title: Case C-150/10: Reference for a preliminary ruling from the Tribunal de première instance de Bruxelles (Belgium) lodged on 29 March 2010 — Bureau d’Intervention et de Restitution Belge (BIRB) v Beneo Orafti SA

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/21

      Reference for a preliminary ruling from the Tribunal de première instance de Bruxelles (Belgium) lodged on 29 March 2010 — Bureau d’Intervention et de Restitution Belge (BIRB) v Beneo Orafti SA
      (Case C-150/10)
      (2010/C 161/30)
      Language of the case: French

         Referring court

      Tribunal de première instance de Bruxelles

         Parties to the main proceedings

         Applicant: Bureau d’Intervention et de Restitution Belge (BIRB)

         Defendant: Beneo Orafti SA

         Questions referred

                  1.

                  Are the transitional quotas allocated to an undertaking producing sugar on the basis of Article 9 of Commission Regulation No 493/2006 (1) exempt from the temporary restructuring scheme established by Council Regulation No 320/2006 (2) and by Commission Regulation No 968/2006 (3) laying down detailed rules for implementation, given that:

                              (a)

                              those quotas are not subject to payment of the temporary amount for restructuring;

                              (b)

                              they do not give rise to restructuring aid; and

                              (c)

                              they are not quotas within the meaning of Council Regulation No 320/2006, as defined by Article 2(6) of that Regulation?

                  2.

                  Even if the reply to Question 1 is in the negative, are transitional quotas quotas in their own right, independent of the normal basic quotas, given that:

                              (a)

                              transitional quotas are allocated on the basis of Article 9 of Commission Regulation No 493/2006 and not on the basis of Article 7 of Council Regulation No 318/2006 (4);

                              (b)

                              the criteria for the allocation of transitional quotas differ from the criteria for the allocation of normal basic quotas; and

                              (c)

                              the transitional quotas are transitional measures intended to facilitate the transition from the former scheme for the sugar market to the new scheme for the Community sugar market and, as a consequence, apply in principle only during the 2006/2007 marketing year?

                  3.

                  If the reply to either or both of Questions 1 and 2 is in the affirmative, does an undertaking producing sugar which has applied for restructuring aid for the marketing year 2006/2007 in accordance with Article 3 of Council Regulation No 320/2006 have a right to a transitional quota allocated for the marketing year 2006/2007 in accordance with Article 9 of Regulation No 493/2006?

                  4.

                  If the reply to Question 3 is in the negative, can the penalty applied consist in recovery of part of the restructuring aid granted, together with recovery of the transitional quota?
                  How must the amount of aid to be recovered under Article 26(1) of Commission Regulation No 968/2006 and the penalty provided for under Article 27 thereof be calculated where an undertaking producing sugar has received restructuring aid (for the 2006/2007 marketing year) and has used its transitional quota (for which no restructuring aid was granted)?
                  Must all or some of the following factors be taken into account in the calculation of that amount and of that penalty:

                              (a)

                              the costs born by the undertaking producing sugar in question for the dismantling of its production facilities?

                              (b)

                              the losses incurred by the undertaking producing sugar in question as a result of giving up its normal basic quota?

                              (c)

                              the fact that the transitional quota is a one-off, transitional measure which permits production for the 2006/2007 marketing year only and does not apply to other marketing years (save in the case of the transitional sugar quota)?

                              (d)

                              is a calculation of the amount to be recovered which does not take into account the factors referred to in points (a) to (c) inconsistent with the principle of proportionality?

                  5.

                  Notwithstanding the preceding questions, when do the commitments entered into on the basis of a restructuring plan take effect, that is to say, when do they become binding on the claimant?

                              (a)

                              at the beginning of the marketing year for which the claimant submits its application for restructuring aid?

                              (b)

                              on the submission of the application to the competent national authority?

                              (c)

                              on notification by the competent national authority that the application is regarded as complete?

                              (d)

                              on notification by the competent national authority that the application is regarded as admissible in respect of restructuring aid?

                              (e)

                              on notification by the competent national authority of its decision to grant restructuring aid?

                  6.

                  If the reply to either or both of Questions 1 and 2 is in the affirmative, is an undertaking producing sugar which has been allocated a transitional quota for the marketing year 2006/2007 authorised to use that quota during the marketing year even though the undertaking has been granted restructuring aid by reference to its normal basic quota, beginning with the marketing year 2006/2007?

                  7.

                  If the reply to Questions 1, 2 and 6 is in the negative, is a competent national authority of a Member State authorised, in the event of failure to fulfil the commitments entered into on the basis of the restructuring plan, to combine recovery of the restructuring aid and the penalty under Articles 26 and 27 of Commission Regulation No 968/2006 with the imposition of a levy on surpluses in accordance with Article 4 of Commission Regulation No 967/2006 (5) or is the combination of penalties in that way inconsistent with the principle non bis in idem and the principles of proportionality and non-discrimination?

         (1)  Commission Regulation (EC) No 493/2006 of 27 March 2006 laying down transitional measures within the framework of the reform of the common organisation of the markets in the sugar sector, and amending Regulations (EC) No 1265/2001 and (EC) No 314/2002 (OJ 2006, L 89, p. 11).

         (2)  Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42).

         (3)  Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community (OJ 2006 L 176, p. 32).

         (4)  Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1).

         (5)  Commission Regulation (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota (OJ 2006, L 176, p. 22).


title: Case C-549/16: Request for a preliminary ruling from the Commissione tributaria di Secondo Grado di Bolzano (Italia) lodged on 31 October 2016 — Agenzia delle Entrate — Direzione provinciale Ufficio controlli di Bolzano v Palais Kaiserkron Srl

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/19

         Request for a preliminary ruling from the Commissione tributaria di Secondo Grado di Bolzano (Italia) lodged on 31 October 2016 — Agenzia delle Entrate — Direzione provinciale Ufficio controlli di Bolzano v Palais Kaiserkron Srl
   (Case C-549/16)
   (2017/C 030/23)
   Language of the case: Italian

      Referring court

   Commissione tributaria di Secondo Grado di Bolzano

      Parties to the main proceedings

      Appellant: Agenzia delle Entrate — Direzione provinciale Ufficio controlli di Bolzano

      Respondent: Palais Kaiserkron Srl

      Question referred

   Must Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) be interpreted as meaning that the value added tax and registration duty (payable on lease agreements for commercial property under Articles 40 and 5(1)(a-bis) of the first part of the schedule of charges of Presidential Decree No 131 of 26 April 1986) may be levied cumulatively, or rather as meaning that registration duty is in the nature of a turnover tax?

      (1)  OJ 2006 L 347, p. 1.


title: Case C-582/13 P: Appeal brought on 15 November 2013 by Intra-Presse against the judgment of the General Court (First Chamber) delivered on 16 September 2013 in Case T-437/11: Golden Balls Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/9

         Appeal brought on 15 November 2013 by Intra-Presse against the judgment of the General Court (First Chamber) delivered on 16 September 2013 in Case T-437/11: Golden Balls Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-582/13 P)
   2014/C 24/16
   Language of the case: English

      Parties

      Appellant: Intra-Presse (represented by: P. Péters, advocaat, T. de Haan, avocat, M. Laborde, avocate)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Golden Balls Ltd

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the judgment of the General Court of the European Court of 16 September 2013 in Case T-437/11;

               —

               refer the case back to the General Court of the European Union to rule on the action brought by Intra-Presse under Article 8(5) of Regulation No 207/2009 (1);

               —

               order that the costs be reserved.

      Pleas in law and main arguments

   Appellant submits that the contested judgment should be annulled on the following grounds.
   Firstly, the General Court infringed Article 8(1)(b) CTMR in defining the relevant public and in assessing the degree of conceptual similarity between marks by adding a requirement of ‘intellectual process of translation’, ‘begin by translating’ or ‘prior translation’. Secondly, the General Court infringed Article 8(5) CTMR by failing to carry out a global assessment and omitting to examine the relevance of the reputation of Appellant’s earlier mark and the existence of a possible link.

