all the measures necessary to ensure          and C. Vasak), Freistaat Thüringen, represented by
            that, within 10 years of the notification of Council             G. M. Berrisch, of the Brussels Bar, with an address for service
            Directive 76/160/EEC of 8 December 1975 concerning               in Luxembourg at the Chambers of G. Harles, 8-10 Rue
            the quality of bathing water, the quality of bathing water       Mathias Hardt and Molkerei und Weichkäserei K-H. Zimmer-
            conformed to the limit values set in accordance with the         mann GmbH, established in Falkenhain, (Germany), represent-
            directive, contrary to Article 4(1) thereof;                     ed by P. Lotze and S. Lehr, of the Brussels Bar, with an address
                                                                             for service in Luxembourg at the Chambers of R. Faltz, 6 Rue
      —     by failing to carry out sampling operations in line with         Heinrich Heine, the Court (Second Chamber), composed of
            the minimum frequency laid down in the Annex to                  V.Skouris, President of the Chamber, R. Schintgen (Rapporteur)
            Directive 76/160 in respect of inland bathing waters,            and N. Colneric, Judges; P. Léger, Advocate General, R. Grass,
            contrary to Article 6(1), and                                    Registrar, made an order on 26 October 2000 the operative
                                                                             part of which is as follows:
      —     by failing to carry out sampling operations for the ‘total
            coliform’ parameter,
                                                                             1.     The appeal is dismissed;
      the French Republic has failed to fulfil its obligations under
      Articles 3, 4, 5 and 6 of Directive 76/160;                            2.     Molkerei Grossbraunshain GmbH and Bene Nahrungsmittel
                                                                                GmbH are ordered to pay the costs;
2.    Orders the French Republic to pay the costs.
                                                                             3.     The French Republic and the Freistaat Thüringen shall bear
(1) OJ C 176 of 24.6.2000.
                                                                                their own costs.
                                                                             (1) OJ C 33 of 6 February 1999.
                     ORDER OF THE COURT
                         (Second Chamber)
                         of 26 October 2000
in Case C-447/98 P: Molkerei Grossbraunshain GmbH                                                 ORDER OF THE COURT
and Bene Nahrungsmittel GmbH v Commission of the
                    European Communities (1)
                                                                                (Third Chamber)
(Community protection of designations of origin — Com-
mission Regulation registering the designation ‘Altenburger
                                                                                of 15 December 2000
Ziegenkäse’ — Application for annulment — Inadmissibility
                — Appeal manifestly ill-founded)
                                                                             in Case C-86/98 (reference for a preliminary ruling from
                           (2001/C 173/37)                                   the Consiglio di Stato): Questore Macerata v Claudio
                                                                                Peroni (1)
                    (Language of the case: German)
                                                                             (Article 104(3) of the Rules of Procedure — Question
                                                                             identical to a question on which the Court has already ruled)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                                (2001/C 173/38)
In Case C-447/98 P, Molkerei Grossbraunshain GmbH, and
Bene Nahrungsmittel GmbH, both established in Altenburg
(Germany), represented by M. Lochschelder and T. Klingbell,                                       (Language of the case: Italian)
of the Cologne Bar, with an address for service in Luxembourg
at the Chambers of M. Loesch, 4 rue Carlo Hemmer — appeal
against the order of the Court of First Instance of the European             (Provisional translation; the definitive translation will be published
Communities (Second Chamber) of 15 September 1998 in                                             in the European Court Reports)
Case T-109/97 Molkerei Grossbraunshain GmbH and Bene
Nahrungsmittel GmbH v Commission [1998] ECR II-3533,
seeking to have that order set aside, the other parties to the               In Case C-86/98: reference to the Court under Article 177 of
proceedings being: Commission of the European Communities                    the EC Treaty (now Article 234 EC) from the the Consiglio di
 ---pagebreak--- 16.6.2001                EN                        Official Journal of the European Communities                                       C 173/23
Stato (Council of State), Italy for a preliminary ruling in the                    6/10 years ago, is a national competent authority ever
proceedings pending before that court between Questore                             entitled to cross-refer, without consent, to data submitted
Macerata v Claudio Peroni — on the interpretation of the                           in support of a product (B) which was authorised within
provisions of the EC Treaty concerning the freedom to                              the last 6/10 years?
provide services — the Court (Third Chamber), composed
of: C. Gulmann, (President of Chamber), J.-P. Puissochet
(Rapporteur), F. Macken, Judges; C. Stix-Hackl, Advocate
General; R. Grass Registrar, has given an order on 15 December                2.   If so, may such cross-reference be made in circumstances
2000, in which it has ruled:                                                       where:
The EC Treaty provisions on the freedom to provide services do not
preclude national legislation, such as the Italian legislation, which              (a)   product B was authorised under the Article 4.8(a)
reserves to certain bodies the right to take bets on sporting events if                  hybrid abridged procedure, referencing product A;
that legislation is in fact justified by social-policy objectives intended               and
to limit the harmful effects of such activities and if the restrictions
which it imposes are not disproportionate in relation to those
objectives.
                                                                                (b) the data to which reference is made consists of
                                                                                clinical trials which the national competent auth-
                                                                                ority indicated would be necessary if the marketing
(1) OJ C 209 of 4.7.1998.                                                                authorisation was to be granted and which were
                                                                                submitted in order to demonstrate that product B,
                                                                                though suprabioavailable to product A when admin-
                                                                                istered in the same dose, is safe?
                                                                              3.    (a) Does the final sub-paragraph of Article 4.8(a) of
                                                                                Directive 65/65 (‘the proviso’) apply only to appli-
                                                                                cations made under Article 4.8(a)(iii) or to appli-
                                                                                cations made under Article 4.8(a)(i) also?
Reference for a preliminary ruling by the Court of Appeal
(England & Wales) (Civil Division), by order of that court
of 22 February 2001, in the case of The Queen on the                               (b) Is essential similarity a prerequisite for the use of the
application of Novartis Pharmaceuticals UK Ltd against                                   proviso?
the Licensing Authority established by the Medicines
Act 1968 (acting by the Medicines Control Agency),
1) Sangstat UK Ltd and 2) Imtix-Sangstat UK Ltd, inter-
                                  veners
                                                                              4.   Can products ever be essentially similar for the purposes
                                                                                of Article 4.8(a)(i) and (iii) of Directive 65/65 when they
                           (Case C-106/01)                                         are not bioequivalent, and if so in what circumstances?
                           (2001/C 173/39)
                                                                              5.   What is the meaning of the term pharmaceutical form, as
                                                                                used by the Court in its Judgment in Case C-368/96
Reference has been made to the Court of Justice of the                             Generics (2)? In particular, do two products have the same
European Communities by an order of the Court of Appeal                            pharmaceutical form when they are administered to the
(England & Wales) (Civil Division) of 22 February 2001, which                      patient in the form of a solution diluted to a macro-
was received at the Court Registry on 5 March 2001, for a                          emulsion, micro-emulsion and nano-dispersion respect-
preliminary ruling in the case of The Queen on the application                     ively?
of Novartis Pharmaceuticals UK Ltd against the Licensing
Authority established by the Medicines Act 1968 (acting by
the Medicines Control Agency), Interveners: 1) Sangstat UK
Ltd and 2) Imtix-Sangstat UK Ltd, on the following questions:                 6.   Is it consistent with the general principle of non-
                                                                                discrimination for a national competent authority, faced
                                                                                with hybrid applications for marketing authorisations
1.    In considering a marketing authorisation for a new                           under Article 4.8(a) of Directive 65/65 referencing prod-
      product (C) under Article 4.8(a)(iii) of Directive 65/65 (1),                uct A for two products, neither of which is bioequivalent
      referencing a product (A) authorised more than                               to product A:


title: Case C-26/05: Reference for a preliminary ruling from the Landesgericht Korneuburg (Austria) by order of that court of 13 January 2005 in Plato Plastik Robert Frank GmbH v CAROPACK Handels GmbH

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/10

         Reference for a preliminary ruling from the Landesgericht Korneuburg (Austria) by order of that court of 13 January 2005 in Plato Plastik Robert Frank GmbH v CAROPACK Handels GmbH
   (Case C-26/05)
   (2005/C 82/21)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht Korneuburg (Regional Court, Korneuburg) (Austria) of 13 January 2005, received at the Court Registry on 27 January 2005, for a preliminary ruling in the proceedings between Plato Plastik Robert Frank GmbH and CAROPACK Handels GmbH on the following questions:

               1.

