title: Appeal brought on 20 March 1998 by the NutraSweet Company against the judgment delivered on 18 December 1997 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in joined Cases T-159/94 between Ajinomoto Co. Inc. and the Council of the European Union, supported by the Commission of the European Communities, and T-160/94 between The NutraSweet Company and the Council of the European Union, supported by the Commission of the European Communities (Case C-77/98 P)

text:
C 166/6              EN                 Official Journal of the European Communities                                    30.5.98
Ð in the alternative, quash the judgment of the Court of           and this defect in the Provisional Duty could not be and
    First Instance in joined cases T-159/94 and T-160/94           was not remedied in the Definitive Duty Regulation.
    in so far as it does not annul Article 2 of Council
    Regulation (EEC) No 1391/91 of 27 May 1991                     (1) OJ C 291 of 8.11.1991, p. 8.
    ordering the definitive collection of the amounts              (2) OJ C 291 of 8.11.1991, p. 9.
    secured by way of provisional anti-dumping duty and            (3) Council Regulation (EEC) No 1391/91 of 27 May 1991
    annul Article 2 of that Regulation in so far as it                 imposing a definitive anti-dumping duty on imports of
    applies to the Appellant;                                          aspartame originating in Japan and the United States of
                                                                       America (OJ L 134 of 29.5.1991, p. 1).
                                                                   (4) Council Regulation (EEC) No 2423/88 of 11 July 1988 on
Ð order such other or further relief as may be lawful or               protection against dumped or subsidized imports from
    equitable; and                                                     countries not members of the European Economic Community
                                                                       (OJ L 209 of 2.8.1988, p. 1).
Ð order the Council to pay the Appellant's costs.
Pleas in law and main arguments:
The Appellant submits that the judgment of the Court of            Appeal brought on 20 March 1998 by the NutraSweet
First Instance contains fundamental errors of law and              Company against the judgment delivered on 18 December
must be set aside.                                                 1997 by the Fifth Chamber (Extended Composition) of
                                                                   the Court of First Instance of the European Communities
First, the Court of First Instance erred in finding that           in joined Cases T-159/94 (1) between Ajinomoto Co. Inc.
patent-protection in the exporter's domestic market alone          and the Council of the European Union, supported by the
is irrelevant to the price comparability requirement               Commission of the European Communities, and T-160/
contained in Article 2(3) of Council Regulation (EEC)              94 (2) between The NutraSweet Company and the Council
No 2423/88 (4), hereinafter the Basic Regulation'. The            of the European Union, supported by the Commission of
ordinary meaning of the word comparable' within                                      the European Communities
Article 2(3), the overall scheme of the Basic Regulation                                   (Case C-77/98 P)
and of the process for establishing and comparing normal
value and export price, GATT law, U.S. law, and the aims                                     (98/C 166/09)
and objectives of anti-dumping law and of intellectual
property law all lead to the conclusion that patent-
                                                                   An appeal against the judgment delivered on 18 December
protection is a matter affecting price comparability within
                                                                   1997 by the Fifth Chamber (Extended Composition) of
the meaning of Article 2(3) and that normal value may
                                                                   the Court of First Instance of the European Communities
not be established on the basis of actual domestic prices
                                                                   in joined Cases T-159/94 between Ajinomoto Co. Inc. and
when those prices (but not export prices) are the result of
                                                                   the Council of the European Union, supported by the
patent-protected sales.
                                                                   Commission of the European Communities, and T-160/94
                                                                   between The NutraSweet Company and the Council of the
Second, the Court of First Instance erred, for the same            European Union, supported by the Commission of the
reasons, in basing normal value for Japanese origin                European Communities, was brought before the Court of
aspartame on U.S. patent-protected prices. Articles 2(3)           Justice of the European Communities on 20 March 1998
and 2(6) of the Basic Regulation preclude the                      by The NutraSweet Company, of 1751, Lake Cook Road,
determination of normal value on the basis of actual               Deerfield, Illinois 60015, United States of America,
prices in a country (other than the country of origin) from        represented by Jean-FrancËois Bellis, of the Brussels Bar,
which a product is shipped to the Community when there             and Fabrizio Di Gianni, of the Rome Bar, of Van Bael &
is no comparable price' in that intermediate market.              Bellis, Brussels, with an address for service in Luxembourg
Patent-protected prices are not comparable prices.                 at the Chambers of Jacques Loesch, 11, Rue Goethe.
Third, the Court of First Instance erred in finding that a         The Appellant claims that the Court should:
failure by the Commission to grant any disclosure of its
determinations prior to the imposition of provisional
                                                                   Ð quash the judgment of the Court of First Instance in
duties is a defect which can be remedied after the
                                                                        joined cases T-159/94 and T-160/94 and annul Council
imposition of provisional duties and does not, therefore,
                                                                        Regulation (EEC) No 1391/91 (3) of 27 May 1991 in
affect the validity of the defintive collection of the
                                                                        so far as it applies to the Appellant;
provisional duties. The fundamental principles of
Community law Ð in particular the right to be heard Ð
and the practice of the Commission in other cases required         Ð in the alternative, quash the judgment of the Court of
the Commission to disclose essential facts and                          First Instance in joined cases T-159/94 and T-160/94
considerations to the Appellant prior to the adoption of                in so far as it does not annul Article 2 of Council
the Provisional Duty Regulation. The Commission's                       Regulation (EEC) No 1391/91 of 27 May 1991
failure to make timely disclosure of such matters to the                ordering the definitive collection of the amounts
Appellant amounted to a breach of this fundamental                      secured by way of provisional anti-dumping duty and
principle as well as to discrimination. This fundamental                annul Article 2 of that Regulation in so far as it
breach rendered the Provisional Duty Regulation invalid,                applies to the Appellant;
 ---pagebreak--- 30.5.98               EN                   Official Journal of the European Communities                                    C 166/7
Ð order such other or further relief as may be lawful or              Action brought on 24 March 1998 by the Commission of
     equitable; and                                                       the European Communities against the Kingdom of
                                                                                Belgium
                                                                                (Case C-79/98)
Ð order the Council to pay the Appellant's costs.
                                                                                (98/C 166/10)
Pleas in law and main arguments:                                      An action against the Kingdom of Belgium was brought
                                                                      before the Court of Justice of the European Communities
                                                                      on 24 March 1998 by the Commission of the European
The Appellant submits that the judgment of the Court of               Communities, represented by Götz zur Hausen, Legal
First Instance contains fundamental errors of law and                 Adviser, acting as Agent, with an address for service in
must be set aside.                                                    Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                      Wagner Centre, Kirchberg.
First, the Court of First Instance erred in finding that              The applicant claims that the Court should:
patent-protection in the exporter's domestic market alone
is irrelevant to the price comparability requirement
contained in Article 2(3) of Council Regulation (EEC)                 Ð Declare that, by failing to adopt the laws, regulations
No 2423/88 (4), hereinafter the Basic Regulation'. The                   or administrative provisions necessary to comply with
ordinary meaning of the word comparable' within                          Commission Directive 94/69/EC of 19 December 1994
Article 2(3), the overall scheme of the Basic Regulation                  adapting to technical progress for the twenty-first time
and of the process for establishing and comparing normal                  Council Directive 67/548/EEC on the approximation
value and export price, GATT law, U.S. law, and the aims                  of laws, regulations and administrative provisions
and objectives of anti-dumping law and of intellectual                    relating to the classification, packaging and labelling
property law all lead to the conclusion that patent-                      of dangerous substances (1), the Kingdom of Belgium
protection is a matter affecting price comparability within               has failed to fulfil its obligations under that directive;
the meaning of Article 2(3) and that normal value may                     and
not be established on the basis of actual domestic prices
when those prices (but not export prices) are the result of           Ð Order the Kingdom of Belgium to pay the costs.
patent-protected sales.
                                                                      Pleas in law and main arguments:
Second, the Court of First Instance erred in finding that a
failure by the Commission to grant any disclosure of its              The pleas in law and main arguments are analogous with
determinations prior to the imposition of provisional                 those submitted in Case C-66/98 (2); the time-limit
duties is a defect which can be remedied after the                    provided for in the directive expired on 1 September 1996.
imposition of provisional duties and does not, therefore,
affect the validity of the definitive collection of the               (1) OJ L 381 of 31.12.1994, p. 1.
provisional duties. The fundamental principles of                     (2) OJ C 137 of 2.5.1998, p. 12.
Community law Ð in particular the right to be heard Ð
and the practice of the Commission in other cases required
the Commission to disclose essential facts and
considerations to the Appellant prior to the adoption of
the Provisional Duty Regulation. The Commission's
failure to make timely disclosure of such matters to the
                                                                      Reference for a preliminary ruling by the Sù- og Handels-
Appellant amounted to a breach of this fundamental
                                                                      ret by order of 18 March 1998 in the case of 3Com
principle as well as to discrimination. This fundamental
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
breach rendered the Provisional Duty Regulation invalid,
                                                                                A/S
and this defect in the Provisional Duty could not be and
was not remedied in the Definitive Duty Regulation.                                          (Case C-80/98)
                                                                                (98/C 166/11)
(1) OJ C 291 of 8.11.1991, p. 8.
(2) OJ C 291 of 8.11.1991, p. 9.
(3) Council Regulation (EEC) No 1391/91 of 27 May 1991                Reference has been made to the Court of Justice of the
    imposing a definitive anti-dumping duty on imports of             European Communities by order of 18 March 1998 from
    aspartame originating in Japan and the United States of           the Sù- og Handelsret (Maritime and Commercial Court),
    America (OJ L 134 of 29.5.1991, p. 1).                            which was received at the Court Registry on 25 March
(4) Council Regulation (EEC) No 2423/88 of 11 July 1988 on            1998, for a preliminary ruling in the case of 3Com
    protection against dumped or subsidized imports from
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
    countries not members of the European Economic Community
    (OJ L 209 of 2.8.1988, p. 1).                                     A/S on the following question:
                                                                      Does it follow from Article 7(1) of First Council Directive
                                                                      89/104/EEC of 21 December 1988 to approximate the