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


title: Case C-645/15: Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 3 December 2015 — Bund Naturschutz in Bayern e.V., Harald Wilde v Freistaat Bayern

text:
               7.3.2016

               EN

               Official Journal of the European Union

               C 90/5

         Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 3 December 2015 — Bund Naturschutz in Bayern e.V., Harald Wilde v Freistaat Bayern
   (Case C-645/15)
   (2016/C 090/08)
   Language of the case: German

      Referring court

   Bayerischer Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicants: Bund Naturschutz in Bayern e.V., Harald Wilde

      Defendant: Freistaat Bayern

      Questions referred

               1.

               Should Point 7(c) of Annex I to Directive 2011/92/EU (1) of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (the ‘EIA Directive’) be interpreted as covering also the widening of existing roads with four or more lanes?

               2.

               If Question 1 is answered in the affirmative:
               Is Point 7(c) of Annex I to the EIA Directive more specific than Point 7(b) of Annex I to that directive and does it for that reason take priority in application?

               3.

               If Question 1 or Question 2 is answered in the negative:
               Does the term ‘express road’ in Point 7(b) of Annex I to the EIA Directive presuppose that the road section in question is a main international traffic artery within the meaning of the European Agreement on Main International Traffic Arteries?

               4.

               If Questions 1, 2 or 3 are answered in the negative:
               Does the term ‘construction’ in Point 7(b) of Annex I to the EIA Directive apply to road-widening under which the existing route of the road does not undergo any significant alteration?

               5.

               If Question 4 is answered in the affirmative:
               Does the term ‘construction’ in Point 7(b) of Annex I to the EIA Directive presuppose a minimum length with regard to the road section in question? If so, must this involve a continuous section of road? If so, is the minimum length more than a continuous length of 2,6 kilometres or, where the lengths of multiple separate sections of road are to be added together, more than a total of 4,4 kilometres?

               6.

               If Question 5 is answered in the negative:
               Does the second reference in Point 7(b) of Annex I to the EIA Directive (construction of express roads) apply to a road-widening measure within a built-up area within the meaning of the European Agreement on Main International Traffic Arteries?

      (1)  OJ 2012 L 26, p. 1.


title: Case C-123/00: Reference for a preliminary ruling, by the Court of First Instance, Brussels, (55th Chamber), 28 March 2000, in the Case of Christina Bellamy v Procureur du Roi — Party liable in civil law: English Shop Wholesale SA

text:
C 149/28               EN                   Official Journal of the European Communities                                     27.5.2000
Question 2                                                                 whose cooking salt content, expressed in terms of sodium
                                                                           chloride and calculated on the basis of the dry matter,
Does the fact that the employment occurs in a very large                   exceeds 2.0 %, compatible with the requirements of Article
undertaking and that that undertaking frequently uses tempor-              28 of the Treaty on European Union and are they capable
ary workers have any bearing on the answer to Question 1?                  of being justified under Article 30 of that instrument?
                                                                       2. Are Articles 1.3 and 8 of the Royal Decree of 2 September
(1) OJ L 39 of 14.2.1976, p. 40.                                           1985 on bread and other bakery products and Article 14
(2) OJ L 348 of 28.11.1992, p. 1.                                          of the Law of 24 January 1977 on the protection of
                                                                           consumers’ health in relation to foodstuffs and other
                                                                           products compatible with the requirements of Article 28
                                                                           of the Treaty on European Union and are they capable of
                                                                           being justified under Article 30 of that instrument?
                                                                       3. Are Articles 4(2) and 5 of the Royal Decree of 17 April
Reference for a preliminary ruling, by the Court of First                  1980 concerning advertising of foodstuffs and Article 14
Instance, Brussels, (55th Chamber), 28 March 2000, in the                  of the Law of 24 January 1977 on the protection of
Case of Christina Bellamy v Procureur du Roi — Party                       consumers’ health in relation to foodstuffs and other
       liable in civil law: English Shop Wholesale SA                      products compatible with the requirements of Article 28
                                                                           of the Treaty on European Union and are they capable of
                         (Case C-123/00)                                   being justified under Article 30 of that instrument?
                         (2000/C 149/52)
Reference has been made to the Court of Justice of the
European Communities by order of the Court of First Instance,
Brussels, 28 March 2000, received at the Court Registry on                    Removal from the register of Case C-20/99 (1)
31 March 2000, for a preliminary ruling in the case of
Christina Bellamy v Procureur du Roi — Party liable in civil                                   (2000/C 149/53)
law: English Shop Wholesale SA, on the following questions:
                                                                       By order of 25 January 2000 the President of the Court of
1. Are Articles 1.3 and 8 of the Royal Decree of 2 September           Justice of the European Communities has ordered the removal
    1985 on bread and other bakery products and Article 14             from the register of Case C-20/99: Commission of the
    of the Law of 24 January 1977 on the protection of                 European Communities v Republic of Austria.
    consumers’ health in relation to foodstuffs and other
    products, in so far as they prohibit the marketing of bread        (1) OJ C 86 of 27.3.1999.


title: Case T-57/09: Judgment of the General Court of 20 October 2011 — Alfastar Benelux v Council (Public service contracts — Tendering procedure — Provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council — Rejection of a tender — Obligation to state the reasons on which a decision is based)

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/16

         Judgment of the General Court of 20 October 2011 — Alfastar Benelux v Council
   (Case T-57/09) (1)

   (Public service contracts - Tendering procedure - Provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council - Rejection of a tender - Obligation to state the reasons on which a decision is based)
   2011/C 355/26
   Language of the case: English

      Parties

      Applicant: Alfastar Benelux (Ixelles, Belgium) (represented by: N. Keramidas, lawyer)

      Defendant: Council of the European Union (represented by: M. Balta, M. Vitsentzatos and M. Robert, Agents)

      Re:

   Application, first, for annulment of the Council’s decision of 1 December 2008 to reject the tender submitted by the Alfastar-Siemens consortium, composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance — help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council (OJ 2008/S 91-122796) and to award the contract to another tenderer and, secondly, for damages.

      Operative part of the judgment

   The Court:

               1.

               Annuls the Council’s decision of 1 December 2008 to reject the tender submitted by the consortium composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance — help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer;

               2.

               Dismisses the claim for damages;

               3.

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

      (1)  OJ C 102, 1.5.2009.


title: Case T-291/12: Judgment of the General Court of 25 March 2014  — Deutsche Bank v OHIM (Passion to Perform) (Community trade mark  — International registration designating the European Union  — Word mark Passion to Perform  — Trade mark consisting of an advertising slogan  — Absolute grounds for refusal  — No distinctive character  — Article 7(1)(b) of Regulation (EC) No 207/2009  — Equal treatment)

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/33

         Judgment of the General Court of 25 March 2014 — Deutsche Bank v OHIM (Passion to Perform)
   (Case T-291/12) (1)

   ((Community trade mark - International registration designating the European Union - Word mark Passion to Perform - Trade mark consisting of an advertising slogan - Absolute grounds for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Equal treatment))
   2014/C 142/41
   Language of the case: English

      Parties

      Applicant: Deutsche Bank AG (Frankfurt on Main, Germany) (represented by: R. Lange, T. Götting and G. Hild, lawyers)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 April 2012 (Case R 2233/2011-4) concerning an application for registration of word sign Passion to Perform as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Deutsche Bank AG to pay the costs.