               Principal question: ‘For the purposes of European Parliament and Council Directive 94/62/EC of 20 December 1994, is the producer of sales packaging, grouped packaging or transport packaging, namely the packaging producer, always the party which, in the course of the exercise of its professional activity, brings goods, or has goods brought, directly or indirectly together with the product intended as packaging, and does this also apply to carrier bags? Is the producer (supplier) of products described in the first sentence of Article 3(1), namely products used for the containment, protection, handling, delivery and presentation of goods, and non-returnable items used for the same purposes, therefore a producer (supplier) of packaging materials (packaging products) and not a producer of sales packaging, grouped packaging or transport packaging (packaging producer; compare the corresponding terms in Article 3(11) of the directive)?’

               2.

               First additional question, should the principal question be answered in the affirmative: ‘Is the producer of a carrier bag accordingly not a producer of sales packaging, grouped packaging or transport packaging but a producer of packaging materials (packaging products)?’

               3.

               Second additional question, should the first additional question be answered in the affirmative: ‘Is it contrary to Community law, in particular to the principle of equality, to the prohibition on objectively unjustified restrictions on the freedom to carry on a business and to the prohibition on creating distortions of competition, for the legislation of a Member State to provide, on pain of a penalty, that the producer of packaging materials, particularly of carrier bags, must either accept their return or participate in a collection and recovery system in this regard, unless a party further down the distribution chain takes over that obligation and provides the producer of the packaging materials with a legally valid declaration on the matter?’


title: Case C-478/14: Reference for a preliminary ruling from the Tribunale ordinario di Cagliari (Italy) lodged on 27 October 2014  — Criminal proceedings against Roberto Siddu

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/17

         Reference for a preliminary ruling from the Tribunale ordinario di Cagliari (Italy) lodged on 27 October 2014 — Criminal proceedings against Roberto Siddu
   (Case C-478/14)
   (2015/C 007/22)
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Cagliari

      Party to the main proceedings

   Roberto Siddu

      Questions referred

               1.

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU and the principles laid down by the Court of Justice of the European Union in [Joined Cases C-72/10 and C 77/10 Costa and Cifone [2012] ECR] to be interpreted as precluding a call for tenders for the award of licences with a period of validity shorter than that of licences awarded in the past, where that tendering procedure has been launched in order to remedy the consequences of the unlawful exclusion of a certain number of operators from earlier tendering procedures?

               2.

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU and the principles laid down by the Court of Justice of the European Union in Costa and Cifone to be interpreted as precluding the possibility that sufficient justification for the shorter period of validity of licences offered for tender, as compared with licences awarded in the past, can be found in the requirement for the licensing system to be reorganised through the alignment of licence expiry dates?


title: Case C-62/15 P: Order of the Court (Eighth Chamber) of 8 September 2015 — DTL Corporación, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) Appeal — Article 181 the Rules of Procedure of the Court of Justice — Community trade mark — Application for registration of the word mark Generia — Opposition by the proprietor of the earlier Community figurative mark Generalia generación renovable — Partial refusal to register — Regulation (EC) No 207/2009 — Article 8(1)(b) — Likelihood of confusion — Article 64(1) — Powers of the Board of Appeal — Article 75, second subparagraph — Right to be heard

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/10

         Order of the Court (Eighth Chamber) of 8 September 2015 — DTL Corporación, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-62/15 P) (1)

   (Appeal - Article 181 the Rules of Procedure of the Court of Justice - Community trade mark - Application for registration of the word mark Generia - Opposition by the proprietor of the earlier Community figurative mark Generalia generación renovable - Partial refusal to register - Regulation (EC) No 207/2009 - Article 8(1)(b) - Likelihood of confusion - Article 64(1) - Powers of the Board of Appeal - Article 75, second subparagraph - Right to be heard)
   (2015/C 398/12)
   Language of the case: Spanish

      Parties

      Appellant: DTL Corporación, SL (represented by: A. Zuazo Araluze, abogado)

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

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               DTL Corporación, SL to bear its own costs.

      (1)  OJ C 146, 4.5.2015.


title: Case T-421/16: Action brought on 29 July 2016 — sheepworld v EUIPO (Beste Oma)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/45

         Action brought on 29 July 2016 — sheepworld v EUIPO (Beste Oma)
   (Case T-421/16)
   (2016/C 343/60)
   Language of the case: German

      Parties

      Applicant: sheepworld AG (Ursensollen, Germany) (represented by: S. von Rüden, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘Beste Oma’ — Application No 14 169 478

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 13 May 2016 in Case R 91/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

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

      Plea in law

               —

               Infringement of 7(1)(b) of Regulation No 207/2009


title: Case C-453/07: Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 4 October 2007 — Hakan Er v Wetteraukreis

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/28

         Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 4 October 2007 — Hakan Er v Wetteraukreis
   (Case C-453/07)
   (2007/C 297/45)
   Language of the case: German
   Referring court
   Verwaltungsgericht Giessen
   Parties to the main proceedings

      Applicant: Hakan Er

      Defendant: Wetteraukreis
   Question referred
   Does a Turkish national who, as a member of the family, received authorisation to join his father living in Germany who as a Turkish worker was duly registered as belonging to the labour force of the Federal Republic of Germany, and who acquired, by virtue of previously living together legally with his father for five years, the legal status as referred to in the second indent of the first sentence of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council on the development of the association (‘Association Council Decision 1/80’), lose that legal status as a consequence of the fact that, for more than seven years after leaving school, apart from an alleged single day of work on a trial basis, he has at no time been in employment, drops out of all government support schemes designed to promote the taking-up of employment and does not himself make serious efforts to take up employment, instead living by turns on social security benefits, financial support from his mother living in Germany and means of unknown origin?


title: Case C-59/14: Judgment of the Court (Fourth Chamber) of 6 October 2015 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Firma Ernst Kollmer Fleischimport und -export v Hauptzollamt Hamburg-Jonas (Reference for a preliminary ruling — Regulation (EC, Euratom) No 2988/95 — Protection of the European Union’s financial interests — Article 1(2) and the first subparagraph of Article 3(1) — Recovery of an export refund — Limitation period — Date from which time runs (dies a quo) — Act or omission by the economic operator — Occurrence of the prejudice — Continuous infringement — Single infringement)

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/3

         Judgment of the Court (Fourth Chamber) of 6 October 2015 (request for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Firma Ernst Kollmer Fleischimport und -export v Hauptzollamt Hamburg-Jonas
   (Case C-59/14) (1)

   ((Reference for a preliminary ruling - Regulation (EC, Euratom) No 2988/95 - Protection of the European Union’s financial interests - Article 1(2) and the first subparagraph of Article 3(1) - Recovery of an export refund - Limitation period - Date from which time runs (dies a quo) - Act or omission by the economic operator - Occurrence of the prejudice - Continuous infringement - Single infringement))
   (2015/C 398/03)
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Firma Ernst Kollmer Fleischimport und -export

      Defendant: Hauptzollamt Hamburg-Jonas

      Operative part of the judgment

               1.