title: Action brought on 7 August 1995 by the Federal Republic of Germany against the Commission of the European Communities (Case C-263/95)

text:
No C 248/ 10               EN                    Official Journal of the European Communities                                    23 . 9 . 95
       — Council Directive 84/156/EEC ( 3 ) of 8 March 1984                     was not properly obtained . Since the German language
           on limit values and quality objectives for mercury                   version of the drafts was not made available within the
           discharges by sectors other than the chlor-alkali                    period prescribed in the rules of procedure of the said
           electrolysis industry,                                               committee, it was not possible to make a decision
                                                                                thereon,
       — Council Directive 84/49 1 /EEC ( 4 ) of 9 October
           1984 on limit values and quality objectives for                  — infringement of essential procedural requirements : the
           discharges of hexachlorocyclohexane,                                 majority required by the third sentence of Article 20 ( 3 )
                                                                                of Directive 89/106/EEC for the Standing Committee to
       — Council Directive 86/280/EEC ( 5 ) of 12 June 1986                     take a Decision was not obtained at the meeting on
           on limit values and quality objectives for discharges                30 November 1994 . The rules of procedure of the
           of certain dangerous substances included in List I of                Standing Committee lay down detailed provisions for
           the Annex to Directive 76/464/EEC;                                   the exercise of voting rights; there exists no written
                                                                                procedure for the adoption of resolutions, nor any
( 2 ) order the Federal Republic of Germany to pay the                          provision for the exercise of voting rights after meetings
       costs .
                                                                                have ended,
Pleas in law and main arguments adduced in support:                         — infringement of Article 13 ( 4 ) of Directive 89/106/EEC :
                                                                                the initial testing of a product must in principle extend
limit values for emissions must be laid down on the basis of                    to all characteristics reasonably connected with the
environmental protection directives by means of provisions                      product which are important for the fulfilment of the
the mandatory nature of which must be undisputable, which                       essential requirements in accordance with the provisions
enable individuals to assert their rights and which provide                     of Annex I of Directive 89/106/EEC . However, the
those responsible for compliance with emission norms with                       Commission, in adopting the contested Decision, did not
precise information regarding their obligations . So-called                     deal fully with the relevant product characteristics; for
administrative provisions, the mandatory nature of which                        example, its consideration of health and environmental
does not extend beyond the local district of the                                protection aspects was merely selective and incomplete .
administrative authorities concerned, do not fulfil those                       Consequently, the contested Decision does not satisfy
requirements .                                                                  the concerns referred to in Article 100a ( 3 ) of the EC
                                                                                Treaty,
(')   OJ No    L 81 , 27 . 3 . 1982 , p . 29 .
(2)   OJ No    L 291 , 24 . 10 . 1983 ,   p. 1 .                            — infringement of the obligation to give a statement of
(3)   OJ No    L 74, 17. 3 . 1984 , p .   49 .                                  reasons (Article 190 of the EC Treaty ): the Federal
(4)   OJ No    L 274 , 17 . 10 . 1984,    p . 11                                Government was involved in the preparation of the
( 5)  OJ No    L 181 , 4 . 7. 1986 , p.   16 .                                  Decision, yet even it is unable to see the considerations
                                                                                on the basis of which the Commission declined to have
                                                                                regard to essential requirements ( for example, in the case
                                                                                of thermal insulating products : energy economy and
                                                                                heat retention, as well as hygiene, health and
Action brought on 7 August 1995 by the Federal Republic                         environmental protection; in the case of precast concrete
of Germany against the Commission of the European                               products : safety in use; in the case of windows, doors
                                 Communities                                    etc .: protection against noise ), and these must a fortiori
                                                                                be unclear to the Court of Justice, which has been called
                              ( Case C-263/95 )                                 upon to exercise its powers of judicial review .
                                ( 95/C 248/21 )
                                                                            (') OJ No L 129 , 14 . 6 . 1995 , p . 23 .
An action against the Commission of the European
 Communities was brought before the Court of Justice of the
 European Communities on 7 August 1995 by the Federal
 Republic of Germany, represented by Ernst Roder,
 Ministerialrat, and Bernd Kloke, Oberregierungsrat,                        Appeal brought on 4 August 1995 by the Commission of the
 Federal Ministry of Economics, D-53107 Bonn.                               European Communities against the judgment delivered on
                                                                            6 June 1995 by the Third Chamber ( extended composition )
 The applicant claims that the Court should :                               of the Court of First Instance of the European Communities
                                                                            in Case T-14/93 between the Union Internationale des
 ( 1 ) annul Commission Decision 95/204/EC (') of 31 May                    Chemins de Fer and the Commission of the European
        1995 implementing Article 20 ( 2 ) of Council Directive                                        Communities
        89/ 106/EEC on construction products .
                                                                                ( Case C-264/95 P)
 ( 2 ) order the defendant to pay the costs .                                                          95/C 248/22 )
 Pleas in law and main arguments adduced in support:                        An appeal against the judgment delivered on 6 June 1995 by
                                                                            the Third Chamber ( extended composition ) of the Court of
 — infringement of essential procedural requirements : the                  First Instance of the European Communities in Case
       opinion of the Standing Committee on Construction                    T-14/93 between the Union Internationale des Chemins de


title: Case C-273/12: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 4 June 2012 — Directeur général des douanes et droits indirects, Chef de l’agence de poursuites de la Direction nationale du renseignement et des enquêtes douanières v Harry Winston SARL

text:
               4.8.2012

               EN

               Official Journal of the European Union

               C 235/9

         Reference for a preliminary ruling from the Cour de cassation (France) lodged on 4 June 2012 — Directeur général des douanes et droits indirects, Chef de l’agence de poursuites de la Direction nationale du renseignement et des enquêtes douanières v Harry Winston SARL
   (Case C-273/12)
   2012/C 235/17
   Language of the case: French

      Referring court

   Cour de cassation (Supreme Court)

      Parties to the main proceedings

      Applicants: Directeur général des douanes et droits indirects (Director-General of Customs and Indirect Taxes), Chef de l’agence de poursuites de la Direction nationale du renseignement et des enquêtes douanières (Head of the Investigation Agency of the National Directorate of Customs Information and Inquiries)

      Defendant: Harry Winston SARL

      Questions referred

               1.