      (1)  OJ C 273, 8.9.2012.


title: Case T-424/05: Action brought on  16 November 2005  — Italian Republic v Commission

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/23

         Action brought on 16 November 2005 — Italian Republic v Commission
   (Case T-424/05)
   (2006/C 22/41)
   Language of the case: Italian
   Parties

      Applicant(s): Italian Republic (represented by: Paolo Gentili, Avv. dello Stato)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul the contested decision;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The present action, brought by the Italian Republic, is concerned with Commission decision No C(2005) 3302 of 6 September 2005.
   By that decision, the Commission declared to be incompatible with the common market the provisions of Article 12 of Decree Law No 269/2003, converted into Law No 326/2003.
   It provides, essentially, that the rate of tax replacing income tax levied on the net profits of the various types of investment funds and open-ended investment companies is to be reduced from 12.5 % to 5 % where the funds or companies invest during the calendar year at least two-thirds of the value of their assets, for more than one-sixth of the fund's business days, in small or medium-sized quoted capitalisation funds. Such funds or companies are referred to as being 'specialised'.
   According to the Commission, the measure is selective, favouring, first, small or medium-sized capitalisation undertakings as compared with others, channelling certain funds towards them; second, they favour the specialised funds or companies, as compared with general funds or companies, by allowing them to assign greater income to individual units, since the income is subject to a lower replacement tax. Moreover, it is a measure which has no connection with the general tax system and in fact constitutes nothing more than operational aid. Finally, there is no reason for any derogation in favour of the measure under Article 87(3)(c) EC.
   According to the Italian Government, the decision is vitiated, first, from the procedural point of view, because the decision to initiate the procedure under Article 88(2) EC was adopted without a prior exchange of views between the Commission and the Italian administration, as provided for in Regulation No 659/99 concerning procedures for State aid (first plea).
   Next, no adequate reasons are given concerning the basic profile put forward by the Italian Government in the course of the procedure: in the Italian legislation (which transposes the directives on regulation of financial markets), unit trusts and open-ended investment companies are classified merely as independent funds divided into units. They do not therefore constitute undertakings within the meaning of Community law. The Commission took note of that situation, but observed that 'in certain cases' such investment instruments constitute undertakings; however, the Commission did not specify in what cases and under what conditions open-ended investment companies and funds acquire that status (second plea).
   The third plea alleges infringement of Article 87 EC, on the basis that open-ended investment funds and companies cannot, by virtue of their nature, ever be regarded as undertakings within the meaning of Community law, in so far as they are merely forms of collective ownership of transferable securities. However, even if they are regarded as such, the alleged aid is not selective, because any interested party (companies managing 'contractual' unit trusts or promoting open-ended investment companies) could establish specialised instruments alongside general instruments, and thus take advantage of the relief available.
   The fourth plea criticises the decision for taking the view that the beneficiaries of the alleged aid are quoted small or medium-sized capitalisation companies when in fact the real beneficiaries of the relief are merely the subscribers to the funds or open-ended investment companies, which means, potentially, anybody: accordingly, the relief does not target undertakings and is not selective. The Commission has not demonstrated that direct relief for subscribers gave rise to indirect relief for the said companies.
   The fifth plea again alleges infringement of Article 87 EC and an inadequate statement of reasons for the Commission's decision that the measure has an impact on intra-Community competition, despite the fact that its economic impact is minimal (according to the Commission itself, amounting in 2004 to Euro 1 100 000.00). Nor has the Commission clarified the classification as operational aid, since the replacement tax is not a management cost for intermediaries who manage collective investment instruments. It is clear from the purpose of strengthening small and medium-sized capitalisation companies that, as far as the latter are concerned, the measure is of a structural nature.
   The sixth plea criticises the part of the decision that rejects recourse to a derogation under Article 87(3)(c) EC. The aim of widening the asset base of companies with limited capitalisation, which find it more difficult than widely quoted companies to gain access to the venture-capital market, is in fact an economic policy objective which displays links with the abovementioned provision allowing derogations.


title: Case T-654/14: Action brought on 8 September 2014 — Revolution v OHIM (REVOLUTION)

text:
               3.11.2014

               EN

               Official Journal of the European Union

               C 388/21

         Action brought on 8 September 2014 — Revolution v OHIM (REVOLUTION)
   (Case T-654/14)
   2014/C 388/26
   Language of the case: English

      Parties

      Applicant: Revolution LLC (Washington, United States) (represented by: P. Roncaglia, F. Rossi and N. Parrotta, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 June 2014 given in Case R 2143/2013-1;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: The work mark ‘REVOLUTION’ for services in Class 36 — Community trade mark application No 1 1 8 15  297

      Decision of the Examiner: Rejected the application for CTM registration

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and 7(2) of the Regulation No 207/2009


title: Judgment of the Court of First Instance of 17 April 2002 in Case T-325/00: Elke Sada v Commission of the European Communities (Officials — Temporary agent — Unemployment allowance — Refused)

text:
29.6.2002               EN                        Official Journal of the European Communities                                              C 156/21
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 20 March 2002
                          of 17 April 2002
                                                                             in Case T-355/00: DaimlerChrysler AG v Office for
                                                                             Harmonisation in the Internal Market (Trade Marks and
                                                                                Designs) (OHIM) (1)
in Case T-325/00: Elke Sada v Commission of the Euro-
                       pean Communities (1)                                  (Community trade mark — ‘TELE AID’ — Absolute grounds
                                                                             for refusal — Article 7(1)(b) and (c) of Regulation (EC)
                                                                                No 40/94)
(Officials — Temporary agent — Unemployment allowance
                             — Refused)                                                                 (2002/C 156/40)
                                                                                (Language of the case: German)
                           (2002/C 156/39)
                                                                             In Case T-355/00: DaimlerChrysler AG, established in Stuttgart
                                                                             (Germany), represented by S. Völker, lawyer, v Office for
                   (Language of the case: German)                            Harmonisation in the Internal Market (Trade Marks and
                                                                             Designs) (OHIM) (Agents: A. von Mühlendahl and D. Schen-
                                                                             nen) — action brought against the decision of the Third Board
                                                                             of Appeal of the Office for Harmonisation in the Internal
                                                                             Market (Trade Marks and Designs) of 12 September 2000
                                                                             (Case R 142/2000-3) relating to registration of ‘TELE AID’ as
                                                                             a Community trade mark — the Court of First Instance
In Case T-325/00: Elke Sada, former temporary agent at                       (Second Chamber, Extended Composition), composed of:
the Commission of the European Communities, residing in                      R.M. Moura Ramos, President, V. Tiili, J. Pirrung, P. Mengozzi
                                                                             and A.W.H. Meij, Judges; H. Jung, Registrar, has given a
Besozzo (Italy), represented by H.-J. Rüber, Rechtsanwalt, with
an address for service in Luxembourg, against Commission of                  judgment on 20 March 2002, in which it:
the European Communities (Agents: C. Berardis-Kayser and
B. Wägenbaur) — application for annulment of the decision                    1.    Annuls the decision of the Third Board of Appeal of the Office
of the Commission of 20 December 1999 refusing to grant                            for Harmonisation in the Internal Market (Trade Marks and
the applicant an unemployment allowance under Article 28a                          Designs) of 12 September 2000 (Case R 142/2000-3) as
of the Conditions of Employment of Other Servants of the                           regards the following categories of goods and services:
European Communities — the Court of First Instance (Fourth
Chamber), composed of M. Vilaras, President, V. Tiili and
P. Mengozzi, Judges; H. Jung, Registrar, gave a judgment on                        —    ‘electrical and electronic devices for transferring speech and
17 April 2002, in which it:                                                             data; stationary and mobile transmission, relay and audio
                                                                                receivers and devices; data processing equipment and parts
                                                                                therefor; navigation devices’ within Class 9;
                                                                                —    ‘operation of a communications network’ within Class 38;
1.    dismisses the application;
                                                                                —    ‘collection, storage, processing and output of information’
                                                                                within Class 42.
2.    orders the parties to bear their own costs.
                                                                             2.    As to the remainder, dismisses the action;
                                                                             3.    Orders the applicant to pay its own costs and one half of the
                                                                                defendant’s costs; the defendant is to pay the other half of its
                                                                                own costs.
(1) OJ C 372 of 23.12.2000.
                                                                             (1) OJ C 28 of 27.1.2001.


title: Case T-140/13: Judgment of the General Court of 9 December 2014  — Netherlands Maritime Technology Association v Commission (State aid — Spanish scheme of early depreciation of certain assets acquired through financial leasing — Decision finding no State aid — Formal investigation procedure not initiated — Serious difficulties — Circumstances and length of the preliminary examination — Insufficient and incomplete examination)

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/34

         Judgment of the General Court of 9 December 2014 — Netherlands Maritime Technology Association v Commission
   (Case T-140/13) (1)

   ((State aid - Spanish scheme of early depreciation of certain assets acquired through financial leasing - Decision finding no State aid - Formal investigation procedure not initiated - Serious difficulties - Circumstances and length of the preliminary examination - Insufficient and incomplete examination))
   (2015/C 034/39)
   Language of the case: English

      Parties

      Applicant: Netherlands Maritime Technology Association, formerly Scheepsbouw Nederland (Rotterdam, Netherlands) (represented by: K. Struckmann, lawyer, and G. Forwood, Barrister)

      Defendant: European Commission (represented by: M. Afonso, L. Flynn and P. Němečková, acting as Agents)

      Intervener in support of the defendant: Kingdom of Spain (represented by N. Díaz Abad and A. Sampol Pucurull, abogados del Estado)

      Re:

   Application for annulment of the Commission Decision of 20 November 2012 relating to State aid SA 34736 (12/N) concerning the implementation by the Kingdom of Spain of a tax scheme permitting the early depreciation of certain assets acquired through financial leasing.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action as being unfounded;

               2)

               Orders Netherlands Maritime Technology Association to bear its own costs and to pay those incurred by the European Commission;

               3)

               Orders the Kingdom of Spain to bear its own costs.

