title: Case T-241/02: Action brought on 7 August 2002 by Daniel Callebaut against Commission of the European Communities

text:
C 247/22               EN                      Official Journal of the European Communities                                      12.10.2002
Action brought on 9 August 2002 by Koninklijke Co-                        The applicant first submits that the decision under challenge is
operatie Cosun U.A. against the Commission of the                         contrary to Articles 1 and 13 of Regulation No 1430/79 in so
                     European Communities                                 far as the Commission does not treat the extra charges as being
                                                                          import or export duties. According to the decision, those
                                                                          charges do not come within the scope of Regulation No 1430/
                         (Case T-240/02)                                  79 and cannot be remitted. The applicant, however, contends
                                                                          that the charge is an import or export duty and that Regulation
                         (2002/C 247/35)                                  No 1430/79 does indeed apply. It argues that the charge has
                                                                          the same objective as a customs duty and is for the same
                                                                          amount as a customs duty. Consequently, non-exported
                    (Language of the case: Dutch)                         C sugar ought to be treated in the same way as sugar imported
                                                                          from non-member countries.
An action against the Commission of the European Communi-                 The applicant goes on to contend that the decision under
ties was brought before the Court of First Instance of the                challenge is at variance with the principles of equal treatment
European Communities on 9 August 2002 by Koninklijke                      and equity. As a result of that decision the applicant has no
Coöperatie Cosun U.A., having its registered office in Breda,             entitlement whatever to remission of the extra charge even
represented by M.M. Slotboom and N.J. Helder.                             though no negligence can be attributed to it and it is in a
                                                                          special situation. The applicant claims that it is thereby being
                                                                          treated differently to an undertaking requesting remission of
The applicant claims that the Court should:                               import or export duties. This also creates a gap in the legal
                                                                          protection afforded it. This gap, the applicant argues, is at odds
—     Annul European Commission Decision C(2002) 1580                     with the principle of legal certainty.
      final (file number REM 19/01) of 2 May 2002 addressed
      to the Kingdom of the Netherlands;
                                                                          (1 ) Council Regulation (EEC) No 1785/81 of 30 June 1981 on the
—     Order the Commission to pay the costs of the proceed-                    common organisation of the markets in the sugar sector (OJ 1981
      ings.                                                                    L 177 of 01.7.1981, pp 4-31).
                                                                          (2 ) Commission Regulation (EEC) No 2670/81 of 14 September
                                                                               1981 laying down detailed implementing rules in respect of sugar
                                                                               production in excess of the quota (OJ 1981 L 262 of 16.9.1981,
                                                                               pp 14-16).
Pleas in law and main arguments:                                          (3 ) Council Regulation (EEC) No 1430/79 of 2 July 1979 on the
                                                                               repayment or remission of import or export duties (OJ 1979
                                                                               L 175 of 12.7.1979, pp 1-7).
The applicant manufactured so-called C sugar. This sugar must             (4 ) Council Regulation (EEC) No 2913/92 of 12 October 1992
be exported from the Community not later than one year after                   establishing the Community Customs Code (OJ 1992 L 302 of
                                                                               19.10.1992, pp 1-50).
the year of production. Failing this, extra charges are imposed
in accordance with Regulations No 1785/81 (1) and No 2670/
81 (2).
In 1993 the applicant sold C sugar to third parties, which were
to export it from the Community. However, the Nederlandse
Fiscale Inlichtingen en Opsporingsdienst (Netherlands Fiscal
Intelligence and Investigation Service) established that fraud            Action brought on 7 August 2002 by Daniel Callebaut
had been committed during transportation and that the C sugar                  against Commission of the European Communities
had in fact not been exported from the Community. In the
interests of the investigation, the applicant was at first not
informed of these developments. It was, however, ascertained                                        (Case T-241/02)
that the applicant was not itself involved in the fraud. Despite
this, the fact that the applicant had been kept in the dark with
regard to the fraud meant that it was unable to export the                                          (2002/C 247/36)
sugar within the prescribed period and thus avoid incurring
the extra charges for non-exported C sugar.
                                                                                (Language of the case: French)
The applicant thereupon sought remission of the extra charges
on the basis of Regulation No 1430/79 (3), replaced by
Regulation No 2913/92 (4). It argued that no negligence or                An action against the Commission of the European Communi-
manipulative conduct could be attributed to it and that it was            ties was brought before the Court of First Instance of the
also in a special situation inasmuch as it had not been                   European Communities on 7 August 2002 by Daniel Callebaut,
immediately informed of the fraud. The Commission rejected                residing in Mondorf-les-Bains (Luxembourg), represented by
its request for remission in the decision under challenge.                Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.
 ---pagebreak--- 12.10.2002            EN                       Official Journal of the European Communities                                       C 247/23
The applicant claims that the Court should:                               Pleas in law and main arguments
—     annul the decision of the Commission not to include the
      applicant’s name in the list of officials most deserving of         By decision of 23 July 2001, the Commission department to
      promotion to Grade B 2 and the decision not to promote              which the applicant is posted requested that proceedings be
      him to that grade in the 2001 promotions procedure;                 initiated to recommence other proceedings allegedly initiated
                                                                          previously for a finding of professional incompetence of the
—     order the defendant to pay the costs.                               applicant. According to the applicant, the Director General of
                                                                          DG ADMIN interpreted that request as a request to ‘initiate
                                                                          proceedings under Article 51 of the Staff Regulations’.
Pleas in law and main arguments
                                                                          The applicant claims that the documents on which his
                                                                          department based its request show the imprecise way in which
The applicant in the present case, an official at Grade B 3               it is handling the file. The file in no way demonstrates that the
working for the defendant, challenges the appointing auth-                proceedings referred to were initiated in 1994 and 1996.
ority’s refusal to promote him to Grade B 2 in the context of
the 2001 promotions procedure.
                                                                          In support of his application, the applicant alleges:
In support of his arguments, the applicant alleges infringement
                                                                          —      lack of precision as regards the reopening of former
of Article 45 of the Staff Regulations and breach of the                         proceedings under Article 51 of the Staff Regulations or
principles of equal treatment, that officials should have
                                                                                the opening of new proceedings, without setting out the
reasonable career prospects and of the principle of sound
                                                                                applicant’s conduct complained of;
administration.
                                                                          —      infringement of the rule audi alteram partem;
                                                                          —      infringement of the principle non bis in idem;
                                                                          —      breach of the principle that legitimate expectations are to
Action brought on 12 August 2002 by J against Com-                               be protected;
            mission of the European Communities
                                                                          —      breach of the principle of proportionality;
                        (Case T-243/02)                                   —      error of assessment of the facts and misuse of powers;
                        (2002/C 247/37)                                   —      lack of statement of reasons;
                   (Language of the case: French)                         —      infringement of Article 26 of the Staff Regulations.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 August 2002 by J, represented
by Juan Ramón Iturriagagoitia Bassas, lawyer.
                                                                          Action brought on 9 August 2002 by G.D. Searle LLC
                                                                          (formerly known as G.D. Searle & Co) against the Office
The applicant claims that the Court should:                               for Harmonisation in the Internal Market (Trade Marks
                                                                                and Designs)
—     annul the decision of the appointing authority of 14 Feb-
      ruary 2002 rejecting the applicant’s complaint of                                             (Case T-244/02)
      29 December 2001;
—     annul the decision of 23 July 2001 asking DG ADMIN ‘to                                        (2002/C 247/38)
      initiate proceedings for a finding of repeated professional
      shortcomings as soon as possible’;                                                      (Language of the case: English)
—     annul the decision of 19 September 2001 concerning the
      initiation of proceedings under Article 51 of the Staff
      Regulations;                                                        An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) was brought before the
—     award damages to the applicant for the non-material                 Court of First Instance of the European Communities on
      damage suffered by him, amounting to EUR 25 000;                    9 August 2002 by G.D. Searle LLC (formerly known as
                                                                          G.D. Searle & Co), represented by Graham Farrington, Farring-
—     order the defendant to pay the costs.                               ton & Co Solicitors, Reading (UK).


title: Case F-30/08: Action brought on 28 February 2008 — Nanopoulos v Commission

