title: Case T-579/11: Judgment of the General Court of 12 February 2015 — Akhras v Council (Common foreign and security policy — Freezing of funds — Rights of the defence — Obligation to state reasons — Manifest error of assessment — Right to life — Right to property — Right to respect for private life — Proportionality)

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/23

      Judgment of the General Court of 12 February 2015 — Akhras v Council
      (Case T-579/11) (1)

      ((Common foreign and security policy - Freezing of funds - Rights of the defence - Obligation to state reasons - Manifest error of assessment - Right to life - Right to property - Right to respect for private life - Proportionality))
      (2015/C 107/30)
      Language of the case: English

         Parties

         Applicant: Tarif Akhras (Homs, Syria) (represented by: by S. Ashley, S. Millar, S. Jeffrey, A. Irvine, Solicitors, D. Wyatt QC, and R. Blakeley, Barrister)

         Defendant: Council of the European Union (represented initially by: M. Bishop, F. Naert and M.-M. Joséphidès, and subsequently by M. Bishop and M. M. Joséphidès, acting as Agents)

         Intervener in support of the defendant: European Commission (represented initially by: E. Paasivirta and F. Castillo de la Torre, and subsequently by F. Castillo de la Torre and D. Gauci, acting as Agents)

         Re:

      Application for annulment of Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 228, p. 16), Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 228, p. 1), Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 247, p. 17), Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 269, p. 18), Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP (OJ 2011 L 319, p. 56), Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), Council Implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782 (OJ 2012 L 87, p. 103), Council Implementing Regulation (EU) No 266/2012 of 23 March 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 (OJ 2012 L 87, p. 45), Council Decision 2012/739/CFSP of 29 November 2012 concerning restrictive measures against Syria and repealing Decision 2011/782 (OJ 2012 L 330, p. 21), Council Implementing Decision 2013/185/CFSP of 22 April 2013 implementing Decision 2012/739 (OJ 2013 L 111, p. 77), Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation No 36/2012 (OJ 2013 L 111, p. 1), Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), Council Implementing Decision 2014/730/CFSP of 20 October 2014 implementing Decision 2013/255 (OJ 2014 L 301, p. 36) and Council Implementing Regulation (EU) No 1105/2014 of 20 October 2014 implementing Regulation No 36/2012 (OJ 2014 L 301, p. 7) in so far as those acts concern the applicant.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria, Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria, Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria, Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria, Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP, and Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011, in so far as those acts concern Mr Tarif Akhras;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders the parties to bear their own costs in relation to these proceedings;

                  4.

                  Orders Mr Akhras to bear his own costs and to pay those of the Council of the European Union in relation to the interim relief proceedings.

         (1)  OJ C 6, 7.1.2012.


title: Judgment of the Court (Sixth Chamber) of 8 November 2001 in Case C-127/99: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Inadequate implementation of Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources)

text:
5.1.2002                EN                       Official Journal of the European Communities                                                C 3/5
subsequently H. van Lier and A. Caeiros, assisted by E. Braga)              (Agent: P. Stancanelli) v Italian Republic (Agent: U. Leanza,
v Manuel Pereira Roldão & Filhos Ld.a, established in Marinha              assisted by P.G. Ferri) — application for a declaration that:
Grande (Portugal), Instituto Superior Técnico, established in
Lisbon (Portugal), represented by J.L. da Cruz Vilaga and
T. Aragão Morais, advogados, and King, Taudevin & Gregson                  —     by failing to establish one or more action programmes
(Holdings) Ltd — application by the Commission pursuant to                        having the features, and meeting the conditions, laid
Article 181 of the EC Treaty (now Article 238 EC) for recovery                    down in Article 5 of Council Directive 91/676/EEC of
of an advance payment which it had granted to the defendants                      12 December 1991 concerning the protection of waters
under Contract No IN 90/91 PO/UK relating to activities                           against pollution caused by nitrates from agricultural
concerning the promotion of energy technology in Europe                           sources (OJ 1991 L 375, p. 1),
(Thermie programme) — the Court (Third Chamber), compo-
sed of: F. Macken, President of the Chamber, C. Gulmann and
J.N. Cunha Rodrigues (Rapporteur), Judges; L.A. Geelhoed,
Advocate General; L. Hewlett, Administrator, for the Registrar,             —     by failing to carry out fully and correctly the monitoring
                                                                                operations prescribed by Article 6 of that directive; and
has given a judgment on 13 November 2001, in which it:
1.    Orders Manuel Pereira Roldão & Filhos Ld.a and the Instituto         —     by failing to draw up and submit a full report of the kind
      Superior Técnico jointly and severally to pay to the Commission             required by Article 10 of that directive,
      of the European Communities the sum of EUR 357 813;
2.    Orders Manuel Pereira Roldão & Filhos Ld.a to pay to
      the Commission of the European Communities the sum of                 the Italian Republic has failed to fulfil its obligations under
      EUR 185 833,78 in interest due as at 1 January 1999 and               Community law — the Court (Sixth Chamber), composed of:
      contractual interest from that date until full payment of the         N. Colneric, President of the Second Chamber, acting for the
      principal sum due;                                                    President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet,
                                                                            V. Skouris and J.N. Cunha Rodrigues (Rapporteur), Judges;
3.    Orders Manuel Pereira Roldão & Filhos Ld.a and the Instituto         L.A. Geelhoed, Advocate General; L. Hewlett, Administrator,
                                                                            for the Registrar, has given a judgment on 8 November 2001,
      Superior Técnico to pay the costs.
                                                                            in which it:
(1) OJ C 121 of 1.5.1999.
                                                                            1.    Declares that, by having failed:
                                                                                —     to establish action programmes within the meaning of
                                                                                Article 5 of Council Directive 91/676/EEC of 12 Decem-
                 JUDGMENT OF THE COURT                                                  ber 1991 concerning the protection of waters against
                                                                                pollution caused by nitrates from agricultural sources,
                          (Sixth Chamber)
                                                                                —     to carry out the monitoring operations prescribed by
                       of 8 November 2001                                               Article 6 of the said directive, and
in Case C-127/99: Commission of the European Communi-
                     ties v Italian Republic (1)                                  —     to submit to the Commission a report of the kind required
                                                                                by Article 10 of the directive,
(Failure by a Member State to fulfil its obligations —
Inadequate implementation of Directive 91/676/EEC —
Protection of waters against pollution caused by nitrates                         the Italian Republic failed to fulfil its obligations under those
                    from agricultural sources)                                    provisions of Directive 91/676.
                            (2002/C 3/07)
                                                                            2.    Orders the Italian Republic to pay the costs.
                    (Language of the case: Italian)
(Provisional translation; the definitive translation will be published      (1) OJ C 204 of 17.7.1999.
                   in the European Court Reports)
In Case C-127/99: Commission of the European Communities