      (1)  OJ C 147, 25.5.2013.


title: Case C-185/05: Action brought on 26 April 2005 by the Commission of the European Communities against the Italian Republic

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/23

         Action brought on 26 April 2005 by the Commission of the European Communities against the Italian Republic
   (Case C-185/05)
   (2005/C 182/43)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 26 April 2005 by the Commission of the European Communities, represented by B. Schima and F. Amato, of its Legal Service.
   The Commission claims that the Court should:

               1.

               declare that:
               by maintaining in force legislation such as that contained in Article 9(3) and (4) of legislative decree No 344 of 1999, under which the operator of an establishment where dangerous substances are present may commence activity without the authority which has to give its views on the safety report having expressly communicated the conclusions of its examination of the safety report to the operator,
               by maintaining in force legislation such as that contained in Article 21(3) of legislative decree No 344 of 1999, under which, where the measures the operator plans to adopt for the prevention and mitigation of major accidents are seriously deficient, the competent authority is not required to prohibit commencement of activity;
               by failing to adopt binding legislation providing for inspections which allow a planned and systematic examination of technical, organisational and management systems applied in the establishment in question, so as to ensure that the operator can demonstrate that he has adopted adequate measures in the light of the activities carried out by the establishment, to prevent any relevant accidents and to ensure that the operator can demonstrate that he has appropriate means of limiting the consequences of accidents on and off site,
               by failing to adopt legislation providing for inspections which ensure that the data and information contained in the safety report or any other report submitted adequately reflect the conditions in the establishment,
               the Italian Republic has failed to fulfil its obligations under Article 9(4), Article 17(1) and the first, second and third indents of Article 18(1) of Directive 96/82. (1)

               2.

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances provides that the operator of an establishment where dangerous substances are present is required to submit a safety report to the competent authority. The Italian Republic transposed that directive by legislative decree No 334 of 17 August 1999.
   The Commission takes the view, first, that under Article 9(4) of the directive the operator may not commence activity in the absence of express authorisation from the competent authority.
   However, the legislative decree allows the operator to commence activity without the competent authority having expressly communicated the conclusions of its examination of the safety report to the operator.
   Then, according to Article 17(1) of the directive, the competent authority is required to prohibit the activity where the measures the operator plans to adopt for the prevention and mitigation of major accidents are seriously deficient.
   However, the legislative decree appears not to impose that requirement on the competent authority.
   Finally, under Article 18(1) of the directive, the Member States must adopt binding legislation providing for inspections which allow a planned and systematic examination of technical, organisational and management systems applied in the establishment in question, so as to ensure that the operator can demonstrate that he has adopted adequate measures in the light of the activities carried out by the establishment, to prevent any major accidents and to ensure that the operator can demonstrate that he has appropriate means of limiting the consequences of accidents on and off site. Under Article 18(1) of the directive, again, the Member States must adopt legislation providing for inspections which ensure that the data and information contained in the safety report or any other report submitted adequately reflects the conditions in the establishment.
   However, the legislative decree has not implemented those provisions but merely referred to a later implementing decree which to date has not yet been adopted.
   In the light of the foregoing, therefore, the Commission submits that the Italian Republic has failed to fulfil its obligations under Article 9(4), Article 17(1) and the first, second and third indents of Article 18(1) of the directive.

      (1)  OJ 1997 L 10, 14. 1. 1997, p. 13


title: Case C-564/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 9 November 2011 — Consulta Regionale Ordine Ingegneri della Lombardia and Others v Comune di Pavia

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/14

         Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 9 November 2011 — Consulta Regionale Ordine Ingegneri della Lombardia and Others v Comune di Pavia
   (Case C-564/11)
   2012/C 73/25
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicants: Consulta Regionale Ordine Ingegneri della Lombardia, Ordine degli Ingegneri della Provincia di Brescia, Ordine degli Ingegneri della Provincia di Como, Ordine degli Ingegneri della Provincia di Cremona, Ordine degli Ingegneri della Provincia di Lecco, Ordine degli Ingegneri della Provincia di Lodi, Ordine degli Ingegneri della Provincia di Milano, Ordine degli Ingegneri della Provincia di Pavia, Ordine degli Ingegneri della Provincia di Varese

      Defendant: Comune di Pavia

      Question referred

   Does Directive 2004/18/EC of the European Parliament and of the Council (1) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts and, in particular, Article 1(2)(a) and (d), Article 2 and Article 28 thereof and Categories 8 and 12 of Annex II thereto, preclude national legislation under which it is possible for written agreements to be entered into by two awarding authorities for scientific and technical consulting studies and services for the drafting of the measures making up the municipal town and country planning programme, as defined by the national and regional legislation for the sector, the financial consideration for which does not, by definition, represent true remuneration, in so far as the administrative authority responsible for carrying out this task may act as an economic operator?

      (1)  OJ 2004 L 134, p. 114.


title: Case C-546/11: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 26 October 2011 — Dansk Jurist- og Økonomforbund (DJØF — Danish Union of jurists and economists) acting on behalf of Erik Toftgaard v Indenrigs- og Sundhedsministeriet

text:
               14.1.2012

               EN

               Official Journal of the European Union

               C 13/6

         Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 26 October 2011 — Dansk Jurist- og Økonomforbund (DJØF — Danish Union of jurists and economists) acting on behalf of Erik Toftgaard v Indenrigs- og Sundhedsministeriet
   (Case C-546/11)
   2012/C 13/12
   Language of the case: Danish

      Referring court

   Højesteret

      Parties to the main proceedings

      Applicant: Dansk Jurist- og Økonomforbund (DJØF — Danish Union of jurists and economists) acting on behalf of Erik Toftgaard

      Defendant: Indenrigs- og Sundhedsministeriet

      Questions referred

               1.

               Is Article 6(2) of the Employment Directive (1) to be interpreted as meaning that Member States may provide only that the fixing of age limits for access or entitlement to benefits under occupational social security schemes does not constitute discrimination in so far as those social security schemes relate to retirement or invalidity benefits?

               2.

               Is Article 6(2) to be interpreted as meaning that the possibility of fixing age limits concerns only access to the scheme, or is the provision to be interpreted as meaning that the possibility of fixing age limits also concerns entitlement to the payment of benefits under the scheme?

               3.

               If question 1 is answered in the negative:
               Can the expression ‘occupational social security schemes’ in Article 6(2) include a scheme such as the ‘rådighedsløn’ (availability pay) as referred to in section 32(1) of the Danish Law on Civil Servants (Tjenestemandslov), under which a civil servant may, as special protection in the event of redundancy due to the abolition of his post, retain his current salary for three years and continue to be credited for years of pensionable service, provided he remains available for assignment to another suitable post?

               4.