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/50

         Action brought on 28 February 2008 — Nanopoulos v Commission
   (Case F-30/08)
   (2008/C 171/100)
   Language of the case: Greek
   Parties

      Applicant: Photius Nanopoulos (Luxembourg, Luxembourg) (represented by: V. Christianos, lawyer)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   An order against the Commission to pay to the applicant a sum to compensate him for the damage suffered as a result of breach of his fundamental rights to the detriment of his honour and his reputation.
   Form of order sought

               —

               Order the Commission to pay to the applicant, by way of compensation for non-material damage suffered, the sum of EUR 850 000, which includes compensation for the detriment to his health;

               —

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


title: Case C-146/00: Action brought on 17 April 2000 by the Commission of the European Communities against the French Republic

text:
10.6.2000               EN                    Official Journal of the European Communities                                       C 163/21
4. If all such workers are not necessarily excluded, what test              accordance with the provisions of this Article, that univer-
     should the National Court apply in order to determine                  sal service obligations represent an unfair burden on an
     which workers employed in the road transport sector of                 organization’ that it may establish a mechanism for sharing
     activity are excluded by Article 1.3 and which are not?                the net cost of the universal service obligations. In the
                                                                            Commission’s view, there is nothing in the relevant
                                                                            documentation to show that a national system was needed
(1) Council Directive 93/104/EC of 23 November 1993 concerning              to share the net cost or that the universal service obligations
    certain aspects of the organization of working time (OJ L 307,          represent an unfair burden for France Télécom. On the
    13.12.1993, p. 18).                                                     contrary, France Télécom enjoyed an almost total mo-
                                                                            nopoly in 1997 over fixed telephony.
                                                                         — The timetable for the successive stages leading to the
                                                                            rebalancing of tariffs was not notified to the Commission
                                                                            even though such notification was required by 11 January
Action brought on 17 April 2000 by the Commission of                        1997. That non-notification means that the Commission
 the European Communities against the French Republic                       is not in a position to determine that France has fulfilled
                                                                            its obligations under Article 4e of Directive 90/388/EEC as
                          (Case C-146/00)                                   amended by Directive 96/19/EC in conjunction with the
                                                                            first paragraph of Article 2 of Directive 96/19/EC. Even
                                                                            supposing that that tariff of 65 francs excluding tax given
                          (2000/C 163/38)                                   in the decree on the universal service as the balancing tariff
                                                                            is in fact that tariff, the new subscription tariff of 64.68
An action against the French Republic was brought before the                francs excluding tax in force since 1 March 1999 is still
Court of Justice on 17 April 2000 by the Commission of the                  slightly lower than the latter. The French authorities thus
European Communities, represented by Barry Doherty, of its                  confirm that as from 1 March 1999 the cost of the
Legal Service, and Fabienne Siredey-Barnier, a national civil               imbalance until the end of the year is still 16 million
servant seconded to the Legal Service, acting as Agents, with               francs, financed by the universal service fund, and thus
an address for service in Luxembourg at the office of Carlos                admit that the rebalancing has not been completed in
Gómez de la Cruz, also of its Legal Service, Wagner Centre,                accordance with their own criteria. Consequently, the
Kirchberg.                                                                  French authorities should either have confirmed that
                                                                            France Télécom was authorised to continue with the
                                                                            rebalancing of its tariffs or notified the timetable provided
The Commission of the European Communities claims that                      for in Article 4c of Directive 90/388/EEC.
the Court of Justice should:
1. Declare that,
                                                                         — Contrary to Article 5(3) of Directive 97/33/EC in conjunc-
     — by failing to comply with Article 4c of Directive                    tion with Annex III thereto, the French rules provide for
         90/388/EEC (1), as amended by Directive 96/19/EC (2),              the taking into account, for the purpose of calculating the
         and                                                                net cost of the universal service, of profitable subscribers,
                                                                            and this unduly increases the amount of the burden which
     — by failing to observe Article 5(1), (3), (4) and (5) of              may give rise to compensation, to the detriment of
         Directive 97/33/EC (3),                                            new market entrants. Moreover, the calculation formula
                                                                            adopted in Article R.20-32 of the French Post and
     the French Republic has failed to fulfil its obligations;              Telecommunications Code does not allocate the burdens
                                                                            associated with the financing of the universal service to
2. Order the French Republic to pay the costs.                              each undertaking in accordance with objective criteria as
                                                                            required by Article 4c of Directive 90/388/EEC. Finally, it
                                                                            does not take account of the principle of transparency as
Pleas in law and main arguments                                             required by Directive 97/33/EC.
— There was no legal basis for France to require mobile
     phone operators to contribute to the universal service in
     1997. Contrary to the impression given by the French                — Certain components of the universal service cost are fixed
     authorities, recitals 4 and 26 in the preamble to Directive            on a flat-rate basis contrary to the obligation to undertake
     96/19/EC do not create obligations not appearing in the                a specific calculation (Article 5(3) of Directive 97/33/EC).
     operative part of the directive but indicate that for so long          Thus, the net cost of unprofitable subscribers should not
     as the long-standing operator enjoys exclusive rights for              have been fixed on a flat-rate basis. The net cost of the
     the supply of the voice telephony service, no additional               universal service for 1997 should not have been fixed on
     measure is required in order to ensure that the universal              a flat-rate basis. And the contribution paid to France
     service is provided. Article 5(1) of Directive 97/33 is even           Télécom to compensate it for the cost of certain social
     clearer: it is only where ‘a Member State determines, in               tariffs has been fixed in an imprecise manner.
 ---pagebreak--- C 163/22               EN                    Official Journal of the European Communities                                     10.6.2000
— The Commission also makes the following criticisms of                 The appellants claim that the Court should:
     France:
                                                                        1. annul the order made on 9 February 2000 by the Court of
     — it calculated by an incorrect method the net cost of                 First Instance in Case T-111/97;
         ‘non-profitable zones’;
                                                                        2. refer the case back to the Court of First Instance in
                                                                            order that that court, having followed the corresponding
     — it did not take account of the intangible benefits
                                                                            procedure, may determine the substance of the action;
         accruing to France Télécom as a result of providing the
         universal service;
                                                                        3. reserve the decision on costs.
     — it infringed the rule that ‘Revenues shall be taken into
         account in calculating the net costs. Costs and revenues       Pleas in law and main arguments
         should be forward-looking’ (Annex III to Directive
         97/33/EC) by refusing to correct the figures forecast
         for 1998 because it would be ‘a delicate matter to             Infringements of the law: the appellants maintain their alle-
         integrate [the methodological progress achieved] in the        gation that the decision of 7 February 1996 (published in the
         definitive evaluation for 1998 having regard to the            Administrative Notices of 27 March 1996) constituted a new
         requirement of a degree of stability in the evaluation         fact justifying the fixing of a new time-limit for contesting the
         methods for a given year.’                                     Commission’s decisions classifying the appellants in grade at
                                                                        the time of their establishment as officials of the Commission.
— Article 5(5), second subparagraph, of Directive 97/33/EC
     has not been completely transposed into French domestic            The appellants further consider that, for the purposes of
     law and, in any event, has not been applied in a compliant         assessing whether their request was submitted within the
     manner by the French authorities as regards the publication        prescribed period, the Commission, and thereafter the Court
     of individual contributions by the operators involved in           of First Instance, should have taken into account the duty
     financing the universal service.                                   incumbent on the Community institutions to have regard for
                                                                        the welfare and interests of officials. The contested order does
                                                                        not deal with that argument put forward by the appellants.
(1) OJ L 192 of 24 July 1990, p. 10.
(2) OJ L 74 of 22.3.1996, p. 13.
(3) OJ L 199 of 26.7.1997, p. 32.
                                                                        Action brought on 19 April 2000 by the Commission
                                                                        of the European Communities against the Republic of
                                                                                Austria
                                                                                (Case C-150/00)
Appeal brought on 19 April 2000 by G. Valero Jordana                                             (2000/C 163/40)
and S. Vadé against the order made on 9 February 2000
by the First Chamber of the Court of First Instance of the
                                                                        An action against the Republic of Austria was brought before
European Communities in Case T-111/97 between
                                                                        the Court of Justice of the European Communities on 19 April
G. Valero Jordana and S. Vadé and the Commission of the
                                                                        2000 by the Commission of the European Communities,
                     European Communities
                                                                        represented by Josef Christian Schieferer, of its Legal Service,
                                                                        acting as Agent, with an address for service in Luxembourg at
                        (Case C-149/00 P)                               the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                        Wagner Centre C 254, Kirchberg.
                         (2000/C 163/39)
                                                                        The applicant claims that the Court should:
An appeal against the order made on 9 February 2000 by the              1. declare that, by classifying vitamin and mineral nutrient
First Chamber of the Court of First Instance of the European                preparations as medicinal products where they contain
Communities in Case T-111/97 between G. Valero Jordana                      vitamins A, D and K or mineral nutrients of the chromate
and S. Vadé and the Commission of the European Communi-                     group and where they exceed the daily dose or generally,
ties was brought before the Court of Justice of the European                without explaining that, by reason of the addition of extra
Communities on 19 April 2000 by G. Valero Jordana and                       vitamins or because of their vitamin or mineral content,
S. Vadé, represented by C. Amo Quiñones, lawyer, with an                   they constitute a serious risk to health, the Republic of
address for service at 23 Avenue Jacques Pasteur, B-1180                    Austria has infringed its obligations under Article 28 EC
Brussels.                                                                   (formerly Article 30 of the EC Treaty);