C 204/36              EN                    Official Journal of the European Communities                                    17.7.1999
       Removal from the register of Case C-11/98 (1)                          Removal from the register of Case C-23/97 (1)
                        (1999/C 204/78)                                                         (1999/C 204/82)
By order of 21 April 1999 the President of the Court of Justice        By order of 26 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-11/98 (reference for a preliminary ruling       the register of Case C-23/97 (reference for a preliminary ruling
from the Pretura Circondariale di Roma): Abdulreza Kazemi              from the Tribunale di Genova): Palmira Ieropoli, Giovanni
Nava v Confcommercio.                                                  Sgambellone v Banca Carige SpA.
(1) OJ C 113 of 11.4.1998.                                             (1) OJ C 74 of 8.3.1997.
                                                                              Removal from the register of Case C-72/99 (1)
       Removal from the register of Case C-342/98 (1)
                                                                                (1999/C 204/83)
                        (1999/C 204/79)
                                                                       By order of 27 April 1999 the President of the Court of Justice
By order of 21 April 1999 the President of the Court of Justice        of the European Communities has ordered the removal from
of the European Communities has ordered the removal from               the register of Case C-72/99 (reference for a preliminary ruling
the register of Case C-342/98: Commission of the European              from the Landesvergabeamt Tirol): Firma Ortner GmbH v
Communities v Grand Duchy of Luxembourg.                               Innsbrucker Kommunalbetriebe AG.
(1) OJ C 340 of 7.11.1998.                                             (1) OJ C 136 of 15.5.1999.
       Removal from the register of Case C-346/98 (1)                         Removal from the register of Case C-25/97 (1)
                        (1999/C 204/80)                                                         (1999/C 204/84)
By order of 21 April 1999 the President of the Court of Justice        By order of 30 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-346/98: Commission of the European              the register of Case C-25/97 (reference for a preliminary ruling
Communities v Ireland.                                                 from the Tribunale di Genova): Fiduciaria Internazionale Srl v
                                                                       Amministrazione delle Finanze dello Stato.
(1) OJ C 340 of 7.11.1998.
                                                                       (1) OJ C 74 of 8.3.1997.
       Removal from the register of Case C-419/98 (1)                         Removal from the register of Case C-26/97 (1)
                        (1999/C 204/81)                                                         (1999/C 204/85)
By order of 23 April 1999 the President of the Court of Justice        By order of 30 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-419/98 (reference for a preliminary             the register of Case C-26/97 (reference for a preliminary
ruling from the Pretura Circondariale di Genova): Marcella             ruling from the Tribunale di Genova): Giolfo e C. Srl v
Moretti v Baoco Ambrosiano Veneto SpA.                                 Amministrazione delle Finanze dello Stato.
(1) OJ C 20 of 23.1.1999.                                              (1) OJ C 74 of 8.3.1997.


title: Judgment of the Court (Third Chamber) of 13 February 2003 in Case C-409/00: Kingdom of Spain v Commission of the European Communities (State Aid — Transport — Commission notice on the "de minimis" rule for State aid — Relevant market — Transport services on own account — Transport services for hire or reward — Community guidelines on State aid for environmental protection)

text:
26.4.2003               EN                           Official Journal of the European Union                                              C 101/5
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                         (Third Chamber)                                                              of 6 March 2003
                       of 13 February 2003                                   in Case C-466/00 (Reference for a preliminary ruling from
                                                                             the Immigration Adjudicator): Arben Kaba v Secretary of
                                                                                State for the Home Department (1)
in Case C-409/00: Kingdom of Spain v Commission of the
                   European Communities ( 1)
                                                                             (Free movement of workers — Regulation (EEC) No 1612/
                                                                             68 — Social advantage — Right of the spouse of a migrant
                                                                             worker to obtain leave to remain indefinitely in the territory
(State Aid — Transport — Commission notice on the ‘de                                                of a Member State)
minimis’ rule for State aid — Relevant market — Transport
services on own account — Transport services for hire or
reward — Community guidelines on State aid for environ-                                               (2003/C 101/09)
                         mental protection)
                                                                                (Language of the case: English)
                          (2003/C 101/08)
                   (Language of the case: Spanish)
                                                                             In Case C-466/00: Reference to the Court under Article 234
                                                                             EC by the Immigration Adjudicator (United Kingdom) for a
(Provisional translation; the definitive translation will be published       preliminary ruling in the proceedings pending before that
                   in the European Court Reports)                            tribunal between Arben Kaba and Secretary of State for the
                                                                             Home Department, on the interpretation of the general
                                                                             principles of law governing proceedings before the Court of
                                                                             Justice and of Article 7(2) of Regulation (EEC) No 1612/68 of
                                                                             the Council of 15 October 1968 on freedom of movement for
                                                                             workers within the Community (OJ, English Special Edition
In Case C-409/00, Kingdom of Spain (Agent: Mónica López-                     1968 (II), p. 475), the Court, composed of: G.C. Rodríguez
Monís Gallego) v Commission of the European Communities                      Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen
(Agents: D. Triantafyllou and S. Pardo): Application for                     and C.W.A. Timmermans (Presidents of Chambers),
annulment of Commission Decision of 26 July 2000 on the                      D.A.O. Edward, P. Jann (Rapporteur), F. Macken, N. Colneric,
aid scheme implemented by Spain for the purchase of                          S. von Bahr and J.N. Cunha Rodrigues, Judges; D. Ruiz-
commercial vehicles via the Cooperation Agreement of 26 Feb-                 Jarabo Colomer, Advocate General; L. Hewlett, Principal
ruary 1997 between the Ministry of Industry and Energy and                   Administrator, for the Registrar, has given a judgment on
the Official Credit Institute (OJ L 212 of 7.8.2001, p. 34),                 6 March 2003, in which it has ruled:
the Court (Third Chamber), composed of: J.-P. Puissochet
(Rapporteur), President of the Chamber, F. Macken and
J.N. Cunha Rodrigues, Judges; M.S. Alber, Advocate General;                  The reply which the Court, in its judgment in Case C-356/98 Kaba,
H.A. Rühl, Principal Administrator, for the Registrar, has given             gave to the questions referred in that case for a preliminary ruling
a judgment on 13 February 2003, in which it:                                 would not have been different had the Court taken into consideration
                                                                             the fact that the situation under national law of the spouse of a
                                                                             migrant worker who is a national of a Member State other than the
1.    Annuls Articles 2 and 4 of Commission Decision 2001/605/               United Kingdom of Great Britain and Northern Ireland and that of
      EC of 26 July 2000 on the aid scheme implemented by Spain              the spouse of a person who is ‘present and settled’ in the United
      for the purchase of commercial vehicles via the Cooperation            Kingdom are, according to the referring tribunal, comparable in all
      Agreement of 26 February 1997 between the Ministry of                  respects except with regard to the period of prior residence which is
      Industry and Energy and the Official Credit Institute.                 required for the purpose of being granted indefinite leave to remain
                                                                             in the United Kingdom. In view of the fact that the situations are not
                                                                             comparable under Community law, the question whether such a
2.    Orders the Commission of the European Communities to pay
                                                                             difference in treatment may be justified has no relevance in this
      the costs.
                                                                             regard.
( 1) OJ C 28 of 27.1.2001.                                                   (1 ) OJ C 61 of 24.2.2001.


title: Case C-85/11: Action brought on 24 February 2011 — European Commission v Ireland

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/10

         Action brought on 24 February 2011 — European Commission v Ireland
   (Case C-85/11)
   2011/C 145/14
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: R. Lyal, Agent)

      Defendant: Ireland

      The applicant claims that the Court should:

               —

               declare that by permitting non-taxable persons to be members of a VAT group (a single taxable person for VAT purposes), Ireland has failed to comply with its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

               —

               order Ireland to pay the costs.

      Pleas in law and main arguments

   For reasons of facility and in order to combat possible abuses, the VAT directive allows Member States to treat two or more taxable persons together as a single taxable person. It is submitted that the directive does not allow them to include non-taxable persons in such a group, thus extending the rights and obligations of taxable persons to non-taxable persons. The Irish legislation which permits the inclusion of non-taxable persons in a VAT group is thus contrary to the directive.

      (1)  OJ L 347, p. 1


title: Case C-93/12: Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 21 February 2012 — ET Agrokonsulting-04-Velko Stoyanov v Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’ — Razplashtatelna agentsia

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/19

         Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 21 February 2012 — ET Agrokonsulting-04-Velko Stoyanov v Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’ — Razplashtatelna agentsia
   (Case C-93/12)
   2012/C 133/34
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Sofia-grad

      Parties to the main proceedings

      Applicant: ET Agrokonsulting-04-Velko Stoyanov

      Defendant: Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’ — Razplashtatelna agentsia

      Questions referred

               1.

               Are the principle of effectiveness set out in the case-law [of the Court of Justice] of the European Union and the principle of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union to be interpreted as not permitting a national procedural rule such as Article 133(1) of the Code of administrative procedure which makes jurisdiction for administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, considering that that rule does not take into consideration the place in which the properties are located and the place of residence of the person seeking justice?

               2.