               Is Article 6(1) of the Employment Directive to be interpreted as meaning that it does not preclude a national provision such as section 32(4)(2) of the Tjenestemandslov, under which an availability salary is not paid to a civil servant who has reached the age at which the State retirement pension becomes payable, if his job has been abolished?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Action brought on 5 May 1997 by the Commission of the European Communities against the French Republic (Case C-175/97)

text:
28 . 6 . 97            EN                    Official Journal of the European Communities                                No C 199/ 15
The appellants claims that the Court should:                            Action brought on 5 May 1997 by the Commission of the
                                                                            European Communities against the French Republic
                                                                                ( Case C-175/97 )
— set aside the judgment of the Court of First Instance of
     the European Communities delivered on 27 February                                              ( 97/C 199/29 )
     1997 in Case T-106/95 ,
— consequently, annul the Commission 's decision of                     An action against the French Republic was brought before
     8 February 1995 ('),                                               the Court of Justice on 5 May 1997 by the Commission of
                                                                        the European Communities, represented by Michel Nolin
                                                                        and Laura Pignataro, acting as Agents, with an address for
— declare incompatible with the common market,                          service in Luxembourg at the office of Carlos Gomez de la
     pursuant to Article 92 ( 1 ), the provisions in question           Cruz, Wagner Centre, Kirchberg.
     of the French Law to 2 July 1990 .
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments adduced in support:
                                                                        — declare that, by failing to adopt, or in any case
The judgment of the Court of First Instance infringes                        to notify, within the period prescribed the laws,
Articles 90 ( 2 ) and 92 of the EC Treaty.                                   regulations and administrative provisions necessary
                                                                             to comply with Council Directive 93/89/EEC of
                                                                             25 October 1993 on the application by Member States
The Court was wrong to hold that the aid in question,                        of taxes on certain vehicles used for the carriage of
namely an 85 % reduction in property and business taxes,                     goods by road and tolls and charges for the use of
merely offsets the additional public service costs which La                  certain infrastructures ('), the French Republic has
Poste has to bear. In practice, the aid granted benefits all                 failed to fulfil its obligations under the EC Treaty and
of la Poste 's activities, including its competitive activities,             under that Directive,
and there are therefore cross-subsidies . The Court upheld
the Commission 's decision even though there are no
analytical accounts which are the only possible means of                — order the French Republic to pay the costs .
ascertaining that only activities reserved to La Poste have
been subsidized .
                                                                        Pleas in law and main arguments adduced in support:
The evaluation of the additional costs of performing the
reserved activities is fanciful . The activities must be
                                                                        Under the third paragraph of Article 189 of the EC Treaty,
distinguished from competitive activities which must be                 a directive is to be binding, as to the result to be achieved,
pursued on the market in question and the conditions                    upon each Member State to which it is addressed and,
under which they are performed . Article 92 of the Treaty               under Article 5 of the Treaty, the Member States are to
is fully applicable to those competitive activities . It is the         take all appropriate measures, whether general or
Commission's duty to ensure that the aid does not end up
                                                                        particular, to ensure fulfilment of the obligations resulting
subsidizing those activities .                                          in particular from action taken by the institutions of the
                                                                        Community.
According to the contested judgment, La Poste breaks
even on all its activities . It is not the aid which enables La
Poste to break even but the profits improperly made from                Article 13 of the Directive in question provides that the
competitive activities enjoying tax concessions.                        Member States are to bring into force the laws,
                                                                        regulations and administrative provisions necessary to
                                                                        comply therewith by 1 January 1995 .
The 34,7 % weighting used by the Commission to take
account of the advantages enjoyed by La Poste 's
competitive services owing to the existence of the postal               By its judgment in Case C-21 /94 European Parliament v.
network in rural areas, which is upheld by the judgment,                Council [ 1995] ECR 1827, the Court of Justice annulled
is not correct. On the basis of turnover, 75 % of the                   the said Directive but held that its effects should be
activity of offices in rural areas can be calculated to be              preserved until the Council had adopted a new directive .
devoted to competitive services . With that percentage, the             That judgment cannot justify a failure to transpose the
aid is much greater than the additional costs.                          Directive in question .
(') OJ No C 262, 7. 10 . 1995 , p . 11 .                                (') OJ No L 279, 12 . 11 . 1993 , p . 32 .


title: Case T-138/10: Action brought on 24 March 2010 — Spain v Commission

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/47

         Action brought on 24 March 2010 — Spain v Commission
   (Case T-138/10)
   2010/C 134/77
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

      Defendant: European Commission

      Form of order sought

               —

               Annulment of Commission Decision No 337 of 28 January 2010 reducing the assistance from the European Regional Development Fund (ERDF) for the Comunidad Valenciana operational programme Objective 1 (1994-1999) in Spain pursuant to Decision C(1994) 3043/6, ERDF No 94.11.09.011, and

               —

               an order that the Commission should pay the costs.

      Pleas in law and main arguments

   By Decision C(94) 30346 of 25 November 1994, the Commission granted assistance from the European Regional Development Fund (ERDF) for an operational programme in the Valencia region, forming part of the Community support framework for action by the structural funds in the Spanish regions concerned by Objective No 1 in the period 1994-1999, for a maximum amount of ECU 1 207 941 000. The decision contested in these proceedings maintains that irregularities occurred in 23 of the 38 projects audited, and reduces the assistance originally granted by EUR 115 612 377,25.
   In support of its claims the applicant puts forward the following pleas in law:

               —

               infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, (1) in that the extrapolation method was used in the contested decision, given that that article does not provide for it to be possible to extrapolate irregularities found in specific actions to the whole body of actions included in the operational programmes financed by ERDF funds. The applicant maintains that the correction applied by the Commission in the contested decision has no basis in law, because the Commission’s internal guidelines of 15 October 1997 concerning net financial corrections in the context of the application of Article 24 of Council Regulation (EEC) No 4253/88 cannot, in accordance with the judgment of the Court of Justice in Case C-443/97 Spain v Commission, (2) be considered to produce legal effects vis-à-vis the Member States, and because that provision envisages the reduction of assistance only when examination of that assistance reveals an irregularity, a principle breached by the application of corrections by extrapolation;

               —

               as a subsidiary plea, infringement of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988 read in conjunction with the present Article 4(3) TEU (principle of sincere cooperation), for the correction was applied by extrapolation although no deficiency had been revealed in the management, supervision or audit systems regarding the amended contracts, given that the management bodies applied the Spanish legislation which has not been declared by the Court to be contrary to the law of the European Union. The Kingdom of Spain takes the view that the management bodies’ observance of national law, even though it may lead to a finding by the Commission of irregularities or of actual infringements of European Union law, cannot serve as a basis for extrapolation on the ground of failings in the system of management, when the law applied by those bodies has not been declared contrary to European Union law by the Court of Justice and when the Commission has not brought an action against the Member State under Article 258 TFEU;

               —

               as a subsidiary plea, infringement of Article 24 of Regulation (EEC) No 4253/88, in that the sample used for the application of the financial correction by extrapolation was unrepresentative. The Commission formed the sample for the application of extrapolation with a very limited number of projects (38 out of 7 862), without taking into consideration all the essential parts of the operational programme, including expenditure withdrawn beforehand by the Spanish authorities, taking as the starting point the expenditure declared and not the assistance granted and by using an IT programme which offered a level of reliability of less than 85 %. The Kingdom of Spain considers, therefore, that the sample does not satisfy the conditions of representativity required in order for it to serve as a basis for extrapolation;

               —

               expiry of the limitation period for proceedings pursuant to Article 3 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995. Finally, the Kingdom of Spain considers that the communication of irregularities to the Spanish authorities (which took place in July 2004, in most cases concerning irregularities committed during the years 1997, 1998 and 1999) must determine the moment from which the period of four years laid down in Article 3 of Regulation No 2988/95 (3) started to run with regard to those irregularities.

      (1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

      (2)  Case C-443/97 Spain v Commission [2000] ECR I-2415.