               Article 1(2) and the first subparagraph of Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings where the infringement of a provision of EU law was discovered only after the occurrence of the prejudice, the limitation period begins to run from the time when both the economic operator’s act or omission that infringed EU law and the prejudice caused to the budget of the European Union or budgets managed by it have occurred.

               2.

               Article 1(2) of Regulation No 2988/95 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a prejudice occurs as soon as the decision made to grant the export refund to the exporter concerned has been made.

      (1)  OJ C 142, 12.5.2014.


title: Case C-31/13 P: Judgment of the Court (Third Chamber Chamber) of 13 February 2014 — Hungary v European Commission, Slovak Republic (Appeal — Protected geographical indications — Regulation (EC) No 1234/2007 — Register of protected designations of origin and protected geographical indications for wine — E-Bacchus database — Tokaj)

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/17

         Judgment of the Court (Third Chamber Chamber) of 13 February 2014 — Hungary v European Commission, Slovak Republic
   (Case C-31/13 P) (1)

   (Appeal - Protected geographical indications - Regulation (EC) No 1234/2007 - Register of protected designations of origin and protected geographical indications for wine - E-Bacchus database - Tokaj)
   2014/C 93/26
   Language of the case: Hungarian

      Parties

      Appellant: Hungary (represented by: M.Z. Fehér and K. Szíjjártó, Agents)

      Other parties to the proceedings: European Commission (represented by: V. Bottka, B. Schima and B. Eggers, Agents), Slovak Republic (represented by B. Ricziová, Agent)

      Re:

   Appeal against the judgment of the General Court (Seventh Chamber) of 8 November 2012 in Case T-194/10 Hungary v Commission, in which the General Court dismissed as inadmissible an application for cancellation of the entry of the protected designation of origin ‘Vinohradnícka oblast’ Tokaj’, with Slovakia indicated as country of origin, in the electronic register of protected designations of origin and protected geographical indications for wine (E-Bacchus database) — Legal effects of an entry in the E-Bacchus database — Obligation to state reasons — Principles of sound administration, sincere cooperation and legal certainty.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Hungary to pay the costs;

               3.

               Orders the Slovak Republic to bear its own costs.

      (1)  OJ C 71, 9.3.2013.


title: Case C-147/08: Reference for a preliminary ruling from the Arbeitsgericht Hamburg (Germany) lodged on 10 April 2008 — Jürgen Römer v Freie und Hansestadt Hamburg

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/15

         Reference for a preliminary ruling from the Arbeitsgericht Hamburg (Germany) lodged on 10 April 2008 — Jürgen Römer v Freie und Hansestadt Hamburg
   (Case C-147/08)
   (2008/C 171/26)
   Language of the case: German
   Referring court
   Arbeitsgericht Hamburg
   Parties to the main proceedings

      Applicant: Jürgen Römer

      Defendant: Freie und Hansestadt Hamburg
   Questions referred

               1.

               Are supplementary pension payments, governed by the Erstes Ruhegeldgesetz (First law on retirement pensions or ‘First RGG’) of the Freie und Hansestadt Hamburg, to former employees of the Freie und Hansestadt Hamburg and their survivors ‘payments of any kind made by state schemes or similar, including state social security or social protection schemes’ within the meaning of Article 3(3) of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (1), with the consequence that the matters governed by the First RGG fall outside the scope of that directive (‘the Directive’)?

               2.

               If the above question is answered in the negative:

                           2.1

                           Are the provisions of the First RGG which differentiate, in calculating the amount of pension payable, between married pensioners and all other pensioners, that is, which treat married pensioners more favourably than, specifically, persons who have formed a civil partnership (Lebenspartnerschaft) with a person of the same sex in accordance with the Lebenspartnerschaftsgesetz (Law on civil partnership) of the Federal Republic of Germany, ‘laws on marital status and the benefits dependent thereon’ within the meaning of recital 22 in the preamble to the Directive?

                           2.2

                           If the above question is answered in the affirmative:
                           Does it follow that the Directive does not apply to those provision of the First RGG, even though the Directive itself contains no limitation of its scope corresponding to recital 22 in the preamble?

               3.

               If Question 2.1 or Question 2.2 is answered in the negative:
               In relation to a person who has a formed a civil partnership with a person of the same sex and who is not permanently separated from the latter, does Paragraph 10(6) of the First RGG, under which the pension entitlements of married, not permanently separated, pensioners are calculated on the basis of the notional application of tax category III/0 (more favourable to a taxable person) but the pension entitlements of all other pensioners are calculated on the basis of the notional application of tax category I (less favourable to a taxable person), constitute an infringement of Article 1 in conjunction with Article 2 and with Article 3(1)(c) of the Directive?

               4.

               If Question 1 or Question 2(2) is answered in the affirmative or Question 3 is answered in the negative:
               Does Paragraph 10(6) of the First RGG infringe Article 141 EC or a general principle of Community law by reason of the provision or legal effect described in Question 3?

               5.

               If Question 3 or Question 4 is answered in the affirmative:
               Does it follow that — until such time as Paragraph 10(6) of the First RGG is amended to remove the unequal treatment complained of — in relation to the calculation of his pension entitlement a pensioner who has formed a civil partnership and is not permanently separated from his partner is entitled to insist that the defendant treats him in the same manner as it does as a married, not permanently separated, pensioner? If so — if the Directive is applicable and Question 3 is answered in the affirmative — does this entitlement apply even before the expiry of the transposition period prescribed in Article 18(1) of the Directive?

               6.

               If Question 5 is answered in the affirmative:
               Is that subject to the qualification — in accordance with the grounds of the Court's judgment in Case C-262/88 Barber — that in the calculation of pension entitlement the principle of equal treatment is to be applied only in respect of that proportion of pension entitlement earned by the pensioner for the period from 17 May 1990?

      (1)  OJ 2000 L 303, p. 16.


title: Case T-211/04: Action brought on 9 June 2004 by the Government of Gibraltar against the Commission of the European Communities

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/27

         Action brought on 9 June 2004 by the Government of Gibraltar against the Commission of the European Communities
   (Case T-211/04)
   (2004/C 217/49)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 June 2004 by the Government of Gibraltar, represented by M. Llamas, lawyer, J. Temple Lang, Solicitor, A. Petersen, lawyer, and K. Nordlander, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision in its entirety;

               —

               order the Commission to pay Gibraltar's legal and other costs and expenses in relation to this matter.