               Is the principle of equivalence set out in the case-law of the Court of Justice of the European Union to be interpreted as not permitting a national procedural rule such as Article 133(1) of the Code of administrative procedure which makes jurisdiction for administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, if account is taken of paragraph 19 of the transitional and final provisions of the Law amending and supplementing the Code of Administrative Procedure (which concerns jurisdiction for domestic administrative disputes concerning agricultural land)?


title: Case C-300/16 P: Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Second Chamber) delivered on 16 March 2016 in Case T-103/14: Frucona Košice a.s. v European Commission

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/35

         Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Second Chamber) delivered on 16 March 2016 in Case T-103/14: Frucona Košice a.s. v European Commission
   (Case C-300/16 P)
   (2016/C 260/43)
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: L. Armati, T. Maxian Rusche, B. Stromsky, K. Walkerová, agents)

      Other party to the proceedings: Frucona Košice a.s.

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Second Chamber) of 16 March 2016, notified to the Commission the same day, in Case T-103/14 Frucona Košice v Commission;

               —

               rule itself on the application at first instance and reject the application as unfounded in law; and

               —

               order the respondent and applicant at first instance to pay the costs of the proceedings.

         In the alternative, the Commission requests that the Court

               —

               set aside the judgment of the General Court (Second Chamber) of 16 March 2016, notified to the Commission the same day, in Case T-103/14 Frucona Košice v Commission; and

               —

               refer the case back to the General Court for consideration of the second, and, to the extent necessary, third and fourth pleas at first instance; and

               —

               reserve the costs of the proceedings at first instance and on.

      Pleas in law and main arguments

   According to the Commission the contested judgment should be set aside on the following grounds concerning, first, the applicability of the private creditor test, and, second, the application of the private creditor test.
   With regard to the applicability of the private creditor test, the Commission raises three grounds of appeal. First, a misinterpretation of the contested decision; second, an error in law in the interpretation of Article 107(1) TFEU concerning the applicability of the private creditor test; and third, a misapplication of res iudicata.
   The judgment under appeal takes the view that the private creditor test is applicable, even where the Member State argues in the administrative procedure on the basis of detailed arguments that the public authority has not acted on the basis of considerations that would guide a private market participant, as long as an interested party claims the opposite. The Commission’s understanding of the case-law is that the position of the Member State is of fundamental importance when it comes to the applicability of the private creditor test.
   With regard to the application of the private creditor test, the Commission will raise two grounds of appeal. First, a violation of Article 107(1) TFEU concerning the application of the private creditor test. Second, the General Court erred in the interpretation of the obligation to conduct a diligent and impartial investigation into alleged State aid pursuant to Article 107(1) TFEU.
   The General Court requires the Commission to reconstruct ex officio the behaviour of the ideal, rational and fully informed hypothetical private creditor. What is more, that requirement exists independently of what the Member State concerned actually did or said. The Commission's understanding of the case law is that it requires the Commission not to itself gather the evidence and information a rational private creditor would have gathered before making its assessment where the public authority in question has not done so. Rather, its task is limited to verify whether, subjectively, the public authority, on the basis of its behaviour and the evidence and information it actually had at its disposal when taking its decision, behaved like a private creditor in a situation as close as possible to that of the public authority in coming to the decision to grant the measure in question.


title: Case T-111/10: Judgment of the General Court of 29 March 2012 — Portugal v Commission (ERDF — Reduction of financial assistance — Operational Programme seeking modernisation of the economic fabric in Portugal — Absence of precise and verifiable binding objectives — Legitimate expectations)

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/16

         Judgment of the General Court of 29 March 2012 — Portugal v Commission
   (Case T-111/10) (1)

   (ERDF - Reduction of financial assistance - Operational Programme seeking modernisation of the economic fabric in Portugal - Absence of precise and verifiable binding objectives - Legitimate expectations)
   2012/C 138/28
   Language of the case: Portuguese

      Parties

      Applicant: Portuguese Republic (represented by: L. Inez Fernandes, Agent, and by N. Mimoso Ruiz, P. Moura Pinheiro and J. Silva Martins, lawyers)

      Defendant: European Commission (represented by: initially A. Steiblytė and G. Braga da Cruz and subsequently A. Steiblytė and P. Guerra e Andrade, Agents)

      Re:

   Application for annulment of Commission Decision C(2009) 10624 of 21 December 2009 reducing the assistance of the European Regional Development Fund (ERDF) granted to Portugal in respect of the Operational Programme ‘Modernisation of the economic fabric’, CCI: 1994 PT 16 1 PO 004 (ex ERDF ref. 94.12.09.004) by Commission Decision C (94)464/3 of 4 March 1994 authorising financial assistance from the ERDF.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 113, 1.5.2010.


title: Case C-334/05 P: Judgment of the Court (Third Chamber) of 12 June 2007 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Shaker di L. Laudato & C. Sas, Limiñana y Botella, SL (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Likelihood of confusion — Application for a figurative Community trade mark with the word elements Limoncello della Costiera Amalfitana and shaker — Opposition by the proprietor of the national word mark LIMONCHELO)

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/5

         Judgment of the Court (Third Chamber) of 12 June 2007 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Shaker di L. Laudato & C. Sas, Limiñana y Botella, SL
   (Case C-334/05 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Likelihood of confusion - Application for a figurative Community trade mark with the word elements ‘Limoncello della Costiera Amalfitana’ and ‘shaker’ - Opposition by the proprietor of the national word mark LIMONCHELO)
   (2007/C 170/07)
   Language of the case: Italian
   Parties

      Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and P. Bullock, Agents)

      Other parties to the proceedings: Shaker di L. Laudato & C. Sas (represented by: F. Sciaudone, avvocato), Limiñana y Botella, SL
   Re:
   Appeal against the judgment of the Court of First Instance (Third Chamber) of 15 June 2005 in Case T-7/04 Shaker di L. Laudato & C. Sas v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) by which the Court annulled decision R 993/2002-2 of the Second Board of Appeal of OHIM of 24 October 2003 dismissing the appeal against the decision of the Opposition Division which refused, in part, the registration of the figurative mark ‘Limoncello della Costiera Amalfitana’ in opposition proceedings brought by the proprietor of the national word mark LIMONCHELO for certain goods in Class 33
   Operative part of the judgment
   The Court:

               1.

               Sets aside the judgment of the Court of First Instance of the European Communities of 15 June 2005, Case T-7/04 Shaker v OHIM — Limiñana y Botella (Limoncello della Costiera Amalfitana shaker);

               2.

               Refers the case back to the Court of First Instance of the European Communities;

               3.

               Reserves the costs.

      (1)  OJ C 296, 26.11.2005.


title: Action brought on 13 March 1997 by T. H. P. Neelen against the Council of the European Union and the Commission of the European Communities (Case T-65/97)