      (3)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1).


title: Case T-60/02: Action brought on 1 March 2002 by Deutsche Verkehrsbank AG against the Commission of the European Communities

text:
4.5.2002               EN                    Official Journal of the European Communities                                     C 109/65
The applicant did not take part in the meeting on 15 October            Action brought on 1 March 2002 by Deutsche Ver-
1997. The employee of the applicant who was sent an                     kehrsbank AG against the Commission of the European
invitation to attend that meeting was not granted permission                                       Communities
by his superior to take part in it. An employee of the
Vereins- und Westbank, in which the applicant has a majority
shareholding, had been the only person attending on the                                           (Case T-60/02)
applicant’s behalf. The Vereins- und Westbank conducts itself
in the market quite independently of the applicant, and the                                     (2002/C 109/123)
links between the two banks from the standpoint of company
law cannot therefore constitute the basis for any presumption
concerning the attendance by an employee of that bank at the                              (Language of the case: German)
meeting complained of.
                                                                        An action against the Commission of the European Communi-
In assessing the amount of the fine, the Commission manifestly          ties was brought before the Court of First Instance of the
departed from its own guidelines and infringed the requirement          European Communities on 1 March 2002 by Deutsche
of equal treatment.                                                     Verkehrsbank AG, of Frankfurt am Main (Germany), represent-
                                                                        ed by M. Klusmann and F. Wiemer, lawyers.
Neither in the communication concerning the heads of
complaint nor in the context of the hearing before the official         The applicant claims that the Court should:
nominated to conduct the same was there any suggestion that
the applicant itself had taken part in the alleged agreements.          —     annul the contested decision in so far as it concerns the
The Commission should have indicated the change in its point                  applicant;
of view to the applicant prior to adopting its decision.
                                                                        —     alternatively, reduce the fine imposed on the applicant by
                                                                              the contested decision to a reasonable amount;
The applicant’s rights of defence were infringed, since the
applicant was not given full access to the file. In particular, it      —     order the defendant to pay the costs.
was not able to inspect the comments made by the other
parties involved or the files in the parallel procedures, despite
the fact that the applicant had well-founded reasons to suspect
that those files contained material which would have been               Pleas in law and main arguments
material to its defence.
                                                                        The claim is directed against Decision C(2001) 3693 of
The decision is lacking in an adequate statement of reasons,            11 December 2001, adopted in Case COMP/E-1/37.919
since, in respect of a series of points, it does not contain any        (ex 37 391) — Bank charges for currency exchange within the
considerations capable of being verified. In particular, no             Euro zone, by which the Commission found that the applicant
reasons were given for the attribution to the conduct of the            had participated in an agreement during the period from
representative of the Vereins- und Westbank of the failure to           1 January 1999 to 31 December 2001 (the period leading up
apply the rules concerning mitigating factors or for the                to the change-over to the euro) concerning the charging of a
deviation from the principle that the initiators of a cartel            percentage commission targeted at around 3 % as a fee for
should not enjoy the benefit of the non-imposition of a fine.           exchanging bank-notes in the participant currencies, and
                                                                        imposed on the applicant a fine of 14 million euros.
The conduct of the Commission in the course of the procedure            The applicant pleads as follows:
shows that it did not act with a view to punishing an
infringement of the rules on cartels but rather with a view to          It does not carry on foreign-exchange end transactions of the
lowering, for political reasons, the charges for exchanging             type concerned in this case; instead, it engages exclusively in
currencies, which it regarded as too high. Those banks which,           inter-bank trading, i.e. wholesale trading in currencies and
faced with that pressure, declared themselves willing to lower          foreign exchange, and therefore in cashless trading in foreign
the charges had been removed from the procedure, regardless             currencies.
of their role in the alleged infringement of the rules on cartels.
The Commission thus misused the provisions of competition
law in order to regulate prices, which it was not in its power          The Commission used evidence on which the applicant was
to do. This constitutes a misuse of discretionary powers.               not given a chance to comment at a hearing conducted in
                                                                        accordance with the law. The Commission refused to allow
                                                                        access to exonerating documents. It arbitrarily discriminated
                                                                        against the applicant in the context of the decision concerning
                                                                        an informal cessation of the procedure.
 ---pagebreak--- C 109/66               EN                    Official Journal of the European Communities                                         4.5.2002
The decision constitutes a misuse of discretionary powers,              The applicant claims that the Court should:
inasmuch as the Commission pursued extra-legal political
objectives, namely the making of a gesture to the public in
connection with the introduction of the euro. For as long as            —     annul the Commission’s decision of 11 December 2001,
applications made in the current administrative proceedings in                addressed to the applicant and received by it on
Case T-216/01 R had not been determined and remained                          20 December 2001, in Case COMP/E-1/37.919
pending, the adoption of a definitive decision was not permiss-               (ex 37.391), concerning the imposition of a fine;
ible.
It has not been shown that there has been any tangible adverse          —     order the Commission to pay the costs.
effect on trade between Member States.
The applicant participated neither in an agreement on the type
of charges to be made nor in any agreement on the amount of
a target price. The commission system could not have been               Pleas in law and main arguments
the subject of any concerted agreement, if only because, prior
to the entry into force of Regulation No 1103/97, there had
been no legally permissible alternative to it. The evidence relied
on by the defendant is unproductive and self-contradictory.             The Commission infringed the applicant’s rights of defence. It
The last piece of evidence produced by the defendant dates              afforded the applicant no opportunity to learn of the criteria
from 15 October 1997, i.e. some four and a half years before            according to which it discontinued certain parallel procedures.
the conclusion of the alleged agreement. Since then, there has          The Commission did not insist on reductions in charges in
been no contact between the banks concerned. A representa-              every case, and treated various banks differently as regards the
tive of the German Bundesbank had taken part in the                     amount of the reductions in charges. It should have told the
alleged cartel meeting, and the Bundesbank had been officially          applicant which non-discriminatory criteria it was applying in
informed of the results of that meeting.                                deciding whether to continue or to discontinue the procedure.
                                                                        Moreover, the Commission’s decision contained new incrimin-
As to the duration of the alleged agreement, the decision is in         ating evidence compared to the points raised in the heads of
itself contradictory, since the operative part of the decision is       claim served, and the applicant was not given a chance to
based on a different duration from that on which the                    comment on that new evidence. Lastly, the applicant was
calculation of the fine is based.                                       refused access to the files in the parallel procedures. The
                                                                        Commission attached greater importance to the rapid impo-
                                                                        sition of a fine for political reasons than to a fair hearing.
The basic amounts used for the calculation of the fine are
arbitrary and disproportionate.
                                                                        The applicant denies that any anti-competitive agreements
                                                                        were concluded at a meeting held on 15 October 1997
                                                                        between foreign exchange dealers. The subject-matter of that
                                                                        meeting was market trends and a discussion of matters which
                                                                        were generally known. That discussion formed part of a series
                                                                        of conferences held during the period from 1996 to 1998 for
                                                                        the purposes of preparing for the introduction of the euro,
                                                                        which were also frequently attended by representatives of
Action brought on 1 March 2002 by Commerzbank AG                        the central banks and sometimes by representatives of the
  against the Commission of the European Communities                    Commission. As is apparent from internal documents, the
                                                                        applicant had adopted an autonomous decision to charge a
                                                                        percentage fee even before the meeting of 15 October 1997
                          (Case T-61/02)                                took place. The Commission’s complaint is inconclusive, and
                                                                        the Commission does not describe the content of the alleged
                                                                        agreement. The evidence produced in that regard by the
                        (2002/C 109/124)
                                                                        Commission, especially the internal memorandum of an
                                                                        employee of the Netherlands GWK Bank N.V., is inappropriate.
                  (Language of the case: German)                        The Commission’s decision shows a lack of technical know-
                                                                        ledge and objectivity. The Commission failed to recognise the
                                                                        difference between dealing in foreign notes and coins and
                                                                        foreign exchange dealing, and did not take account of the legal
                                                                        situation prevailing at the time; moreover, it represents the
An action against the Commission of the European Communi-               facts in a one-sided way which is detrimental to the applicant.
ties was brought before the Court of First Instance of the
European Communities on 1 March 2002 by Commerzbank
AG, of Frankfurt am Main (Germany), represented by H. Satzky
and B. Maassen, lawyers.


title: Case T-715/15: Action brought on 4 December 2015 — BBY Solutions v OHIM — Worldwide Sales Corporation España (BEST BUY GEEK SQUAD)

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/35

         Action brought on 4 December 2015 — BBY Solutions v OHIM — Worldwide Sales Corporation España (BEST BUY GEEK SQUAD)
   (Case T-715/15)
   (2016/C 059/40)
   Language in which the application was lodged: English

      Parties

      Applicant: BBY Solutions, Inc. (Minneapolis, United States) (represented by: A. Poulter, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Worldwide Sales Corporation España, SL (Sant Vicenç dels Horts, Spain)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word elements ‘BEST BUY GEEK SQUAD’ — Community trade mark application No 6 064 001