title: Case T-476/07: Judgment of the General Court of 12 July 2012 — Evropaïki Dynamiki v Frontex (Public service contracts — Frontex tendering procedures — Provision of informatics services — Rejection of a tender — Action for annulment — Admissibility — Obligation to state reasons — Award criteria — Manifest error of assessment — Non-contractual liability)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/15

         Judgment of the General Court of 12 July 2012 — Evropaïki Dynamiki v Frontex
   (Case T-476/07) (1)

   (Public service contracts - Frontex tendering procedures - Provision of informatics services - Rejection of a tender - Action for annulment - Admissibility - Obligation to state reasons - Award criteria - Manifest error of assessment - Non-contractual liability)
   2012/C 258/23
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

      Defendant: European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) (represented by: S. Vuorensola, acting as Agent, and J. Stuyck and A. M. Vandromme, lawyers)

      Re:

   First, annulment of Frontex’s decision rejecting the tender submitted by the applicant in response to the call for tenders Frontex/OP/47/2007 for the provision of ‘informatics services, hardware, and software licences’ (OJ 2007/S 114-139890) and of the decision to award the contract to a different tenderer and, secondly, a claim for damages

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), including those reserved by the order of the General Court of 28 October 2008.

      (1)  OJ C 51, 23.2.2008.


title: Case T-326/03: Action brought on 22 September 2003 by Hippocrate Vounakis against the Commission of the European Communities

text:
29.11.2003            EN                         Official Journal of the European Union                                         C 289/29
The applicant claims that the Court should:                              Pleas in law:                —     there is no likelihood of con-
                                                                                fusion between the marks
                                                                                within the meaning of
—     annul the decision of the Fourth Board of Appeal of the                                               Article 8(1)(b) of Regulation
      Office for Harmonisation in the Internal Market (Trade                                                No 40/94;
      Marks and Designs) of 18 June 2003 in Case R 281/
      2002-4;                                                                                —     the marks are not similar.
—     in the alternative, in the event that the other party to
      the proceedings withdraws the opposition during the
      proceedings, declare the opposition procedure to be at an
      end;
—     further in the alternative, refer the case back to the
      defendant with the proviso that the opposition procedure
      be declared at an end in the light of the withdrawal of the        Action brought on 22 September 2003 by Hippocrate
      opposition;                                                        Vounakis against the Commission of the European Com-
                                                                                munities
—     order the defendant to pay the costs.
                                                                                (Case T-326/03)
                                                                                (2003/C 289/61)
Pleas in law and main arguments
                                                                                (Language of the case: French)
Applicant for Com-            the applicant
munity trade mark:
                                                                         An action against the Commission of the European Communi-
Community trade mark          Word mark ‘E-SIM’ for goods and            ties was brought before the Court of First Instance of the
sought:                       services in Classes 9 and 42               European Communities on 22 September 2003 by Hippocrate
                              (including computer software for           Vounakis, residing in Wezembeek-Oppem (Belgium), rep-
                              use in the design, development,            resented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal,
                              prototyping, promotion and sup-            avocats, with an address for service in Luxembourg.
                              port of a wide variety of products,
                              systems, and devices and services
                              relating to the provision of web-
                                                                         The applicant claims that the Court should:
                              based electronic commerce) —
                              application no 1 387 661
                                                                         —     annul the Commission’s decision not to include his
                                                                               name on the list of promoted officials published in
Proprietor of mark or         Druckhaus Remstal-Bote GmbH                      Administrative Notices (AN) No 2002-69 of 14 August
sign cited in the oppo-                                                        2002;
sition proceedings:
                                                                         —     order the Commission to pay the costs.
Mark or sign cited in         German word mark ‘ASIM’ for
opposition:                   goods and services in Classes 9,
                              35, 41 and 42 (including data
                              processing programmes and
                              economic and technical advice
                                                                         Pleas in law and main arguments
                              and training)
Decision of the Oppo-         Refusal of the application                 The applicant alleges infringement of Article 45 of the Staff
sition division:                                                         Regulations, and manifest error of assessment.
Decision of the Board of      Dismissal of the applicant’s appeal
Appeal:


title: JUDGMENT OF THE COURT (Second Chamber) of 30 November 1995 in Case C-113/94 (reference for a preliminary ruling from the French Cour de Cassation): Elisabeth Jacquier v. Directeur Général des Impôts (Article 95 of the Treaty - Differential tax on motor vehicles)