text:
 10 . 5 . 97           EN                 Official Journal of the European Communities                                  No C 142/29
The applicant claims that the Court should :                          ( b ) order the Community to pay the costs.
( a ) primarily: order the Community to pay to the                   Pleas in law and main arguments adduced in support:
      applicant the sum of F1 386 439 , together with interest
      thereon at the rate of 8 % per annum from 19 May
       1992 until the date of payment in full;                       The pleas in law and main arguments are the same as in
                                                                     Case T- 50197 (>).
      in the alternative: order the Community to pay the
      applicant such sum as the Court in its wisdom shall            O Page 24 of this Official Journal .
      think fit, amounting to not less than F1 39 954
      ( namely, the amount resulting from the application of
      Regulation ( EEC ) No 2187/93 ), together with interest
      thereon at the rate of 8 % per annum from 19 May
       1992 until the date of the payment in full;
                                                                     Action brought on 13 March 1997 by J. T. F. J. Op 't
( b ) order the Community to pay the costs .                         Veld against the Council of the European Union and the
                                                                                Commission of the European Communities
Pleas in law and main arguments adduced in support:                                            ( Case T-66/97 )
                                                                                ( 97/C 142/63
The pleas in law and main arguments are the same as in
Case T-50/97 (').
                                                                                (Language of the case: Dutch)
O Page 24 of this Official Journal.
                                                                     An action against the Council of the European Union and
                                                                     the Commission of the European Communities was
                                                                     brought before the Court of First Instance of the European
                                                                     Communities on 13 March 1997 by J. T. F. J. Op 't Veld,
                                                                     of Vlodrop (Netherlands ), represented by E. H. Pijnacker
Action brought on 13 March 1997 by T. H. P. Neelen                   Hordijk, of the Amsterdam Bar, and M. T. P. J. van Oers,
against the Council of the European Union and the                    of The Hague Bar, with an address for service in
           Commission of the European Communities                    Luxembourg at the Chambers of L. Frieden, 62 Avenue
                                                                     Guillaume .
                          Case T-65/97
                          ( 97/C 142/62 )
                                                                     The applicant claims that the Court should :
                  (Language of the case: Dutch)
                                                                     ( a ) primarily: order the Community to pay to the
An action against the Council of the European Union and                     applicant the sum of Fl 280 097, together with interest
the Commission of the European Communities was                              thereon at the rate of 8% per annum from 19 May
brought before the Court of First Instance of the European                  1992 until the date of payment in full;
Communities on 13 March 1997 by T. H. P. Neelen, of
Nunhem ( Netherlands ), represented by E. H. Pijnacker                      in the alternative: order the Community to pay the
Hordijk, of the Amsterdam Bar, and M. T. P. J. van Oers,                    applicant such sum as the Court in its wisdom shall
of The Hague Bar, with an address for service in                            think fit, amounting to not less than Fl 116 957
Luxembourg at the Chambers of L. Frieden, 62 Avenue                         ( namely, the amount resulting from the application of
Guillaume .
                                                                            Regulation ( EEC ) No 2187/93 ), together with interest
                                                                            thereon at the rate of 8 % per annum from 1 9 May
The applicant claims that the Court should:                                 1992 until the date of the payment in full ;
( a ) primarily: order the Community to pay to the                   ( b ) order the Community to pay the costs.
      applicant the sum of Fl 323 980, together with interest
      thereon at the rate of 8% per annum from 19 May
      1992 until the date of payment in full;                        Pleas in law and main arguments adduced in support:
      in the alternative: order the Community to pay the             The pleas in law and main arguments are the same as in
      applicant such sum as the Court in its wisdom shall            Case T-50/97 ( 1 ).
      think fit, amounting to not less than Fl 133 491
      ( namely, the amount resulting from the application of         (') Page 24 of this Official Journal .
      Regulation ( EEC ) No 2187/93 ), together with interest
      thereon at the rate of 8 % per annum from 19 May
      1992 until the date of the payment in full;


title: Case C-138/07: Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 9 March 2007 — Belgische Staat v N.V. Cobelfret

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/14

         Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 9 March 2007 — Belgische Staat v N.V. Cobelfret
   (Case C-138/07)
   (2007/C 117/22)
   Language of the case: Dutch
   Referring court
   Hof van beroep te Antwerpen
   Parties to the main proceedings

      Appellant: Belgische Staat

      Respondent: N.V. Cobelfret
   Question referred
   Is a set of rules such as the Belgian system of definitive taxed income, under which relevant dividends are, first, added to the taxable basis of the parent company and, subsequently, the amount of those received dividends is, pursuant to Article 205(2) of the Belgian Income Tax Code, deducted from the taxable basis of the parent company (in the amount of 95 %) only in so far as the parent company has taxable profits, compatible with Article 4 of Council Directive 90/435/EEC (1) of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, inasmuch as the result of such a restriction on deductibility from definitively taxed income is that a parent company will, in a subsequent taxable period, be taxed on the dividends received in the case where it had no, or had inadequate, taxable profits over the taxable period in which the dividends were received, or at least that the fiscal losses relating to the taxable period are wrongly used up and are, as a result, no longer transferable up to the amount of received dividends, which, in the absence of fiscal losses, ought in any case to have been exempted up to 95 %?

      (1)  OJ 1990 L 225, p. 6.


title: Case T-336/07: Action brought on 10 September 2007 — Telefónica and Telefónica de España v Commission

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/55

         Action brought on 10 September 2007 — Telefónica and Telefónica de España v Commission
   (Case T-336/07)
   (2007/C 269/100)
   Language of the case: Spanish
   Parties

      Applicants: Telefónica, S.A. and Telefónica de España, S.A. (Madrid) (represented by: F.-E. González Díaz and S. Sorinas Jimeno, lawyers)

      Defendants: Commission of the European Communities
   Form of order sought

               —

               annul under Article 230 of the EC Treaty the Decision of the Commission of the European Communities of 4 July 2007 in Case COMP/38.784 — Wanadoo España vs. Telefónica;

               —

               in the alternative, annul or reduce under Article 229 of the EC Treaty the amount of the fine imposed on it under that decision;

               —

               in any event, order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   The present action is directed against the Decision of 4 July 2007 relating to proceedings under Article 82 of the EC Treaty (Case COMP/38.784 — Wanadoo España vs. Telefónica) under which the Commission imposed a fine of EUR 151 875 000 on Telefónica, S.A., jointly and severally with Telefónica de España, in respect of alleged margin squeeze.
   In support of their claims, the applicants submit:

               —

               infringement of the rights of defence, by basing the decision on various matters of fact which were not communicated during the administrative procedure and on which the applicants were not given the opportunity to comment;

               —

               that the Commission committed a number of manifest errors of assessment relating to:

                           —

                           the definition of three separate wholesale markets and not a single market for access to wholesale ADSL including both the local loop and national and regional access, or in the alternative, at least the latter two;

                           —

                           the presumption that the applicants were dominant both on the relevant wholesale broadband product markets and on the retail market;

                           —

                           the application of Article 82 EC in relation to its alleged abusive conduct. First, the Commission applies that article to the de facto refusal to contract when the wholesale products in question do not constitute ‘essential infrastructure’, thereby contradicting the case-law in Oscar Bronner. Secondly, even if Article 82 could be applied to the applicants' conduct, quod non, the decision disregards the requirements laid down in the case of Industrie des Poudres Sphériques according to which, in order to make a finding of illegal margin squeeze, it is necessary to show past evidence of both excessive pricing of the upstream product and predatory pricing of the final product;

                           —

                           the alleged abusive conduct and its impact on the market; first, because it incorrectly selects the wholesale inputs for comparison, and secondly, because it commits, inter alia, major errors of calculation and omissions both in the application of the ‘period-by-period’ test and the ‘discounted cash flow’ test. These errors, both individually and collectively, invalidate the methodology and calculations set out in the decision. The decision also fails to probe sufficiently the alleged negative impact of the conduct on competition;

                           —

                           the ultra vires acts of the Commission, which, in any event, infringe the principles of subsidiarity, proportionality, legal certainty, loyal cooperation and sound administration by intervening where the national telecommunications regulator had already acted, which was set up under European legislation and which acted in accordance with the powers and competences conferred on it by that legislation and under a set of rules based on the Community competition rules;

         As regards the annulment or reduction of the fine, the applicants submit that the Commission infringed Articles 15(2) of Regulation No 17 First Regulation implementing Articles 85 and 86 of the Treaty (now Articles 81 and 82) and 23(2) of of Council Regulation (EC) No 1/2003 on the implementation of the competition rules laid down in Articles 81 an 82 of the Treaty, by considering that the infringement was committed in a deliberate or seriously negligent manner and by classifying the infringement as ‘characteristic abuse’.


title: Order of the Court of 29 August 2014 in Case E-8/13 — Abelia v EFTA Surveillance Authority (Action for annulment of a decision of the EFTA Surveillance Authority — Proper representation before the Court — State aid — Alleged aid granted to lessors of premises to public schools — Decision not to open the formal investigation procedure — Legal interest — Status as interested party — Competitive link)

text:
               19.3.2015

               EN

               Official Journal of the European Union

               C 92/34

         ORDER OF THE COURT
   of 29 August 2014
   in Case E-8/13
   Abelia v EFTA Surveillance Authority
   (Action for annulment of a decision of the EFTA Surveillance Authority — Proper representation before the Court — State aid — Alleged aid granted to lessors of premises to public schools — Decision not to open the formal investigation procedure — Legal interest — Status as interested party — Competitive link)
   (2015/C 92/08)
   In Case E-8/13, Abelia, supported by Akademiet Bergen AS, Akademiet Drammen AS, Akademiet Sandnes AS, Akademiet Oslo AS, Akademiet VGS Molde AS and Akademiet VGS Ålesund AS v EFTA Surveillance Authority — Application for the annulment of EFTA Surveillance Authority Decision No 160/13/COL of 24 April 2013 on alleged aid granted to lessors of premises to public schools, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 29 August 2014, the operative part of which is as follows:
   The Court hereby:

               1.

               dismisses the application as inadmissible.