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 23 September 2015 in Joined Cases R 517/2015-2 and R 437/2015-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision to the extent that it upheld the opposition;

               —

               annul the opposition division’s decision dated 22 December 2014 in Opposition No B 1354630 to the extent that it upheld the opposition;

               —

               accept CTM Application No 6 064 001 for registration;

               —

               order OHIM to bear their own costs and pay those of the applicant.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-409/06: Judgment of the Court (Grand Chamber) of 8 September 2010 (reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany)) — Winner Wetten GmbH v Mayor of Bergheim (Articles 43 EC and 49 EC — Freedom of establishment — Freedom to provide services — Organisation of bets on sporting competitions subject to a public monopoly at Land level — Decision of the Bundesverfassungsgericht finding the legislation for such a monopoly incompatible with the German Basic Law, but maintaining the legislation in force during a transitional period designed to allow it to be brought into conformity with the Basic Law — Principle of the primacy of Union law — Admissibility of, and possible conditions for, a transitional period of that type where the national legislation concerned also infringes Articles 43 EC and 49 EC)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/6

      Judgment of the Court (Grand Chamber) of 8 September 2010 (reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany)) — Winner Wetten GmbH v Mayor of Bergheim
      (Case C-409/06) (1)

      (Articles 43 EC and 49 EC - Freedom of establishment - Freedom to provide services - Organisation of bets on sporting competitions subject to a public monopoly at Land level - Decision of the Bundesverfassungsgericht finding the legislation for such a monopoly incompatible with the German Basic Law, but maintaining the legislation in force during a transitional period designed to allow it to be brought into conformity with the Basic Law - Principle of the primacy of Union law - Admissibility of, and possible conditions for, a transitional period of that type where the national legislation concerned also infringes Articles 43 EC and 49 EC)
      (2010/C 288/10)
      Language of the case: German

         Referring court

      Verwaltungsgericht Köln

         Parties to the main proceedings

         Applicant: Winner Wetten GmbH

         Defendant: Mayor of Bergheim

         Re:

      Reference for a preliminary ruling — Verwaltungsgericht Köln — Interpretation of Arts 43 EC and 49 EC — National legislation, making the business of collecting, accepting, registering and transmitting bets subject to obtaining authorisation, declared unconstitutional by the Bundesverfassungsgericht — Direct effect and primacy of Community law — Temporal limitation on the effects of the judgment

         Operative part of the judgment

      By reason of the primacy of directly-applicable Union law, national legislation concerning a public monopoly on bets on sporting competitions which, according to the findings of a national court, comprises restrictions that are incompatible with the freedom of establishment and the freedom to provide services, because those restrictions do not contribute to limiting betting activities in a consistent and systematic manner, cannot continue to apply during a transitional period.

         (1)  OJ C 326, 30.12.2006.


title: Judgment of the Court (First Chamber) of  24 November 2005  in Case C-366/04: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg in Georg Schwarz v Bürgermeister der Landeshauptstadt Salzburg (Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National legislative provision prohibiting the sale of non-packaged confectionery from vending machines — Hygiene of foodstuffs)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/14

      JUDGMENT OF THE COURT

   (First Chamber)
   of 24 November 2005
   in Case C-366/04: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg in Georg Schwarz v Bürgermeister der Landeshauptstadt Salzburg (1)

   (Free movement of goods - Quantitative restrictions - Measures having equivalent effect - National legislative provision prohibiting the sale of non-packaged confectionery from vending machines - Hygiene of foodstuffs)
   (2006/C 36/26)
   Language of the case: German
   In Case C-366/04: reference for a preliminary ruling under Article 234 EC from the Unabhängiger Verwaltungssenat Salzburg (Independent Administrative Chamber of Salzburg) (Austria), made by decision of 16 August 2004, received at the Court on 23 August 2004, in the proceedings between Georg Schwarz and the Bürgermeister der Landeshauptstadt Salzburg — the Court (First Chamber), composed of P. Jann, President of the Chamber, J.N. Cunha Rodrigues, E. Juhász (Rapporteur), M. Ilešič and E. Levits, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 24 November 2005, the operative part of which is as follows:
   It is not contrary to Articles 28 EC, 30 EC and Article 7 of Council Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs for a provision of national law, adopted before the entry into force of that directive, to prohibit the offer for sale from vending machines of sugar confectionery or products made using sugar substitutes, without wrapping.

      (1)  OJ C 262 of 23.10.2004.


title: Case C-365/05 P: Appeal brought on 28 September 2005 by Mme Dorte Schmidt-Brown against the Judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in case T-387/02 between Dorte Schmidt-Brown and the Commission of the European Communities

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/15

         Appeal brought on 28 September 2005 by Mme Dorte Schmidt-Brown against the Judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in case T-387/02 between Dorte Schmidt-Brown and the Commission of the European Communities
   (Case C-365/05 P)
   (2005/C 281/30)
   Language of the case: French
   An appeal against the judgment delivered on 5 July 2005 by the Court of First Instance of the European Communities (First Chamber) in case T-387/02 between Dorte Schmidt-Brown and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 28 September 2005 by Mme Dorte Schmidt-Brown, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.
   The appellant claims that the Court of Justice should:

               set aside in its entirety the judgment of the Court of First Instance (First Chamber) of 5 July 2005 in case T-387/02 (Dorte Schmidt-Brown v the Commission of the European Communities);

               give a final decision in the case that:

               the decision of the Commission of 26 April 2002 rejecting the applicant's request for financial assistance to allow her to recover the entire costs incurred in defending the action seeking compensation for non-material, professional and material damage suffered as a result of defamatory statements made against her by Eurogramme Ltd be set aside;

               order the Commission of the European Communities to pay the costs of the case at first instance and of the appeal.

         Pleas in law and main arguments
   The appellant claims that the Court of First Instance acted unlawfully in considering whether, in the circumstances of the case, there had been infringement of Article 24 of the Staff Regulations to the detriment of the appellant without taking account of the decision made by the Vice-President of the Commission, Neil Kinnock, upon reviewing the request for aid and assistance of 15 January 2002, that that particular request should be granted.
   The appellant was notified of that decision by letters dated 16 and 22 May 2003.
   In so doing, the Court of First Instance failed to take into account all the circumstances of the case, and, in particular, the decisions made by the Commission after the appellant had brought proceedings before the High Court of Justice (England and Wales), the measures taken by the Vice-President of the Commission, Neil Kinnock, after reviewing the merits of the appellant's request for assistance of 15 January 2002, and the measures taken by the President of the Commission to restore the appellant's reputation and dignity both among her colleagues within DG Eurostat and within the Budgetary Control Committee (Cocobu) of the European Parliament.
   Further, the Court of First Instance erred in law by confining its consideration to the applicability of Article 24(1) of the Staff Regulations, whereas in circumstances such as those of this case, it should also have considered the legality of the contested decision in the light of the requirements laid down by Article 24(2) of the Staff Regulations.


title: Case C-454/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 17 September 2010 — Oliver Jestel v Hauptzollamt Aachen

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/22

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 17 September 2010 — Oliver Jestel v Hauptzollamt Aachen
   (Case C-454/10)
   ()
   2010/C 317/40
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Appellant: Oliver Jestel

      Respondent: Hauptzollamt Aachen

      Questions referred

               1.

               Does a person become a debtor liable to pay customs duties because of ‘participation’ in the unlawful introduction of goods into the customs territory of the European Union according to the second indent of Article 202(3) of Regulation (EEC) No 2913/92 establishing the Community Customs Code, (1) where that person, without being directly involved in the introduction of goods, arranges the conclusion of the contracts to purchase the goods concerned and therefore envisages that the seller will possibly deliver the goods or part of the goods in such a way as to evade import duties?

               2.

               If appropriate, is it sufficient that he considers this to be conceivable, or does he only become a debtor if he fully expects that this will happen?