text:
3 . 2 . 96             EN 1                 Official Journal of the European Communities                                          No C 31 /5
3 . A national of a Member State who pursues a                         of Cassation ) for a preliminary ruling in the proceedings
     professional activity on a stable and continuous basis in         pending before that court between Elisabeth Jacquier, nee
     another Member State where he holds himself out from              Casarin and Directeur General des Impots — on the
     an established professional base to, amongst others,              interpretation of Article 95 of the EC Treaty — the Court
     nationals of that State comes under the provisions of the         ( Second Chamber ), composed of G. Hirsch, President of
     chapter relating to the right of establishment and not            the Chamber, G. F. Mancini and F. A. Schockweiler
     those of the chapter relating to services.                        ( Rapporteur ), Judges; F. G. Jacobs, Advocate General;
                                                                       L. Hewlett, Administrator, for the Registrar, has given a
4 . The possibility for a national of a Member State to                judgment on 30 November 1995 , in which it rules :
     exercise his right of establishment, and the conditions
     for the exercise of that right, must be determined in the         Article 95 of the EC Treaty does not preclude the
     light of the activities which he intends to pursue on the         application of national rules on motor vehicle taxation
     territory of the host Member State.                               which provide for an increase in the progression coefficient
                                                                       of the kind at issue in the main proceedings, in so far as that
5 . Where the taking-up of a specific activity is not subject          increase does not have the effect of favouring the sale of
     to any rules in the host State, a national of any other           vehicles of domestic manufacture over the sale of vehicles
     Member State will be entitled to establish himself on the         imported from other Member States.
     territory of the first State and pursue that activity there.
     On the other hand, where the taking-up or the pursuit of
                                                                       (') OJ No C 146 , 28 . 5 . 1994 .
     a specific activity is subject to certain conditions in the
     host Member State, a national ofanother Member State
     intending to pursue that activity must in principle
     comply with them .
6 . National measures liable to hinder or make less
     attractive the exercise of fundamental freedoms                                   JUDGMENT OF THE COURT
     guaranteed by the Treaty must fulfil four conditions:
     they must be applied in a non-discriminatory manner;                                          ( Sixth Chamber)
     they must be justified by imperative requirements in the                                   of 30 November 1995
     general interest; they must be suitable for securing the
     attainment of the objective which they pursue; and they           in Case C-134/94 ( reference for a preliminary ruling from
     must not go beyond what it necessary in order to                  the Tribunal Superior de Justicia de Canarias ): Esso
     attain it.                                                            Española SA v. Comunidad Autónoma de Canarias ( x )
                                                                       (Petroleum products — Obligation to supply a particular
7. Member States must take account of the equivalence of                                                   area)
     diplomas and, if necessary, proceed to a comparison of                                           ( 96/C 31 / 10 )
     the knowledge and qualifications required by their
     national rules and those of the person concerned.
                                                                                (Language of the case: Spanish)
(') OJ No C 90 , 26 . 3 . 1994 .
                                                                       (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                                                                       In Case C-134/94 : reference to the Court under Article 177
                JUDGMENT OF THE COURT                                  of the EEC Treaty from the Tribunal Superior de Justicia de
                                                                        Canarias (High Court of Justice of the Canary Islands,
                        ( Second Chamber )
                                                                       Spain ) for a preliminary ruling in the proceedings pending
                     of 30 November 1995                                before that court between Esso Espanola SA and the
in Case C-l 13/94 ( reference for a preliminary ruling from             Comunidad Autonoma de Canarias on the interpretation of
the French Cour de Cassation ): Elisabeth Jacquier v.                   Articles 3 ( c ), 5 , 6 , 30, 36 , 52, 53 , 56 , 85 and 102 ( 1 ) of the
                Directeur Général des Impôts C )                        EC Treaty, the Court ( Sixth Chamber ), composed of
                                                                        G. Hirsch, acting as President of the Chamber,
 (Article 95 of the Treaty — Differential tax on motor                  G. F. Mancini, F. A. Schockweiler, P. J. G. Kapteyn
                               vehicles)                                ( Rapporteur ) and H. Ragnemalm, Judges ; G. Cosmas,
                            ( 96/C 31 /09 )                             Advocate General; R. Grass, Registrar, has given a judgment
                                                                        on 30 November 1995 , in which it rules as follows :
                 (Language of the case: French)
                                                                         1 . Articles 3 (c), 52 and 53 of the EC Treaty are not
 (Provisional translation; the definitive translation will be                applicable to circumstances wholly internal to a
           published in the European Court Reports)                          Member State, such as where a company which has its
                                                                             head office in a Member State and pursues its activities
 In Case C-l 13/94 : reference to the Court under Article 177                there is required to comply with rules whereby the
 of the EC Treaty from the French Cour de Cassation ( Court                  regional authorities of a Member State responsible for


title: Judgment of the Court of First Instance of 14 October 2004 in Case T-44/02: Dresdner Bank AG v Commission of the European Communities (Competition — Article 81 EC — Price-fixing agreement and ways of charging for currency exchange services — Germany — Procedure in default)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/13

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 14 October 2004
   in Case T-44/02: Dresdner Bank AG v Commission of the European Communities (1)

   (Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange services - Germany - Procedure in default)
   (2004/C 314/33)
   Language of the case: German
   In Case T-44/02: Dresdner Bank AG, established in Frankfurt am Main (Germany), represented by M. Hirsch and W. Bosch, lawyers, with an address for service in Luxembourg, against Commission of the European Communities — application for annulment of Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty — (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) (OJ 2003 L 15, p. 1) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has given a judgment on 14 October 2004, in which it:

               1.

               Annuls Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E — 1/37.919 (ex 37.391) — Bank charges for exchanging euro-zone currencies — Germany) in so far as it concerns the applicant;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 109 of 4.5.2002.


title: Case T-309/13: Action brought on 7 June 2013 — Enosi Mastichoparagogon/OHIM — Gaba International (ELMA)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/23

         Action brought on 7 June 2013 — Enosi Mastichoparagogon/OHIM — Gaba International (ELMA)
   (Case T-309/13)
   (2013/C 226/31)
   Language in which the application was lodged: English

      Parties

      Applicant: Enosi Mastichoparagogon Chiou (Chios, Greece) (represented by: A. Malamis, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Gaba International Holding AG (Hamburg, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of 26 March 2013, in Case R 1539/2012-4;

               —

               Order the Office and other party (opponent before the Opposition Division and appellee before the OHIM’s Board of Appeal) to bear their own costs and pay those of the CTM applicant (applicant for annulment).

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘ELMA’ for goods in class 5 — International registration designating the European Community 900 845

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Community trade mark registration of the word mark ‘ELMEX’ for goods in classes 3, 5 and 21

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.


title: Case C-357/12 P: Appeal brought on 27 July 2012 by Harald Wohlfahrt against the judgment of the General Court (Fifth Chamber) delivered on 16 May 2012 in Case T-580/10 Harald Wohlfahrt v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/28

         Appeal brought on 27 July 2012 by Harald Wohlfahrt against the judgment of the General Court (Fifth Chamber) delivered on 16 May 2012 in Case T-580/10 Harald Wohlfahrt v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-357/12 P)
   2012/C 287/55
   Language of the case: German

      Parties

      Appellant: Harald Wohlfahrt (represented by: M. Loschelder and V. Schoene, Rechtsanwälte)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (OHIM) (Trade Marks and Designs), Ferrero SpA

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Fifth Chamber) of 16 May 2012 in Case T-580/10 and deliver judgment in line with the form of order sought by the appellant before the General Court, which is reproduced on page 4 of the judgment;

               —

               order OHIM to pay the necessary costs incurred by the appellant.

      Pleas in law and main arguments

   OHIM and the General Court refused the registration by the appellant (applicant before the General Court) of the mark ‘Kindertraum’ for goods in Classes 16 and 28, since the intervener in support of the defendant, proprietor of the earlier Italian word mark ‘kinder’, inter alia, for goods in those classes, filed an opposition against such registration.
   The appellant raises three grounds of appeal.

      First ground of appeal: infringement of Article 42(2) of Regulation No 207/2009
       (1)

   The General Court took the view that it was not decisive whether the opposing trade mark which had already been registered for eight years was in use or not at the time of the opposition decision. Under Article 42(3) in conjunction with Article 42(2) of Regulation No 207/2009, use of the opposing trade mark must be proven only if it was registered during the period of five years preceding the date of publication of the Community trade mark application. The appellant sees in that approach a contradiction with the purpose of compulsory usage, which aims to ensure that, after the five-year grace period has expired, no rights can be based on an unused earlier mark. Contrary to the view of the General Court, the loophole in Article 42 of Regulation No 207/2009 must be closed by a teleological interpretation, taking account of German or Italian national trade mark law. Moreover, in relation to Article 42 of Regulation No 207/2009, the situation in relation to use at the time of closure of the opposition proceedings is decisive.

      Second ground of appeal: infringement of Article 75(1) of Regulation No 207/2009, misuse of trade mark law by the opposing trade mark

   The Board of Appeal did not address the appellant’s complaint that the registration of the Italian trade mark relied on in opposition constitutes a misuse of law. The appellant accuses the General Court of wrongly having failed to allow that complaint. That complaint is part of Community law and thus also part of Community trade mark law. The appellant submits that, in the present case, the conduct of the opponent as regards registration is aimed at using unused marks, and in defence of no economic interests worthy of protection, to bring about a comprehensive blockage of use of the word ‘kinder’.