               Is Article 206 of Council Regulation No 2913/92 92 of 12 October 1992 establishing the Community Customs Code (1) to be interpreted as meaning that the theft, in the circumstances of the present case, of goods held under the customs warehousing procedure constitutes the irretrievable loss of the goods and a case of force majeure, with the consequence that, in that situation, no customs debt on importation is deemed to have been incurred?

               2.

               Is the theft of goods held under the customs warehousing procedure such as to give rise to the chargeable event and to cause the value added tax to become chargeable pursuant to Article 71 of [Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax]? (2)

      (1)  OJ 1992 L 302, p. 1.

      (2)  OJ 2006 L 347, p. 1.


title: Case C-1/15 SA: Order of the Court (Tenth Chamber) of 21 September 2015 — La Chaîne hôtelière La Frontière, Shotef SPRL v European Commission (Application for authorisation to serve an attachment order on the European Commission)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/16

         Order of the Court (Tenth Chamber) of 21 September 2015 — La Chaîne hôtelière La Frontière, Shotef SPRL v European Commission
   (Case C-1/15 SA) (1)

   ((Application for authorisation to serve an attachment order on the European Commission))
   (2016/C 038/23)
   Language of the case: French

      Parties

      Applicant: La Chaîne hôtelière La Frontière, Shotef SPRL (represented by: J.-Y. Steyt, avocat)

      Defendant: European Commission (represented by: A. Aresu, acting as Agent)

      Operative part of the order

               1.

               The application is dismissed.

               2.

               La Chaîne hôtelière La Frontière, Shotef SPRL is ordered to pay the costs.

      (1)  OJ C 73, 2.3.2015.


title: Case C-195/05: Action brought on 2 May 2005 by the Commission of the European Communities against the Italian Republic

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/25

         Action brought on 2 May 2005 by the Commission of the European Communities against the Italian Republic
   (Case C-195/05)
   (2005/C 182/46)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 2 May 2005 by the Commission of the European Communities, represented by M. Konstantinidis, of its Legal Service, and G. Bambara, of the Milan Bar.
   The Commission claims that the Court should:

               1.

               declare that, by adopting operational directives valid for the whole of the national territory, set out in particular in the circular of the Environment Ministry of 28 July 1998 and the circular of the Health Ministry of 22 July 2002, which exclude from the scope of the rules on waste reject foodstuffs from the agri-foodstuffs industry intended for the production of feeding stuffs and by excluding, by means of Article 23 of Law No 179 of 31 July 2002, from the scope of the rules on waste leftovers from the kitchen preparation of all types of solid, cooked and uncooked food which have not entered the distribution chain and are intended for facilities for treating sick animals, the Italian Republic has failed to fulfil its obligations under Article 1(a) of Directive 75/442/EEC on waste, (1) as amended by Directive 91/156/EC; (2)

               2.

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The European Commission takes the view that, by adopting operational directives valid for the whole of the national territory which exclude from the scope of the rules on waste reject foodstuffs from the agri-foodstuffs industry intended for the production of feeding stuffs and by excluding, by means of Article 23 of Law No 179 of 31 July 2002, from the scope of the rules on waste leftovers from the kitchen preparation of all types of solid, cooked and uncooked food which have not entered the distribution chain and are intended for facilities for treating sick animals, the Italian Republic has failed to fulfil its obligations under Article 1(a) of Directive 75/442/EEC on waste, as amended by Directive 91/156/EC.

      (1)  OJ L 194 of 25.07.1975, p. 39.

      (2)  OJ L 78 of 26.03. 1991, p. 32.


title: Case C-435/00: Reference for a preliminary ruling by the Diikitiko Protodikio Rodou by judgment of that court of 10 July 2000 in the case of GEHA Naftiliaki E.P.E. and Others against the Limeniko Tamio Dodekanisou and the Greek State

text:
10.2.2001              EN                     Official Journal of the European Communities                                         C 45/7
Reference for a preliminary ruling by the Diikitiko                            of that kind also contrary to the abovementioned regu-
Protodikio Rodou by judgment of that court of 10 July                          lation, because it constitutes discrimination as regards
2000 in the case of GEHA Naftiliaki E.P.E. and Others                          maritime transport to a particular third country (or
against the Limeniko Tamio Dodekanisou and the Greek                           particular third countries) and therefore a restriction on
                               State                                           maritime transport provided to that country (or those
                                                                               countries)?
                         (Case C-435/00)
                          (2001/C 45/14)
                                                                         Reference for a preliminary ruling from the Regeringsrätt-
                                                                         en (Supreme Administrative Court), by decision of that
                                                                         court of 1 November 2000 in the case of X and Y v
Reference has been made to the Court of Justice of the                               Riksskatteverket (National Tax Board)
European Communities by judgment of the the Diikitiko
Protodikio Rodou (Administrative Court of First Instance,
Rhodes) of 10 July 2000, received at the Court Registry on                                       (Case C-436/00)
27 November 2000 for a preliminary ruling in the case of
GEHA Naftiliaki E.P.E. and Others against Limeniko Tamio                                          (2001/C 45/15)
Dodekanisou (Dodecanese Harbour Fund) and the Greek State
on the following questions:                                              Reference has been made to the Court of Justice of the
                                                                         European Communities by a decision of the Regeringsrätten
                                                                         of 1 November 2000, which was received at the Court Registry
(a)  Is Article 1 of Council Regulation (EEC) No 4055/86 to              on 27 November 2000, for a preliminary ruling in the case of
     be interpreted as prohibiting national legislation of a             X and Y v Riksskatteverket on the following question:
     Member State from imposing restrictions in respect of
     the provision of maritime transport services between
     Member States and third countries generally, even if those          In a situation such as that in the present case, do Articles 43,
                                                                         46, 48, 56 and 58 EC preclude the application of a Member
     restrictions are imposed without distinction on all vessels,
                                                                         State’s legislation which like the relevant Swedish legislation
     whether they are used by its own nationals providing
     services or by nationals of other Member States, and on             — has the effect that a capital contribution in the form of a
                                                                         transfer of shares at undervalue is taxed less advantageously if
     all passengers irrespective of nationality, or is it to be
                                                                         the contribution is to a legal person which is domiciled in
     interpreted as prohibiting national legislation of a Mem-
     ber State from introducing restrictions only in respect of          another Member State and in which the transferor directly or
                                                                         indirectly has a holding or to a domestic limited company in
     the provision of services between another Member State
     and a third country, reserving in that way more favourable          which such a legal person has a holding, than would have
     treatment to domestic carriers who provide maritime                 been the case if there had been no such foreign proprietorial
                                                                         interests.
     transport to third countries compared with carriers who
     are nationals of the other Member States?
(b) May a Member State impose different (higher) harbour
     dues for the passengers of vessels which call at, or have
     as their final destination, a port of a third (non-European
     Union) country than the dues which are imposed on                   Reference for a preliminary ruling by the Bundesarbeits-
     passengers whose destinations are domestic ports or                 gericht by order of that court of 27 June 2000 in the case
     ports in the other Member States of the European Union,             of Gesamtbetriebsrat der Kühne & Nagel AG & Co. KG
     even if those dues in both the above cases are imposed                          against Kühne & Nagel AG & Co. KG
     on all passengers irrespective of their nationality or that
     of the vessels, or does a provision of that kind constitute
                                                                                (Case C-440/00)
     a restriction on the freedom to transport passengers to
     third countries because the higher dues might have an
     effect on the choice of routes, so that that provision is                                    (2001/C 45/16)
     inconsistent with Article 1 of Regulation No 4055/86?
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Bundesarbeitsgericht
(c)  If the answer is in the negative, is it possible for the            (Federal Labour Court) of 27 June 2000, received at the Court
     harbour dues which are imposed on passengers whose                  Registry on 29 November 2000, for a preliminary ruling in
     destinations are ports of third countries to be differen-           the case of Gesamtbetriebsrat der Kühne & Nagel AG & Co.
     tiated still further, according to the third country, on the        KG (Central Works Council of Kühne & Nagel AG & Co. KG)
     basis of the criterion of the distance of the ports or their        against Kühne & Nagel AG & Co. KG on the following
     geographical location, or is a national legislative provision       questions:


title: Case T-447/08: Action brought on 29 September 2008 — FIFA v OHIM — Ferrero (WORLD CUP GERMANY)

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/51

         Action brought on 29 September 2008 — FIFA v OHIM — Ferrero (WORLD CUP GERMANY)
   (Case T-447/08)
   (2008/C 313/91)
   Language in which the application was lodged: English
   Parties

      Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented by: D. Alexander QC, A. Barav, Barrister, R. Buchel and C. Rassmann, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Ferrero OHG mbH (Stadtallendorf, Germany)
   Form of order sought

               —

               Annul, in whole or in part, the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 in case R 1469/2005-1; and

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘WORLD CUP GERMANY’ for goods and services in classes 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 — Community trade mark registration No 2 152 635

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

      Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

      Pleas in law: (i) Infringement of Article 73 and 74(1) of Council Regulation No 40/94 in so far as the Board of Appeal has based, largely, its decision on Article 7(1)(c) of Council Regulation No 40/94, a provision which was neither invoked by the other party to the proceedings before the Board of Appeal, nor relied upon by the Cancellation Division; (ii) Alternatively, infringement of Article 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal failed to consider the registered Community trade mark subject of the application for a declaration of invalidity as a whole, through the eyes of the average consumer and to apply the relevant law relating to the assessment of descriptiveness of the goods and/or services applied for; and (iii) Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the registered Community trade mark subject of the application for a declaration of invalidity was devoid of the necessary distinctive character.


title: Judgment of the Court (Fourth Chamber) of  27 October 2005  in Case C-387/03: Hellenic Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Financial years 1999 and 2000 — Decision 2003/536/EC — Wine, olive oil, beef and veal and sheepmeat)

text:
               24.12.2005

               EN

               Official Journal of the European Union

               C 330/3

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 27 October 2005
   in Case C-387/03: Hellenic Republic v Commission of the European Communities (1)

   (EAGGF - Clearance of accounts - Financial years 1999 and 2000 - Decision 2003/536/EC - Wine, olive oil, beef and veal and sheepmeat)
   (2005/C 330/06)
   Language of the case: Greek
   In Case C-387/03 Hellenic Republic (Agents: I. Chalkias and E. Svolopoulou) v Commission of the European Communities (Agent: M. Condou-Durande, assisted by N. Korogiannakis) — action for annulment under Article 230 EC, brought on 15 September 2003 — the Court (Fourth Chamber), composed of K. Lenaerts, acting as President of the Fourth Chamber (Rapporteur), E. Juhász and M. Ilešič, Judges; M. Poiares Maduro, Advocate General; H. von Holstein, Assistant Registrar, for the Registrar, gave a judgment on 27 October 2005, in which it:

               1.

               Dismisses the action;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 264, 1.11.2003.


title: Case C-50/11: Reference for a preliminary ruling from the Tribunale di Ivrea (Italy) lodged on 4 February 2011 — Criminal proceedings against Lucky Emegor

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/7

         Reference for a preliminary ruling from the Tribunale di Ivrea (Italy) lodged on 4 February 2011 — Criminal proceedings against Lucky Emegor
   (Case C-50/11)
   2011/C 113/14
   Language of the case: Italian

      Referring court

   Tribunale di Ivrea

      Party to the main proceedings

   Lucky Emegor

      Question referred

   In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude a third-country national staying unlawfully in national territory from being sentenced to a term of imprisonment of up to four years in the event of failure to comply with the initial order issued by the Questore for removal from national territory within five days of notification, and a term of between one and five years’ imprisonment for failure to comply with subsequent orders, with the police authorities under an obligation to arrest those engaged in the commission of this offence, solely on account of his failure to cooperate in the deportation procedure and in particular failure to comply with the removal order issued by the administrative authorities?

      (1)  OJ 2008 L 348, p. 98.


title: Case C-435/14: Request for a preliminary ruling from the Tribunale di Bari (Italy) lodged on 22 September 2014  — Criminal proceedings against Mauro Barletta

text:
               15.12.2014

               EN

               Official Journal of the European Union

               C 448/5

         Request for a preliminary ruling from the Tribunale di Bari (Italy) lodged on 22 September 2014 — Criminal proceedings against Mauro Barletta
   (Case C-435/14)
   (2014/C 448/06)
   Language of the case: Italian

      Referring court

   Tribunale di Bari

      Party to the main proceedings

   Mauro Barletta

      Questions referred

               1)

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU, as also construed in the judgment of the Court of Justice of the European Union of 16 February 2012 [in Joined Cases C-72/10 and C-77/10], to be interpreted as precluding a call for tenders for the award of licences with a period of validity shorter than that of licences awarded in the past, where that tendering procedure has been launched in order to remedy the consequences of the unlawful exclusion of a certain number of operators from earlier tendering procedures?

               2)

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

               3)

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU, as also construed in the above judgment of the Court of Justice of the European Union, to be interpreted as precluding the imposition of an obligation to transfer, free of charge, the use of tangible and intangible assets represented by the betting management and collection network in the event that the activity has ceased owing to the expiry of the licence or as a result of measures disqualifying the licence-holder or withdrawing the licence?


title: Case C-627/10: Judgment of the Court (First Chamber) of 11 July 2013 — European Commission v Republic of Slovenia (Failure of a Member State to fulfil obligations — Transport — Directive 91/440/EEC — Development of the Community’s railways — Directive 2001/14/EC — Allocation of railway infrastructure capacity — Article 6(3) and Annex II to Directive 91/440 — Article 14(2) of Directive 2001/14 — Infrastructure manager — Participation in the preparation of the service timetable — Traffic management — Article 6(2) to (5) of Directive 2001/14 — Failure to provide incentives for infrastructure managers to reduce the costs of provision of infrastructure and the level of access charges — Articles 7(3) and 8(1) of Directive 2001/14 — Cost that is directly incurred as a result of operating the train service — Article 11 of Directive 2001/14 — Performance scheme)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/6

         Judgment of the Court (First Chamber) of 11 July 2013 — European Commission v Republic of Slovenia
   (Case C-627/10) (1)