         Pleas in law and main arguments:
   The applicant contests the Commission decision of 30 March 2004 on the aid scheme which the United Kingdom is planning to implement with regard to the Government of Gibraltar Corporation Tax Reform (1). In the decision, the Commission finds that the proposed tax reform constitutes state aid incompatible with the common market.
   The applicant states that the Commission considers the reform regionally selective in that it confers tax advantages to companies in Gibraltar compared to companies in the United Kingdom and that the reform is materially selective in that specific features confer tax advantages to some companies in Gibraltar compared to other companies in Gibraltar.
   In support of its application, the applicant submits firstly that the Commission misapplied the law and committed errors in reasoning in finding that Gibraltar's proposed tax reform is regionally selective.
   In this regard, the applicant states that the assumption that Gibraltar is part of the United Kingdom, is wrong. According to the applicant, this is clear under domestic constitutional law, public international law and Community law.
   The applicant furthermore submits that the Commission's regional selectivity principle cannot apply to Gibraltar. According to the applicant, the decision concerns two tax jurisdictions which are entirely separate and mutually exclusive so that Gibraltar's tax laws cannot be treated as derogations from tax law in the United Kingdom.
   Secondly, the applicant submits that the Commission misapplied the law and committed errors in reasoning in finding that tax reform is materially selective. According to the applicant, the reform is of a general nature and represents a reasonable choice of economic policy by Gibraltar.
   According to the applicant, the provisions that companies who make no profits are not taxed and that companies are not required to pay more than a specified maximum amount, are merely designed to avoid over-taxation and do not apply selectively to a particular group or category.
   The applicant also claims that the Commission is wrong in stating in relation to the payroll tax and property tax not applying to companies without commercial buildings or employees in Gibraltar, that the reform exempts an offshore sector and is materially selective on hat ground. The applicant claims furthermore that the Commission breached essential procedural requirements in this regard because neither the United Kingdom nor the applicant were given an opportunity to comment on this issue during the formal investigation.
   Finally, the applicant submits that the reform cannot be considered selective because its nature, general scheme and essential features are designed to suit the special characteristics of the economy in Gibraltar and in particular its limited size, scarcity of labour, service dominated industry and operational simplicity for a small administration.

      (1)  State aid C 66 /2002 — Gibraltar government corporation tax reform


title: Case C-304/01: Action brought on 2 August 2001 by Kingdom of Spain against Commission of the European Communities

text:
13.10.2001              EN                       Official Journal of the European Communities                                      C 289/15
and that Article 43 EC prohibits any discrimination on the                       down in Article 37 EC. In the present case, the Com-
basis of nationality which hinders access to or pursuit of self-                 mission has taken six months to adopt measures, which
employment. Accordingly, the imposition of a condition                           were purportedly urgent, in order to palliate a serious
relating to duration of residence in the Grand Duchy (be it the                  and unforeseen situation, which shows that the measures
10 years required by the Law of July 1986 or the 5 years by                      were not urgent at all and, in those six months, the
the new law of April 1999) for the granting of a guaranteed                      Council could have adopted the necessary conservation
minimum income to nationals of the other Member States is                        measures without it being necessary for the Commission
contrary to the principle of equal treatment, as enshrined in                    to use a legislative power whose scope is very restricted
Article 7(2) of Regulation No 1612/68 on freedom of move-                        and pre-determined. Moreover, there are measures in the
ment for workers as well as in Article 43 of the EC Treaty with                  contested provision which are not strictly urgent and
regard to self-employed workers.                                                 exceptional, such as the increase in mesh sizes provided
                                                                                for in Article 2 and the designation of ports for landing
                                                                                catches, provided for by Article 12. Furthermore, the
                                                                                contested regulation contains no provision whatever
(1) Official Journal, English Special Edition 1968 (II), p. 475.
                                                                                limiting its period of validity to less than six months, so
                                                                                that its temporal application is unlimited and it must be
                                                                                presumed to remain in force until a subsequent provision
                                                                                should repeal it.
Action brought on 2 August 2001 by Kingdom of Spain
    against Commission of the European Communities
                                                                            —    Breach of the principle of non-discrimination: Article 2(2)
                                                                                of the contested regulation provides for rules for vessels
                           (Case C-304/01)                                       of less than 12 metres in length overall which return to
                                                                                port within 24 hours of their most recent departure, from
                                                                                port which are different to those applied to other vessels.
                           (2001/C 289/29)                                       That measure harms almost exclusively or, at least, to a
                                                                                much greater extent, the Spanish fishing fleet which, in
                                                                                those areas in which the urgent measures apply, consists
An action against the Commission of the European Communi-                        entirely of vessels of more than 12 metres in length,
ties was brought before the Court of Justice of the European                     which are at sea for more than a day, whereas the other
Communities on 2 August 2001 by Kingdom of Spain,                                Member States do have in their fishing fleets vessels under
represented by Rosario Silva de Lapuerta, Abogado del Estado,                    12 metres which are covered by the derogation. Such
with an address for service in Luxembourg at the Spanish                         discrimination against the Spanish fishing feet is not
Embassy, 4-6, boulevard E. Servais.                                              objectively justified because there is no link between size
                                                                                of mesh and length of vessel. Moreover, it just so happens
                                                                                that small vessels, because they are at sea less time,
The applicant claims that the Court should:                                      fish in areas close into shore where there are greater
                                                                                concentrations of juveniles and, therefore, their fishing
                                                                                activities can affect much more clearly and directly the
—     annul Commission Regulation (EC) No 1162/2001 (1) of                       conservation of threatened fish stocks.
      14 June 2001 establishing measures for the recovery of
      the stock of hake in ICES sub-areas III, IV, V, VI and VII
      and ICES divisions VIII a, b, d, c and associated conditions
      for the control of activities of fishing vessels;
—     order the defendant institution to pay the costs.
                                                                            —    Lack of a statement of reasons: There is nothing in the
                                                                                contested regulation which makes it possible to know,
                                                                                clearly and unequivocally, what reasons the Commission
                                                                                had for establishing the derogation under Article 2(2).
Pleas in law and main arguments
—     Incorrect legal basis and lack of competence of the
      Commission: The contested regulation has as its legal
      basis Article 15(1) of Council Regulation 3760/92,                    (1) OJ L 159, 15.6.2001, p. 4.
      establishing a Community system for fisheries and aqua-               (2) OJ L 389, 31.12.1992, p. 1.
      culture (2). That provision confers on the Commission
      limited legislative power which that institution may use
      only in such cases and under such conditions as provided
      in that provision, whilst general powers to legislate reside
      with the Council in accordance with the procedure laid


title: Judgment of the Court (Sixth Chamber) of 10 April 2003 in Case C-217/01 P: Michel Hendrickx v Centre européen pour le développement de la formation professionnelle (Cedefop) (Appeal — Officials — Resettlement Allowance — Action which has become devoid of purpose — No need to adjudicate)