               2.

               orders the applicant to pay the costs incurred by the defendant.


title: Case C-11/00: Action brought on 14 January 2000 by Commission of the European Communities against European Central Bank

text:
C 122/8                EN                   Official Journal of the European Communities                                     29.4.2000
         The Commission failed to address the question, as it          on the control of administrative bodies amount to restrictions
         should have done under Article 95(6), whether the             on the establishment of companies, in particular in the case of
         Danish rules notified are a means of arbitrary discrimi-      branch offices, agencies or subsidiaries of companies estab-
         nation or a disguised restriction on trade between            lished in other Member States where such restrictions do not
         Member States, or whether they constitute an obstacle         exist. In the case of companies or firms managed by nationals
         to the functioning of the internal market.                    of non-Member countries, the restrictions would force them
                                                                       to change the composition of their administrative bodies
     — Defective statement of reasons.                                 should they wish to register a ship and establish themselves
                                                                       in France. Consequently, the requirements laid down in
                                                                       Article 3(2)(a), (b) and (c) infringe Article 48 in that they
                                                                       impose on the holders of capital and on the administrative
                                                                       organs of companies or firms nationality requirements which
                                                                       are not stipulated in Article 48. Those requirements thus cause
                                                                       companies or firms to be treated differently from natural
                                                                       persons as regards freedom of establishment when registering
                                                                       a ship. Although the provisions apply without discrimination
Action brought on 6 January 2000 by the Commission of                  to both French and foreign EEC companies or firms, they
 the European Communities against the French Republic                  nevertheless infringe Article 43 and Article 48, as do
                                                                       Article 3(3) and (4) and Article 3-1(1) and (2) in so far as they
                           (Case C-4/00)                               refer to Article 3(2). Failure by a Member State to fulfil its
                                                                       obligations — Articles 43 and 48 of the EC Treaty —
                                                                       conditions under which commercial vessels may sail under the
                         (2000/C 122/12)                               French flag — nationality requirements for holders of company
                                                                       capital and directors.
An action against the French Republic was brought before the
Court of Justice of the European Communities on 6 January
2000 by the Commission of the European Communities,
represented by Frank Benyon, Legal Adviser, and Bernard
Mongin, of its Legal Service, acting as Agents, with an address
for service in Luxembourg at the office of Carlos Gómez de la
Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
                                                                       Action brought on 14 January 2000 by Commission of
The Commission of the European Communities claims that                 the European Communities against European Central
the Court should:                                                                                Bank
1. Declare that, by keeping in force Article 3 and Article 3-1                                   (Case C-11/00)
     of Law No 67-5 defining the status of ships and other
     sea-going vessels, and Article 219 of the Customs Code, as                                 (2000/C 122/13)
     amended by Law No 96-151 of 26 February 1996 on
     transport, the French Republic has failed to fulfil its
     obligations under Article 43 and Article 48 of the EC             An action against European Central Bank was brought before
     Treaty;                                                           the Court of Justice of the European Communities on 14 Janua-
                                                                       ry 2000 by Commission of the European Communities,
2. Order the French Republic to pay the costs.                         represented by Christiaan Timmermans, Assistant Director
                                                                       General of the Legal Service, Hans Peter Hartvig and Ulrich
                                                                       Wölker, Legal Advisers, acting as Agents, with an address for
                                                                       service in Luxembourg at the office of Carlos Gómez de la
Pleas in law and main arguments                                        Cruz, of its Legal Service, Wagner Centre, Kirchberg.
Under the third subparagraph, letters (a), (b) and (c), of             The applicant claims that the Court should:
Article 3(2) of Law No 67-5, shipowners who adopt the
form of a company or firm must satisfy certain nationality             — annul the decision of the governors of the European
requirements in regard to both the members of its administrat-             Central Bank of 7 October 1999 on fraud prevention (1);
ive and managerial bodies (paragraph 2(a), (b) and (c)) and the
holders of its capital (paragraph 2(c)). However, the Member           — order the European Central Bank to pay the costs.
States are required to treat any company or firm satisfying the
criteria set out in Article 48 of the Treaty in the same way as
they treat natural persons who are nationals of other Member
States, even where the majority of the members of the board            Pleas in law and main arguments
are not nationals of a Member State of the Community, or
where the company or firm is set up by persons from                    Infringement of Regulation (EC) No 1073/1999 of the Euro-
non-Member countries, or is funded by capital from                     pean Parliament and of the Council of 25 May 1999 concern-
non-Member countries, or is a subsidiary of a parent company           ing investigations conducted by the European Anti-Fraud
established in a non-Member country. The French restrictions           Office (OLAF):
 ---pagebreak--- 29.4.2000              EN                    Official Journal of the European Communities                                     C 122/9
Regulation (EC) No 1073/1999 is applicable to the ECB. The              19 January 2000 by Commission of the European Communi-
European Central Bank (ECB) was established by the EC Treaty            ties, represented by Christiaan Timmermans, Assistant Director
and, subject always to its special statute, constitutes a body of       General of the Legal Service, Hans Peter Hartvig and Ulrich
the Community. The independence claimed by the ECB is                   Wölker, Legal Advisers, acting as Agents, with an address for
merely functional and restricted to the accomplishment of its           service in Luxembourg at the office of Carlos Gómez de la
particular tasks under the Treaty and the Statute of the                Cruz, of its Legal Service, Wagner Centre, Kirchberg.
European System of Central Banks (ESCB). The protection of
the Community’s financial interests may have a wider scope
than the protection of the Community budget, since it extends           The applicant claims that the Court should:
to ‘budgets managed’ by the Communities, such as the
European Development Fund (EDF), and to the budgets of the
decentralised Community organisations which are separate                — annul the decision of the Management Committee of
from the general budget of the Communities and of which                      the European Investment Bank on cooperation with the
some are moreover increased by own revenue. Accordingly,                     European Anti-Fraud Office (OLAF) (1);
the fact that the ECB has its own budget and its own financial
resources does not preclude the application to the ECB of the
measures adopted under Article 280(4) of the EC Treaty, such            — order the European Investment Bank to pay the costs.
as Regulation (EC) No 1073/1999. Even if the distinction
between, on the one hand, the budget of the European
Communities and, on the other, the budget of the ECB and its
own resources were relevant, the ECB would still not fall
outside the scope of the aforementioned regulation, since it            Pleas in law and main arguments
also manages budgetary resources of the Communities. In
point of fact, it levies the Community tax on the salaries and
wages of its directors and staff, and it manages borrowing and          This action has been brought under Article 237(b) EC and, in
lending transactions undertaken by the Communities pursuant             the alternative, under Article 230 EC, and claims in substance
to medium term financial support.                                       that Regulation (EC) No 1073/1999 of the European Parlia-
                                                                        ment and of the Council and Council Regulation (Euratom)
                                                                        No 1074/1999 concerning investigations conducted by the
The contested decision infringes Article 4 of Regulation (EC)
                                                                        European Anti-Fraud Office (OLAF) have been infringed.
No 1073/1999 inasmuch as:
— Article 2 thereof renders entirely nugatory the OLAF’s
     ability to conduct internal inquiries within the ECB               Regulations (EC) No 1073/1999 and (Euratom) No 1074/
                                                                        1999 are applicable to the European Investment Bank (EIB).
                                                                        The EIB was established by the EC Treaty and, subject always
— while it makes no provision for the implementation of the             to its special statute, constitutes a body of the Community.
     obligations under Article 4(6) of the regulation, it imposes       The independence claimed by the EIB is merely functional and
     in particular a duty on the officials of the bank to report        restricted to the accomplishment of its particular tasks under
     any fraud to the Directorate for Internal Audit and to the         the Treaty and its Statute. To date, the EIB has not been able
     antifraud committee set up by the decision but not a duty          to show in what way legislation adopted by the Council in the
     to do so to the OLAF.                                              field of anti-fraud measures would be likely to prevent or
                                                                        obstruct in concreto the EIB in carrying out its task. The
                                                                        protection of the Community’s financial interests may have a
(1) ECB/1999/5, OJ L 291 of 13.11.1999, p. 36.                          wider scope than the protection of the Community budget,
                                                                        since it extends to ‘budgets managed’ by the Communities,
                                                                        such as the European Development Fund (EDF), and to the
                                                                        budgets of the decentralised Community organisations which
                                                                        are separate from the general budget of the Communities,
                                                                        some of which are moreover increased by own revenue.
                                                                        Accordingly, the fact that the EIB has its own budget and its
                                                                        own financial resources does not preclude the application to
                                                                        the EIB of the measures adopted under Article 280(4) of the
Action brought on 19 January 2000 by Commission of                      EC Treaty, such as Regulation (EC) No 1073/1999. Even if the
the European Communities against European Investment                    scope of Article 280(4) were limited to just the financial
                              Bank                                      interests linked to the Community budget, it cannot be denied
                                                                        that Regulation No 1073/1999 must also apply to the EIB
                                                                        inasmuch as it also manages Community budgetary resources.
                          (Case C-15/00)                                In point of fact, it levies the Community tax on the salaries
                                                                        and wages of members of its bodies and of its staff and it
                         (2000/C 122/14)                                also manages Community budgetary resources under specific
                                                                        mandates; another example is the EIB’s management, on behalf
                                                                        of the Community, of risk capital and of interest subsidy
An action against European Investment Bank was brought                  or rebate financed from the resources of the European
before the Court of Justice of the European Communities on              Development Fund (EDF).