   (Failure of a Member State to fulfil obligations - Transport - Directive 91/440/EEC - Development of the Community’s railways - Directive 2001/14/EC - Allocation of railway infrastructure capacity - Article 6(3) and Annex II to Directive 91/440 - Article 14(2) of Directive 2001/14 - Infrastructure manager - Participation in the preparation of the service timetable - Traffic management - Article 6(2) to (5) of Directive 2001/14 - Failure to provide incentives for infrastructure managers to reduce the costs of provision of infrastructure and the level of access charges - Articles 7(3) and 8(1) of Directive 2001/14 - Cost that is directly incurred as a result of operating the train service - Article 11 of Directive 2001/14 - Performance scheme)
   2013/C 252/08
   Language of the case: Slovenian

      Parties

      Applicant: European Commission (represented by: H. Støvlbæk, D. Kukovec and M. Žebre, acting as Agents)

      Defendant: Republic of Slovenia (represented by: N. Pintar Gosenca, A. Vran and J. Kampoš, acting as Agents)

      Interveners in support of the defendant: Czech Republic (represented by: M. Smolek and T. Müller, acting as Agents), Kingdom of Spain (represented by: S. Centeno Huerta, acting as Agent)

      Re:

   Failure of a Member State to fulfil obligations — Failure to take, within the prescribed period, all the measures necessary to comply with Article 6(3) of and Annex II of Council Directive 91/440/EEC of 29 July 1991, on the development of the community railways (OJ 1991 L 237, p. 25), as amended, and Article 6(2) to (5), (7)93), 8(1), 11, 14(2) and 30(1) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001, on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (OJ 2001 L 75, p. 29)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to take the measures necessary to comply with:

                           —

                           Article 6(3) of and Annex II to Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways, as amended by Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004, and Article 14(2) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004, and

                           —

                           Articles 6(2) to (5), 7(3), 8(1) and 11 of Directive 2001/14, as amended by Directive 2004/49

                     the Republic of Slovenia has failed to fulfil its obligations under those provisions;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the European Commission, the Republic of Slovenia, the Czech Republic and the Kingdom of Spain to bear their own costs.

      (1)  OJ C 103, 2.4.2011.


title: Case T-570/15: Action brought on 29 September 2015 — Federcaccia della Regione and Others v Commission

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/55

         Action brought on 29 September 2015 — Federcaccia della Regione and Others v Commission
   (Case T-570/15)
   (2015/C 381/66)
   Language of the case: Italian

      Parties

      Applicants: Federcaccia della Regione Liguria (Genoa, Italy), Matteo Anfossi (Taggia, Italy), Associazione dei Migratoristi Italiani per la conservazione dell’ambiente naturale (ANUU) — LIGURIA (Genoa, Italy), Alessio Piana (Cremolino, Italy), Giovanno Bordo (Bargagli, Italy), Maria Teresa Esposito (Bargagli, Italy), Ezio Giacomo Isola (Davagna, Italy), Luca Fossardi (Recco, Italy), Adriano Zanni (Valbrevenna, Italy), Luigi Marco Tiscornia (Ne, Italy), Andrea Campanile (Cassano Spinola, Italy) (represented by: A. Bruni, A. Mozzati and P. Balletti, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare that the European Commission has intentionally or negligently failed to examine the preliminary Key Concepts data acquired from Italy relating to the beginning of the pre-mating migration of woodcocks, song thrushes and fieldfares as compared with the same data acquired from France, thereby evading moreover the obligation to produce resulting transnational data relating to those three migratory species in geographically and climatically homogenous areas;

               —

               declare that the European Commission has intentionally or negligently failed to update the Italian Key Concepts data relating to the beginning of the pre-mating migration of woodcocks, song thrushes and fieldfares, adjusting and aligning them to the French data found to be correct and legitimate, and recognising that the beginning of the pre-mating migration of those three species takes place in the second period of ten days in February also in Italy;

               —

               declare that the European Commission, in the absence of valid and correct conditions, sought the introduction in Italy, and in particular in Liguria, of unjustified limitations on the hunting of woodcocks, song thrushes and fieldfares as compared to that consented to in France and in particular in Corsica and the South of France, bringing forward to 20 January in Liguria the end of the hunt for those three migrating species;

               —

               declare unlawful, on the grounds of unequal treatment between Member States and/or Regions of the Member States and also lack of valid conditions, the procedure EU PILOT 6955/14/ENVI brought by the European Commission exclusively against the Italian State since it did not bring an identical and concurrent action against France and did not carry out any preliminary investigation aimed at acquiring congruent elements from which it can concluded that the effective beginning of the pre-mating migration of woodcocks, song thrushes and fieldfares is to be deferred by one month (20 February) in Corsica and the South of France compared to the beginning of the same pre-mating migration in Liguria (20 January);

               —

               declare unlawful the European Commission’s initial and continued inaction in respect of the applicants’ warning letter of 29 May 2015 by which the applicants assert and declare at the same time that the European Commission’s response in the letter No ENV.D.2/MC-GM/vf/ARES (2015) 3758354 of 9 September 2015 was elusive;

               —

               direct the European Commission to adjust the Italian Key Concepts data relating to the beginning of the pre-mating migration of woodcocks, song thrushes and fieldfares in line with the Key Concepts data from France, thereby recognising that it takes place in the second period of ten days in February;

               —

               in any event, direct the European Commission to adjust the Italian Key Concepts data relating to the beginning of the pre-mating migration in Tuscany of woodcocks, song thrushes and fieldfares in line with the French Key Concepts data relating to Corsica, recognising that it takes place in the second period of ten days in February;

               —

               order the European Commission, in respect of its omissive and inadequate action, to pay compensation for the harm suffered and to be suffered by the applicant hunting associations, also at the Court’s discretion, in so far as may be held to be fair.

      Pleas in law and main arguments

   The pleas in law and main arguments are the same as those relied on in Case T-562/15.


title: Case T-82/06: Action brought on  14 March 2006  — Apple Computer International v Commission

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/26

         Action brought on 14 March 2006 — Apple Computer International v Commission
   (Case T-82/06)
   (2006/C 108/47)
   Language of the case: English
   Parties

      Applicant: Apple Computer International (Cork, Ireland) [represented by: G. Breen, Solicitor, P. Sreenan, SC, B. Quigley, BL]

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare that the classification contained in item 2 of the Annex to Commission Regulation (EC) No 2171/2005 in fact represents a decision, which although in the form of a regulation, is of direct and individual concern to the applicant;

               —

               annul Commission Regulation (EC) No 2171/2005 concerning the classification of certain goods in the Combined Nomenclature (OJ L 346, p. 7) in so far as it classifies the colour monitor of the liquid crystal device type described in item 2 of the table in the annex to that regulation under CN Code 8528 21 90;

               —

               declare that monitors meeting the technical specifications contained in item 2 of the annex to the contested Regulation are properly classified in heading 8471 of the Combined Nomenclature;

               —

               order the Commission of the European Communities to bear the costs of the present proceedings.

         Pleas in law and main arguments
   The contested Regulation classifies four Liquid Crystal Displays (LCDs) at two different CN codes in the Combined Nomenclature. The applicant notes that, although the device referred to at item 2 in the annex to the contested regulation (the device) is not identified as the applicant's product, the technical characteristics and description contained therein conclusively identify the product as being the Apple 20″ LCD.
   The applicant submits that by classifying its 20″ LCD at heading 8528, the Commission has infringed Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (1) and committed a manifest error in the interpretation of the Community rules on tariff classification.
   The applicant submits that the device satisfies, pursuant to heading 8471, as interpreted in Legal Note 5 to Chapter 84 of the Combined Nomenclature, the criteria for classification as a ‘unit’ of an automatic data-processing machine, is of a kind solely or principally used in an automatic data-processing machine and, moreover, is not capable of performing a specific function other than data processing. According to the applicant, the classification under heading 8528 therefore constitutes a manifest error of interpretation of the Community rules on tariff classification.
   Finally, the applicant claims that the contested classification is in direct conflict with the Judgment of the European Court of Justice in Case C-11/93 Siemens Nixdorf v Hauptzollamt Augsburg [1994] ECR I-1945.