      Third ground of appeal: misapplication of Article 8(1)(b) of Regulation No 207/2009

   The General Court was wrong to conclude that there was a likelihood of confusion between the intervener’s opposing trade mark and the mark applied for. First of all, the General Court wrongly assessed the appellant’s submission and wrongly assumed that the appellant had not disputed the Board of Appeal’s finding that the conflicting marks were similar. In reality, he did dispute that finding. The marks are not similar, since the component ‘kinder’ in the opposing trade mark is less distinctive, at the most.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T-81/10: Judgment of the General Court of 19 May 2011 — Tempus Vade v OHIM — Palacios Serrano (AIR FORCE) (Community trade mark — Opposition proceedings — Application for Community word mark AIR FORCE — Earlier Community and national word and figurative marks TIME FORCE — Relative grounds for refusal — No likelihood of confusion — No similarity of signs — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)

text:
               2.7.2011

               EN

               Official Journal of the European Union

               C 194/14

         Judgment of the General Court of 19 May 2011 — Tempus Vade v OHIM — Palacios Serrano (AIR FORCE)
   (Case T-81/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark AIR FORCE - Earlier Community and national word and figurative marks TIME FORCE - Relative grounds for refusal - No likelihood of confusion - No similarity of signs - Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)
   2011/C 194/21
   Language of the case: Spanish

      Parties

      Applicant: Tempus Vade, SL (San Sebastián de los Reyes, Spain) (represented by: A. Gómez López, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Juan Palacios Serrano (Alcobendas, Spain) (represented by: E. Ochoa Santamaría, J. del Valle Sánchez and V. Ruiz de Velasco Martinez de Ercilla, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 7 January 2010 (Case R 1114/208-4) relating to opposition proceedings between Tempus Vade, SL and Mr. Juan Palacios Serrano.

      Operative part of the judgment

               1.

               The action is dismissed.

               2.

               Tempus Vade, SL is ordered to pay the costs.

      (1)  OJ C 100, 17.4.2010.


title: Case T-290/16: Action brought on 7 June 2016 — Fruits de Ponent v Commission

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/64

         Action brought on 7 June 2016 — Fruits de Ponent v Commission
   (Case T-290/16)
   (2016/C 270/70)
   Language of the case: Spanish

      Parties

      Applicant: Fruits de Ponent, SCCL (Alcarràs, Spain) (represented by: M. Roca Junyent, J. Mier Albert, R. Vallina Hoset, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Order the European Commission to pay compensation for the damage suffered by Escarp. S.C.P., Agropecuaria Sebcar, S.L. and Rusfal 2000, S.L., as a result of their actions and omissions in connection with the disturbances suffered in the peach and nectarine markets during the 2014 marketing year and, in particular, as a result of adopting Commission Delegated Regulation (EU) No 913/2014 and Delegated Regulation (EU) No 932/2014.

               —

               Order the European Commission to pay:

                           —

                           To Escarp, S.C.P., an amount of EUR 121 085,11, and the corresponding compensatory and default interest.

                           —

                           To Agropecuaria Sebcar, S.L., an amount of EUR 162 540,46, and the corresponding compensatory and default interest.

                           —

                           To Rusfal 2000, S.L., an amount of EUR 28 808,99, and the corresponding compensatory and default interest.

               —

               Order the European Commission to pay the costs.

      Pleas in law and main arguments

   The present application seeks compensation for damage allegedly suffered as a result of the actions and omissions of the European Commission in connection with the disturbances suffered in the peach and nectarine markets during the 2014 marketing year and, in particular, but not exclusively, a result of adopting Delegated Regulation No 913/2014 (1) and Delegated Regulation (EU) No 932/2014 (2).
   In support of its application, the applicant relies on a single plea, alleging that the conditions imposed by EU case-law, in order to recognise the right to compensation based on the non-contractual liability of the European Union, are fulfilled.
   In that regard it is alleged, first, that by their actions and omissions the Commission has committed a sufficiently serious infringement of rules intended to confer rights on individuals, such as the principle of duty of diligence, the principles of assistance and protection, the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union and, finally, the principle of the prohibition against arbitrary action.
   This is the case in so far as, by adopting measures to prevent disruptions in the peach and nectarine market in the summer of 2014, the Commission:

               —

               Adopted a crisis mechanism that it had itself previously considered inappropriate and ineffective, as it was not used by the producer organisations because they are too small and lack the resources to avail of it.

               —

               It did not collect market information.

               —

               It acted without obtaining adequate data concerning the withdrawal measures.

               —

               It intervened belatedly.

         Furthermore, the applicant continues, the measures of co-financed withdrawal of products and of free advertising and distribution were objectively inadequate.
   It is also alleged that the Commission infringed the obligation to state reasons.
   Secondly, it is claimed that the three companies concerned suffered actual and certain damage, which is also quantifiable.
   Finally, there is a causal link between that damage and the unlawful conduct of the Commission.

      (1)  Commission Delegated Regulation (EU) No 913/2014 of 21 August 2014 laying down temporary exceptional support measures for producers of peaches and nectarines (OJ 2014 L 248, p. 1)

      (2)  Commission Delegated Regulation (EU) No 932/2014 of 29 August 2014 laying down temporary exceptional support measures for producers of certain fruit and vegetables and amending Delegated Regulation (EU) No 913/2014 (OJ 2014 L 259, p. 2).


title: Case T-140/02: Judgment of the Court of First Instance of 13 September 2005 — Sportwetten GmbH Gera v OHIM (Community trade mark — Application for a declaration of invalidity — Figurative Community trade mark including the word element INTERTOPS — Mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) and (2) and Article 51 of Regulation (EC) No 40/94)

text:
               15.10.2005

               EN

               Official Journal of the European Union

               C 257/8

         Judgment of the Court of First Instance of 13 September 2005 — Sportwetten GmbH Gera v OHIM
   (Case T-140/02) (1)

   (Community trade mark - Application for a declaration of invalidity - Figurative Community trade mark including the word element INTERTOPS - Mark contrary to public policy or to accepted principles of morality - Article 7(1)(f) and (2) and Article 51 of Regulation (EC) No 40/94)
   (2005/C 257/14)
   Language of the case: German
   Parties:

      Applicant(s): Sportwetten GmbH Gera (Gera, Germany) [represented by: A. Zumschlinge, lawyer]

      Defendant(s): Office for Harmonisation in the Internal Market (Trademarks and Design) [represented by: D. Schennen and G. Schneider, acting as Agents]

      Intervener(s): Intertops Sportwetten GmbH (Salzburg, Austria) [represented initially by H. Pfeifer, and subsequently by R. Heimler, lawyers]
   Application for:
   ACTION brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 February 2002 (Case R 338/2000-4), relating to an application for a declaration of invalidity of the figurative Community trade mark INTERTOPS
   Operative part of the judgment:

               1.

               There is no need to adjudicate on the applicant's application for a declaration that the figurative Community trade mark including the word element INTERTOPS is invalid, or on the intervener's application for a document to be added to the file.

               2.

               The remainder of the action is dismissed.

               3.

               The applicant is ordered to pay all the costs.

      (1)  OJ C 169, 13.7.2002


title: Case T-396/14: Action brought on 28 May 2014  — Best-Lock (Europe) v OHIM — Lego Juris (Shape of a toy figure)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/66

         Action brought on 28 May 2014 — Best-Lock (Europe) v OHIM — Lego Juris (Shape of a toy figure)
   (Case T-396/14)
   2014/C 315/110
   Language in which the application was lodged: German

      Parties

      Applicant: Best-Lock (Europe) Ltd (Colne, United Kingdom) (represented by: J. Becker, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Lego Juris A/S (Billund, Denmark)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 March 2014 in Case R 1696/2013-4 and declare Community trade mark No 50  450 invalid in respect of Class 28;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: the three-dimensional mark in the shape of a toy figure for goods in Classes 9, 25 and 28 — Community trade mark No 50  450

      Proprietor of the Community trade mark: Lego Juris A/S

      Applicant for the declaration of invalidity of the Community trade mark: the applicant

      Grounds for the application for a declaration of invalidity: absolute grounds for invalidity

      Decision of the Cancellation Division: the application for a declaration of invalidity was rejected

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 52 in conjunction with Article 7(1)(e)(i) and (ii) of Regulation No 207/2009