text:
C 146/10                  EN                          Official Journal of the European Union                                                21.6.2003
—     precluding the application of national legislation which excludes                         JUDGMENT OF THE COURT
      Turkish workers duly registered as belonging to the labour force
      of the host Member State from eligibility for election to the
      general assembly of a body representing and defending the                                         (Second Chamber)
      interests of workers, such as the chambers of workers in Austria.
                                                                                of 8 May 2003
( 1) OJ C 173 of 16.6.2001.
                                                                              in Case C-268/01 (Reference for a preliminary ruling from
                                                                              the Verwaltungsgericht Weimar): Agrargenossenschaft
                                                                                Alkersleben eG, v Freistaat Thüringen, ( 1)
                                                                              (Milk and milk products — Council Regulation (EEC)
                                                                              No 3950/92 — Scheme applicable to the territory of the
                   JUDGMENT OF THE COURT                                      former German Democratic Republic — Reference quantities
                                                                              — Concepts of ‘producer’ and ‘holding’ — Lessee of a
                                                                                holding situated within that territory)
                           (Sixth Chamber)
                                                                                (2003/C 146/17)
                           of 10 April 2003
                                                                                (Language of the case: German)
in Case C-217/01 P: Michel Hendrickx v Centre européen
pour le développement de la formation professionnelle
                              (Cedefop) ( 1)                                  (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Appeal — Officials — Resettlement Allowance — Action
which has become devoid of purpose — No need to adjudi-
                                  cate)
                                                                              In Case C-268/01: Reference to the Court under Article 234 EC
                                                                              by the Verwaltungsgericht Weimar (Germany) for a prelimi-
                            (2003/C 146/16)                                   nary ruling in the proceedings pending before that court
                                                                              between Agrargenossenschaft Alkersleben eG, and Freistaat
                      (Language of the case: French)                          Thüringen, on the interpretation of Articles 3(2), 4(4), 5 and
                                                                              9(c) and (d) of Council Regulation (EEC) No 3950/92 of
                                                                              28 December 1992 establishing an additional levy in the milk
(Provisional translation; the definitive translation will be published        and milk products sector (OJ 1992 L 405, p. 1), as amended
                     in the European Court Reports)                           by Commission Regulation (EC) No 751/1999 of 9 April 1999
                                                                              (OJ 1999 L 96, p. 11), the Court (Second Chamber), composed
                                                                              of: R. Schintgen, President of the Chamber, V. Skouris
                                                                              (Rapporteur) and N. Colneric, Judges; P. Léger, Advocate
In Case C-217/01 P, Michel Hendrickx (represented by                          General; R. Grass, Registrar, has given a judgment on 8 May
J.-N. Louis and V. Peere): Appeal against the order of the Court              2003, in which it has ruled:
of First Instance of the European Communities (Fifth Chamber)
of 12 March 2001 in Case T-298/00 Hendrickx v Cedefop
(not published in the ECR), seeking to have that order set aside,             1.    Article 9(c) and (d) of Council Regulation No 3950/92 of
the other party to the proceedings being: Centre européen pour                      28 December 1992 establishing an additional levy in the
le développement de la formation professionnelle (Cedefop)                          milk and milk products sector, as amended by Commission
(represented by B. Wägenbaur), the Court (Sixth Chamber),                           Regulation (EC) No 751/1999 of 9 April 1999 and read
composed of: J.-P. Puissochet, President of the Chamber,                            with Articles 3(2), 4(4) and 5 of the former regulation, must
C. Gulmann, F. Macken, N. Colneric (Rapporteur) and                                 be interpreted as meaning that all the milk production of a
J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General;                         farmer established in the territory of the former German
R. Grass, Registrar, has given a judgment on 10 April 2003, in                      Democratic Republic obtained on an independent basis in
which it:                                                                           leased facilities situated in that territory but in different länder
                                                                                must be imputed to the reference quantity provisionally allocated
                                                                                to him.
1.    Dismisses the appeal;
                                                                              2.    Article 9(c) and (d) of Regulation No 3950/92, as amended
2.    Orders Mr Hendrickx to pay the costs.                                         by Regulation No 751/99, and read with Articles 3(2), 4(4)
                                                                                and 5 of the former regulation, must be interpreted as precluding
                                                                                the competent national authorities from prohibiting a producer
( 1) OJ C 212 of 28.7.2001.
                                                                                established in the former German Democratic Republic from
                                                                                transferring his milk production to facilities in a commune
                                                                                which, although forming part of that territory on the date of


title: Joined Cases C-39/08 and C-43/08: Order of the Court of 12 February 2009 (reference for a preliminary ruling from the Bundespatentgericht (Germany)) — Bild digital GmbH & Co. KG, formerly Bild.T-Online.de AG & Co. KG (C-39/08), ZVS Zeitungsvertrieb Stuttgart GmbH (C-43/08) v Präsident des Deutschen Patent- und Markenamts (First subparagraph of Article 103(3) of the Rules of Procedure — Directive 89/104/EEC — Applications for registration of trade marks — Examination on a case-by-case basis — Failure to take account of earlier decisions — Manifest inadmissibility)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/15

         Order of the Court of 12 February 2009 (reference for a preliminary ruling from the Bundespatentgericht (Germany)) — Bild digital GmbH & Co. KG, formerly Bild.T-Online.de AG & Co. KG (C-39/08), ZVS Zeitungsvertrieb Stuttgart GmbH (C-43/08) v Präsident des Deutschen Patent- und Markenamts
   (Joined Cases C-39/08 and C-43/08) (1)

   (First subparagraph of Article 103(3) of the Rules of Procedure - Directive 89/104/EEC - Applications for registration of trade marks - Examination on a case-by-case basis - Failure to take account of earlier decisions - Manifest inadmissibility)
   2009/C 113/30
   Language of the case: German

      Referring court

   Bundespatentgericht (Germany)

      Parties

      Applicants: Bild digital GmbH & Co. KG, formerly Bild.T-Online.de AG & Co. KG (C 39/08), ZVS Zeitungsvertrieb Stuttgart GmbH (C 43/08)

      Defendant: Präsident des Deutschen Patent- und Markenamts

      Re:

   Reference for a preliminary ruling — Bundespatentgericht (Germany) — Interpretation of Article 3 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Examination of applications for registration of trade marks on a case-by-case basis without account being taken of earlier decisions in similar situations — Refusal to register a trade mark applied for by the proprietor of a series of similar marks

      Operative part of the order

   The competent authority of a Member State required to rule on an application for registration of a trade mark is not required to disregard the grounds for refusal of registration set out in Article 3(1)(a), (b) and (c) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by Council Decision 92/10/EEC of 19 December 1991, and to grant that application on the ground that the sign for which registration as a trade mark is sought is composed in a manner identical or comparable to a sign which it has already accepted for registration as a trade mark and which refers to identical or similar goods or services.

      (1)  OJ C 107, 26.4.2008.


C 35/20                EN                         Official Journal of the European Union                                    7.2.2004
       Removal from the register of Case T-124/03 (1)                     Communities ordered the removal from the register of Case
                                                                          T-161/03: Cascades S.A. v Commission of the European
                         (2004/C 35/37)                                   Communities.
                  (Language of the Case: English)
                                                                          (1) OJ C 171 of 19.07.2003.
By order of 21 October 2003 the President of the Second
Chamber (Extended Composition) of the Court of First Instance
of the European Communities ordered the removal from
the register of Case T-124/03: AES Drax Power Limited v
Commission of the European Communities.                                          Removal from the register of Case T-243/03 (1)
                                                                                (2004/C 35/40)
(1) OJ C 135 of 07.06.2003.
                                                                                (Language of the Case: English)
                                                                          By order of 14 November 2003 the President of the First
       Removal from the register of Case T-127/03 (1)                     Chamber of the Court of First Instance of the European
                                                                          Communities ordered the removal from the register of Case
                         (2004/C 35/38)                                   T-243/03: Guardant, Inc. v Office for Harmonisation in the
                                                                          Internal Market (Trade Marks and Design) (OHIM).
                   (Language of the Case: Dutch)
                                                                          (1) OJ C 264 of 1.11.2003.
By order of 7 November 2003 the President of the Second
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-127/03: Antoinette Pascucci v Europol.
(1) OJ C 158 of 05.07.2003.                                                      Removal from the register of Case T-244/03 (1)
                                                                                (2004/C 35/41)
                                                                                (Language of the Case: French)
       Removal from the register of Case T-161/03 (1)
                         (2004/C 35/39)                                   By order of 15 October 2003 the President of the Second
                                                                          Chamber of the Court of First Instance of the European
                                                                          Communities ordered the removal from the register of Case
                   (Language of the Case: French)
                                                                          T-244/03: Flavia Angeletti v Commission of the European
                                                                          Communities.
By order of 4 November 2003 the President of the Second
Chamber of the Court of First Instance of the European                    (1) OJ C 200 of 23.08.2003.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber) of 7 July 1998 in Joined Cases T-238/95, T-239/95, T-240/95, T-241/95 and T-242/95: Francesco Mongelli v Commission of the European Communities (Officials - Pensions - Weighting - Determination - Exchange rate)