title: Case C-142/07: Reference for a preliminary ruling from the Juzgado Contencioso-Administrativo No 22 of Madrid (Spain) of 12 March 2007 — Asociación Ecologistas en Acción-CODA v Ayuntamiento de Madrid

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/4

         Reference for a preliminary ruling from the Juzgado Contencioso-Administrativo No 22 of Madrid (Spain) of 12 March 2007 — Asociación Ecologistas en Acción-CODA v Ayuntamiento de Madrid
   (Case C-142/07)
   (2007/C 129/06)
   Language of the case: Spanish
   Referring court
   Juzgado Contencioso-Administrativo No 22 of Madrid
   Parties to the main proceedings

      Applicant: Spanish Government and the Autonomous Community of Madrid

      Defendant: Ayuntamiento de Madrid
   Questions referred

               1)

               Are the procedural requirements relating to environmental impact assessments arising from Council Directive 85/377/EEC (1), as amended by Council Directive 97/11/EC, of 3 March 1977 applicable to urban road projects, having regard to their nature, size and effect on densely populated areas or on landscapes of historical, cultural or archaeological significance?

               2)

               Are the procedural requirements relating to environmental impact assessments arising from Council Directive 85/377/EEC, as amended by Council Directive 97/11/EC, of 3 March 1997 (2)applicable to the projects which form the subject-matter of this administrative appeal procedure, having regard to their nature, the nature of the road on which they are to be carried out, their characteristics, size, effect on the surrounding area, density of population, budget and the possible splitting up of a larger project which contemplates similar works on the same road?

               3)

               Are the criteria set out in Case C-332/04 (3)
                  Commission v Spain, and specifically those contained in paragraphs 69 to 88 of the judgment, applicable to the projects which are the subject-matter of these proceedings, having regard to their nature, the nature of the road on which they are to be carried out, their characteristics, size, effect on the surrounding area, budget and the possible splitting up of a larger project which contemplates similar works on the same road, such that there was a requirement to submit them to the prescribed environmental impact assessment procedure?

               4)

               Do the relevant administrative records and, specifically, the studies and reports contained therein, demonstrate that the Spanish authorities have, in practice, complied with the obligations arising from Council Directive 85/377/EEC, as amended by Council Directive 97/11/EC, relating to the environmental assessment of the projects which are the subject-matter of these proceedings, even if the project was not formally subjected to the prescribed environmental assessment procedure set out in the Directive?

      (1)  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ L 175, 5.7.1985, p. 40).

      (2)  Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ L 73, 14.3.1997, p. 5).

      (3)  Commission of the European Communities v Kingdom of Spain [2006] ECR I-40.


title: Case F-115/07: Action brought on 22 October 2007 — Balieu-Steinmetz and Noworyta v Parliament

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/48

         Action brought on 22 October 2007 — Balieu-Steinmetz and Noworyta v Parliament
   (Case F-115/07)
   (2007/C 315/92)
   Language of the case: French
   Parties

      Applicants: Marie-Thérèse Balieu-Steinmetz (Sanem, Luxembourg) and Lidia Noworyta (Brussels, Belguim) (represented by: S. Orlandi, A. Coolen, J.-N.Louis and E. Marchal, lawyers)

      Defendant: European Parliament
   Form of order sought
   The applicants claim that the Tribunal should:

               —

               declare illegal the first article of the internal rules adopted by the Appointing Authority ('the AIPN') concerning the fixed allowance for overtime referred to in Article 3 of Annex VI to the Staff Regulations, which entered into force on 1 May 2004, in so far as it establishes a requirement of regularity of the overtime;

               —

               annul the AIPN's express decision of 18 December 2006 rejecting Ms Noworyta's request of 6 July 2006 and the implied decision of 30 November 2006 rejecting Ms Balieu-Steinmetz's request of 13 July 2006;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of their action, the applicants plead, first, infringement of fundamental rights, general principles and the European Social Charter, according to which every worker must be subject to fair conditions of employment, particularly in terms of working time and payment or compensation for overtime worked or because of the particular circumstances of the management of their working hours.
   In particular, they claim that unlike Articles 56a and 56b of the Staff Regulations, Article 3 of Annex VI to the Staff Regulations does not make the possibility of paying a fixed allowance for overtime worked in special conditions subject to a requirement that the overtime be worked on a regular basis. In the applicants' submission, the AIPN fell into error of law by adding that requirement in the internal rules relating to compensation for overtime.
   The AIPN also made a manifest error of law by stating that officials recruited on or after 1 May 2004 cannot be entitled to such an allowance whereas that possibility is expressly referred to in Article 1 of those internal rules.
   In addition, the applicants maintain that the decision to refuse them any compensation or remuneration for those special working conditions infringes Articles 56a and 56b of the Staff Regulations and the principle of equal treatment.
   Finally, in the applicants' submission, the Parliament's position is not coherent since the Director-General of the Directorate-General of the Presidency has stated that no-one in standard telephone works overtime on a regular basis whereas the AIPN concluded, for its part, that a study was in progress to examine the possibilities of harmonising the working conditions in the service in question because, precisely, of the atypical hours worked, outside the general/usual working hours.


title: Case C-55/12: Judgment of the Court (Tenth Chamber) of 25 April 2013 — European Commission v Ireland (Failure of a Member State to fulfil obligations — Directive 2003/96/EC — Taxation of energy products and electricity — Exemption from excise duty on fuel used by disabled persons for motor vehicles — Exemption maintained after the expiry of the transitional period — Infringement)

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/7

         Judgment of the Court (Tenth Chamber) of 25 April 2013 — European Commission v Ireland
   (Case C-55/12) (1)

   (Failure of a Member State to fulfil obligations - Directive 2003/96/EC - Taxation of energy products and electricity - Exemption from excise duty on fuel used by disabled persons for motor vehicles - Exemption maintained after the expiry of the transitional period - Infringement)
   2013/C 171/13
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: R. Lyal and W. Mölls, acting as Agents)

      Defendant: Ireland (represented by: E. Creedon, acting as Agent)

      Re:

   Breach of Council Directive 2003/96/EC of 27 October 2003, on restructuring the Community framework of taxation of energy products and electricity (OJ 2003 L 283, p. 51) — Exemption from excise duty on fuel used by disabled persons for motor vehicles — Exemption maintained after the expiry of the transitional period

      Operative part of the judgment

   The Court:

               1.