21.4.2001             EN                   Official Journal of the European Communities                                 C 118/27
       Removal from the register of Case C-56/00 (1)                         Removal from the register of Case C-270/00 (1)
                        (2001/C 118/64)                                                      (2001/C 118/67)
By order of 27 October 2000 the President of the Court of             By order of 9 November 2000 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-56/00: Commission of the                  from the register of Case C-270/00: Commission of the
European Communities v Italian Republic.                              European Communities v Austria.
(1) OJ C 211 of 22.7.2000.                                            (1) OJ C 247 of 26.8.2000.
       Removal from the register of Case C-155/00 (1)
                                                                             Removal from the register of Case C-484/99 (1)
                        (2001/C 118/65)
                                                                                (2001/C 118/68)
By order of 27 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 10 November 2000 the President of the Court of
from the register of Case C-155/00: Commission of the                 Justice of the European Communities has ordered the removal
European Communities v Italy.                                         from the register of Case C-484/99: Commission of the
                                                                      European Communities v Hellenic Republic.
(1) OJ C 176 of 24.6.2000.
                                                                      (1) OJ C 47 of 19.2.2000.
       Removal from the register of Case C-186/00 (1)
                                                                            Removal from the register of Case C-320/96 P (1)
                        (2001/C 118/66)
                                                                                (2001/C 118/69)
By order of 9 November 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 14 November 2000 the President of the Court of
from the register of Case C-186/00: [reference for a preliminary      Justice of the European Communities has ordered the removal
ruling from the Court of Appeal (England & Wales) (Civil              from the register of Case C-320/96 P: European Broadcasting
Division)]: Boston Scientific Ltd and Others v Cordis Corpor-         Union v Métropole Té1évision SA and Others.
ation and Cordis (UK) Ltd.
(1) OJ C 233 of 12.8.2000.                                            (1) OJ C 354 of 23.11.1996.


title: Case T-118/10: Action brought on 5 Mars 2010 — Acron v Council

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/76

         Action brought on 5 Mars 2010 — Acron v Council
   (Case T-118/10)
   2010/C 113/110
   Language of the case: English

      Parties

      Applicant: Acron OAO (represented by: B. Evtimov, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul Council Implementing Regulation (EU) No 125112009 of 18 December 2009 amending Regulation (EC) No 1911/2006 (1), in so far as it affects the applicant;

               —

               order the Council to pay the costs of and occasioned by these proceedings.

      Pleas in law and main arguments

   In support of its application, the applicant puts forward a single ground for annulment, divided in three pleas.
   The applicant submits that the Union’s institutions breached Articles 1 and 2 of the Basic Regulation, Article 11(9) of the Basic Regulation (2) when read together with Article 2 of the Basic Regulation and committed series of manifest errors of assessments, as a result of which they established an artificially increased constructed normal value for the applicant, and hence made an unwarranted finding of dumping.
   In the first plea, the applicant challenges the rationale for the gas adjustment. More specifically, the applicant submits that the institutions erred in law and violated Article 2 (3) and (5) of the Basic Regulation, by disregarding a major part of the cost of production in the country of origin and/or by de facto applying a non-market economy methodology for establishing the major part of the applicant’s normal value.
   In the second plea, the applicant challenges the method used for the gas adjustment. The applicant submits that once having decided to proceed with the gas adjustment, the Commission violated Article 2(5), second sentence, of the Basic Regulation and/or made a manifest error of appreciation and showed a lack of reasoning, by making the gas adjustment on the basis of the price of Russian gas at Waidhaus, Germany, by failing to consider a penalised market sharing cartel in respect of Russian gas coming via Waidhaus, and by failing to deduct 30 % Russian export duty on Russian gas and by adjusting to reflect local distribution cost.
   In the third plea, the applicant challenges the determination of profit margin used in constructed normal value. The applicant submits that the profit margin determined by institutions and added to the cost of manufacturing to form constructed normal value of the applicant in the findings of the contested regulation, is in breach of Article 2(3) and 2(6)(c) of the Basic Regulation and manifestly unreasonable, and is vitiated by a manifest error of assessment. Also the profit margin thus determined departs significantly, in breach of Article 11(9) of the Basic Regulation, from the profit and methodology for constructed normal value used in the original investigation which led to the duty under review.

      (1)  Council Implementing Regulation (EU) No 1251/2009 of 18 December 2009 amending Regulation (EC) No 1911/2006 imposing a definitive anti-dumping duty on imports of solutions of urea and ammonium nitrate originating, inter alia, in Russia, OJ 2009 L 338, p. 5

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1)


title: Case C-295/05: Judgment of the Court (Second Chamber) of 19 April 2007 (Reference for a preliminary ruling from the Tribunal Supremo, Spain) — Asociación Nacional de Empresas Forestales (ASEMFO) v Transformación Agraria SA, Administración del Estado (Reference for a preliminary ruling — Admissibility — Article 86(1) EC — No independent effect — Factors permitting material which enables the Court to give a useful answer to the questions referred — Directives 92/50/EEC, 93/36/EEC and 93/37/EEC — National legislation enabling a public undertaking to perform operations on the direct instructions of the public authorities without being subject to the general rules for the award of public procurement contracts — Internal management structure — Conditions — The public authority must exercise over a distinct entity a control similar to that which it exercises over its own departments — The distinct entity must carry out the essential part of its activities with the public authority or authorities which control it)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/10

         Judgment of the Court (Second Chamber) of 19 April 2007 (Reference for a preliminary ruling from the Tribunal Supremo, Spain) — Asociación Nacional de Empresas Forestales (ASEMFO) v Transformación Agraria SA, Administración del Estado
   (Case C-295/05) (1)

   (Reference for a preliminary ruling - Admissibility - Article 86(1) EC - No independent effect - Factors permitting material which enables the Court to give a useful answer to the questions referred - Directives 92/50/EEC, 93/36/EEC and 93/37/EEC - National legislation enabling a public undertaking to perform operations on the direct instructions of the public authorities without being subject to the general rules for the award of public procurement contracts - Internal management structure - Conditions - The public authority must exercise over a distinct entity a control similar to that which it exercises over its own departments - The distinct entity must carry out the essential part of its activities with the public authority or authorities which control it)
   (2007/C 96/15)
   Language of the case: Spanish
   Referring court
   Tribunal Supremo
   Parties to the main proceedings

      Applicant: Asociación Nacional de Empresas Forestales (ASEMFO)

      Defendants: Transformación Agraria SA, Administración del Estado
   Re:
   Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Article 86(1) EC and Directives 93/36/EEC, 93/37/EEC, 97/52/EC, 2001/78/EC and 2004/18/EC coordinating procedures for the award of public supply, works, and service contracts — Compatibility of a national law granting to a public undertaking a legal regime which allows it to execute public works outside the procedures provided for the award of public contracts
   Operative part of the judgment
   Council Directives 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts and 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts do not preclude a body of rules such as that governing Tragsa, which enables it, as a public undertaking acting as an instrument and technical service of several public authorities, to execute operations without being subject to the regime laid down by those directives, since, first, the public authorities concerned exercise over that undertaking a control similar to that which they exercise over their own departments, and, second, such an undertaking carries out the essential part of its activities with those same authorities.

      (1)  OJ C 257, 15.10.2005.


title: Case T-369/11: Action brought on 5 July 2011 — Diadikasia Symbouloi Epicheiriseon/Commission and others

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/29

         Action brought on 5 July 2011 — Diadikasia Symbouloi Epicheiriseon/Commission and others
   (Case T-369/11)
   2011/C 282/59
   Language of the case: English

      Parties

      Applicant: Diadikasia Symbouloi Epicheiriseon AE (Chalandri, Greece) (represented by: A. Krystallidis, lawyer)

      Defendants: European Commission; EU Delegation to Turkey (Ankara, Turkey); and Central Finance & Contracts Unit (CFCU) (Ankara)

      Form of order sought

               —

               Make good damages caused to the applicant by the allegedly unlawful decision of one of the defendants (EU Delegation to Turkey) of 5 April 2011 (and any subsequent one) cancelling the award of tender: Enlargement of the European Turkish Business Centres Network to Sivas, Antakya, Batman and Van — Europe Aid/128621/D/SER/TR to the Consortium (1) due to allegedly made a ‘false declaration’;

               —

               Order the defendants to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging

                           —

                           that the defendants frustrated its legitimate expectations, acting in violation of Article 10 of the European Code of Good Administrative Behaviour, by unexpectedly cancelling the decision to award the project in question to the Consortium on the ground of the allegedly made a ‘false declaration’;

               2.

               Second plea in law, alleging

                           —

                           that the defendants infringed the general principle of legal certainty and the provisions of article 4 of the European Code of Good Administrative Behaviour, by accusing the applicant of having made a false declaration, without previously identifying any of the documents submitted as falsified;

               3.