text:
15.8.98              EN                  Official Journal of the European Communities                                C 258/31
the Court (Second Chamber, Extended Composition),                   of 19 December 1994 adjusting, with effect from 1 July
composed of: C. W. Bellamy, President, K. Lenaerts, C. P.           1994, the remuneration and pensions of officials and other
BrieÈt, A. Kalogeropoulos and A. Potocki, Judges; J.                servants of the European Communities and the weightings
Palacio GonzaÂlez, Administrator, has given a judgment on           applied thereto (OJ L 335 of 23.12.1994, p. 1), and,
25 June 1998, in which it:                                          secondly, applications for the payment of arrears, together
                                                                    with default interest at the rate of 8 % Ð the Court of
1. Joins Cases T-371/94 and T-394/94 for the purposes of            First Instance (Second Chamber), composed of A.
     judgment;                                                      Kalogeropoulos, President, C. W. Bellamy and J. Pirrung,
                                                                    Judges; H. Jung, Registrar, gave a judgment on 7 July
2. Annuls Commission Decision 94/653/EC of 27 July                  1998, in which it:
     1994 concerning the notified capital increase of Air
     France;
                                                                    1. Dismisses the actions.
3. Orders the Commission to pay the costs, including
     those of the interveners Maersk Air I/S and Maersk
     Air Ltd;                                                       2. Orders the parties to bear their own costs.
4. Orders Compagnie Nationale Air France, the French                (1) OJ 1996 C 64.
     Republic, the Kingdom of Denmark, the United
     Kingdom of Great Britain and Northern Ireland, the
     Kingdom of Sweden and the Kingdom of Norway to
     bear their own costs.
(1) OJ C 386 of 31.12.1994 and C 392 of 31.12.1994.
                                                                         ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 10 June 1998
                                                                    in Case T-116/95: Cementir-Cementerie del Tirreno SpA v
                                                                            Commission of the European Communities (1)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                      (Second Chamber)                                  (Inadmissibility Ð Confirmatory act Ð Lis pendens)
                        of 7 July 1998                                                      (98/C 258/53)
in Joined Cases T-238/95, T-239/95, T-240/95, T-241/95
and T-242/95: Francesco Mongelli v Commission of
                the European Communities (1)                                       (Language of the case: Italian)
(Officials Ð Pensions Ð Weighting Ð Determination Ð
                        Exchange rate)                              In Case T-116/95: Cementir-Cementerie del Tirreno SpA,
                        (98/C 258/52)                               established in Rome, represented by Gian Michele Roberti
                                                                    and Antonio Tizzano, of the Naples Bar, with an address
                (Language of the case: Italian)                     for service in Luxembourg at the Chambers of Alain
                                                                    Lorang, 51 Rue Albert 1er, v Commission of the European
In Joined Cases T-238/95, T-239/95, T-240/95, T-241/95              Communities (Agent: Giuliano Marenco) Ð application
and T-242/95: Francesco Mongelli, former official of the            for annulment of a letter of 2 March 1995 from the
Commission of the European Communities, residing in                 Commission rejecting a request for reduction of the fine
Cecina (Italy), Alberto Castagnoli, former official of the          imposed on the applicant by Commission Decision 94/
Commission of the European Communities, residing in                 815/EC of 30 November 1994 relating to a proceeding
Segrate (Italy), Eduardo Capuano, former official of the            under Article 85 of the EC Treaty (Cases IV/33.126 and
Commission of the European Communities, residing at                 33.322 Ð Cement) (OJ L 343 of 30.12.1994, p. 1) Ð the
Rome, Vittorio Sadini, former official of the Commission            Court of First Instance (Fourth Chamber, Extended
of the European Communities, residing in Segrate (Italy),           Composition), composed of P. Lindh, President, and R.
and Lando Tinelli, former official of the Commission of             García-Valdecasas, K. Lenaerts, J. Azizi and M. Jaeger,
the European Communities, residing at Rome, represented             Judges; H. Jung, Registrar, made an order on 10 June
by Giuseppe Marchesini, advocate with the right of                  1998, the operative part of which is as follows:
audience before the Corte Suprema di Cassazione, with
an address for service in Luxembourg at the Chambers
of Ernst Arendt, 8-10 Rue Mathias Hardt, against                    1. The action is dismissed as inadmissible.
Commission of the European Communities (Agent:
Gianluigi Valsesia), supported by Council of European
Communities (Agents: Diego Canga Fano, Marco-                       2. The applicant shall pay the costs.
Umberto Moricca and Paolo Martino Cossu) Ð first,
application for annulment of the applicants' pension                (1) OJ C 208 of 12.8.1995.
statements in respect of the period from January 1995, in
so far as they apply the weighting fixed for Italy at 94.2
by Council Regulation (EC, Euratom, ECSC) No 3161/94


title: Case C-243/05 P: Appeal brought on 6 June 2005 by Agraz, SA and Others against the judgment delivered on 17 March 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-285/03 between Agraz, SA and Others and the Commission of the European Communities

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/20

         Appeal brought on 6 June 2005 by Agraz, SA and Others against the judgment delivered on 17 March 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-285/03 between Agraz, SA and Others and the Commission of the European Communities
   (Case C-243/05 P)
   (2005/C 193/31)
   Language of the case: French
   An appeal against the judgment delivered on 17 March 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-285/03 between Agraz, SA and Others and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 6 June 2005 by Agraz, SA and Others, represented by José Luís da Cruz Vilaça and Dorothée Choussy, lawyers.
   The appellants claim that the Court should:

               1.

               set aside in part the judgment of the Court of First Instance of the European Communities of 17 March 2005 in so far as it held that the damage was not specific and dismissed the application; and, in a new decision,

               2.

               principally, find that the conditions for the establishment of the non-contractual liability of the Commission are satisfied in this case; order the defendant to pay the balance of the production aid to each of the applicant companies (as detailed in Annex A.27) together with interest at the rates to be fixed by the Court of First Instance with effect from 12 July 2000 (or, in the alternative, from 13 July 2000 or, in the further alternative, from 16 July 2000) up to the date on which payment is actually made; and order the Commission to pay all of the costs in both sets of proceedings including those incurred by the appellants;

               3.

               in the alternative, refer the case back to the Court of First Instance for an adjudication on the amounts of the compensation to be paid to the appellants, after they have been heard again, and order the Commission to pay the costs (including those incurred by the appellants) in the proceedings on appeal and in the proceedings at first instance before the Court of First Instance.