               Declares that, by continuing to grant, after the expiry on 31 December 2006 of the transitional period referred to in the first subparagraph of Article 18(1) of Council Directive 2003/96/EC of 23 October 2003 restructuring the Community framework of taxation of energy products and electricity, as amended by Council Directive 2004/74/EC of 29 April 2004, and Annex II to that directive, an exemption from excise duty on fuel used by disabled persons for motor vehicles, Ireland has failed to fulfil its obligations under Article 4(1) of the directive;

               2.

               Orders Ireland to pay the costs.

      (1)  OJ C 89, 24.3.2012.


title: Judgment of the Court (First Chamber) of  15 December 2005  in Case C-26/04: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 76/160/EEC — Quality of bathing waters — Designation as bathing areas — Directive 79/923/EEC — Quality of shellfish waters — Establishment of a pollution reduction programme)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/4

         Judgment of the Court
   (First Chamber)
   of 15 December 2005
   in Case C-26/04: Commission of the European Communities v Kingdom of Spain (1)

   (Failure of a Member State to fulfil obligations - Directive 76/160/EEC - Quality of bathing waters - Designation as bathing areas - Directive 79/923/EEC - Quality of shellfish waters - Establishment of a pollution reduction programme)
   (2006/C 48/08)
   Language of the case: Spanish
   In Case C-26/04, action under Article 226 EC for failure to fulfil obligations, brought on 27 January 2004, Commission of the European Communities (Agent: M.G.Valero Jordana) v Kingdom of Spain (Agent: M.E. Braquehais Conesa) — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, J.N. Cunha Rodrigues (Rapporteur) and E. Levits, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

               1.

               Declares that, by failing to adopt a pollution reduction programme for the shellfish waters of the Ría de Vigo, the Kingdom of Spain has failed to fulfil its obligations under Article 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Commission of the European Communities and the Kingdom of Spain to bear their own costs.

      (1)  OJ C 71 of 20.03.2004.


title: Case T-637/13: Order of the General Court of 28 August 2015 — Bimbo v OHIM — Kimbo (Caffè KIMBO)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/57

         Order of the General Court of 28 August 2015 — Bimbo v OHIM — Kimbo (Caffè KIMBO)
   (Case T-637/13) (1)

   (2015/C 381/69)
   Language of the case: English
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 52, 22.2.2014.


title: Case T-194/07: Order of the General Court of 26 April 2013 — Czech Republic v Commission

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/40

         Order of the General Court of 26 April 2013 — Czech Republic v Commission
   (Case T-194/07) (1)

   2013/C 171/81
   Language of the case: Czech
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 199, 25.8.2007.


title: Case C-107/09 P: Appeal brought on 20 March 2009 by the Kingdom of Spain against the judgment delivered by the Court of First Instance (Third Chamber, extended composition) on 18 December 2008 in Joined Cases T-211/04 and T-215/04 Government of Gibraltar and United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/23

         Appeal brought on 20 March 2009 by the Kingdom of Spain against the judgment delivered by the Court of First Instance (Third Chamber, extended composition) on 18 December 2008 in Joined Cases T-211/04 and T-215/04 Government of Gibraltar and United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities
   (Case C-107/09 P)
   2009/C 141/42
   Language of the case: English

      Parties

      Appellant: the Kingdom of Spain (represented by: N. Díaz Abad and J.M. Rodríguez Cárcamo, Agents)

      Other parties to the proceedings: Government of Gibraltar, United Kingdom of Great Britain and Northern Ireland and Commission of the European Communities

      Form of order sought

               —

               set aside in full the judgment of the Court of First Instance under appeal and give a new judgment, declaring Commission Decision 2005/261/EC of 30 March 2004 on the aid scheme which the United Kingdom is planning to implement as regards the Government of Gibraltar Corporation Tax Reform (1) to be lawful;

               —

               order the respondents to pay the costs.

      Pleas in law and main arguments

               1.

               Infringement of Article 299(4) EC, as it has been interpreted in the case-law of the Court of Justice. First, the judgment under appeal disregards the legal status of Gibraltar according to the case-law of the Court of Justice of the European Communities (judgments of 23 September 2003 and 12 September 2006), since it fails to state that Gibraltar was ceded by the King of Spain to the British Crown under the Treaty of Utrecht 1713 and since it makes a number of errors in describing the status of Gibraltar. Second, the judgment under appeal also infringes Article 299(4) EC in that it affords Gibraltar the possibility, in the field of taxation, to separate itself from the United Kingdom, which means that, in that field, the United Kingdom ceases to be responsible for the external relations of Gibraltar and that the latter is converted de facto into a new Member State for the purposes of taxation.

               2.

               Infringement of Article 87(1) EC by interpreting it in a manner which precludes its application by the Community when tackling tax havens identified by the OECD. Gibraltar is considered a tax haven by the OECD. The judgment under appeal, in holding that no comparison can be made between business activity in Gibraltar and that in the United Kingdom, is in breach of the principles of the OECD, according to which measures which may be general in Gibraltar may be harmful to OECD member countries, which include the United Kingdom. Article 87(1) EC must be interpreted in accordance with OECD principles, so that that comparison is not only possible but necessary.

               3.

               Infringement of the ECB Guideline of 16 July 2004 when applying Article 87(1) EC. The European System of Central Banks regards Gibraltar, together with 37 other territories, as an offshore financial centre distinct from the United Kingdom with regard to balance of payments, international investment position and international reserves. The analysis in the judgment under appeal, which precludes a comparison between business activity in Gibraltar and the United Kingdom, is at odds with that definition, which does consider such a comparison to be possible, and entails a breach of a binding rule of Community law, namely the ECB Guideline of 16 July 2004, in the application of Article 87(1) EC.

               4.

               Infringement of Article 87(1) EC by failing to observe the requirement that aid must be granted ‘by a Member State or through State resources’. Given that Gibraltar is a territory which is not part of a Member State, pursuant to Article 299(4) EC, the finding in the judgment that the reference framework for the application of Article 87(1) EC corresponds exclusively to the geographical limits of the territory of Gibraltar is tantamount to treating Gibraltar as a Member State, since otherwise it would never be possible to fulfil the requirement that the aid be granted ‘by a Member State or through State resources’.

               5.

               Infringement of the principle of non-discrimination, by applying without good cause the rules in the Azores judgment (Case C-88/03) to a situation other than the one envisaged therein. There are two differences between the Azores case and the case considered in the judgment under appeal. First, the Azores is a territory of a Member State, which is not the case of Gibraltar, and, second, in the Azores case the Court of Justice examined a reduction of the corporate tax rate, whilst in the case of Gibraltar what is at issue is a new general corporate tax system.

               6.

               Infringement of Article 87(1) EC, by holding that, from the point of view of regional selectivity, the conditions for State aid have not been satisfied. Specifically, the Kingdom of Spain argues that the judgment erred in law in finding that the three requirements of political autonomy, procedural autonomy and economic autonomy established by the Azores judgment were met.

               7.

               Error in law by failing to assess and apply the fourth condition put forward by the Kingdom of Spain in the proceedings at first instance. Even if the three conditions of the Azores judgment were held to be satisfied, the Court of First Instance should have set a fourth harmonisation condition in relation to the domestic tax system of the Member State which introduced the measure.