               Third plea in law, alleging

                           —

                           that the defendants violated its right to be heard by not informing the applicant about their intention to cancel the award, contrary to article 16 of the Code of Good Administrative Behaviour;

               4.

               Fourth plea in law, alleging

                           —

                           that the defendants failed to provide reasoned statement as regards which documents had allegedly been falsified by the applicant, contrary to article 18 of the Code of Good Administrative Behaviour;

               5.

               Fifth plea in law, alleging

                           —

                           that the defendants failed to inform the applicant of the available actions in law to challenge the decision taken against it, contrary to articles 11 and 19 of the Code of Good Administrative Behaviour;

               6.

               Sixth plea in law, alleging

                           —

                           that the defendants acted in abuse of their discretion to decide upon the facts presented before them and hence exceeded the limits of their powers in that the reasons put forward by the contracting authority could have had only be applied to disqualify an offer during the tendering procedure, as not complying with the evaluation criteria, and not once the award had actually been made.

      (1)  ‘DIADIKASIA BUSINESS CONSULTANTS S.A. (GR) — WYG INTERNATIONAL LTD (UK) — DELEEUW INTERNATIONAL LTD (TR) — CYBERPARK (TR)’


title: Case T-125/08: Action brought on 14 March 2008 — Atlantean v Commission

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/28

         Action brought on 14 March 2008 — Atlantean v Commission
   (Case T-125/08)
   (2008/C 116/51)
   Language of the case: English
   Parties

      Applicant: Atlantean Ltd (Killybegs, Ireland) (represented by: M. Fraser, Solicitor, G. Hogan, E. Regan and C. Toland, Barristers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               order the defendant to make good to the applicant damages caused to it by Commission Decision 2003/245/EC of 4 April 2003 insofar as it unlawfully rejected the request by Ireland to increase the capacity of the vessel MFV Atlantean, the said damages amounting to EUR 7 419 522, subject to updating in the course of proceedings, together with interest from the 4 April 2003 until the final settlement and default interest in the event of delay, after delivery of the judgment, in payment of the sums awarded;

               —

               order the defendant to pay the applicant's costs.

         Pleas in law and main arguments
   In the present case, the applicant is bringing an action for non-contractual liability arising from the losses it claims to have suffered as a result of Commission Decision 2003/245/EC of 4 April 2003 which provided for the rejection of the request by Ireland in respect of the applicant's vessel Atlantean to increase capacity under the fourth multi-annual guidance programme (MAGP IV) applicable for the reasons of improvements in safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall (1). This decision was annulled by the Court's judgment of 13 June 2006 in so far as it applied to the applicant's vessel Atlantean (2).
   The applicant states in support of its contentions that in adopting the annulled decision the Commission breached a number of superior rules of law: it not only lacked the competence to make the decision, as found by the Court in its judgment, but it also infringed the principle of legal certainty, the principle of protection of legitimate expectations, the principle of non-retroactivity, the principle of non-discrimination, the principle of proportionality, its obligation to state reasons laid down in Article 253 EC, the right of the applicant to be heard and it misused its powers. The applicant also states that the Commission was manifestly and gravely in disregard of the limits of its discretion. It claims that in such circumstances, the mere infringement of Community law establishes a sufficiently serious breach of law.
   Furthermore, the applicant claims that it has suffered and continues to suffer substantial loss and damage as a direct consequence of the Commission adopting the annulled decision as it was required to purchase additional polyvalent replacement capacity. Therefore, the applicant claims that its damage is actual and certain.

      (1)  OJ 2003 L 90, p. 48.

      (2)  Case T-192/03, Atlantean Ltd v Commission [2006] ECR II-42.


title: Case T-52/12: Action brought on 8 February 2012 — Hellenic Republic v Commission

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/25

         Action brought on 8 February 2012 — Hellenic Republic v Commission
   (Case T-52/12)
   2012/C 118/44
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: I. Khalkias and S. Papaioannou)

      Defendant: European Commission

      Form of order sought

               —

               annul or amend the Commission decision of 7 December 2011 concerning compensation payments made by the Greek Agricultural Insurance Organisation (ELGA) in 2008 and 2009;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   By its action, the Hellenic Republic seeks the annulment of the Commission decision of 7 December 2011‘concerning State aid C 3/2010 and compensation payments made by the Organismos Ellinikon Georgikon Asfaliseon (Greek Agricultural Insurance Organisation) (ELGA) in 2008 and 2009’, notified under number C(2011) 7260 final.
   By the first plea for annulment, the applicant submits that the Commission misinterpreted and misapplied the provisions of Articles 107(1) and 108 TFEU in conjunction with the provisions of Law No 1790/1988, (1) which govern ELGA, and that it assessed the facts incorrectly, because all the payments in 2009 (EUR 415 019 452) constituted genuine compensation for damage to crop production and livestock as a result of adverse weather conditions occurring in 2007 and 2008, which ELGA, as a sui generis social insurance body, had to make good in the context of the compulsory insurance scheme covering agricultural production.
   By the second plea for annulment, the applicant pleads an error as regards the assessment of the facts and an infringement of essential procedural requirements because the Commission, incorrectly assessing the facts and stating defective and/or insufficient reasons, reached the conclusion that the payments in 2009 constitute unlawful State aid, since they are not justified by the nature and general scheme of ELGA’s system of compulsory insurance, they constituted an economic advantage for their recipients and they threatened to distort competition and to affect trade between Member States.
   By the third plea for annulment, the applicant pleads misinterpretation and misapplication of Articles 107 and 108 TFEU and the infringement of essential procedural requirements, because the Commission unlawfully, and in any event with a deficient statement of reasons, also included in the financial amounts that it is necessary to recover as unlawful State aid the EUR 186 011 000,60 which corresponded to the compulsory insurance contributions paid by the farmers themselves in 2008 and 2009 within the framework of the compulsory insurance scheme to ELGA and which did not constitute unlawful State aid but private resources, so that that sum had to be deducted from the final sum to be recovered.
   By the fourth plea for annulment, the applicant pleads misinterpretation and misapplication by the Commission of Article 107(3)(b) TFEU and wrongful exercise of the discretion that is available to the Commission in the area of State aid, since in any event the payments in 2009 had to be regarded as compatible with the common market because of the manifest seriousness of the economic disturbance in the entire Greek economy and the entry into force of a provision of primary European Union law cannot depend upon the entry into force of a Commission communication such as the Temporary Community Framework.
   By the fifth plea for annulment, the applicant submits that by the contested decision the Commission in any event infringed Articles 39, 107(3)(b) and 296 TFEU and the general principles of equal treatment, of proportionality, of the protection of legitimate expectations, of economic freedom and of the rules of competition, because of the unjustifiable and unreasoned exception and failure to apply immediately from 17 December 2008 the Temporary Community Framework — as in force for all other undertakings, in all other sectors of the Community economy — to undertakings specialised in primary agricultural production.
   By the sixth plea for annulment, the applicant submits that by the contested decision the Commission carried out an erroneous assessment and calculation of the sums to be recovered, since it failed to deduct the de minimis aid as provided for in Regulations No 1860/2004 (2) and No 1535/2007 (3)‘relating to the application of Articles 107 and 108 TFEU to de minimis aid in the sector of agricultural production’.
   By the seventh plea for annulment, the applicant submits that the Commission misinterpreted and misapplied the Guidelines for State aid in the agriculture and forestry sector 2007-2013 and wrongfully exercised its discretion — at the same time stating defective and contradictory reasons — in finding that the compensation granted in 2008 for damage to crop production caused by bears with an aid intensity of 100 % was compatible with the common market only at the rate of 80 %.

      (1)  Law No 1790/1988 concerning ‘the organisation and operation of the Greek Agricultural Insurance Organisation and other provisions’ (FEK A 134/20.06.1988).

      (2)  Commission Regulation (EC) No 1860/2004 of 6 October 2004 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the agriculture and fisheries sectors.