      (1)  OJ L 256, p. 1


title: Case C-644/13 P: Judgment of the Court (First Chamber) of 26 January 2017 — Villeroy & Boch v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area — Price coordination and exchange of sensitive business information — Single infringement — Proof — Fines — Unlimited jurisdiction — Reasonable time — Proportionality)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/9

         Judgment of the Court (First Chamber) of 26 January 2017 — Villeroy & Boch v European Commission
   (Case C-644/13 P) (1)

   ((Appeal - Competition - Agreements, decisions and concerted practices - Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria - Decision finding an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area - Price coordination and exchange of sensitive business information - Single infringement - Proof - Fines - Unlimited jurisdiction - Reasonable time - Proportionality))
   (2017/C 104/15)
   Language of the case: French

      Parties

      Appellant: Villeroy & Boch (represented by: J. Philippe, avocat)

      Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre, L. Malferrari and F. Ronkes Agerbeek, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Villeroy & Boch SAS to pay the costs.

      (1)  OJ C 45, 15.2.2014.


title: Case T-660/11: Action brought on 30 December 2011 — Polytetra v OHIM — EI du Pont de Nemours (POLYTETRAFLON)

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/15

         Action brought on 30 December 2011 — Polytetra v OHIM — EI du Pont de Nemours (POLYTETRAFLON)
   (Case T-660/11)
   2012/C 65/29
   Language in which the application was lodged: English

      Parties

      Applicant: Polytetra GmbH (Mönchengladbach, Germany) (represented by: R. Schiffer, lawyer)

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

      Other party to the proceedings before the Board of Appeal: EI du Pont de Nemours and Company (Wilmington, United States)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 September 2011 in case R 2005/2010-1; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘POLYTETRAFLON’, for goods and services in classes 1, 11, 17 and 40 — Community trade mark application No 6131015

      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 No 432120 of the word mark ‘TEFLON’, for amongst others, goods and services in classes 1, 11, 17 and 40

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Annulled the contested decision and rejected the Community trade mark application

      Pleas in law: Infringement of Articles 8(1)(b), 15(1), 42(2) and (3) of Council Regulation No 207/2009, insofar as the Board of Appeal wrongly concluded that there was a likelihood of confusion between the mark applied for and the earlier mark and that genuine use for the earlier mark was proven.


title: Action brought on 7 April 1997 by Réa Apostilidis against the Court of Justice of the European Communities (Case T-86/97)

text:
14 . 6 . 97            EN                   Official Journal of the European Communities                                  No C 181 / 17
     ' interested party' in relation to all aspects of an anti        The contested decision appears to be based solely on
     dumping proceeding concerning imports of unbleached               Article 6 ( 12 ) of the International GATT Anti-dumping
     cotton fabrics, originating in the People 's Republic of          Code. This justification is irrelevant to the applicant's
     China, Egypt, India, Indonesia, Pakistan and Turkey               rights under Community law and constitutes a
     and not allowing the applicant to inspect the                     misinterpretation of the Anti-dumping Code itself. The
     Commission        non-confidential      documents       and       applicant's request is based in fact on the clear wording of
     information made available by all the parties in that             the EC anti-dumping regulations and not the GATT
     proceeding,                                                       provisions . It is true that consumer associations are in
                                                                       principle not included in the list of ' interested parties' set
                                                                       out in the GATT rules . However, this list does not
— declare void, pursuant to Articles 173 and 174 of the
     EC Treaty, the decision contained in the same letter, in          preclude GATT Members from allowing other parties to
     so far as that decision refuses to allow the applicant            become interested parties . The EC has in fact made use of
     and other consumer organizations to have access to                this possibility Regulation ( EC ) No 384/96 . Articles 6 and
     the non-confidential information made available in an             21 of that Regulation should therefore be regarded as
     anti-dumping proceeding dealing with products non                constituting a correct implementation of GATT rules as
     commonly sold at a retail level,                                  regards access of consumer organizations to non
                                                                       confidential information in relation to all elements of anti
                                                                       dumping proceedings, including dumping, injury and
— make any additional orders which the Court considers                 causality.
     necessary, and
                                                                       (') Regulation ( EC ) No 384/96 , of 22 December 1995 , on
— order the Commission to pay the costs of the                             protection against dumped imports from Countries not
                                                                           Members of the European Community ( OJ No L 56 , 6 . 3 .
     proceedings .                                                         1996 ).
Pleas in law and main arguments adduced in support:
The applicant in the present case, a representative
international consumer organization whose object is the
promotion of the interest of consumers in relation to the              Action brought on 7 April 1997 by Rea Apostilidis against
policies of the European Union and the representation of                     the Court of Justice of the European Communities
consumer organizations, challenges the decision of the                                         ( Case T-86./97 )
Commission not to recognize it as an interested party, and
not to allow it to have access to all non-confidential                                           ( 97/C 181 /33 )
documents and information made available in an anti
dumping proceeding concerning imports of unbleached                                    (Language of the case: French)
cotton fabrics, originating in the People 's Republic of
China, Egypt, India , Indonesia, Pakistan and Turkey and               An action against the Court of Justice of the European
in any other anti-dumping proceeding dealing with                      Communities was brought before the Court of First
products non-commonly sold at a retail level . According               Instance of the European Communities on 7 April 1997
to the applicant, the Commission justifies its decision on             by Rea Apostilidis, residing at Bereldange ( Luxembourg ),
the basis of the premise that the GATT Anti-dumping                    represented by Alain Levy, of the Paris Bar, with an
Code allows consumers the opportunity to provide                       address for service in Luxembourg care of the applicant,
information on dumping, injury and causality only ' in                 46 Route de Luxembourg, Bereldange .
cases where the product is commonly sold at the retail
level '.                                                               The applicant claims that the Court should:
The applicant claims to be an interested party on the basis            — annul the contested decisions,
of Council Regulation No 384/96 (').
                                                                       — order the destruction of the documents contained in
                                                                            the parallel file,
It claims first of all that Article 6 ( 7) and Article 21 of
that regulation recognize consumer associations as
interested parties and grant them the opportunity to access            — order the Court of Justice to pay her compensation in
                                                                            the    sum  of Bfrs     1 000 000     for the non-material
the non-confidential files of the proceeding. The regulation
should not limit the right of consumer organizations to                     damage suffered by her,
participate fully in anti-dumping proceedings to 'products
commonly sold at retail level'. It submits, therefore, that            — order the Court of Justice to pay the costs.
although this particular proceeding does concern products
which are not commonly sold at retail level , it should                Pleas in law and main arguments adduced in support:
have the        opportunity to have      access to the non
confidential     file in   relation  to  all  elements    of  the      The applicant, a grade A 6 official, contests the decision
proceeding. Should this not be the case, a representative              of the appointing authority to suspend the procedure for
consumer organization would not be able to participate                 filling one of the three posts of principal administrator
fully in the evaluation of the Community interest in any                advertised in Vacancy Notice No CJ 91 /95 , for which she
particular anti-dumping investigation .                                 had applied, as well as the decision rejecting the complaint
 ---pagebreak--- No C 181 / 18        EN                   Official Journal of the European Communities                                   14 . 6 . 97
lodged against the former decision . She points out in that          The applicant claims that the Court should:
regard that the competent director had proposed her
appointment to one of those three posts. Having filled two           — annul the Commission's decision of 12 June 1996
of the posts in question, the appointing authority adopted                rejecting the applicant's request that it give
the contested decision in consequence of the opening of an                consideration to the possible application of
investigation prompted by complaints .                                    Article 31 ( 2 ) of the Staff Regulations,
She advances the following pleas in support of her claims :
                                                                     — annul , in so far as may be necessary, the decision
                                                                          adopted by the Commission on 27 December 1996
— infringement of the provisions of Article 26 of the
                                                                          expressly rejecting the applicant's complaint,
    Staff Regulations and of Articles 6 and 10 of the
    European Convention for the Protection of Human
    Rights, in that the appointing authority took a                  — order the defendant to pay all the costs.
    decision which seriously affected her administrative
    situation on the basis of facts and documents which              Pleas in law and main arguments adduced in support:
    had not been placed on her personal file and which
    had not been communicated to her,
                                                                     The pleas in law and main arguments are the same as in
                                                                     Case T- 16/9 7 ( ] ).
— absence of any legal basis for the suspension decision,
    inasmuch as there exists no provision allowing for the           (') OJ No C 74, 8 . 3 . 1997, p . 27.
    possible suspension by the appointing authority, on
    any grounds whatever, of a procedure for promotion
    by way of application for a post which has been
    declared vacant,
— contradictory reasoning and manifest error of
    assessment. The applicant observes in that regard that           Action brought on 7 April 1997 by Susanne Nikolajsen
    the investigation is being conducted on the basis of                against the Commission of the European Communities
    acts committed by persons unknown, for which the                                           ( Case T-98/97 )
    applicant cannot, therefore, be held responsible to the
    extent of justifying the suspension of the procedure in                                     ( 97/C 181 /35 )
    issue . A decision based on facts which have not yet
    been established must necessarily arise from irregular                           (Language of the case: French)
    reasoning,
                                                                     An action against the Commission oj the European
— absence of a statement of reasons for the initial                  Communities was brought before the Court of First
    decision of the appointing authority, in that, although          Instance of the European Communities on 7 April 1997
    the reasons for rejecting an application for a post do           by Susanne Nikolajsen, residing in Brussels, represented by
    not have to be given until the stage when the                    Nicolas Lhoest, of the Brussels Bar, with an address for
    complaint is rejected, the position must be different            service in Luxembourg at the offices of Fiduciaire Myson
    where the appointing authority decides to suspend the            Sari , 30 Rue de Cessange .
    procedure for filling a post which has been declared
    vacant ,
                                                                     The applicant claims that the Court should:
— abuse of process and misuse of powers .
                                                                     — annul the Commission 's decision of 9 October 1996
                                                                          rejecting the applicant's request that it give
                                                                          consideration to the possible application of
                                                                          Article 31 ( 2 ) of the Staff Regulations,
Action brought on 7 April 1997 by Jacques Verborgh                   — annul, in so far as may be necessary, the decision
  against the Commission of the European Communities                      adopted by the Commission on 27 December 1996
                       ( Case T-91 /97 )                                  expressly rejecting the applicant's complaint,
                         ( 97/C 181 /34 )
                                                                     — order the defendant to pay all the costs .
               (Language of the case: French)
                                                                     Pleas in law and main arguments adduced in support:
An action against the Commission of the European
Communities was brought before the Court of First                    The pleas in law and main arguments are the same as in
Instance of the European Communities on 7 April 1997                 Case T-16/97 ( M.
by Jacques Verborgh, residing at Aalter ( Belgium ),
represented by Nicolas Lhoest, of the Brussels Bar, with an          O OJ No C 74 , 8 . 3 . 1997, p . 27 .
address for service in Luxembourg at the offices of
Fiduciaire Myson Sari , 30 Rue de Cessange.