               8.

               Infringement of Article 87(1) EC by holding that, from the point of view of material selectivity, the conditions for State aid have not been satisfied. Even on the assumption that Gibraltar is an autonomous reference framework in which the conditions of the judgment in Azores are met, the judgment under appeal infringed Article 87(1) EC in its consideration of material selectivity, given that the Court of First Instance in its analysis did not take into account that the corporation tax reform which Gibraltar is seeking to implement creates a system in which, of the 29 000 companies in existence in Gibraltar, 28 798 undertakings may be subject to a zero rate of taxation. The measure particularly favours those companies and the judgment under appeal, in failing to recognise that, infringed Article 87(1) EC. Furthermore, contrary to what is maintained in the judgment, the Commission did indeed identify the common tax regime.

               9.

               Failure to state reasons in the judgment with regard to the assessment of the ‘fourth condition’ put forward by the Kingdom of Spain.

               10.

               Infringement of the fundamental right to have the proceedings disposed of within a reasonable period, since the proceedings before the Court of First Instance lasted virtually twice as long as a normal case without any justification being given for that, whilst that situation had a significant impact on the proceedings.

               11.

               Infringement of Article 77(a) and (b) of the Rules of Procedure of the Court of First Instance in that the Court failed to stay the proceedings after hearing the parties.

      (1)  OJ 2004 L 85, p. 1.


title: Case C-84/13 P: Judgment of the Court (Tenth Chamber) of 3 July 2014  — Electrabel SA v European Commission (Appeal — Concentration of undertakings — Commission decision — Order for payment of a fine — Infringement of Article 7 of Regulation (EEC) No 4064/89 — Control of concentrations between undertakings — Article 14(3) — Criteria to be taken into account in determining the amount of the fine — Taking into account the duration of the infringement — Principle of non-retroactivity of the law — Application of Regulation (EC) No 139/2004 — Obligation to state reasons)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/6

         Judgment of the Court (Tenth Chamber) of 3 July 2014 — Electrabel SA v European Commission
   (Case C-84/13 P) (1)

   ((Appeal - Concentration of undertakings - Commission decision - Order for payment of a fine - Infringement of Article 7 of Regulation (EEC) No 4064/89 - Control of concentrations between undertakings - Article 14(3) - Criteria to be taken into account in determining the amount of the fine - Taking into account the duration of the infringement - Principle of non-retroactivity of the law - Application of Regulation (EC) No 139/2004 - Obligation to state reasons))
   2014/C 292/07
   Language of the case: French

      Parties

      Appellant: Electrabel SA (represented by: M. Pittie and P. Honoré, lawyers)

      Other party to the proceedings: European Commission (represented by: C. Giolito, V. Di Bucci and A. Bouquet, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Electrabel SA to pay the costs.

      (1)  OJ C 129, 4.5.2013.


title: Case T-334/17: Action brought on 31 May 2017 — Cargolux Airlines v Commission

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/57

         Action brought on 31 May 2017 — Cargolux Airlines v Commission
   (Case T-334/17)
   (2017/C 239/70)
   Language of the case: English

      Parties

      Applicant: Cargolux Airlines International SA (Sandweiler, Luxembourg) (represented by: G. Goeteyn, Solicitor, E. Aliende Rodríguez, lawyer, and C. Rawnsley, Barrister)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               in the event that the Court upholds the First, Second, Third or Fourth pleas, annul in their entirety Articles 1(1) to 1(4) of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (AT.39258 — Airfreight), insofar as they relate to Cargolux;

               —

               in the event that the Court upholds the Fifth plea,

                           —

                           annul Article 1(1) in its entirety, or if Article 1(1) is not annulled in its entirety, annul Article 1(1): (i) insofar as it relates to Security Surcharge and commissioning; (ii) insofar as it relates to the period 22 January 2001 to end of 2002; and (iii) insofar as it makes any finding of involvement in cartel conduct as that term is normally understood prior to 10 June 2005 at the earliest;

                           —

                           annul Article 1(2) in its entirety, or if Article 1(2) is not annulled in its entirety, annul Article 1(2): (i) insofar as it relates to Security surcharge and commissioning; (ii) insofar as it makes any finding of involvement in cartel conduct as that term is normally understood prior to 10 June 2005 at the earliest;

                           —

                           annul Articles 1(3) and 1(4) in their entirety.

               —

               in the event that the Court upholds the Sixth plea, to annul Articles 1(2) and 1(3) of the contested decision insofar as they purport to find Cargolux to have participated in any infringement relating to inbound routes (i.e. from third country airports to airports inside the EU or in Iceland and Norway);

               —

               cancel the fine imposed on Cargolux in Article 3 and, if the Court does not cancel the fine in its entirety, substantially reduce it pursuant to its unlimited jurisdiction;

               —

               make the necessary consequential orders in respect of Article 4 insofar as it concerns Cargolux;

               —

               order the Commission to pay Cargolux’ costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment in that the Commission acted ultra vires by relying on evidence for routes and during periods over which it had no jurisdiction.

                           —

                           The applicant puts forward that the Commission has unduly extended its jurisdiction by relying on evidence pre-dating: (a) 1 May 2004 in relation to EU-third country routes; (b) 19 May 2005 in relation to EEA (non EU Member States)-third country routes; and (c) 1 June 2002 in relation to EU-Switzerland routes, in support of its finding an infringement of Article 101 TFEU and Article 53 EEA Agreement in relation to intra-EEA routes.

               2.

               Second plea in law, alleging a breach of essential procedural requirement, a breach of rights of defence and a manifest error of assessment in that the Commission has breached essential procedural requirements and the applicant’s rights of defence by not issuing a new statement of objections prior to re-adoption.

                           —

                           The applicant puts forward that the Commission was wrong to conclude that it was not required to issue a new statement of objections prior to its re-adoption of the contested decision, thereby breaching the applicant’s right of defence.

               3.

               Third plea in law, alleging an error of law and a manifest error of assessment in that the Commission failed to carry out the necessary assessment of the legal and economic context in order to validly find a by object infringement.

               4.

               Fourth plea in law, alleging a breach of essential procedural requirement, a failure to give reasons, a breach of rights of defence and a manifest error of assessment of law and fact in that the Commission failed to identify with sufficient particularity the scope and parameters of the supposed infringement of Article 101 TFEU and the other relevant provisions.

                           —

                           The applicant puts forward that the over-stretching of the concept of single continuous infringement has led to an irremediable blurring of the scope of the infringement, making it impossible to grasp its content.

               5.

               Fifth plea in law, alleging a manifest error of assessment in that the Commission failed to establish a reliable evidential basis for its conclusions or to prove the facts on which it bases its findings to the required legal standard.

                           —

                           The applicant puts forward that the contested decision contains errors of fact and mistaken assessments in relation to all three constituent elements (FSC, SSC and commissioning of surcharges) of the alleged single and continuous infringement. According to the applicant, the Commission has also misused the concept of single and continuous infringement as a catch all designed to allow it to present as ‘evidence’ a disparate collection of facts and contacts, including conduct that is legal or irrelevant.

               6.

               Sixth plea in law, alleging an error of law in that the Commission wrongly asserted jurisdiction over supposed anti-competitive coordination in relation to flights from third country airports to airports inside the EEA and erred in law since such activities are outside the territorial scope of Article 101 TFEU and Article 53 of the EEA Agreement.

               7.

               Seventh plea in law, in relation to the request for review of the fine pursuant to the unlimited jurisdiction of the Court, alleging a manifest error of assessment and a breach of the principle of proportionality.

                           —

                           The applicant puts forward that the Commission incorrectly determined the value of sales by wrongly taking into account inbound flights and grossly overstated the overall gravity of the alleged infringement. In relation to the applicant, the Commission wrongly assessed the gravity and duration of the alleged infringement and mistakenly rejected mitigating factors.