      (3)  Commission Regulation (EC) No 1535/2007 of 20 December 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the sector of agricultural production.


title: Case C-164/09: Judgment of the Court (Fourth Chamber) of 11 November 2010 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Conservation of wild birds — Directive 79/409/EEC — Derogations from the system of protection for wild birds — Hunting)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/9

         Judgment of the Court (Fourth Chamber) of 11 November 2010 — European Commission v Italian Republic
   (Case C-164/09) (1)

   (Failure of a Member State to fulfil obligations - Conservation of wild birds - Directive 79/409/EEC - Derogations from the system of protection for wild birds - Hunting)
   2011/C 13/14
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: C. Zadra and D. Recchia, acting as Agents)

      Defendant: Italian Republic (represented by: G. Palmieri, acting as Agent, and G. Fiengo, lawyer)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Derogations from the system of protection for wild birds — Veneto Region

      Operative part of the judgment

   The Court:

               1.

               Declares that, since the Veneto Region has adopted and applied legislation authorising derogations from the system of protection for wild birds which fails to satisfy the conditions laid down in Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Italian Republic has failed to fulfil its obligations under Article 9 of that directive;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 180, 1.8.2009.


title: Case T-179/09: Judgment of the General Court of 30 April 2014  — Dunamenti Erőmű v Commission (State aid — Aid awarded by the Hungarian authorities to certain electricity generators — Power purchase agreements concluded between a public undertaking and certain electricity generators — Decision declaring the State aid incompatible with the common market and ordering its recovery — Concept of State aid — Advantage — New aid — Operating aid — Legitimate expectations — Legal certainty)

text:
               24.6.2014

               EN

               Official Journal of the European Union

               C 194/19

         Judgment of the General Court of 30 April 2014 — Dunamenti Erőmű v Commission
   (Case T-179/09) (1)

   ((State aid - Aid awarded by the Hungarian authorities to certain electricity generators - Power purchase agreements concluded between a public undertaking and certain electricity generators - Decision declaring the State aid incompatible with the common market and ordering its recovery - Concept of State aid - Advantage - New aid - Operating aid - Legitimate expectations - Legal certainty))
   2014/C 194/24
   Language of the case: English

      Parties

      Applicant: Dunamenti Erőmű Zrt. (Százhalombatta, Hungary) (represented by: initially J. Lever QC, A. Nourry, R. Griffith and S. Spence, Solicitors, and subsequently J. Philippe and F.-H. Boret, lawyers)

      Defendant: European Commission (represented by: L. Flynn and K. Talabér-Ritz, Agents)

      Re:

   Application for, in essence, the annulment of Commission Decision 2009/609/EC of 4 June 2008 on the State aid C 41/05 awarded by Hungary through Power Purchase Agreements (OJ 2009 L 225, p. 53) and, in the alternative, the annulment of Articles 2 and 5 of that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Dunamenti Erőmű Zrt. to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 167, 18.7.2009.


title: Case F-43/10: Judgment of the Civil Service Tribunal (Third Chamber) of 12 December 2012 — Maria Concetta Cerafogli v ECB (Civil service — Staff of the ECB — Complaint of psychological harassment — Administrative inquiry — Access to the file of the inquiry — Report on the inquiry — Manifest error of assessment)

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/29

         Judgment of the Civil Service Tribunal (Third Chamber) of 12 December 2012 — Maria Concetta Cerafogli v ECB
   (Case F-43/10) (1)

   (Civil service - Staff of the ECB - Complaint of psychological harassment - Administrative inquiry - Access to the file of the inquiry - Report on the inquiry - Manifest error of assessment)
   2013/C 38/54
   Language of the case: English

      Parties

      Applicant: Maria Concetta Cerafogli (Frankfurt am Main, Germany) (represented by: L. Levi and M. Vandenbussche, lawyers)

      Defendant: European Central Bank (ECB) (represented by: P. Embley and F. Feyerbacher, Agents, assisted by B. Wägenbaur, lawyer)

      Re:

   The annulment of the decision of the ECB rejecting the applicant’s complaints of discrimination and damage to her dignity caused by the conduct of her management and a claim for damages.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action.

               2.

               Declares that Mrs Cerafogli must bear her own costs and orders her to pay the costs of the European Central Bank.

      (1)  OJ C 209, 31.7.2010, p. 56.


title: Case F-14/09: Action brought on 20 February 2009 — Almeida Campos and Others v Council of the European Union

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/40

         Action brought on 20 February 2009 — Almeida Campos and Others v Council of the European Union
   (Case F-14/09)
   2009/C 90/66
   Language of the case: French

      Parties

      Applicants: Ana Maria Almeida Campos (Brussels, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the appointing authority’s decisions not to promote the applicants to grade AD 12 under the 2008 promotion procedure and, so far as necessary, the decisions to promote to that grade, under the same promotion procedure, the officials whose names are included on the list of promoted officials published in Staff Note No 72/08 of 21 April 2008.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the decisions of the appointing authority not to promote the applicants to grade AD 12 under the 2008 promotion procedure (2008 session) and, so far as necessary, the decisions to promote to that grade, under the same promotion procedure, the officials whose names are included on the list of promoted officials published in Staff Note No 72/08 of 21 April 2008;

               —

               Order the Council of the European Union to pay the costs.


title: Case T-421/04: Action brought on 11 October 2004 by José Antonio Carreira against the European Agency for Safety and Health at Work

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/41

         Action brought on 11 October 2004 by José Antonio Carreira against the European Agency for Safety and Health at Work
   (Case T-421/04)
   (2005/C 6/80)
   Language of the case: French
   An action against the European Agency for Safety and Health at Work was brought before the Court of First Instance of the European Communities on 11 October 2004 by José Antonio Carreira, residing in Brussels, represented by Georges Vandersanden and Laure Levi, lawyers.
   The applicant claims that the Court should:

               —

               annul the Agency's decision awarding the applicant part only of the differential allowance mentioned in Article 7(2) of the Staff Regulations as a result of his being called upon to occupy a temporary posting between 13 January 2003 and 15 August 2004;

               —

               order the defendant to pay the balance of the differential allowance payable under Article 7(2) of the Staff Regulations;

               —

               order the defendant to pay all the costs.

         Pleas in law and main arguments
   The applicant in this case who, like the defendant's legal adviser, was called upon to occupy temporarily the duties of the Agency's head of administration, because the holder of that post was absent on sick leave, challenges the appointing authority's decision to divide the amount of the differential allowance between the two persons who filled the temporary posting. He responded to that decision by stating that he did not accept that he had worked part-time in replacing the head of administration and that, in consequence, he was entitled to the whole of the differential allowance in dispute.
   In support of his claims, the applicant alleges infringement of Article 7(2) of the Staff Regulations, and breach of the principles of correspondence between the grade and the post, of non-discrimination and of proportionality.
   He also considers that the duty to state the reasons on which an act is based was not complied with in the circumstances.


title: Case C-360/14 P: Judgment of the Court (Seventh Chamber) of 9 July 2015 — Federal Republic of Germany v European Commission (Appeal — Approximation of laws — Directive 2009/48/EC — Toy safety — Limit values for lead, barium, arsenic, antimony, mercury and nitrosamines and nitrosatable substances in toys — Commission decision not to approve in full the national provisions notified by the German authorities maintaining the limit values for those substances — Proof of a higher level of protection for human health offered by the national provisions)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/16

         Judgment of the Court (Seventh Chamber) of 9 July 2015 — Federal Republic of Germany v European Commission
   (Case C-360/14 P) (1)

   ((Appeal - Approximation of laws - Directive 2009/48/EC - Toy safety - Limit values for lead, barium, arsenic, antimony, mercury and nitrosamines and nitrosatable substances in toys - Commission decision not to approve in full the national provisions notified by the German authorities maintaining the limit values for those substances - Proof of a higher level of protection for human health offered by the national provisions))
   (2015/C 294/20)
   Language of the case: German

      Parties

      Appellant: Federal Republic of Germany (represented by: T. Henze and A. Lippstreu, acting as Agents, and by U. Karpenstein, Rechtsanwalt)

      Other party to the proceedings: European Commission (represented by: P. Mihaylova, M. Patakia and G. Wilms, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 315, 15.9.2014.