title: Judgment of the Court (Grand Chamber) of 7 September 2004 in Case C-127/02 (reference for a preliminary ruling from the Raad van State): Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Directive 92/43/EEC — Conservation of natural habitats and of wild flora and fauna — Concept of ‘plan’ or ‘project’ — Assessment of the implications of certain plans or projects for the protected site)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/2

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 7 September 2004
   in Case C-127/02 (reference for a preliminary ruling from the Raad van State): Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (1)

   (Directive 92/43/EEC - Conservation of natural habitats and of wild flora and fauna - Concept of ‘plan’ or ‘project’ - Assessment of the implications of certain plans or projects for the protected site)
   (2004/C 262/03)
   Language of the case: Dutch
   In Case C-127/02: reference for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 27 March 2002, received on 8 April 2002, between Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels and Staatssecretaris van Landbouw, Natuurbeheer en Visserij — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann (Rapporteur), J.-P. Puissochet and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, S. von Bahr and R. Silva de Lapuerta, Judges; J. Kokott, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 7 September 2002, in which it has ruled:

               1.

               Mechanical cockle fishing which has been carried on for many years but for which a licence is granted annually for a limited period, with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on, falls within the concept of ‘plan’ or ‘project’ within the meaning of Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

               2.

               Article 6(3) of Directive 92/43 establishes a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site, while Article 6(2) of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive's objectives, and cannot be applicable concomitantly with Article 6(3).

               3.

                           (a)

                           The first sentence of Article 6(3) of Directive 92/43 must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects.

                           (b)

                           Pursuant to the first sentence of Article 6(3) of Directive 92/43, where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site's conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light inter alia of the characteristics and specific environmental conditions of the site concerned by such a plan or project.

               4.

               Under Article 6(3) of Directive 92/43, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site's conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.

               5.

               Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of Article 6(3) of Directive 92/43, it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with, even though it has not been transposed into the legal order of the Member State concerned despite the expiry of the time-limit laid down for that purpose.

      (1)  OJ C 16 of 29.6.2002.


title: Case T-3/15: Action brought on 6 January 2015 — K-Swiss v OHIM (Parallel stripes on a shoe)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/53

         Action brought on 6 January 2015 — K-Swiss v OHIM (Parallel stripes on a shoe)
   (Case T-3/15)
   (2015/C 065/72)
   Language of the case: English

      Parties

      Applicant: K-Swiss, Inc. (Westlake Village, California, United States) (represented by: R. Niebel, and M. Hecht, lawyers)

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

      Details of the proceedings before OHIM

      Trade mark at issue: International registration designating the European Union in respect of the figurative mark (Representation of five parallel stripes placed on the side of a sport shoe) — International registration No 932 758

      Contested decision: Decision of the Second Board of Appeal of OHIM of 30 October 2014 in Case R 1093/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision;

               —

               Order OHIM to pay the costs.

      Pleas in law

               —

               Infringement of Articles 7(1)(b) and 76 of Regulation No 207/2009.


title: Case T-556/16: Order of the General Court of 3 March 2017 — GX v Commission (Civil service — Recruitment — Notice of competition — Open Competition EPSO/AD/248/13 — Decision not to include the applicant on the reserve list — Action manifestly lacking any foundation in law)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/46

         Order of the General Court of 3 March 2017 — GX v Commission
   (Case T-556/16) (1)

   ((Civil service - Recruitment - Notice of competition - Open Competition EPSO/AD/248/13 - Decision not to include the applicant on the reserve list - Action manifestly lacking any foundation in law))
   (2017/C 144/63)
   Language of the case: English

      Parties

      Applicant: GX (represented by: G.-M. Enache, lawyer)

      Defendant: European Commission (represented by: G. Gattinara and F. Simonetti, acting as Agents)

      Re:

   Application under Article 270 TFEU seeking, first, annulment of the decision of the selection board in Open Competition EPSO/AD/248/13 of 20 August 2014 not to include the applicant on the reserve list and, secondly, compensation in respect of the material and non-material harm allegedly suffered by the applicant on account of that decision.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               GX shall pay the costs.

      (1)  OJ C 279, 24.8.2015 (case initially registered before the European Union Civil Service Tribunal as Case F-89/15 and transferred to the General Court of the European Union on 1 September 2016).


title: Case C-565/15: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 4 November 2015 — Hans-Peter Ofenböck

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/24

         Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 4 November 2015 — Hans-Peter Ofenböck
   (Case C-565/15)
   (2016/C 038/35)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Party to the main proceedings

      Appellant: Hans-Peter Ofenböck

      Questions referred

               1.