         Pleas in law and main arguments
   The appellant companies rely on the following pleas in support of their appeal:
   First plea:: Error of law, in that the Court of First Instance considered that the damage which the appellants sustained was not specific and that, accordingly, it could not constitute a basis for their right to compensation.
   This plea is in two parts:
   In the first part, the appellants maintain that the Court of First Instance failed to have regard to the case-law of the Community Courts, and also the principles established by the national judicial orders of the Member States in relation to non-contractual civil liability, by misinterpreting the notion of ‘specific damage’ and by confusing the determination of the nature of the damage with the calculation of the amount of the damage.
   In the second part, the appellants submit arguments designed to demonstrate, in relation to the recognition of their right to compensation, that the Court of First Instance did not draw the necessary consequences from its findings in relation to the unlawfulness of the Commission's conduct in breaching Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products, (1) or in relation to the principles of a duty of care and sound administration.
   Second plea:: Breach of the inter partes principle and of the appellants' right to be heard;
   Third plea:: Distortion of the forms of order sought by the appellants;
   Fourth plea:: Disregard by the Court of First Instance of its unlimited jurisdiction and of its duty to adjudicate; denial of justice, in that the Court of First Instance omitted to draw the necessary consequences from its findings in relation to the fixing of the amount of the damage.

      (1)  OJ 1996 L 297, p. 29.


title: Case T-149/01: Action brought on 3 July 2001 by Bruno Heim and Franz Gustav Andersson against Office for the Harmonization of the Internal Market (trade marks and designs) (OHIM)

text:
C 245/30               EN                    Official Journal of the European Communities                                       1.9.2001
Pleas in law and main arguments                                         Pleas in law and main arguments
By the present action the applicant, is challenging the appoint-        Applicant for the Com-        Bruno Heim and Franz Gustav
                                                                        munity trade mark:            Andersson
ing authority’s refusal to acknowledge the occupational origin
of a disease which, according to the applicant himself, was             The Community trade           Figurative mark ‘DockerS by Gerli’
caused by having to carry and lift, as part of his duties, loads        mark concerned:               — Application No 22.129 for
of a certain weight.                                                                                goods in Class 25
                                                                        Proprietor of the right to    Levi Strauss & Co.
In support of his arguments, the applicant alleges:
                                                                        the trade mark or sign
                                                                        asserted by way of oppo-
—     the allegedly incomprehensible nature of the Medical
                                                                        sition in the opposition
      Committee’s findings;
                                                                        proceedings:
—     infringement of Article 73 of the Staff Regulations and           Trade mark or sign            French and Swedish figurative
      Article 3(2) of the Rules on the Insurance of Officials of        asserted by way of oppo-      marks ‘DOCKERS’ registered for
      the European Communities against the Risk of Accident             sition in the opposition      goods in Class 25
      and of Occupational Disease, and failure to observe the           proceedings:
      duty of care and the principle of proportionality;
                                                                        Decision of the Oppo-         Rejection of the application for
—     breach of the procedure laid down in Article 21 of the            sition Division:              registration of the Community
      abovementioned rules.                                                                           trade mark
                                                                        Decision of the Board of      Dismissal of the appeal and con-
                                                                        Appeal:                       firmation of the rejection of the
                                                                                application for registration of the
                                                                                Community trade mark
Action brought on 3 July 2001 by Bruno Heim and Franz                   Grounds of claim:             — infringement of Articles 34
Gustav Andersson against Office for the Harmonization                                                     and 35          of Regulation
 of the Internal Market (trade marks and designs) (OHIM)                                                  No 40/94 (1);
                                                                                — infringement of Article 8(2)(c)
                                                                                of Regulation No 40/94 and
                        (Case T-149/01)
                                                                                Rule      8     of  Regulation
                                                                                No 2868/95 (2);
                        (2001/C 245/48)                                                               — breach of the concept of ‘risk
                                                                                of confusion’
(Language of the case: to be determined in accordance with
Article 131(2) of the Rules of Procedure. Language in which the         (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                 application was drafted: Spanish)                          Community trade mark (OJ 1993 L 11, p. 1).
                                                                        (2) Commission Regulation (EC) No 2868/95 of 13 December
                                                                            1995 implementing Council Regulation (EC) No 40/94 on the
An action against Office for Harmonization in the Internal                  Community trade mark(OJ 1995 L 303, p. 1).
Market (trade marks and designs (OHIM) was brought before
the Court of First Instance of the European Communities on
3 July 2001 by Bruno Heim and Franz Gustav Andersson,
both residing in Germany, represented by Juan José Carreño
Moreno.
                                                                        Action brought on 2 July 2001 by Cristiano Sebastiani
                                                                            against Commission of the European Communities
The applicant claims that the Court should:
—     annul the decision of the Third Board of Appeal of the                                     (Case T-150/01)
      Office for Harmonization in the Internal Market (trade
      marks and designs (OHIM)) of 4 April 2001 in the                                           (2001/C 245/49)
      proceedings in R 588/199-3 dismissing the appeal against
      the decision to refuse to register the figurative mark
                                                                                (Language of the case: French)
      ‘DockerS by Gerli’ as a Community trade mark for goods
      in Class 25; and
                                                                        An action against the Commission of the European Communi-
—     order a new decision annulling the preceding decision and         ties was brought before the Court of First Instance of the
      granting Community trade mark registration application            European Communities on 2 July 2001 by Cristiano Sebastiani,
      No 22.129 ‘DockerS by Gerli’ for goods in Class 25 of             residing in Brussels represented by Jean-Noël Louis and
      the international classification, of which the applicants         Véronique Peere, lawyers, with an address for service in
      are the proprietors.                                              Luxembourg.


title: Case C-25/08 P: Appeal brought on 24 January 2008 by Giuseppe Gargani against the order of the Court of First Instance (Third Chamber) of 21 November 2007 in Case T-94/06 Giuseppe Gargani v European Parliament

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/20

         Appeal brought on 24 January 2008 by Giuseppe Gargani against the order of the Court of First Instance (Third Chamber) of 21 November 2007 in Case T-94/06 Giuseppe Gargani v European Parliament
   (Case C-25/08 P)
   (2008/C 79/35)
   Language of the case: German
   Parties

      Appellant: Giuseppe Gargani (represented by: W. Rothley, Rechtsanwalt)

      Other party to the proceedings: European Parliament
   Form of order sought

               —

               Set aside the order of the Court of First Instance (Third Chamber) of 21 November 2007 in its entirety;

               —

               refer the case back to the Court of First Instance for a fresh decision;

               —

               order the respondent to pay the costs of the appeal.