      (1)  OJ 1992 L 302, p. 1.


title: Case F-83/07: Judgment of the Civil Service Tribunal (First Chamber) of 30 November 2009 — Zangerl-Posselt v Commission (Staff case — Open competition — Candidate not admitted to the practical and oral tests — Qualifications required — Concept of higher education — Age discrimination)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/71

         Judgment of the Civil Service Tribunal (First Chamber) of 30 November 2009 — Zangerl-Posselt v Commission
   (Case F-83/07) (1)

   (Staff case - Open competition - Candidate not admitted to the practical and oral tests - Qualifications required - Concept of higher education - Age discrimination)
   2010/C 24/128
   Language of the case: German

      Parties

      Applicant: Brigitte Zangerl-Posselt (Merzig, Germany) (represented by: S. Paulmann, lawyer)

      Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents)

      Re:

   Annulment of the decision of 18 June 2007 of the selection board of the competition for the establishment of a reserve list for assistants having as their main language German for secretarial duties (AST 1) not to admit the applicant to the practical and oral tests

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the European Commission, in addition to bearing its own costs, to pay two thirds of those incurred by Ms Zangerl-Posselt;

               3.

               Orders Ms Zangerl-Posselt to bear one third of her costs.

      (1)  OJ C 235, 6.10.2007, p. 32.


title: Case C-13/05: Judgment of the Court (Grand Chamber) of 11 July 2006 (reference for a preliminary ruling from the Juzgado de lo Social No 33 de Madrid — Spain) — Sonia Chacón Navas v Eurest Colectividades SA (Directive 2000/78/EC — Equal treatment in employment and occupation — Concept of disability)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/9

         Judgment of the Court (Grand Chamber) of 11 July 2006 (reference for a preliminary ruling from the Juzgado de lo Social No 33 de Madrid — Spain) — Sonia Chacón Navas v Eurest Colectividades SA
   (Case C-13/05) (1)

   (Directive 2000/78/EC - Equal treatment in employment and occupation - Concept of disability)
   (2006/C 224/15)
   Language of the case: Spanish
   Referring court
   Juzgado de lo Social No 33 de Madrid
   Parties to the main proceedings

      Applicant: Sonia Chacón Navas

      Defendant: Eurest Colectividades SA
   Re:
   Interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, p. 16) — Scope — Dismissal on grounds of sickness — Sickness and disability.
   Operative part of the judgment

               1.

               A person who has been dismissed by his employer solely on account of sickness does not fall within the general framework laid down for combating discrimination on grounds of disability by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

               2.

               The prohibition, as regards dismissal, of discrimination on grounds of disability contained in Articles 2(1) and 3(1)(c) of Directive 2000/78 precludes dismissal on grounds of disability which, in the light of the obligation to provide reasonable accommodation for people with disabilities, is not justified by the fact that the person concerned is not competent, capable and available to perform the essential functions of his post.

               3.

               Sickness cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination.

      (1)  OJ C 69, 19.3.2005.


title: Case T-765/14: Action brought on 14 November 2014  — Legakis and Others v Council

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/40

         Action brought on 14 November 2014 — Legakis and Others v Council
   (Case T-765/14)
   (2015/C 034/48)
   Language of the case: Greek

      Parties

      Applicants: Georgios Legakis, Mirto Panagiota Legakis, Maria Legakis and Melina Legakis (Palaio Faliro, Greece) (represented by: V. Christianos, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicants claim that the General Court should:

               —

               order the defendant to pay to the applicants the sum of EUR 1 9 91  194,40, as compensation for the damage caused to them by the defendant’s unlawful actions, with interest from the date when they were unlawfully deprived of their deposits (29/03/2013) until the date of delivery of the judgment in this case together with late payment interest from the date of delivery of the judgment on the issue in this case until full payment;

               —

               in the alternative, order the defendant to pay to the applicants 95 % of the above sum, that is the sum of EUR 1 8 91  634,68, as compensation for the damage caused to them by the defendant’s unlawful actions, with interest from the date when they were unlawfully deprived of their deposits (29/03/2013) until the date of delivery of the judgment in this case together with late payment interest from the date of delivery of the judgment on the issue in this case until full payment;

               —

               in the further alternative, itself determine the amount which the defendant should be ordered to pay to the applicants as compensation for the damage caused to them by the defendant’s unlawful actions;

               —

               order the defendant to pay to the applicants the sum of EUR 20  000 for each of the applicants (that is, a total sum of EUR 80  000), as compensation for the non-material damage caused to them by the infringement of the principle of equal treatment;·

               —

               order the defendant to pay to the applicants the sum of EUR 20  000 for each of the applicants (that is, a total sum of EUR 80  000), as compensation for the non-material damage caused to them by the infringement of the right to effective judicial protection, and

               —

               order the defendant to pay the applicants’ costs.

      Pleas in law and main arguments

   By the present action the applicants seek, under the second paragraph of Article 340 TFEU, from the General Court of the European Union, which has jurisdiction under Article 268 TFEU, restitution for the damage suffered as a result of the defendant’s unlawful conduct.
   The applicants submit that that damage occurred when the defendant, acting outside the limits of its competence and in breach of secondary EU law and of the general principles of EU law, imposed and therefore caused the impairment of the applicants’ bank deposits with the Cyprus Popular Bank Public Co Ltd. (‘Laiki Bank’) or, in any case, contributed to it.
   In particular, the applicants submit that the defendant acted in breach of the following fundamental rights and general principles of EU law:

               —

               first, infringement of the right to private property;·

               —

               second, infringement of the principle of equal treatment, and

               —

               third, infringement of the applicants’ right to judicial protection and of the principle of legal certainty.

         The applicants submit that the conditions, stated in settled case-law, governing whether the defendant incurs non-contractual liability to make good the damage caused to them are satisfied.


title: Case C-174/14: Judgment of the Court (Fourth Chamber) of 29 October 2015 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Saudaçor — Sociedade Gestora de Recursos e Equipamentos da Saúde dos Açores SA v Fazenda Pública (Reference for a preliminary ruling — Value added tax — Directive 2006/112/EC — Article 13(1) — Treatment as a non-taxable person — Concept of ‘body governed by public law’ — Limited company which is responsible for the provision of services in respect of the planning and management of the health service of the Autonomous Region of the Azores — Determination of the detailed arrangements for those services, including their remuneration, in programme agreements concluded between that company and that region)

text:
               21.12.2015

               EN

               Official Journal of the European Union

               C 429/3

         Judgment of the Court (Fourth Chamber) of 29 October 2015 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Saudaçor — Sociedade Gestora de Recursos e Equipamentos da Saúde dos Açores SA v Fazenda Pública
   (Case C-174/14) (1)

   ((Reference for a preliminary ruling - Value added tax - Directive 2006/112/EC - Article 13(1) - Treatment as a non-taxable person - Concept of ‘body governed by public law’ - Limited company which is responsible for the provision of services in respect of the planning and management of the health service of the Autonomous Region of the Azores - Determination of the detailed arrangements for those services, including their remuneration, in programme agreements concluded between that company and that region))
   (2015/C 429/04)
   Language of the case: Portuguese

      Referring court

   Supremo Tribunal Administrativo

      Parties to the main proceedings

      Applicant: Saudaçor — Sociedade Gestora de Recursos e Equipamentos da Saúde dos Açores SA

      Defendant: Fazenda Pública

      Operative part of the judgment

               1.

               Article 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that an activity such as that at issue in the main proceedings, whereby a company provides a region with services in respect of the planning and management of the regional health service under the programme agreements concluded between that company and that region, constitutes an economic activity within the meaning of that provision.

               2.

               Article 13(1) of Directive 2006/112 must be interpreted as meaning that an activity such as that at issue in the main proceedings, whereby a company provides a region with services in respect of the planning and management of the regional health service under the programme agreements concluded between that company and that region, falls under the rule of treatment as a non-taxable person for value added tax purposes, laid down by that provision, in a situation where that activity constitutes an economic activity within the meaning of Article 9(1) of that directive, if, which it is for the referring court to ascertain, it can be considered that that company must be classified as a body governed by public law and that it carries out that activity as a public authority, in so far as the referring court finds that the exemption of that activity is not such as to lead to significant distortions of competition.

         In that context, the concept of ‘other bodies governed by public law’ within the meaning of Article 13(1) of that directive must not be interpreted by reference to the definition of ‘body governed by public law’ in Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

      (1)  OJ C 212, 7.7.2014.