               Does Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (1) preclude the application of national legislation under which the freedom of service station operators to change fuel prices is restricted in such a way that they may lawfully increase the sale price only once a day?

               2.

               If Question 1 cannot automatically be answered in the affirmative, and, in accordance with the case-law of the Court of Justice, the examination of the lawfulness of such a restriction in the light of the provisions of Articles 5 to 9 of the Unfair Commercial Practices Directive must instead be conducted with reference to the circumstances of each individual case:
               Which factors would the case-by-case examination of the lawfulness of such a restriction in the light of the provisions of Articles 5 to 9 of the Unfair Commercial Practices Directive, as required by the Court of Justice in the judgment in Case C-540/08, have to take into account in the case of a provision restricting the freedom to increase consumer prices?

      (1)  OJ 2005 L 149, p. 22.


title: Case T-728/16: Action brought on 14 October 2016 — Tuerck v Commission

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/18

         Action brought on 14 October 2016 — Tuerck v Commission
   (Case T-728/16)
   (2016/C 475/28)
   Language of the case: French

      Parties

      Applicant: Sabine Tuerck (Woluwe-Saint-Pierre, Belgium) (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Commission

      Form of order sought

   Declare and rule that

               —

               the decision of 10 December 2015 confirming the transfer of the applicant’s pension rights is annulled;

               —

               the European Commission is ordered to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Article 7(1) of the General Implementing Provisions (GIP) of Articles 11 and 12 of Annex VIII to the Staff Regulations concerning the transfer of pension rights of 3 March 2011. That infringement was committed by the Appointing Authority when calculating the deduction of the amount representing the capital appreciation between the date of the application for a transfer and the actual date of the transfer.

               2.

               Second plea in law, alleging infringement of Article 11(2) of Annex VIII to the Staff Regulations insofar as the Appointing Authority took her promotion into account with retroactive effect in order to determine her basic pay at the date of the application for transfer of her pension rights.


title: Case C-479/04: Reference for a preliminary ruling by the Østre Landsret by decision of that court of 16 November 2004 in the case of Laserdisken ApS against Kulturministeriet

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/6

         Reference for a preliminary ruling by the Østre Landsret by decision of that court of 16 November 2004 in the case of Laserdisken ApS against Kulturministeriet
   (Case C-479/04)
   (2005/C 31/14)
   Language of the case: Danish
   By order of 16 November 2004 of the Østre Landsret (Eastern Regional Court), Denmark, received at the Court Registry on 19 November 2004, reference has been made to the Court of Justice of the European Communities for a preliminary ruling in the case of Laserdisken ApS against Kulturministeriet on the following questions:

               1.

               Is Article 4(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) invalid?

               2.

               Does Article 4(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society preclude a Member State from retaining international exhaustion in its legislation?

         The second question is aimed at clarifying whether a Member State wishing to accord greater weight to freedom of expression and citizens' access to cultural goods than to the wish to protect national rightholders against competition may derogate from Article 4(2).

      (1)  OJ L 167, 22.6.2001, p. 10.


title: Case C-451/99: Reference for a preliminary ruling from the Handelsgericht Wien by order of that court of 10 November 1999 in the case of Cura Anlagen Gesellschaft m.b.H. v ASL Auto Service Leasing GmbH

text:
5.2.2000              EN                   Official Journal of the European Communities                                         C 34/17
Reference for a preliminary ruling from the Handelsge-                     — by failing to take into account the professional experi-
richt Wien by order of that court of 10 November 1999                          ence of divers who brought requests for equivalence
in the case of Cura Anlagen Gesellschaft m.b.H. v ASL                          before the French authorities,
                 Auto Service Leasing GmbH
                        (Case C-451/99)                                    the French Republic has failed to apply correctly
                                                                           Articles 39, 43 and 49 EC (formerly Articles 48, 52
                                                                           and 59 of the EC Treaty) and Article 8 of Directive
                         (2000/C 34/32)                                    92/51/EEC (1);
Reference has been made to the Court of Justice of the
European Communities by an order of the Handelsgericht                2. Order the French Republic to pay the costs.
Wien (Commercial Court, Vienna) of 10 November 1999,
which was received at the Court Registry on 26 November
1999, for a preliminary ruling in the case of Cura Anlagen
Gesellschaft m.b.H. v ASL Auto Service Leasing GmbH on the
following question:                                                   Pleas in law and main arguments
Is Article 49 et seq. EC (or alternatively Article 28 EC) to be
interpreted as precluding the application of provisions of            The hyperbaric fitness certificate provided for by the French
Member State A which prohibit an undertaking established in           Decree of 28 March 1990 is an attestation of competence
Member State A from using for more than three days, or for            within the meaning of Article 8 of Directive 92/51/EEC.
more than a year as the case may be, in Member State A a
motor vehicle which is leased from a leasing undertaking
established in Member State B and registered in Member
State B in the name of the leasing undertaking established            To comply with Article 8 of Directive 92/51/EEC, the com-
there, without obtaining a (second) registration for that motor       petent authorities of the host Member State, when ascertaining
vehicle in Member State A?                                            whether the conditions in indents (a) or (b) of that article are
                                                                      satisfied, may not ignore the knowledge and qualifications
                                                                      already acquired by the person concerned in another Member
                                                                      State and must examine the qualifications acquired in that
                                                                      Member State. However, as the French rules now stand,
                                                                      certificates obtained in the other Member States are refused
                                                                      recognition if they are not on the list in Annex III to the Decree
                                                                      of 28 January 1991, and the French authorities do not
Action brought on 30 November 1999 by the Com-                        examine on a case-by-case basis whether the training and the
mission of the European Communities against the French                qualifications obtained correspond to the French requirements.
                            Republic
                        (Case C-452/99)                               Article 8 of Directive 92/51/EEC must be interpreted in the
                                                                      light of the case-law of the Court of Justice relating to
                         (2000/C 34/33)                               Articles 39, 43 and 49 EC (formerly Articles 48, 52 and 59 of
                                                                      the EC Treaty), and in particular in the light of the Vlassopou-
An action against the French Republic was brought before the          lou (2) judgment concerning the mutual recognition of dip-
Court of Justice of the European Communities on 30 Novem-             lomas. That case-law has been extended to professional
ber 1999 by the Commission of the European Communities,               activities which, as regards the conditions for taking them up
represented by Christina Tufvesson, Legal Adviser, and Bernard        or pursuing them, are not subject by virtue of legal provision
Mongin, of its Legal Service, acting as Agents, with an address       to the possession of a diploma in the strict sense (3). Conse-
for service in Luxembourg at the office of Carlos Gómez de la        quently, the Commission considers that even if recognition
Cruz, of its Legal Service, Wagner Centre, Kirchberg.                 concerns not a diploma but an attestation of competence, the
                                                                      principle of legal certainty requires the national legal system
                                                                      to provide for a procedure ensuring that the person concerned
The Commission claims that the Court should:                          has an opportunity to discover the necessary compensating
                                                                      measures and have the benefit of a reasoned decision against
1. Declare that,                                                      which a remedy is available.
    — by failing to introduce a procedure for comparing the
        knowledge and qualifications attested by diplomas of
        divers obtained in another Member State and not               According to Vlassopoulou, if the comparison discloses that
        recognised as equivalent in France with those required        the knowledge and qualifications certified by the foreign
        by French legislation, and in any event by failing to         diploma correspond only partially to those required by the
        carry out that comparison in the case of divers holding       national provisions, the host Member State is entitled to
        Belgian qualifications who have come to work in               require the person concerned to show that he has acquired the
        France, and                                                   missing knowledge and qualifications. In this regard, the