         Pleas in law and main arguments
   The Court of First Instance failed to give the appellant a fair hearing by failing to address the appellant's submissions and, instead, changing the parties and then declaring the action to be inadmissible.
   The action, which was brought by the Chairman of the European Parliament's Committee on Legal Affairs, not (as stated in the order under appeal) by an individual as such, is expressly directed against the then President of the European Parliament, and not against the European Parliament itself or against a ‘natural person’. The Court of First Instance regards the appellant as any Italian applicant seeking a declaration that the conduct of the European Parliament is unlawful, and the President of the European Parliament at the time as any Spanish defendant being accused in respect of the unlawful conduct of the President of the European Parliament.
   The Court of First Instance failed to ascertain whether the judicial system provides a means of redress that would enable the chairman of a committee to apply for a declaration of unlawfulness in respect of the conduct of the President of the European Parliament where the latter exceeds his powers under the Rules of Procedure and thereby infringes the participation rights of a committee chairman or of the Parliament as a whole.


title: Case C-277/01 P: Appeal brought on 13 July 2001 by European Parliament against the judgment delivered on 3 May 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-99/00 between Ignacio Samper and European Parliament

text:
1.9.2001               EN                    Official Journal of the European Communities                                       C 245/15
Information Action brought on 12 July 2001 by the                       Appeal brought on 13 July 2001 by European Parliament
Commission of the European Communities against the                      against the judgment delivered on 3 May 2001 by the
                      Kingdom of Belgium                                Fourth Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-99/00 between Ignacio
                                                                                Samper and European Parliament
                         (Case C-274/01)
                                                                                (Case C-277/01 P)
                         (2001/C 245/27)
                                                                                (2001/C 245/28)
An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 12 July             An appeal against the judgment delivered on 3 May 2001 by
2001 by the Commission of the European Communities,                     the Fourth Chamber of the Court of First Instance of the
represented by M. Wolfcarius, acting as Agent.                          European Communities in case T-99/00 between Ignacio
                                                                        Samper and European Parliament was brought before the
                                                                        Court of Justice of the European Communities on 13 July
                                                                        2001 by European Parliament, represented by H. Von Herzen
The applicant claims that the Court should:                             and D. Moor, with an address for service in Luxembourg.
1.    Declare that, by failing to adopt and bring into force            The appellant claims that the Court should:
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with
      Council Directive 98/76/EC of 1 October 1998 amending             —     set aside the judgment of the Court of First Instance;
      Directive 96/26/EC on admission to the occupation of
      road haulage operator and road passenger transport
                                                                        —     give a final decision on the dispute by dismissing
      operator and mutual recognition of diplomas, certificates
                                                                              the action for annulment brought by Mr Samper as
      and other evidence of formal qualifications intended to
      facilitate for these operators the right to freedom of                  unfounded;
      establishment in national and international transport
      operations (1), the Kingdom of Belgium has failed to fulfil       —     in the alternative, refer the case back to the Court of First
      its obligations under that directive; and                               Instance for it to adjudicate anew on the action for
                                                                              annulment brought by Mr Samper;
2.    Order the Kingdom of Belgium to pay the costs.
                                                                        —     make an appropriate order as to costs.
Pleas in law and main arguments                                         Pleas and main arguments
                                                                        The Parliament claims that the Court of First Instance distorted
Article 2(1) of the directive in question provides that Member          the clear sense of the evidence and overstepped the limits of
States are to bring into force the laws, regulations and                judicial review.
administrative provisions necessary to comply with this Direc-
tive no later than 1 October 1999 and are forthwith to inform
the Commission thereof.
                                                                        Distortion of the clear sense of the evidence:
The necessary measures have not yet been adopted by Belgium.            The Court of First Instance wrongly found, in paragraph 40 of
                                                                        the judgment, that, for 1997, the ‘decisive’ criterion should be,
                                                                        according to the decision of the appointing authority, the level
                                                                        of responsibility deployed, personal investment made and the
                                                                        consistency of effort vis-à-vis his responsibilities. The decision
(1) OJ 1998 L 277, p. 17.                                               in question does not, however, make mention of any factors
                                                                        other than those appearing in the staff reports and refers to a
                                                                        comparison between the various duties only to justify its
                                                                        decision to depart from the Promotions Committee’s pro-
                                                                        posals.
 ---pagebreak--- C 245/16               EN                   Official Journal of the European Communities                                          1.9.2001
The Court of First Instance was wrong to find, at paragraph 47         The applicant claims that the Court should:
of the judgment, that the assessment of the Promotions
Committee was based on the view that the applicant experi-             —      Declare that, by failing to adopt, contrary to its obligations
enced difficulties in adjusting to his duties as Head, of the                 under Article 4 of Council Directive 76/160/EEC (1) of
Madrid Information Office. According to the minutes of the                    8 December 1975 concerning the quality of bathing
Committee’s meeting, that assessment, however, is no more                     water, measures to ensure that the quality of inshore
than an assessment by the Chair of the Committee who does                     bathing water in Spain conforms to the limit values set
not even have a vote on the Committee.                                        by Article 3 of that directive, the Kingdom of Spain has
                                                                              failed to comply with the judgment of the Court of Justice
                                                                              of the European Communities of 12 February 1998 in
Finally, the Court of First Instance was wrong to find, at                    Case C-92/96 (2), and thus failed to fulfil its obligations
paragraph 48 of the judgment, that the Promotions Committee                   under Article 228 of the EC Treaty;
based itself solely on the marks awarded in the staff reports. It
follows, in fact, from the minutes of the meeting of the               —      order the Kingdom of Spain to pay to the Commission of
Committee, that it had decided to take into account the level                 the European Communities, into the ‘European Com-
of responsibility of the duties carried out by the applicant and              munity own resources’ account, a penalty payment of
to uprate the applicant’s marks accordingly.                                  EUR 45 600 in respect of every day it delays in taking the
                                                                              measures necessary to comply with the judgment in Case
                                                                              C-92/96, from the date on which judgment is delivered
Limits of judicial review:                                                    in the present case until such time as the judgment in
                                                                              Case C-92/96 is complied with;
The Court of First Instance has replaced the assessment of the         —      order the Kingdom of Spain to pay the costs.
Promotions Committee with its own subjective assessment of
the applicant’s merits.
                                                                       Pleas in law and main arguments
The Court of First Instance wrongly found, at paragraph 52 of
the judgment, that the applicant carried out the duties of Head
of the Information Office with success and failed, in so doing,        In Case C-92/96 Commission v Spain, the Court of Justice
to make an objective comparison between the applicant and              held that by failing to take all necessary measures to ensure
his colleagues.                                                        that the quality of inshore bathing waters in Spain conforms
                                                                       to the limit values set in accordance with Article 3 of Council
                                                                       Directive 76/160/EEC of 8 December 1975 concerning the
The Court of First Instance wrongly takes the view, at                 quality of bathing water, the Kingdom of Spain had failed to
paragraph 53 of the judgment, that the appointing authority            fulfil its obligations under Article 4 thereof.
failed to take proper account of the duties actually carried out
by the applicant with success. That subjective assessment does
not however support the conclusion that the Promotions                 Article 228(1) of the EC Treaty requires the Kingdom of Spain
Committee committed a manifest error of assessment.                    to take the measures necessary to comply with the judgment.
                                                                       There is no doubt whatsoever that the Kingdom of Spain
                                                                       should long ago have adopted the measures necessary to
                                                                       ensure that the quality of bathing water conformed to the limit
                                                                       values set in Article 3 of the directive; more than two years
                                                                       elapsed between the judgment and the reasoned opinion
                                                                       without the Spanish Government having adopted any
                                                                       measures.
Action brought on 13 July 2001 by the Commission of
the European Communities against the Kingdom of Spain
                                                                       Pursuant to Article 228(2) EC, the Commission asks the Court
                        (Case C-278/01)                                to order the Kingdom of Spain to pay a penalty payment of
                                                                       EUR 45 600 in respect of every day it delays in taking the
                                                                       measures necessary to comply with the judgment in Case
                        (2001/C 245/29)                                C-92/96, as from the date of delivery of the judgment in the
                                                                       present case.
An action against Kingdom of Spain was brought before the
                                                                       (1) OJ 1976 L 31, p. 1.
Court of Justice of the European Communities on 13 July
                                                                       (2) Case C-92/96 Commission v Spain [1998] ECR I-505.
2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, acting as Agent, with
an address for service in Luxembourg.